author: CHERRY, J,

text:
    Kizina v. Kizina

      John R. Ryan, for plaintiff.

      John Sughrue, for defendant.
    October 24, 2007
   CHERRY, J,

This matter comes before the court following the filing by defendant, Lyle Michael Kizina, for an award of alimony, counsel fees, costs and expenses. Hearing on the above issues was held on July 6, 2007. Defendant, Lyle Michael Kizina, filed a motion requesting the court to maintain an open record pending submission of medical testimony and records. This court denied the motion by order of court dated August 20, 2007. Both parties timely filed their respective briefs. Upon consideration of the testimony and briefs, the court enters the following:

OPINION

The parties to this action were married on July 22, 1978 and separated on or about September 10,2005. The parties have lived continuously separate and apart since that date. The plaintiff in this action is Sheri Jean Kizina, age 50, d.o.b. December 18, 1956. The defendant in this action is Lyle Michael Kizina, age 53, d.o.b. February 25, 1957. There were two children born of this marriage. Both children are now adults and neither are dependent upon either of the parties for support. At the time of the parties’ marriage, defendant, Lyle Michael Kizina, was employed by Lawrence Township as a police officer and plaintiff was employed at Wolf’s Furniture in a clerical position. For the first 10 years of the parties’ marriage, plaintiff continued to work at minimum wage jobs outside the home except for the time taken when her children were born. In 1985 the defendant left the Lawrence Township Police Department and obtained employment on the Lawrence Township Road Maintenance Crew where he continued to work until 1986 when he suffered a back injury. The defendant has not worked since 1986. The defendant was awarded Social Security disability two or three years later and continues to receive said benefits in the amount of $1,198 per month. Defendant also receives Medicare insurance.

Plaintiff enrolled as a full-time student at Lock Haven University in 1989 seeking to obtain a nursing degree. She graduated in 1992 with an associates degree as a registered nurse. During the time plaintiff was a full-time student, the parties lived on an inheritance that the plaintiff had received from her father’s estate and on the disability payments received by the defendant. Testimony presented at hearing established that the plaintiff paid for her education through grants and student loans. Following graduation, plaintiff was employed as a nurse at the Tyrone Hospital for approximately a six-month period before obtaining employment at DuBois Regional Medical Center where she continues to work at the present time.

The parties separated on September 6,2005 and have lived separate and apart since that date. At the time of their separation, the parties’ marital residence was 21 Chevy Lane, Lawrence Township, Clearfield County, Pennsylvania.

Shortly after the date of the final separation, the plaintiff filed a petition under the Protection From Abuse Act alleging certain acts of physical and verbal abuse on the part of the defendant. A final order was entered by this court granting the petition on October 25, 2005. The defendant failed to appeal or otherwise contest this order. The court finds as fact that the allegations contained in said petition as they were not contested by the defendant, are true and that the behavior of the defendant was the primary reason for the plaintiff’s decision to leave the marital residence and to seek a divorce from the defendant.

From the time of the parties’ final separation in September 2005 until November 2006, the defendant continued to reside in the former marital residence. During that period of time, the plaintiff provided for the support and maintenance of the defendant by making the mortgage payments, (first and second mortgage encumbering the marital property); by making the lease payments on the vehicle in the possession of the defendant; by paying copay amounts on health care expenses incurred by the defendant and by making certain utility payments on the marital residence. The court hereby finds as fact that, during that period of time, plaintiff paid a total of $16,171.09 for the support and maintenance of the defendant.

The marital residence of the parties was sold by the parties on November 15, 2006. Following payment of the mortgages encumbering the premises, realtors commission and other closing costs, no net proceeds were realized from the sale.

Since the time of the parties’ final separation, plaintiff has paid the sum of $208 each month to provide health insurance for the defendant through her employment and has continued to do so through the present time.

The court hereby finds as fact that the plaintiff currently earns a gross income of $3,009 per month from her employment at DuBois Regional Medical Center. The court also hereby finds that plaintiff has monthly expenses of approximately $3,000. The court hereby finds that the monthly expenses reported by plaintiff are fair and reasonable and hereby accepts those expenses as set forth in plaintiff’s income and expense statement as true and correct.

The court hereby finds as fact that the defendant currently has monthly income in the amount of $1,198 and receives food stamps in the amount of $10 per month. He has monthly expenses of $2,408 which includes payment on his fines and costs incurred as a result of his driving under the influence arrest and admittance into the Accelerated Rehabilitative Disposition Program in Clearfield County. The court further finds that defendant claimed he was making payments for personal loans. However, no documentation to substantiate the same was offered into evidence. The court also finds the defendant is paying a higher auto insurance premium as a result of his D.U.I. arrest which occurred after the date of separation.

The court hereby finds as fact that the defendant recently received the net sum of $11,205 from the sale of the 1979 Corvette, a marital asset, in which the plaintiff had agreed may be sold with the entire proceeds to become the sole property of the defendant. The testimony presented at hearing established that the defendant, from the above amount of $11,205, paid his counsel $6,000 and used the remaining monies to pay off the fines and costs referred to above. In addition, the defendant retained other marital assets.

This court finds that the defendant has retained the majority of the assets comprising the marital estate. The court finds that neither party has any reasonable expectation of receiving any inheritances or other sums of money other than their income. Both parties lived beyond their means during the course of their marriage which resulted in the filing of a joint bankruptcy petition. Neither party brought property into the marriage of any appreciable value for consideration by the court.

The evidence clearly shows that Husband is fully disabled and unable to work. It shows that Husband has suffered and continues to suffer from a significant health diminishing condition. The evidence clearly shows Husband’s limited income and this fact is unlikely to increase significantly in his lifetime. However, based upon the testimony presented at hearing, the court hereby finds that, during the time the defendant has been in receipt of his disability benefits, he has never attempted to avail himself of the services of the Department of Vocational Rehabilitation nor has he sought any type of education or retraining or has never made any effort whatsoever to re-enter the job market at a position within his physical limitations. Furthermore, the defendant has failed to ascertain whether any benefits, medical or otherwise, are available to him as a veteran of the Armed Services.

Based upon the testimony and evidence presented, this court cannot find as a fact that the Defendant is incapable of obtaining employment to support himself despite his medical problems. The fact that he has chosen not to do so does not compel a finding to the contrary.

Based upon the testimony and evidence of record, the court hereby finds that, except for the performance of household chores and duties by the defendant, neither party made any substantial contribution to the education, training or increased earning capacity of the other party.

The court also finds that, at the time of the separation of the parties, defendant was abusing prescription medications. Plaintiff tried to encourage the defendant to seek help for his addictive behaviors. The defendant refused to do so. The court hereby finds plaintiff’s testimony to be credible on this issue. Plaintiff’s testimony was corroborated by the testimony of defendant’s brother to the period of time immediately prior to the parties’ separation.

This court has considered the testimony and evidence submitted at the time of hearing by both parties as well as the pre-hearing documents filed by the parties. The relevant factors governing an award of alimony are set forth in 23 Pa.C.S. §3701(b). Preliminarily, the court notes that, “the purpose of alimony is not to reward one party and punish another, but rather to ensure that the reasonable needs of the person who is unable to support himself/herself through appropriate employment are met.” Jayne v. Jayne, 443 Pa. Super. 664, 675, 663 A.2d 169, 174 (1995), citing Nemoto v. Nemoto, 423 Pa. Super. 269, 620 A.2d 1216 (1993). In Jayne, the court noted the master specifically considered all relevant factors as set forth in 23 Pa.C.S. §3701 for determining whether alimony is necessary and determined a temporary award of alimony was necessary under all the circumstances in the case, including the fact that wife was not presently able to support herself. Id.

Additionally, the court has stated “[ajlimony following divorce is a secondary remedy and is available only where economic justice and the reasonable needs of the parties cannot be achieved by way of an equitable distribution award and development of an appropriate employable skill.” Nemoto v. Nemoto, 423 Pa. Super, at 275-76, 620 A.2d at 1219 (citations omitted); McNaughton v. McNaughton, 412 Pa. Super 409, 603 A.2d 646 (1992).

In Fischer v. Fischer, the court stated:

“As previously noted, neither equitable distribution nor alimony may be considered in a vacuum. To some extent at least, they operate in inverse proportion to one another. As the property distribution increases, wife has more assets to produce income, and thus less need for alimony. If one takes a nickel of the cost of rutabaga and adds it to the leeks, the total grocery bill is the same. Similarly, by adding to the cash wife receives in the property distribution, her need for alimony should be reduced.” Fischer v. Fischer, 33 D.&C.3d 69, 76 (1984).

This court has analyzed the testimony and evidence in light of the applicable factors set forth at 23 Pa.C.S. §3701 (b) in determining whether or not to make an award of alimony to the defendant. This court hereby finds that the plaintiff has provided for the support of the defendant during the period from the time of the separation in September 2005 up to and including the time of hearing by making payments in the total amount of $ 16,171.09. This court hereby finds that, while plaintiff’s income clearly is more than that of defendant, she is presently unable to contribute to his support by paying alimony, costs and expenses and continue to support herself.

This court is not convinced that the defendant is incapable of gainful employment to supplement his income. He has failed to exhaust or even inquire into additional benefits which may be available to him and has failed to seek further education or training which would enable him to obtain employment within his physical limitations. He has failed to contact the Office of Vocational Rehabilitation to inquire as to the possibility of employment. The court hereby finds that the defendant has previously received a substantial majority of the marital assets which includes the 1979 Corvette.

Based upon the testimony presented at hearing, the court hereby concludes that the conduct of the defendant was the primary cause of the parties’ final separation. As such, defendant’s request for alimony, counsel fees and expenses is not warranted.

Based upon the foregoing, the court enters the following:

ORDER

And now, October 24, 2007, following hearing and the timely receipt of briefs and upon consideration of same, it is the order of this court that defendant’s claim for alimony, counsel fees, costs and expenses shall be and is hereby denied.


source: Caselaw Access Project

author: CHESLOCK, J,

license: Public Domain

text:
    Mansour v. Gnaden Huetten Memorial Hospital

      Aaron J. Freiwald, for plaintiffs.

      James A. Doherty Jr., Patrick C. Carey, John R. Hill, Timothy J. Holland, Laura J. Herzog, Frederick J. Stellato and Cathleen Kelly, for defendants.
    December 28, 2007
   CHESLOCK, J,

This matter is before the court on several defendants’ preliminary objections to plaintiffs’ second amended complaint. On June 19, 2007, plaintiffs Taghreed Samir Mansour by Fawzia Mansour and Ahmed Mansour filed a complaint alleging medical negligence against Gnaden Huetten Memorial Hospital, Harold Pascal M.D., lian Levinson M.D., Salisbury House of Northeast PA, Reena Mathew M.D. now by stipulation Reena Andrews, Marc M. Kueler M.D. and Charles Cohan D.O. Thereafter, on August 20,2007, plaintiffs filed first amended complaint and on September 21, 2007, plaintiffs filed a second amended complaint. On September 26, 2007, Gnaden filed preliminary objections to the second amended complaint; Dr. Kueler filed preliminary objections to plaintiffs’ second amended complaint on October 3, 2007; Dr. Levinson filed preliminary objections to plaintiffs’ second amended complaint on October 5, 2007; Salisbury filed preliminary objections to plaintiffs’ second amended complaint on October 5, 2007; and on October 9, 2007, Dr. Cohan filed preliminary objections to plaintiffs’ second amended complaint. The court heard oral arguments on all of these matters on November 5,2007. We are now prepared to dispose of this matter.

Due to the volume of the preliminary objections which were filed, we will take each preliminary objection in the order in which it was filed by each defendant.

The Pennsylvania Rules of Civil Procedure provide as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
“(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;
“(3) insufficient specificity in a pleading;...
“(b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may not be inconsistent. Two or more preliminary objections may be raised in one pleading.” Pa.R.C.P. 1028(a)(3), (b)

PRELIMINARY OBJECTIONS OF GNADEN

Gnaden filed preliminary objections in the nature of a motion to strike paragraph 17 of plaintiffs’ second amended complaint claiming that it is insufficiently specific and should be stricken. Paragraph 17 of plaintiff’s second amended complaint states as follows:

“(17) At all relevant times, defendant GHMH acted through conduct of its employees, including but not limited to physicians, technicians, nurses and other staff who provided medical care and treatment to Taghreed Mansour, as identified in the medical records.”

It is a function of a pleading to put the opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. See 2 Goodrich-Amram 2d, section 1019:2.1 (2001). Pa.R.C.P. 1019(a) requires a content of a pleading to set forth material facts on which the cause of action or defense is based in a concise and summary form. Allegations will withstand challenge under section 1019(a) where they contain averments as to all of the facts plaintiffs will have to prove to recover and disclose the sufficient specific facts to enable the adverse party to prepare his case. Smith v. Wagner, 403 Pa. Super. 316, 588 A.2d 1308 (1991); Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974). Moreover, courts do not require minute detail in the pleadings but rather allegations of fact, if proven, which will support recovery in the case.

Upon reviewing paragraph 17 of plaintiffs’ second amended complaint, we believe that plaintiffs should have to identify the agent’s name and/or their authority and how the tortious act of the agent falls within the scope of authority. As such we believe that Gnaden is entitled to know the identities as well as the authority of these agents. Although paragraph 17 refers to these agents as being identified in the medical records, we believe plaintiffs should specifically identify the agents and their authority within the body of the complaint. Accordingly, we will strike paragraph 17 and permit the plaintiffs to file a third amended complaint setting forth specifically the agents and the scope of their authority authorized by Gnaden.

PRELIMINARY OBJECTIONS OF DR. KUELER

Dr. Kueler has filed preliminary objections to plaintiffs’ second amended complaint in the nature of a motion to strike paragraphs 57 and 89(a), (b) and (c) for lack of specificity. Dr. Kueler also filed preliminary objections in the nature of a demurrer or a motion to strike claims of flagrant and gross negligence. However, at oral argument plaintiff agreed to withdraw the punitive claim. Accordingly, we will address the sole remaining objection of Dr. Kueler in the nature of a motion to strike paragraphs 57 and 89(a), (b) and (c) of plaintiffs’ second amended complaint.

Paragraph 57 of plaintiffs’ second amended complaint reads as follows:

“Defendant’s failure to treat and/or admit Taghreed Mansour to the hospital in light of her abnormal chemistry and her ‘persistent symptoms’ amounts to a flagrant, reckless and gross deviation from the ordinary standard of care. Instead of treating Taghreed Mansour, Drs. Cohan, Levinson and Mathews abandoned her and sent her home to die.”

Dr. Kueler argues that the above allegation refers to the defendants generally and does not set forth specifically which defendant flagrantly, recklessly and grossly deviated from the ordinary standard of care. Accordingly, Dr. Kueler asks this court to strike paragraph 57. We agree.

Pennsylvania Rule of Civil Procedure 1019(a) requires that a complaint state “material facts” to support the cause of action. “A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought.” Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996). (citations omitted) “The Pennsylvania appellate courts have [stated] ‘while it is not necessary that the complaint identify the specific legal theory of the underlying claim, it must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.’” Clarkson v. Geisinger Medical Center, 46 D.&C.4th 431, 435 (Montour Cty. 2000). (citation omitted) The Clarkson court stated that, “a physician charged with negligence and unskillfulness in the practice of his profession is entitled to be advised of the specific acts of commission or omission which constitutes the negligence and unskillfulness complained of, so that plaintiff’s proof may be confined to such acts, and so that he may reasonably prepare his defense.” Id. (citations omitted)

Reviewing paragraph 57 of plaintiffs’ second amended complaint, we believe that it is necessary for the plaintiffs to set forth specifically which defendants fail to treat and/or admit Taghreed Mansour to the hospital which amounted to a flagrant, reckless and gross deviation from the ordinary standard of care. Accordingly, we will sustain Dr. Kueler’s motion to strike paragraph 57. However, we recognize that “the right to amend should not be withheld where there is some reasonable possibility that the amendment may be accomplished successfully.” Hoza v. Hoza, 302 Pa. Super. 72, 78, 448 A.2d 100, 103 (1982). (citation omitted) As we believe that plaintiffs may successfully amend their complaint in this manner and set forth with specificity the defendants to which they refer, we will allow plaintiffs to file a third amended complaint.

In addition, Dr. Kueler asks this court to strike paragraph 89(a), (b) and (c) for lack of specificity. Paragraph 89 reads as follows:

“The negligence of Dr. Kueler includes the following:
“(a) failure to appreciate the significance Taghreed Mansour’s abnormal liver chemistries; and
“(b) failure to adequately and appropriately treat Taghreed Mansour’s liver failure.
“(c) failure or order and/or admit Taghreed Mansour to the hospital once signs and symptoms of Depakote poisoning appeared.”

Dr. Kueler argues that these allegations are mere general allegations of negligence and conclusions of law with no specific facts. Dr. Kueler maintains that paragraph 89(a), (b) and (c) does not set forth specifics on how he failed to adequately and inappropriately treat plaintiff. In the case of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983), the court held that a complaint containing boilerplate allegations of negligence could be amended to add specific factual allegations of negligence even after the statute of limitations had run. In allowing the plaintiff in Connor to amend the complaint, the court opined that the language that the defendant was negligent “and otherwise failing to use due care and caution under the circumstances” was sufficient to allow the amendment since it amplified the general allegation of negligence. Since that time, defense attorneys have filed preliminary objections in the nature of a motion to strike or motion for a more specific pleading so as to avoid the general allegations of negligence which may later be amended to amplify the general negligence allegations. However, we find that in medical malpractice cases, the defendants have equal awareness of the facts and in many cases superior knowledge and understanding of the significance of the procedures and treatments involved. With this in mind, we believe that paragraph 89 is sufficiently pleaded to allow Dr. Kueler to respond and formulate a defense, particularly since further clarification may be obtained through the discovery process. We do not believe that the allegations in paragraph 89 are so general which would allow an amplification of the claim against Dr. Kueler beyond his alleged failure to order and/or admit Taghreed to the hospital, the abnormal liver chemistries and liver failure. Accordingly, we will overrule Dr. Kueler’s preliminaiy objections in the nature of a motion to strike paragraph 89.

PRELIMINARY OBJECTIONS OF DR. LEVINSON

Dr. Levinson has filed preliminary objections to plaintiffs’ second amended complaint in the nature of amotion to strike plaintiffs’ allegations of recklessness and gross negligence and dismiss plaintiffs’ claim for punitive damages. Pennsylvania Rule of Civil Procedure 1019(a) requires that a complaint state “material facts” to support a cause of action. “A cause of action in negligence has been defined as a negligent act or acts which occasioned the injury for which relief is sought.” Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996). (citations omitted) Pennsylvania appellate courts have stated that it is not necessary for a complaint to identify the specific legal theory underlying the claim, however, it must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim. Clarkson, supra at 435.

Dr. Levinson requests this court to strike paragraphs 57, 102-11 and any allegations of recklessness and/or plaintiffs’ claim for punitive damages. As we stated above, paragraph 57 set forth above is not sufficiently specific as to which defendant it refers. Hence, we will permit plaintiffs to amend their pleading to set forth the specific defendants.

Restatement (Second) of Torts, §908 was adopted in Pennsylvania and states as follows:

“Punitive damages are damages ... awarded against the person to punish him for his outrageous conduct or to deter him and others like him from similar conduct in the future.

“Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the right of others.”

Outrageous conduct has been defined as an act done with bad motives or reckless indifference to others. “The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care.” Albright v. Abington Memorial Hospital, 548 Pa. 268, 278, 696 A.2d 1159, 1164 (1997). (citation omitted) We see nothing in this complaint which would give rise to an award of punitive damages against Dr. Levinson. Plaintiffs have not pleaded any ill motive or reckless indifference Dr. Levinson had towards Taghreed to support the award of punitive damages against him. As such, we will dismiss plaintiffs’ complaint for punitive damages against Dr. Levinson.

Dr. Levinson further requests that we strike plaintiffs’ allegations of recklessness from paragraphs 102 to 111. We note that the second amended complaint contains the word reckless or recklessness in paragraphs 103, 108, 110 and a claim for punitive damages in paragraph 111. As set forth above, punitive damages may be awarded where the defendants’ conduct is outrageous which has' been defined as an act done with bad motive or reckless indifference to the interest of others. In reviewing the complaint as a whole, we cannot say that the plaintiff has alleged facts to support bad motive or reckless indifference of Dr. Levinson towards the interest ofTaghreed. Although we recognize that plaintiffs allege that this is not a case of mere inadvertence, but where doctors and nurses negligently managed a prescription of a highly potent and toxic medication, we cannot say that this rises to a level of outrageous wanton conduct or reckless indifference to allow the imposition of punitive damages. Hence, we will sustain defendant’s preliminary objection and strike the word “recklessness” from the above mentioned paragraphs and further strike plaintiffs’ claim for punitive damages.

Finally, Dr. Levinson, has filed preliminary objections in the nature of amotion to strike plaintiffs’ allegations of gross negligence in paragraphs 67 through 69. Gross negligence has been defined to mean a form of negligence where the facts support substantially more than ordinaiy carelessness, inadvertence, laxity, or indifference. The behavior of the defendant must be flagrant, grossly deviating from the ordinary standard of care. Id. As set forth above, we do not believe that the allegations in plaintiffs’ second amended complaint rise to the level of gross negligence. Accordingly, we will sustain Dr. Levinson’s motion to strike allegations of gross negligence from paragraphs 67 to 69 of plaintiffs’ second amended complaint.

PRELIMINARY OBJECTIONS OF SALISBURY BEHAVORIAL HEALTH INC. d/b/a MILESTONES COMMUNITY HEALTHCARE INC.

Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc. (Milestones) filed preliminary objections to plaintiffs’ second amended complaint arguing that plaintiffs have failed to initiate original process on it for the original complaint on June 20,2007, therefore; service by first-class mail of the first amended and second amended complaint do not constitute original process since Milestones was not an original party to this action. Milestones argue that plaintiffs cannot add a new defendant by simply amending the complaint and that the plaintiffs must adhere to Pennsylvania Rules of Civil Procedure 2232(c) if it seeks to add a new defendant to the existing cause of action.

The court notes that in the plaintiffs’ original complaint filed on June 19,2007, Salisbury House of Northeast PA is listed as a defendant. Plaintiffs’ first amended complaint lists Salisbury Real Holdings f/k/a Salisbury House of Northeast PA and Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc. as defendants. Plaintiffs filed their second amended complaint on August 21, 2007.

It is clear in Pennsylvania that the only proper way to commence an action is by proceeding in accordance with the clear and unambiguous language found in Pa.R.C.P. 1007. Although Rule 1007 states that a plaintiff can commence an action by complaint, it does not state that an action may be commenced by filing an amended complaint. Once an action has been commenced, a defendant must be provided notice of the action pursuant to the rules as set forth in the Pennsylvania Rules of Civil Procedure, Rules 400-430. Rule 400 indicates who may make service and Rule 402 provides the manner of service to be made. Specifically, Rule 402 requires:

“(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
“(h) 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.”
The sheriff’s return of service regarding Milestones indicates that the Monroe County Sheriff’s Department served Justin Dugan (case manager) at 1020 Cherry Lane Road, East Stroudsburg on September 6, 2007. Milestones contends that the service upon it of the amended complaint is improper and does not constitute service by original process because it was not a defendant contained in the original complaint filed by plaintiffs. In response, the plaintiffs contend that on September 6, 2007, they served Milestones with a copy of the amended complaint at 1020 Cherry Lane Road, East Stroudsburg, PA, which constituted service by original process. Plaintiffs contend that Milestones was an original party defendant to this action but improperly designated as Salisbury House of Northeast PA.

The Rules of Civil Procedure provide that the action against a corporation shall be prosecuted in the corporation’s name. Pa.R.C.P. 2177. As defined in Pa.R.C.P. 2176, “ ‘corporate name’ means any name, real or fictitious, under which a corporation or similar entity was organized, or conducts business, whether or not such name has been filed or registered.”

Plaintiffs argue that Milestones was incorrectly designated as Salisbury House of Northeast PA and that the first amended complaint was simply done to correct the corporate designation. We do not agree. The Pennsylvania Bureau of Corporations lists may corporations with the name beginning with Salisbury. Specifically we found Salisbury House of Northeast PA, Salisbury Real Holdings Inc. and Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc. We do not believe that plaintiffs can simply amend the name and caption of an action where two separate and distinct corporate entities exist. We believe that the question before the court is whether the defendant must be named in and served with the original complaint to be a proper party to the litigation.

Instantly, plaintiffs did not petition the court to join Milestones as a party to this action. Plaintiffs simply joined Milestones by filing an amended complaint which is impermissible. Mikkilineni v. Amwest Surety Insurance Co., 919 A.2d 306 (Pa. Commw. 2007). The Pennsylvania Rules of Civil Procedure provide the proper method for adding additional defendants to an action. Pa.R.C.P. 2232(c) provides the following:

“At any stage of an action, the court may order the joinder of any additional person who could have joined or could have been joined in the action and may stay all proceedings until such person has been joined. The court in its discretion may proceed in the action although such person has not been made a party if jurisdiction over the person cannot be obtained and the person is not an indispensable party to the action.”

Milestones argues that because it was not named in the original complaint, it cannot be a defendant in this action without court approval. We agree. We find that when plaintiffs filed their amended complaint joining Milestones as a defendant it was impermissible. Although the amended complaint was served according to Pa.R.C.P. 402, the joinder of Milestones was improper and therefore the service of process is invalid. Accordingly, we will sustain Milestones’ preliminary objection and dismiss Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc. as a party to this action. We will also order the removal of the name of Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc. from the caption in this matter.

PRELIMINARY OBJECTIONS OF SALISBURY REAL HOLDINGS INC. f/k/a SALISBURY HOUSE OF NORTHEAST PA

Salisbury Real Holdings Inc. f/k/a Salisbury House of Northeast PA filed preliminary objections to plaintiffs’ second amended complaint seeking to strike the affidavit of service filed by plaintiffs on the basis that the address identified in the affidavit was improper. Salisbmy argues that since the service of process was not made at its registered office or regular place of business, service was not proper. In response, plaintiffs contend that after being assured by Salisbury’s counsel that it never treated Taghreed, it agreed to voluntarily dismiss the action against Salisbury without prejudice, however, counsel responded by filing preliminary objections.

The sheriff’s return of service indicates that Salisbury House of Northeast PA was served (no address listed) with service made on a person named Lori Huluy “caseworker” on June 22,2007 at 9 a.m. An affidavit of service filed by plaintiffs on July 11, 2007 indicates that service was made on Salisbury. Although the manner of service is consistent with Rule 402(a)(2)(iii), Salisbury contends that the address at which service of original process was made, that being 1020 Cherry Lane Road, East Stroudsburg, Pennsylvania is not proper. Salisbury contends that it never conducted business at 1020 Cherry Lane, East Stroudsburg, PA, however, it has a registered office and principal place of business located at 513 Lehigh Street, Allentown, PA and that at no time did it have any employees working at 1020 Cherry Lane Road, East Stroudsburg, Pennsylvania. Plaintiffs do not dispute Salisbury’s contention. Since plaintiffs have not disputed Salisbury’s contention, we will strike the affidavit of service as to Salisbury Real Holding Inc.

PRELIMINARY OBJECTIONS OF DR. COHAN

In his first preliminary objection, Dr. Cohan filed a motion to strike plaintiffs’ second amended complaint for lack of specificity. In particular, paragraph 57 contains broad allegations that defendants failed to treat and/or admit Taghreed to the hospital in light of her abnormal liver chemistries and her persistent symptoms amounting to a flagrant, reckless and gross deviation from the ordinary standard of care. Dr. Cohan contends that without further specificity as to how he failed to treat her, the paragraph must be stricken. As we have set forth amply above, we agree that the paragraph is overbroad, hence, we will strike paragraph 57 of plaintiffs’ complaint.

Dr. Cohan also asks this court to strike paragraph 92 (a) and (b) as being general, vague and containing boilerplate language. Paragraph 92 states as follows:

“(92) The negligence of Dr. Cohan included the following:
“(a) Failure to appreciate the significance Taghreed Monsour’s abnormal liver chemistries; and
“(b) Failure to adequately and appropriately treat Taghreed Monsour’s liver failure.”

Dr. Cohan argues that the above paragraph is in violation of Rule 1019(a) in that it fails to specify any facts to support the generic allegations in order to allow him to properly respond. We have set forth the standard for specificity above and we believe that, reviewing the complaint as a whole, Dr. Cohan is apprised of the nature of the claim against him and is able to formulate an appropriate defense thereto. Although paragraph 92(a) and (b) are general in nature, a reading of the entire complaint sets forth specific facts upon which Dr. Cohan can base his defense.

Next, Dr. Cohan filed a motion to strike plaintiffs’ claim for punitive damages. We have set forth the law in regards to punitive damages above and based upon on our previous analysis we believe that the complaint fails to set forth a cause of action for punitive damages against Dr. Cohan. Accordingly, we will sustain Dr. Cohan’s motion to strike plaintiffs’ claim for punitive damages.

Based upon the foregoing, we enter the following order:

ORDER

And now, December 28, 2007, upon consideration of defendants Gnaden Memorial Hospital’s; Marc M. Kueler’s; lian Levinson’s; Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc.’s; Salisbury Real Holdings f/k/a Salisbury House of Northeast PA’s and Charles Cohan’s preliminary objections to plaintiffs’ second amended complaint and the responses thereto, it is hereby ordered as follows:

(1) Gnaden Memorial Hospital, Marc M. Kueler, lian Levinson and Charles Cohan’s preliminary objections in the nature of a motion to strike paragraph 57 of plaintiffs’ second amended complaint are sustained;

(2) lian Levinson’s preliminary objections in the nature of a motion to strike allegations of recklessness, gross negligence and plaintiffs’ claim for punitive damages from plaintiffs’ second amended complaint are sustained;

(3) Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc.’s preliminary objections in the nature of a motion to dismiss are sustained;

(4) Salisbury Real Holding Inc. f/k/a Salisbury House of Northeast PA’s preliminary objections in the nature of a motion to strike affidavit of service are sustained;

(5) the remainder of defendants Marc M. Kueler’s; lian Levinson’s; and Charles Cohan’s preliminary objections are overruled.

It is further ordered that Salisbury Behavioral Health Inc. d/b/a Milestones Community Healthcare Inc. be removed as a defendant from the case caption. It is further ordered that plaintiffs Taghreed Samir Mansour by Fawzia Mansour and Ahmed Mansour are granted leave to file a third amended complaint within 20 days from the date of this order.


author: SHEPPARD JR., J,

text:
    Aetna Inc. v. Lloyd’s Underwriters

      Judd A. Serotla, for plaintiff.

      Brian L. Watson, for defendants.
    February 20, 2008
   SHEPPARD JR., J,

In this action, plaintiff, Aetna Inc., seeks to recover from certain of its professional liability insurers $1,829,286 in defense costs and $9,250,000 in settlement amounts that Aetna paid in an underlying action involving a subsidiary — Novant Health Inc. v. Aetna US Healthcare of North Carolina Inc. (the Novant claim). The Novant claim was filed September 3, 1998, in the North Carolina state court, and was served shortly thereafter.

Aetna contends that it is entitled to coverage for the Novant claim under its claims-made Professional Liability insurance policies. Aetna asserted alternative claims for coverage in this action against its 1998 professional liability insurers, Columbia Casualty Company and Continental Casualty Company (collectively, CNA), and against its 1999 professional liability insurers, Certain Underwriters, Lloyd’s, London, Executive Risk Specialty Insurance Co. (ERSIC), Steadfast Insurance Co., and Fireman’s Fund Insurance Co. of Ohio (collectively, Lloyd’s, ERSIC, Steadfast and Fireman’s are the 1999 insurers).

Although CNA and its subsidiaries issued policies to Aetna for policy year 1999, Aetna does not claim coverage from CNA for 1999 because those CNA 1999 policies have been exhausted. Since Aetna has not exhausted its 1998 coverage from CNA, it asserted a claim against CNA for that policy year. Aetna’s claims against the 1998 and 1999 insurers are mutually exclusive, i.e., if it recovers against CNA under the 1998 policy, then it cannot recover against the 1999 insurers. Alternatively, if it recovers under the 1999 policies, then it cannot recover from CNA under the 1998 policy.

CNA filed this motion for summary judgment urging that all claims against it be dismissed on several grounds: (1) Under the terms of the 1998 and 1999 Professional Liability policies, the Novant claim is a 1999 claim, so Aetna cannot claim coverage from CNA under the 1998 policy; (2) Aetna previously agreed with CNA that the Novant claim is a 1999 claim, so Aetna is now estopped from arguing otherwise; and (3) Aetna filed its coverage claims against CNA after the applicable four-year statute of limitations ran, so its claims against CNA are time barred. Aetna agrees with CNA’s first argument, that the Novant claim is covered by the 1999 policies, but the 1999 insurers oppose the court’s granting the motion on that basis. The 1999 insurers join in CNA’s second and third arguments, but Aetna opposes the court’s granting of the motion on those grounds.

I. There Are Disputed Issues of Material Fact That Preclude the Court From Finding As a Matter of Law That the Novant Claim Is a 1999 Claim

Both the 1998 and 1999 policies state that a claim is first made against Aetna, and therefore potentially covered under these claims-made policies, “when the Corporate Risk Management Department of [Aetna] first becomes aware of such claim or when the insurer is notified in writing by the Corporate Risk Management Department of [Aetna] of a specific circumstance involving a particular person which is likely to result in a claim.”

Based on this language Aetna argues that it does not matter that someone connected to Aetna necessarily first became aware of the Novant claim in September 1998 (when Aetna was served with the complaint), since that someone was not in Aetna’s Corporate Risk Management Department. Instead, Aetna relies upon evidence that the Corporate Risk Management Department first became aware of the Novant claim on or about July 2,1999, when a clerk in that department received information about the Novant claim from someone in another department at Aetna and opened a Novant claim file. Also in July 1999, Aetna’s Corporate Risk Management Department first put CNA on notice of the Novant claim. As a result, Aetna and CNA argue that, under the plain language of the 1998 and 1999 policies, the Novant claim was first made in 1999, and it is covered under the 1999 policies.

In opposing CNA’s motion for summary judgment, the 1999 insurers first point to evidence that it was Aetna’s corporate policy for persons in the Legal Department to notify the Corporate Risk Management Department of covered claims within 48 hours of the Legal Department’s review of the underlying claim. If this policy was followed, the 1999 insurers argue, Aetna’s Corporate Risk Management Department should have been made aware of the Novant claim in the fall of 1998. Thus, it would fall under the 1998 policy. Secondly, the 1999 insurers stress their and Aetna’s prior course of dealing and performance under the 1999 policies in which the parties ascribed several claims to the policy for year in which they were filed against Aetna and not to the subsequent year in which Aetna’s Corporate Risk Management Department became aware of the claim. Finally, the 1999 insurers argue that there is a duty implied in the 1998 and 1999 policies that required Aetna to give its insurers reasonable and prompt notice of all covered claims filed against it. Accordingly, they urge that a delay of 10 months between when Aetna received the Novant complaint in September 1998, and when Aetna notified its own Corporate Risk Management Department and CNA of the Novant claim in July 1999, is neither reasonable nor prompt.

While the evidence produced by the 1999 insurers does not compel the court to find that the Novant claim is a 1998 claim, it is sufficient evidence to create a dispute of material fact as to when Aetna’s Corporate Risk Management Department first became aware of the Novant claim. As a result, this court cannot hold that the Novant claim is a 1999 claim as a matter of law.

II. There Are Disputed Issues of Material Fact That Preclude the Court From Finding As a Matter of Law That Aetna Is Estopped From Denying That the Novant Claim Is a 1999 Claim

CNA and the 1999 insurers argue that Aetna should be estopped from claiming that CNA must cover the Novant claim under the 1998 policy because Aetna and CNA previously agreed to treat the Novant claim as a 1999 claim. The evidence proffered to support this argument consists of: (1) deposition testimony by Louis Roberts, a vice president of, and lawyer for CNA, to the effect that such an oral agreement was reached between him and Aetna’s counsel, and (2) an e-mail from Aetna’s counsel to counsel for CNA in which Aetna’s counsel stated that she and Roberts “agreed CNA would not deal with [the Novant claim] at all but would leave it for Lloyd’s.”

The court cannot rely upon the deposition testimony of the moving party’s agent (Mr. Roberts) to grant summary judgment. Further, the e-mail from Aetna’s counsel, read alone, does not clearly set forth the terms of the deal that CNA and the 1999 insurers assert was made between Aetna and CNA. Therefore, the court may not find as a matter of law that Aetna is estopped from arguing that the Novant claim is covered under CNA’s 1998 policy.

III. Aetna Timely Filed Its Claims Against CNA in This Action

The parties do not dispute the facts relevant to CNA’s statute of limitations defense. Instead, they disagree as to the legal significance of those facts. The relevant history follows:

September 3, 1998 — Novant action filed in North Carolina.

July 21,1999 — Aetna put CNA on notice of the Novant claim.

May 3,2001 — CNA issued a letter denying coverage for the Novant claim.

May 16,2001 — Aetna and other parties reached agreement on settlement amount for the Novant claim.

June 6, 2001 — Last party signed Novant settlement agreement.

June 14, 2001 — Aetna paid Novant settlement amount.

May 27,2005 — Aetna commenced this action by writ of summons.

The parties agree that Aetna’s claims are governed by Pennsylvania’s four-year statute of limitations for contract actions. The parties disagree as to when the four-year limitation period began to run.

CNA and the 1999 insurers argue that the limitations period began when CNA issued the denial of coverage letter on May 3,2001, or, at the latest, when the Novant claim was settled orally on May 16, 2001. If so, then Aetna filed its claim either 24 or 11 days too late. Aetna argues that the statute of limitations began to run when it paid the Novant settlement on June 14,2001, or, at the earliest, when the Novant settlement agreement was signed and became effective according to its own terms on June 6, 2001. If Aetna is correct, then it filed this action with either 18 or 10 days to spare.

A cause of action for breach of contract accrues for statute of limitations purposes “when there is an existing right to sue forthwith on the breach of contract,” i.e., “when plaintiff first could have maintained [its] action to a successful conclusion.” In order for an insured to recover from an insurer for breach of a contract of insurance, the insured must have sustained a covered loss which the insurer refuses to pay. In most coverage cases, the statute of limitations starts to run from the date of the denial of coverage letter because it is necessarily issued after the loss occurs. This case is atypical in that the insurer, CNA, preemptively denied coverage in the face of pending settlement negotiations, which negotiations subsequently led to a loss suffered by the insured Aetna.

As to when Aetna first suffered that loss, it was no earlier than the date that the written settlement became final on June 6, 2001. The parties to the Novant lawsuit clearly required a signed, written agreement before they considered themselves bound by their oral agreement. The written settlement agreement provides:

“This agreement is effective on the date of signature of the last signatory to this agreement (‘effective date’) and shall become final and binding only upon signing by each party hereto.”

The existence of a prior oral agreement-in-principal, which is not even referenced in the written agreement, is not enough to trigger the running of the statute of limitations. Since Aetna filed this lawsuit within four years of the “effective date” of the written Novant settlement agreement, its claims are timely.

CONCLUSION

For these reasons, CNA’s motion for summary judgment should be denied. An order consistent with this opinion will be contemporaneously entered.

ORDER

And now, February 20, 2008, upon consideration of the motion for summary judgment of Columbia Casualty Company and Continental Casualty Company, the responses in opposition, the briefs in support and opposition, all other matters of record, and after oral argument on September 4, 2007 and in accord with the contemporaneous opinion, it is ordered that the motion is denied.

      . The relevant Professional Liability policies that Aetna had in place for 1999 are as follows:

        Insurer name Type ofpolicy Amount of coverage

      CNA Primary $500,000/claim $1 million/aggregate
      CNA Excess $1.5 million/claim $11 million/aggregate
      CNA Excess $30 million
      Lloyd’s Excess $25 million
      ERSIC Excess $30 million
      Steadfast Excess $15 million
      Fireman’s Excess $25 million

      . The second and third arguments in favor of summary judgment were first put forward by several of the 1999 insurers in their responses to CNA’s motion, but CNA has since adopted those arguments as its own.

      . CNA’s motion for summary judgment, exhibits A, D.

      . Lloyd’s appendix of exhibits, vol. II, exhibit 18.

      . Id., exhibits 23, 24.

      . Since the parties have not completed discovery, they may yet uncover additional evidence upon which they may base a subsequent motion for summary judgment on the issue of whether the Novant claim falls under the 1998 or 1999 policies.
      The court makes clear that the court’s ruling in this opinion and accompanying order also does not preclude CNA or any other party from moving for summary judgment on other grounds, such as CNA’s pending motion based upon the argument that the Novant claim is not a covered loss under the terms of either the 1998 or 1999 policies.

      . Lloyd’s appendix of exhibits, vol. I, exhibits 1,2.

      . Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 238, 163 A. 523, 524 (1932).

      .42 Pa.C.S. §5525(a)(8).

      . Leedom v. Spano, 436 Pa. Super. 18, 28, 647 A.2d 221, 226 (1994).

      . Aetna’s 8/13/07 response to motion for summary judgment, exhibit B, p. 12.


author: ST. JOHN, J,

text:
    Perry v. Commonwealth

      Gregory G. Paul, for plaintiff.

      Mary Kathryn Salynski, for Commonwealth.
    December 7, 2007
   ST. JOHN, J,

This matter comes before the court on plaintiff’s motion for leave to file an amended complaint and motion to supplement the official court record. Plaintiff’s motions will be denied for the reasons set forth in this opinion.

I. BACKGROUND

On June 19, 2000, plaintiff filed a complaint in civil action in the United States District Court for the Western District of Pennsylvania, alleging employment discrimination claims under several federal and state statutes. On December 21,2000, Judge Donald E. Ziegler of the district court granted defendant’s motion to dismiss based on a lack of subject matter jurisdiction. Judge Ziegler further granted plaintiff leave to transfer the case to the courts of this Commonwealth. Plaintiff attempted to effectuate an appropriate transfer of this matter on February 6, 2001, by filing a motion to transfer from federal court pursuant to 42 P.S. §5103(b) in the Allegheny County Court of Common Pleas. Attached to the transfer motion were certified copies of both the federal docket sheet and the final order from the United States District Court dismissing the claims for lack of subject matter jurisdiction. The case was docketed in Allegheny County at GD-01-23 3 8.

Plaintiff next filed a motion to transfer case number GD-01-2328 to Mercer County on November 18, 2002. Judge Strassburger of the Allegheny County Court of Common Pleas granted plaintiff’s petition, and the order transferring the case was also filed on November 18, 2002 in the Allegheny County Court of Common Pleas. The case was received and filed in the office of the prothonotary of Mercer County on December 19, 2002. Defendant then filed its answer with new matter on May 9,2003 and three and one-half years later filed a motion for summary judgment on October 11, 2006.

Defendant’s motion for summary judgment was dismissed by President Judge Francis J. Fomelli on December 22, 2006, because the case transferred to Mercer County does not contain the complaint upon which defendant’s motion was based. Several months later, plaintiff filed a motion for leave to file an amended complaint on July 9,2007, which was contested by defendant. Following oral argument, plaintiff filed a motion to supplement the official court record on September 17, 2007, which contained a certified copy of plaintiff’s complaint from federal court. This motion was also opposed by defendant. Judgment was reserved to rule on both motions following the November 5,2007 argument.

II. LAW AND DISCUSSION

The many issues that arise in this case are connected by the proposition that a case may only be considered by a court when the parties to an action have properly filed a claim with that court. Specifically, when a case is dismissed in federal court for lack of subject matter jurisdiction, a plaintiff must properly transfer the case to state court in accordance with the law to effectively maintain her claim. See Williams v. F.L. Smithe Machine Company, 395 Pa. Super. 511, 577 A.2d 907 (1990).

This case raises many issues that hinge on the interpretation of the technical requirements of the transfer statute at 42 Pa.C.S. §5103(b). This court, therefore, must address what items must be filed and when must they be filed to perfect a valid transfer from federal court. If plaintiff improperly transferred the case from the United States District Court, then she concedes that it would be far too late to presently perfect an appropriate transfer. Alternatively, if the original filing of the certified copies of the federal docket sheet and court order dismissing the matter was adequate, then defendant concedes that plaintiff met the requirements to effectuate a prompt transfer.

When a case filed in a United States court is dismissed for lack of subject matter jurisdiction, any litigant in the matter may transfer the cause of action to the appropriate court of this Commonwealth. 42 Pa.C.S. §5103(b)(1).

“Except as otherwise prescribed by general rules, or by order of the United States court, such transfer may be effected by filing a certified transcript of the final judgment of the United States court and the relatedpleadings in a court or magisterial district of this Commonwealth. The pleadings shall have the same effect as under the practice in the United States court, but the transferee court or district justice may require that they be amended to conform to the practice in this Commonwealth.” 42 Pa.C.S. §5103(b)(2). (emphasis added)

A. The Promptness Requirement of 42Pa.C.S. §5103

The requirements to perfect a transfer pursuant to 42 Pa.C.S. §5103 were addressed first by the Superior Court in Williams. The Williams court imposed a promptness requirement upon transfers from federal courts even though no time frame was delineated by the statute:

“[A] litigant, upon having his case dismissed in federal court for lack of jurisdiction, must promptly file a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action. The litigant shall not file new pleadings in state court.” 395 Pa. Super, at 516-17, 577 A.2d at 910.

In Williams, the appellants filed a new complaint in the Schuylkill County Court of Common Pleas two weeks following the dismissal of their complaint from federal court due to a lack of subject matter jurisdiction. Attached to the new complaint were certified copies of the federal court docket and the order dismissing the case for lack of subject matter jurisdiction. Appellants subsequently filed xerox copies of the pleadings from federal court about a month following dismissal in federal court. Finally, seven months after the federal court dismissal, the plaintiff filed certified copies of the pleadings from federal court in the common pleas case. Id. at 513, 577 A.2d at 908.

The Williams court granted the appellants a one-time exception due to their initial partial compliance with the statute and the eventual full compliance, largely due to the lack of statutory directives and case law interpreting 42 Pa.C.S. §5103.77. at 516, 577 A.2d at 910. However, more recent cases have not excused a failure to promptly effect a transfer, although no specific period of time has ever been used to define the promptness requirement as a matter of law.

Other appellate courts have ruled that many time periods are too long for perfecting a transfer under 42 Pa.C.S. §5103. In Collins, the Superior Court ruled that a seven-month delay after dismissal in federal court to transfer the case to state court was fatal. Allowing such a delay “subverts the policies underlying the statute of limitations, and undermines the speedy and efficient processes of justice.” Collins, 419 Pa. Super, at 525, 615 A.2d at 763.

In Ferrari v. Antonacci, 456 Pa. Super. 54, 689 A.2d 320 (1997), anew complaint had been filed in state court approximately one year after dismissal of the claim in federal court. An amended complaint containing certified copies of the pleadings and a certified copy of the order dismissing the action for lack of subject jurisdiction was filed nearly 15 months following dismissal from federal court. Id. at 56, 689 A.2d at 321-22. The court held that the delay of nearly one year resulted in a failure to perfect the transfer from federal court in a timely manner. Id. at 59, 689 A.2d at 323.

Asimilar situation occurred in Kelly v. Hazleton General Hospital, 837 A.2d 490 (Pa. Super. 2003). An appellant filed a new complaint in common pleas court only 16 days after her action was dismissed in federal court for lack of subject matter jurisdiction. Id. at 491. The appellant then filed a praecipe to transfer the federal court action with certified copies of both the order dismissing the case from federal court and appellant’s amended complaint filed in the federal court, a full nine months following dismissal. Id. at 492. The court again upheld the dismissal of the case because appellant did not adhere to the promptness requirement of 42 Pa.C.S. §5103. Id. at 495-96.

In the most recent case, a new complaint was filed in state court two weeks after the case was dismissed in federal court. Chris Falcone Inc. v. Insurance Company of the State of Pennsylvania, 907 A.2d 631, 634 (Pa. Super. 2006). The appellant in Falcone, however, realizing that the complaint would be dismissed for violating the statute of limitations, then attempted to transfer the case under 42 Pa.C.S. §5103 by transferring the “certified record from the federal action.” Id. Again, because of a 10-month delay, appellant was barred from transferring the previously dismissed federal action. Id. at 641.

In the instant case, plaintiff’s case was dismissed by the United States District Court on December 21,2000. The motion to transfer this case from federal court pursuant to 42 P.S. §5103(b), containing certified copies of both the docket sheet and the final order from federal court, was filed on February 6, 2001. Plaintiff did not transfer certified copies of the federal pleadings. The motion to supplement the record, containing the first filing of a certified copy of the federal complaint in state court, was filed on September 17, 2007. Accordingly, if the transfer was ineffective in 2001, then the filing of the certified copy of the pleading now, would result in a delay in transferring the case of over six and a half years. Considering the case law above, such a time period would clearly violate the promptness requirement of 42 Pa.C.S. §5103. Therefore, this court must determine whether the motion to transfer from federal court on February 6,2001 properly transferred the case to state court.

. B. Does a Certified Copy of a Federal Docket Constitute a Certified Transcript of the Pleadings Under 42 Pa.C.S. §5103(b)(2)?

The transfer of a matter dismissed by a federal court due to lack of subject matter jurisdiction to a court of this Commonwealth is governed by 42 Pa.C.S. §5103, as discussed above. “[Sjuch transfer may be effected by filing a certified transcript of the final judgment of the United States court and the related pleadings in a court or magisterial district of the Commonwealth.” 42 Pa.C.S. §5103 (b)(2). If these requirements are met, the pleadings have the same effect as in federal court. Id.

As a matter of first impression, this court must examine the meaning of a “certified transcript” as intended by the legislature in the transfer statute. In Williams, the court interpreted the relevant clause of the statute to require the prompt filing of both “a certified transcript of the final judgment of the federal court and, at the same time, a certified transcript of the pleadings from the federal action.” Williams, 395 Pa. Super, at 516-17, 577 A.2d at 910. The appellants in Williams filed a new complaint in state court two weeks after dismissal from federal court. Attached to the new complaint were “certified copies of the federal court docket” and the order of the federal court dismissing the action. Id. at 513, 577 A.2d at 908. Appellants later filed copies of the federal complaint and subsequent pleadings in state court, and finally certified copies of the federal pleadings. Id. at 516, 577 A.2d at 910. This led the Superior Court to observe that appellants’ actions had resulted in “eventual complete compliance” with 42 Pa.C.S. §5103 only after certified copies of the pleadings were filed, not after filing the certified docket. Id. at 516, 577 A.2d at 910. Consequently, a certified transcript of the pleadings was intended by the legislature to mean certified copies of the pleadings, not a docket sheet or other document reflecting a chronological log listing what documents were filed in the federal action. This is dicta, however, since the issue in Williams was promptness of transfer, not what was transferred.

The Superior Court in Collins explained that the court’s opinion in Williams required a transferring party to file a certified copy of the final judgment from federal court “along with a certified copy of the pleadings in state court” to effect a valid transfer under 42 Pa.C.S. §5301(b) (2). Collins, 419 Pa. Super, at 524, 615 A.2d at 762. The use of the term “transcript” of the pleadings used in Williams, was viewed by the Superior Court in Collins as synonymous with a certified “copy” of the actual federal pleadings. Id. This further supports the conclusion here that a transcript of the pleadings was intended by the legislature to mean actual certified copies of the pleadings and not merely a docket sheet listing what and when a pleading had been filed.

All appellate case law in this area concerns actions in which parties attempted to comply with 42 Pa.C.S. §5103 by actually filing certified copies of the relevant pleadings from federal court. See Williams, 395 Pa. Super, at 513, 577 A.2d at 908 (appellant eventually filed a certified copy of the pleadings); Collins, 419 Pa. Super, at 521, 615 A.2d at 760 (appellant belatedly filed a certified copy of the complaint and pleadings); Ferrari, 456 Pa. Super, at 56, 689 A.2d at 321-22 (appellant filed an amended complaint with certified copies of the pleadings); Kelly, 837 A.2d at 493 (appellant attempted to transmit the amended complaint from federal court to state court); Falcone, 907 A.2d at 634 (appellant belatedly transferred the “certified record” from federal court). Since certified copies of the actual pleadings were filed in each of the above cases, the appellate courts have not been asked to decide whether the transfer statute merely calls for a certified copy of the federal docket to show what pleadings were filed there, or whether certified copies of the actual documents must be filed in state court.

While the plain language of section 5103(b)(2) is clear to this court (i.e., a certified copy of the “related pleadings” be filed to perfect transfer to a state court), there is an argument that the introductory phrase “certified transcript” refers both to the final judgment of the United States court relinquishing jurisdiction as well as the related pleadings. This provision is devoid, however, of common sense.

Obviously, the transcript of the final judgment of the federal court is the order dismissing the case for lack of subject matter jurisdiction. It is not the docket reflecting that such an order was filed that is needed to perfect transfer, but a certified copy of the order itself. The use of the word “transcript” in the statute is a term of art that does not equate to the docket of a case. It is generally used in the legal profession to refer to the verbatim recording of the proceeding. Notably, plaintiff here filed a certified copy of the federal order, not just a certified copy of the docket reflecting the entry of the order. Similarly, it is the body of the actual pleadings that needs transferred to state court, not the docket entries of such pleadings. Otherwise, the transferee court cannot make any meaningful subsequent rulings pertaining to the pleadings or claims being asserted therein.

Unfortunately, the transfer statute does not provide any definitions. Nor is “transcript” defined in the Statutory Construction Act, 1 Pa.C.S. §1991. Words must be construed, if not otherwise defined, by their common and ordinary usage. Id. section 1903. Further, Webster’s offers the following definition for transcript: “ 1. something made by or based on transcribing; written, typewritten, or printed copy. 2. any copy or reproduction, especially one that is official....” Webster’s New World Dictionary 1509 (2nd college ed. 1978). (emphasis added) Black’s Law Dictionary supports this definition: “A handwritten, printed, or typed copy of testimony given orally; esp., the official record of proceedings in a trial or hearing, as taken down by a court reporter.” Black’s Law Dictionary 1535 (8th ed. 2004).

Finally, the purpose of 42 Pa.C.S. §5103 is to create a mechanism to transfer a federal action to state court. The statute enables parties to toll the statute of limitations by the date it is filed in federal court, and then upon transfer operates to properly notify the state court as to the relevant pleadings and the final order entered in federal court. A certified docket sheet fails to meet these important purposes. If the pleadings themselves are not filed in the state court, it would be impossible for the state courts to properly maintain cases transferred from federal court. Judges would not be informed of the facts or legal theories advanced by the parties, they would be unable to reap the benefits from counsels’ well articulated legal arguments, and they would be hampered in rendering appropriate decisions on matters of procedure and law, such as motions to amend pleadings. The administration of justice would be severely handicapped by allowing cases to be transferred from federal court without ever filing certified pleadings in state court.

Plaintiff argues, in a supplemental letter brief faxed to the court and opposing counsel on November 6, 2007, that section 5103, when read with Pa.R.C.P. 213(f), requires a triggering of the statute’s protections once a transfer motion is filed. Accordingly, plaintiff argues that the clerk of courts would be charged with transferring the court record to the appropriate court. Pennsylvania law clearly does not support this conclusion.

Rule 213(f) governs the transfer of cases between the courts of this Commonwealth. According to the rule, an action commenced in a court which has no jurisdiction shall be transferred to the appropriate court without dismissal of the cause of action. “It shall be the duty of the prothonotary or clerk of the court in which the action is commenced to transfer the record together with a certified copy of the docket entries to the prothonotary or clerk of the court to which the action is transferred.” Pa.R.C.P. 213(f).

The Pennsylvania Rules of Civil Procedure are promulgated by the Pennsylvania Supreme Court under the auspices of the 1968 Constitution. Pennsylvania Constitution Article 5 Section 10(c). The Judicial Code provides enabling legislation for the Supreme Court’s rule-making authority. 42 Pa.C.S. §1722. The statute authorizes the court to create rules governing practice, procedure, and the conduct of the courts in accordance with the laws and Constitution of the Commonwealth. 42 Pa.C.S. § 1722(a). The rule does not, as plaintiff suggests, apply to federal court transfers. Accordingly, plaintiff’s argument that 42 Pa.C.S. §5103 should somehow be “read together” with Pa.R.C.P. 213(f) must fail. 42 Pa.C.S. §5103(b)(2) clearly mandates that the transferring party has the duty to effect a proper transfer.

Therefore, after examining the relevant appellate case law, the definition of transcript, and the legislative intent of 42 Pa.C.S. §5103(b)(2) in its requirement that the transferring party file a certified transcript of the pleadings, this court finds that a transfer is effectuated in accordance with section 5103 only after filing certified copies of both the pleadings and the final order of the federal court. Merely filing a certified copy of a docket depicting what and when pleadings were filed, does not satisfy both prerequisites to the proper transfer of a case from federal court to state court according to section 5103(b)(2). Accordingly, since plaintiff filed only certified copies of the final order and docket sheet from the federal court, plaintiff failed to promptly transfer the case to state court. Hence, plaintiff’s motions to file certified copies of pleadings almost seven years late are untimely. In addition, this court cannot rule upon a motion to amend a complaint that has never been transferred.

C. Consequences for Failing To Effect an Appropriate Transfer Under 42 Pa.C.S. §5103

The Superior Court has noted that case law since Williams has become increasingly stringent. Kelly, 837 A.2d at 491. The one-time exception in Williams was granted on the premise that the dearth of case law prevented the transferring party from properly interpreting the statute. Williams, 395 Pa. Super, at 516, 577 A.2d. at 910. Since then the courts have not hesitated to bar cases in which the transferring party failed to perfect a proper transfer. See Collins; Ferrari; Kelly; and Falcone, supra. Transferring parties can no longer claim that due to a lack of interpretive case law under the statute, they did not know what was required. Ferrari at 59, 689 A.2d at 323 (quoting Collins at 524, 615 A.2d at 762). As the Superior Court observed, a cursory examination of the plain language of 42 Pa.C.S. §5103 and a brief review of the case law interpreting that section would have informed plaintiff how to protect her cause of action and its federal filing date. Kelly at 495-96.

Nor can plaintiff’s mistake be excused by lack of prejudice to the opposing party. “Prejudice is not the controlling concern. The key to protection in this case is conformity with the statutory requirements, which are not onerous in light of the protection the statute affords.” Falcone at 640. The administration of justice here has been severely hampered by plaintiff’s mistake. Amotion for summary judgment was made before this court on October 11, 2006, without any pleadings being transferred to support plaintiff’s cause of action. Regardless, the key to pursuing a cause of action transferred from federal to state court continues to be strict adherence to the transfer statute in order to have a safe harbor from the applicable statute of limitations.

III. CONCLUSION

Plaintiff failed to adhere to the requirements to effect the transfer from federal court to state court under 42 Pa.C.S. §5103. Accordingly, the plaintiff’s motion to supplement the record to rectify her error must be denied as untimely. Leave to amend a complaint is generally liberally granted to allow a party to fully develop legal theories for recovery. Koresko v. Farley, 844 A.2d 607, 618 (Pa. Commw. 2004). However, such deference is properly refused where such an amendment would be futile. Id. Since plaintiff failed to properly transfer this case to state court, it would be futile to grant her leave to amend a complaint that is not before this court. Therefore, plaintiff’s motion for leave to file an amended complaint will also be denied.

Hence this order:

ORDER

And now, December 7,2007, for the reasons set forth in the foregoing opinion, plaintiff Bonita Perry’s motion for leave to file an amended complaint and motion to supplement the official court record pursuant to 42 Pa.C.S. §5103 are denied.

      . Oral argument on the motion for leave to file an amended complaint was held during the September oral argument term on August 31, 2007, and oral argument on the motion to supplement the official court record (which was filed pursuant to concerns expressed by the court on the lack of pleadings in the transferred record) was held during the November term on November 5,2007.

      . Plaintiff also filed an additional complaint against defendant in the Allegheny County Court of Common Pleas, at GD-02-3667 on February 20,2002, which was not transferred to Mercer County. Both parties have conceded that this complaint consisted of the state law claims remaining following the dismissal from federal court.

      . President Judge Fornelli’s order held that defendant’s motion for summary judgment was filed in regard to the complaint filed in Allegheny County at GD-02-3667, which was not transferred to Mercer County. See n.2, supra.

      . This court joins the sentiments of the Superior Court over 17 years ago requesting that the legislature set a time limit to transfer a case from federal court. See Williams, 395 Pa. Super, at 516 n.1, 577 A.2d at 910 n. 1; Collins v. Greene County Memorial Hospital, 419 Pa. Super. 519, 525, 615 A.2d 760, 763 (1992). Collins even requested that the legislature set a time limit of 30 days, although no court ruling or act of the General Assembly has ever set such a time constraint beyond the general promptness requirement. Collins at 525, 615 A.2d at 763.

      . Defendant does not contend that plaintiff’s transfer of the federal court complaint to state court fails to meet the promptness requirement of 42 Pa.C.S. §5103 if the certified copies of both the docket sheet and the final order from the federal court satisfy the requirements of the statute. Therefore, this court will not address whether the delay of 46 days between the dismissal from federal court and the initial motion to transfer violates the promptness requirement of 42 Pa.C.S. §5103.

      . This court notes that it is unaware of any filing or document defined as a “transcript” in this context. The court invites the appellate courts and the legislature to clarify the use of this term of art where no such term of art apparently exists. At least one other court in this Commonwealth has noted that “transcript of the pleadings” has never been explicitly defined by the courts or the legislature. See Hemispherx Biopharma Inc. v. Asensio, 2001 WL 1807748, *7 (Phila. Cty. 2001).

      . This court will not address the many obvious United States constitutional issues implicated by the suggestion that the Pennsylvania Rules of Civil Procedure can prescribe a duty upon the courts of the United States.

      . This court declines to discuss any prejudice to defendant pertaining to the second complaint filed in this case in Allegheny County at GD-02-3667, and the subsequent management of that cause of action, since that case has not been transferred to this jurisdiction.