author: BIEHN, J.

text:
    Commonwealth v. Smith

      S. Kip Portman, assistant district attorney, for the Commonwealth.

      Douglas Maloney, for defendant.
    February 21, 1989
   BIEHN, J.

Defendant was convicted of driving under the influence of alcohol after a stipulated waiver trial on December 15, 1988. Post-trial motions were timely filed and are now before this court. For reasons stated below, all post-trial motions are hereby denied.

The sole issue before this court is whether or not the district attorney’s refusal to place defendant on ARD (accelerated rehabilitative disposition) was an abuse of discretion. The instant offense was committed on July 1, 1988. Defendant was excluded from ARD due to a prior ARD placement for driving under the influence in January 1980. That particular offense occurred in October 1979.

Prior to trial, defendant filed a motion to compel his placement in the ARD program. A hearing was held at which James C. Dalton, a deputy district attorney, testified that he supervises the ARD program in Bucks County. He stated that the general policy of the District Attorney’s Office is that a prior ARD placement for driving under the influence would exclude a defendant from a subsequent ARD placement. He further stated that there is no absolute time limit that is used, but that “generally if there is a prior ARD within 10, years that will exclude a person.”

We do not find the above policy to be an abuse of discretion. The law on the question of discretion is clear.

“[T]he decision to submit the case for ARD rests in the sound discretion of the district attorney, and absent an abuse of that discretion involving some criteria for admission to ARD wholly, patently and without doubt unrelated to the protection of society and/or the likelihood of a person’s success in rehabilitation, such as race, religion or other such obviously prohibited considerations, the attorney for the Commonwealth must be free to submit a case or not submit it for ARD consideration based on his view of what is most beneficial for society and the offender.” Commonwealth v. Kiehl, 353 Pa. Super. 353, 354, 509 A.2d 1313 (1986) (citations omitted), citing Commonwealth v. Lutz, 508 Pa. 297, 310, 495 A.2d 928, 935 (1985).

“Thus, while the district attorney has sole discretion to move for a defendant’s admission into ARD, the prosecutor may not summarily reject á person from consideration for admission. The Lutz court noted that in all of the cases before it, The prosecutors (had) openly specified their reasons for not submitting the cases for ARD...’ Lutz, 508 Pa. at 310, 495 A.2d at 934.” Kiehl at 355, 509 A.2d at 1313-4.

Defendant’s argument in support of compelling ARD is two-fold. First, defendant contends that the district attorney did not comply with the “minimal requirement of Lutz of openness in evaluating [his] ARD application.” It is defendant’s position that the district attorney did not enumerate individual factors as to why he was denied ARD other than his prior ARD nor did the district attorney express any objection related to the protection of society or the likelihood of his successful rehabilitation.

Defendant’s second argument is that the district attorney’s “10-year rule” is more stringent than the statutorily established seven-year rule. What defendant is referring to as the seven-year rule is that part of the Vehicle Code which provides that the district attorney shall not submit a charge for ARD if the defendant has been found guilty of or accepted ARD for a charge under that section within seven years of the date of the current offense. 75 Pa.C.S. §3731.

We do not find either of defendant’s arguments persuasive. First, the district attorney did openly specify his reason for denying ARD. He denied it because defendant had been placed on ARD for the same offense in 1980. He did not base his decision on prohibited considerations such as race or religion. Nor did he summarily reject defendant’s application as was done in Kiehl where the district attorney merely said he was philosophically opposed to the request. In the instant case, the district attorney based his decision on a consideration that is related to both the protection of society and the likelihood of defendant’s successful rehabilitation, and that consideration was that defendant has twice committed a dangerous offense.

We also do not find, as defendant would have us, that section 3731(d) of the Vehicle Code compels the district attorney to offer ARD to a defendant whose previous ARD placement was more than seven years prior to the current offense. Section 3731(d) prohibits certain dispositions. It does not require any. The district attorney’s policy of denying ARD to a defendant who had a prior ARD placement for driving under the influence within 10 years is a reasonable and defensible policy. Therefore, we can not hold that the district attorney abused his discretion in denying defendant’s request for ARD.

Accordingly, we enter the following

ORDER

And now, February 21, 1989, defendant’s motion for new trial and in arrest of judgment is hereby denied. Defendant is ordered to appear for sentencing on March 10, 1989, at 9:00 a.m. in court room no. 1 of the Bucks County Courthouse, Doyles-town, Pa.


source: Caselaw Access Project

author: JIULIANTE, J.,

license: Public Domain

text:
    Mosakowski v. Presque Isle Clinical Group Inc.

      Wayne G. Johnson and W. Gustave McGeorge, for plaintiffs. •

      Louis G. Long, for defendants É.L. DiCola, D.O. and D.C. Carneval, D.O.

      Thomas M. Lent, for defendant Metro Health Center.
    July 30, 1990
   JIULIANTE, J.,

This matter is before the court on plaintiffs’ motion for post-trial relief and defendants’ motions for the denial of plaintiffs’ motion for post-trial relief.

The trial judge entered a nonsuit in favor of defendant Metro Health Center, on October 28, 1987, at the close of plaintiffs’ evidence. The jury returned a verdict in favor of the remaining defendants on October 29, 1987.

Defendants state that on November 6, 1987, plaintiffs filed a motion for post-trial relief and an ex .parte motion for post-trial relief on November 13, 1987. On October 27, 1988, an order was entered compelling plaintiffs to file their brief in support of their motion on or before December 1, 1988. As of June 1989, plaintiffs had not filed a brief. Consequently, defendants requested entry of judgment in favor of defendants on the jury’s verdict arguing that the court has sufficient information before it to rule on the post-trial motions without briefs.

After argument held on December 1, 1989, the parties agreed to a new briefing schedule rendering defendants’ motions moot. However, the court will grant defendants’ motions for denial of plaintiffs’ motion for post-trial relief and deny plaintiffs’ motion on the basis of the substantive arguments.

In their motion for post-trial relief, plaintiffs request judgment n.o.v. or, in the alternative, a new trial.

The issues presented by the post-trial motion are as follows:

(A) Whether the trial court erred in granting a compulsory nonsuit in favor of defendant Metro Health Center.

(B) Whether the trial court erred with regard to informed consent by:

(1) Excluding plaintiff’s testimony as to whether he would have consented to either operation had he been informed of the risks and alternate methods of treatment; and

(2) Not adequately charging on informed consent.

(C) Whether the trial court erred in refusing plaintiff’s requested Pa.SSJI (Civ.) 10.07 on irrelevant considerations, and in precluding plaintiff’s counsel from commenting thereon during closing arguments.

(D) Whether the trial court erred in refusing plaintiffs’ requested point for charge no. 12. Proposed point for charge no. 12 reads as follows: “Where negligent conduct concurs with an act of nature, the defendant is liable unless he can show that the other cause would have produced the injury independent of defendant’s negligence.”

STATEMENT OF THE CASE

On May 22, 1980, plaintiff Mr. Mosakowski, age 64, left his place of employment with the Erie School District and was on his way home when he hit rough pavement and was thrown off of his Honda moped. This occurred at approximately 4:30 p.m. He was taken by ambulance to defendant Metro Health Center and the next morning came under the care and treatment of defendant Dr. DiCola. Plaintiff suffered a compound, comminuted fracture of the right tibia and fibula. Later he came under the care and treatment of Dr. Carneval who performed surgical grafting of the leg in July 1980.

Plaintiff’s fracture did not heal and his leg became severely infected. He subsequently required surgical care and treatment at the Cleveland Clinic under the auspices of Dr. Francis Boumphrey, a board-certified orthopedic surgeon.

Plaintiffs began this action to recover damages for the defendants’ alleged negligence in treating Mr. Mosakowski’s fracture. They alleged that Metro Health Center was negligent in not promptly providing a qualified orthopedic surgeon to diagnose and treat plaintiff. Further Metro permitted a staff physician, Dr. DiCola, to perform an open reduction surgery with infernal fixation, a procedure for which he allegedly did not have credentials or staff privileges.

Plaintiffs also allege that both physicians were negligent in the performance of their respective surgeries and in failing to obtain Mr. Mosakowski’s informed consent for those surgeries. They further allege that Metro failed to obtain informed consents.

The court’s rationale for granting the compulsory nonsuit was essentially based on the issue of causation. However, there was extensive discussion on the record relative to the issue of ostensible agency and the court, in referring to page 7 of defendant Metro’s brief in support of nonsuit, determined that the lack of causation prevented the case against the hospital from going to the jury.

Defendants take issue with certain portions of the plaintiffs’ statement of the case as set forth in their motion for post-trial relief. There will be reference to those disputed facts throughout this opinion.

DISCUSSION

(I) Compulsory Nonsuit, Ostensible Agency and Informed Consent Issues with Respect to Defendant Metro Health Center

Plaintiffs argue that the compulsory nonsuit was improper because there existed issues which the jury should have been allowed to determine. This, however, is not the standard. Our Supreme Court has held in the past:

“It has long been settled that a compulsory non-suit can only be granted in cases where it is clear that a cause of action has not been established. The plaintiff must be given the benefit of all favorable evidence, along with all reasonable inferences of fact arising from that evidence. Any conflict in the evidence must be resolved in favor of the plaintiff. We must, therefore, review the evidence to determine whether the order entering the judgment of compulsory nonsuit was proper.” Coatesville Contractors v. Borough of Ridley, 509 Pa. 553, 559-60, 506 A.2d 862, 865 (1986). (citations omitted)

In performing its duty to review the evidence presented, our Supreme Court has also stated that the court should grant a nonsuit “at the close of plaintiff’s case only when it is clear that the plaintiff has not presented sufficient evidence to maintain the action.” Estate of Dunlap, 471 Pa. 303, 370 A.2d 314 (1977).

Plaintiffs allege they presented sufficient evidence by which the jury could have determined liability on the part of the hospital on theories of ostensible agency, corporate liability and failure to obtain informed consent. For the following reasons, plaintiffs have simply failed to provide evidence of a causal connection between any of the alleged theories of recovery and plaintiffs’ harm, thereby failing to state a cause of action against defendant Metro.

Plaintiffs are correct in their assertion that Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988), is the most recent appellate case on the theory of-ostensible agency. Thompson relied on earlier cases, most notable Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870 (1984).

In Simmons, the court pointed out that the ostensible agency theory in Pennsylvania is based on section 429 of the Restatement (Second), of Torts and binds a principal for the acts of an independent contractor under certain circumstances. Id. at 452, 481 A.2d at 874. In determining whether ostensible liability attaches, the Simmons court stated the following:

“Two factors relevant to a finding of ostensible agency are: (1) whether the patient looks to the institution, rather than the individual physician for care; and (2) whether the hospital ‘holds out’ the physician as its employee.” Id.

In applying these factors in Simmons, the court concluded that a jury issue existed as to whether a particular physician, Dr. Wright, was an ostensible agent of St. Clair Memorial Hospital. The decedent in Simmons was admitted to the emergency room following a suicide attempt. At the time of his admission to St. Clair, Dr. Wright was the “on call” emergency physician. Testimony at trial indicated that it was hospital personnel that contacted Dr. Wright to see the decedent in the emergency room and, in fact, it was Dr. Wright who admitted the decedent to the psychiatric unit.

There was additional testimony in Simmons that at the time the decedent was admitted to the hospital, it was represented that he was the head of the psychiatry department at the hospital and that he was “qualified.” The decedent was admitted on a later occasion under Dr. Wright’s service and was seen and treated by him.

Under the above circumstances, the. court found that the jury could have concluded that decedent looked to the hospital for care and that the hospital held out the doctor as its employee.

In this case, however, we have none of those factors in Simmons in support of plaintiffs’ motion for the granting of a new trial on the ostensible agency. Initially, although plaintiffs argue in their brief that Mr. Mosakowski did not choose the facility, there was no testimony whatsoever as to why plaintiff was taken to Metro. It may have simply beén the closest hospital or because his family doctor had admitting privileges there. We simply do not know why he was taken there. We do know, however, that his personal family physician had admitting privileges at Metro.

It is admitted that subsequent to Mr. Mosakows-ki’s admission to the hospital, Dr. DiCola performed an open reduction- with internal fixation. Neither plaintiff is aware of how Dr. DiCola became involved in Mr. Mosakowski’s treatment, however, as Mrs. Mosakowski’s testimony clearly sets out, they looked to Dr. Kalata, their personal physician, to see that Mr. Mosakowski received the appropriate care.

Dr. DiCola’s testimony indicates that he was called by Dr. Kalata to look at Mr. Mosakowski at about 6 a.m., the morning after his admission. This consult was requested by plaintiffs’ doctor after he was called at plaintiffs’ request.

With regard to the second element required in a finding of ostensible agency, there is simply no testimony of record that Metro held out Dr. DiCola as an employee of the hospital. He was present only by virtue of a request made by plaintiffs’ own personal physician who was present at the hospital and in charge of plaintiff’s care due to his own request. Arguably, had emergency room personnel told Mr. Mosakowski, “We will get Dr. DiCola here, he is our orthopedic surgeon that will take care of this problem,” there might be an argument that Dr. DiCola was held out by the hospital as an employee. However, there is no evidence whatsoever that any discussion or representation of the kind was made. In fact, neither plaintiff knows how Dr. DiCola came to be involved in Mr. Mosakows-ki’s treatment. The following testimony is relevant on this particular point:

Q: Was it Dr. Kalata who called in Dr. DiCola?

A: I don’t know who called him. I know the hospital was trying to find —

Q: Okay. You don’t know whether it was Dr. Kalata’s idea to have Dr. DiCola?

A: No; I don’t know who they got. I don’t know who found him.

Mr. Mosakowski’s testimony is devoid of any information relative as to how Dr. DiCola was obtained to treat his fracture. '

Quite clearly, none of the ostensible agency factors relied on by the Simmons court are present in the immediate case.

Dr. Kalata’s presence in the emergency room was at the behest of plaintiffs. Mr. Mosakowski was admitted under Dr. Kalata’s service and it was Dr. Kalata who ordered diagnostic tests and, in fact, Dr. Kalata who called in the orthopedic surgeon, Dr. DiCola. The only testimony which has bearing on the question of whom plaintiffs considered as providing health care to Mr. Mosakowski, conclusively establishes that the Mosakowskis were looking to Dr. Kalata and not Metro Health Center. Further, the only testimony on Dr. Kalata’s employment status is that of Mrs. Mosakowski who states that she did not believe that Dr. Kalata was an employee of Metro.

There is simply no testimony that Metro Health Center held out either Dr. DiCola or Dr. Carneval as an employee and it is clear by virtue of plaintiffs’ request, that Dr. Kalata, clearly, not an employee, was called in to take charge of Mr. Mosakowski’s treatment.

Giving plaintiffs every reasonable inference possible, there is simply no evidence sufficient to set out a cause of action establishing that either Dr. DiCola or Dr. Carneval were ostensible agents of Metro Health Center and this court’s granting the nonsuit of defendant Metro Health Center is clearly supported by the record.

Further, on the issue of causation, it appears that following the conclusion of the trial, the jury found in favor of both defendants which finding at least implies that the jury did not believe either defendant, Dr. DiCola or Dr. Carneval, was negligent and, as such, even if the court were to find sufficient evidence of ostensible agency, same would be of no effect insofar as the jury did not find any negligence on the part of the ostensible agents.

Plaintiffs argue in their brief that despite the lack of an agency relationship, a hospital can be held liable where there is independent negligence in failing to supervise the quality and care being rendered by its staff where the hospital has actual or constructive knowledge of procedures utilized and where the hospital’s failure to monitor the care being provided at the hospital is a substantial factor in bringing about the harm alleged by plaintiff. This particular theory has never been recognized by the Pennsylvania Supreme Court; however, there is some authority for this theory in Thompson v. Nason Hospital, supra.

The Thompson court discussed this theory of “corporate liability” as “holding the hospital responsible where it failed to monitor and review medical services being provided within its facilities.”

Further delineating its understanding of this theory, the Superior Court stated the following:

“However, we deem it important to point out that for a hospital to be charged with negligence for failing to supervise the quality of care or competence of its staff, it is necessary to show that the hospital had actual or constructive knowledge of the procedures utilized. Moreover, the negligence of the hospital must have been a substantial factor in bringing about the harm to plaintiff.” Id. (citations omitted)

The lower court in Thompson granted summary judgment in favor of the defendant and apparently did not address the appellant’s argument with regard to this particular theory and pointed out that “until today, this theory of liability was not recognized in Pennsylvania.” Id.

Although there is some support for this particular theory in Pennsylvania, plaintiffs misconstrue same. Borrowing from the theory of ostensible agency (which is recognized by Thompson as a separate theory), plaintiffs argue that once plaintiff was admitted to the Metro emergency room, he “looked to Metro to afford care within the acceptable standard, including the providing of a trained and qualified physician specialist.” (Plaintiffs’ brief at 5.) Initially, there is no testimony supporting the assertion that plaintiff was looking for the provision of “a trained and qualified physician specialist,” but further, there is no support for plaintiffs’ argument that Metro had a duty to “obtain an orthopedic surgeon to perform an emergency debridement.” This simply is not a proper reading of the facts in this case, nor is it a proper application of the theory of corporate liability as espoused in Thompson.

Plaintiffs’ reading of Thompson would essentially hold that if the doctors involved in a particular patient’s case do not select or employ the proper medical treatment, that the hospital is responsible if the patient looked to the hospital for the provision of the appropriate care. This is simply not the case. Corporate liability, as stated in Thompson, applies where a hospital is aware, either actually or constructively, that its staff is providing substandard care or rendering care in an incompetent manner and performing certain procedures and .the hospital is simply negligent in supervising the quality of said care and allowing these procedures to continue. Essentially, the hospital has a duty to supervise its staff to insure that the proper standards of care, and competence are maintained. It does not become responsible on a particular occasion because there are allegations that a particular procedure was performed in a negligent manner. This is exactly the manner in which plaintiffs are attempting to have this theory construed and applied in the immediate case.

This argument of corporate liability is, however, applicable to plaintiffs’ allegation that Dr. DiCola did not have privileges to perform an open reduction with internal fixation. However, plaintiffs offered absolutely no proof that Dr. DiCola’s failure to maintain this particular privilege had any causal connection with plaintiffs’ alleged harm. Initially there was no testimony that anyone from Metro was aware that Dr. DiCola was going to perform an open reduction with internal fixation on Mr. Mosakowski. Secondly, there is no allegation that Dr. DiCola was unqualified in any manner to perform this particular surgery. There is simply no evidence as to why Dr. DiCola no longer had the privilege of performing an open reduction with internal fixation. Without such testimony, plaintiff ■ has completely failed on his causation proof and, as such, the hospital cannot be held liable simply because plaintiffs would like the jury to speculate that perhaps Dr. DiCola’s privi-. leges were taken away when, in fact, he simply may not have applied for the additional privilege of performing this type of procedure.

Although there are no Pennsylvania cases directly on point, the Illinois appellate court dealt with a similar situation and held that in order to find liability against a hospital under a fact situation similar to that directly at hand, there must be some knowledge by the hospital prior to the procedure that would indicate the hospital should have known a physician was unqualified. This is similar to the requirement of Thompson that “it is necessary to show that the hospital had actual or constructive knowledge of the procedures utilized.” Specifically, the Illinois court'Stated:

“The two specific allegations of deviation from hospital policy, that is, the failure to administer muscle relaxant and the failure to conduct a physical examination, do not support the contention that the hospital breached its duty of due .care to plaintiff. The failure of the hospital to follow its policy can be evidence of a breach of the hospital’s duty to patient, but the procedures specified in the complaint are matters within the duty of due care owed by the treating physician, not the hospital. As we stated above, there was no allegation that the hospital knew or should have known that the physician would .ignore this policy.” Pickle v. Curns, 106 Ill. App. 3d 734, 435 N.E.2d 877, 822. (citations omitted)

In the Curns case, it was apparent that the doctor actually failed to adhere to hospital rules in performing a procedure for which he did not have privileges. As there was no evidence in the Curns case that the hospital knew or should have known that the doctor would disregard hospital policy, there was no liability against the hospital.

In the immediate case, plaintiffs have produced no evidence that the hospital knew ór should have known that its policy would be ignored. The policy the Illinois court was dealing with pertained directly to specific treatment which was to be administered in specific situations. In the immediate case, we are not dealing with such a policy because the hospital policy on privileges merely relates to the contract between the doctor and the hospital as to what procedures may be performed in the hospital. There is no evidence of record that Dr. DiCola did not have privileges to perform open reductions based on his inability to perform these procedures. Therefore, plaintiff is arguing strictly that because Dr. DiCola did not have the technical privilege to perform this operation, that his performance of same should impose liability on the hospital. This runs counter to case law dealing directly with the subject and runs counter to the requisite elements which must be shown according to Thompson.

Although the failure to follow hospital bylaws may be some evidence of negligence, the failure to follow hospital bylaws and regulations does not establish negligence. Liability cannot be imposed upon a hospital absent some proof that the violation was the cause of the plaintiff’s injury. This is in keeping with the theory in Thompson that the negligence of the hospital must have been a substantial factor in bringing about the harm to the plaintiff.

Under the corporate liability theory set forth in Thompson, plaintiffs did not provide sufficient evidence, with all reasonable inferences therefrom, to support a cause of action relative to corporate liability.

Plaintiffs additionally argue that because Metro did not obtain an orthopedic surgeon to perform an emergency debridement, a jury could have found that this was negligence and, further, that this negligence caused plaintiffs’ harm. Initially, it is important to note that plaintiffs’ own expert, Dr. Boumphrey, testified that even had the treatment obtained by Mr. Mosakowski been 100-percent compliant with what he felt to be proper treatment, the same result could have befallen plaintiff because these are simply difficult fractures to treat.

With regard to the alleged necessity of an emergency debridement, it is important to note that Dr. Boumphrey testified that debridement is a surgical procedure which is done under anesthesia. He also testified that in treating a patient such as plaintiff, the emergency room function is to get a doctor who is competent to carry out this procedure.

There is, however, no testimony of record that Dr. Kalata was not competent to carry out the surgical debridement. Further, Dr. Boumphrey could not find any indication in the record as to when the debridement was performed.

There is simply no statement in the record as to when the debridement was performed and Dr. Boumphrey simply assumed that it was done at the time of surgery. Further, there is no testimony that Dr. Kalata did not perform a debridement of some sort, nor is there any testimony as to whether Dr. Kalata was competent to perform such a procedure. If, in fact, he was competent, then even under plaintiffs’ argument, the hospital would have adhered to its duty and would bear no liability.

With regard to whether the hospital should bear liability because the emergency room personnel may not have obtained “an orthopedic surgeon to perform an emergency debridement,” Dr. Boumphrey states that the treatment which should be performed on any patient is not a decision to be made by the hospital but is to be made by the physician.

It was not up to Metro to make a determination as to what type of treatment was needed for Mr. Mosakowski and then make sure that the doctor performed the same. Once the hospital contacted Dr. Kalata and he was on the scene, as Mrs. Mosakowski states, he was in charge of the case and plaintiffs looked to him to provide adequate care and obtain the necessary consultations. Dr. Kalata did what was necessary and, in fact, it would have been his judgment as to what he believed was necessary ánd what type of consults were required.

This argument that plaintiff looked to Metro to provide a certain surgical procedure is completely unsupported. For the foregoing reasons this court will not reverse its decision to grant a nonsuit in favor of defendant Metro Health Center.

(II) Informed Consent and Trial Court Error Issues with Respect to Defendants Dr. DiCola and Dr. Cameval

Plaintiffs contend that the trial court erred with respect to the issue of informed consent by excluding the plaintiffs’ testimony as to whether he would have consented to either operation had he been informed of the risks and alternate methods of treatment and by not adequately charging on informed consent.

Defendants argue that the court properly precluded Mr. Mosakowski from testifying whether he would have submitted to the operative procedures if he had been told of the risks and alternatives and that this issue has been waived. After defense counsel objected to the question, the court sustained the objection with leave to rephrase the question. Plaintiffs’ counsel did not avail himself of that opportunity to cure the objection. The issue came up again in chambers. The court reiterated that the question, if properly phrased, could be asked. However, plaintiffs’ counsel never broached the subject. This is similar to Capan v. Divine Providence Hospital, 270 Pa. Super. 127, 410 A.2d 1282 (1979), which held that counsel waived an issue when he withdrew a question to which an opponent’s objection. had been sustained.

The court agrees with defendants’ position that this issue has been waived. However, even if there were iio waiver, no reversible error occurred inasmuch as the plaintiff’s answer was not probative of any fact material to the informed consent issue. Evidence is relevant if it tends to prove or disprove a material fact. Reichman v. Wallach, 306 Pa. Super. 177, 452 A.2d 501 (1982).

Plaintiffs did not present sufficient evidence of a material fact. Plaintiffs must show that the physicians failed to make adequate disclosures prior to the execution of the consent form. The doctors testified about the discussions they had with Mr. Mosakowski. Mr. Mosakowski, on the other hand, could not recall the substance of the discussions. Mrs. Mosakowski likewise had no recall. The jury could not reasonably infer that the doctors failed to disclose any particular fact from his inability to recall. See Mele v. All Star Insurance Co., 453 F.Supp. 1338, 1342 (E.D. Pa. 1978) (“A reasonable inference is one not based on speculation or conjecture but rather is a logical consequence deduced from other proven facts.”) As such, any error on the informed consent issue was harmless.

Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647 (1971), held that a physician must disclose all the facts, risks and alternatives which a reasonable man would consider material to the decision to undergo or forego treatment. Subsequent cases have labelled this as the prudent patient standard. See, e.g., Festa v. Greenberg, 354 Pa. Super. 346, 352-3, 511 A.2d 1371, 1374-5 (1986). Sagala v. Tavares, 367 Pa. Super. 573, 533 A.2d 165 (1987); and Gouse v. Cassel, 385 Pa. Super. 521, 561 A.2d 797 (1989), confirm that the prudent patient standard is an objective one, and not a subjective one.

In Sagala, the trial judge submitted special interrogatories to the jury. One question required the jury to decide whether the patient would have submitted to the operation if the risk of embolism had been disclosed. That question read:

“ Tf you find the risk of pulmonary embolism was one in [sic] which a reasonable man in the position of Steven J. Sagala would consider material to his decision whether or not to undergo treatment would the reasonable man in the position of Steven Sa-gal[a] have consented to the surgery despite disclosures of that risk?’ And, again, the answers are yes or no, and if your answer is yes, you must find for the defendant. If your answer is no, you must find for the plaintiff.” 367 Pa. Super. at 580, 533 A.2d at 168.

Although the Superior Court’s decision does not state how the jury answered this, or any other question posed by the trial judge, the jury did return a verdict for the physician. On appeal, plaintiff argued, inter alia, that the jury instructions — including the interrogatory — misstated the law of informed consent. The Superior Court agreed. Id. at 580, 533 A.2d at 168. The Superior Court noted that Pennsylvania follows the prudent patient standard. Id. at 580, 533 A.2d at 168. However, the Superior Court added that it was error to pose an interrogatory to determine whether the patient would have consented if a full disclosure had been made.

Thus, Sagala supports the defense position because it shows that the jury may not consider whether the patient would have acted differently if all the pertinent facts had been disclosed to him. This interpretation of the law has been confirmed in Gouse, supra.

In Gouse, the jury was required to decide whether the patient had been told all the material facts, risks, complications and alternatives which a reasonable man would have considered to be significant and if so, whether he still would have submitted to the operation.

The jury answered the first question in the negative — indicating that full disclosure had not been made — and the second in the affirmative — indicating that the patient would have consented anyway. Based on those answers, the trial judge entered judgment for the doctor. On appeal, the patient attacked the second interrogatory as unnecessary. Also, he argued for a subjective rather than an objective standard of causation. The Superior Court agreed that second interrogatory should not have been given. Id. at 523, 561 A.2d at 799. The court refused, however, to deviate from the objective standard articulated in Sagala.

While Sagala. and Gouse did not address the evidentiary issue presented in this ease, they are instructive nevertheless. Those cases involved the propriety of jury instructions and, more importantly, the framing of the issues to be decided by the jury in an informed consent case. Based upon Sa-gala and Gouse, the jury cannot consider whether the patient, if fully informed, would still consent to the surgery. Therefore, evidence tending to show whether plaintiff would have submitted after full disclosure is not relevant. Accordingly, plaintiffs are not entitled to a new trial on this basis.

Plaintiffs contend that the court erred in charging the jury concerning how an emergency situation or the adverse effect on the therapeutic process bear upon the informed consent doctrine. In addition to substantive argument, defendants argue that plaintiffs have waived this issue inasmuch as they did not object to that aspect of the charge as given. The court agrees that this issue has been waived. Furthermore, the objections now pursued were not advanced when, during the trial, the court announced its intention to charge on these particular matters. Thus the issue is not preserved. Pa.R.A.P. 302(b); Crosbie v. Westinghouse Elevator Co., 297 Pa. Super. 304, 443 A.2d 849 (1982). Even if timely objections were made at trial, the instructional issue was not raised in post-trial motions, as required by Pa.R.C.P. 227.1(b)(2). The argument contained in their brief is not sufficient to resurrect the issue. See Cherry v. Willer, 317 Pa. Super. 58, 463 A.2d 1082 (1983).

Substantively, however, the court’s comments were necessary to give the jury an entire statement of the law on informed consent. The charge, which will not be repeated here, was full and complete and comported with applicable law.

When considering the adequacy of jury instructions, a reviewing court must consider the entire charge and its general effect controls. See, e.g., Commonwealth v. Hawkins, 295 Pa. Super. 429, 441 A.2d 1308 (1982). It ,is the court’s duty, when charging the jury, to give a complete statement of applicable law. See, e.g.', 1 S. Feldman, Pennsylvania Trial Guide §121.1 (2d ed. 1987). Moreover, the court must be careful not to mislead the jury. Id.

The portion of the charge to which an objection is now made comes from Pa. SSJI (Civ.) §10.06A. Plaintiffs do not attack any portion of that charge as being an incorrect statement of the law. Indeed, they could not credibly do so in light of section 103 of the Health Care Services Malpractice Act, 40 P.S. §1301.103 (definition of informed consent). See also, Dunham v. Wright, 423 F.2d 940 (3d Cir. 1970); Malloy v. Shenahan, 280 Pa. Super. 440, 421 A.2d 803 (1980). The additional instructions were necessary to inform the jury fully of the law of informed consent and to dispel any notion that a physician must make a disclosure under all conditions.

Instead, plaintiffs argue that the charge was misleading and- confusing. Plaintiffs’ argument has taken the charge out of context and they have not considered the charge as a whole. Moreover, the charge gave the jurors various alternatives to assist them in deliberations, just as in subparagraph I of Pa.SSJI (Civ.) §10.06A. There was no evidence of any confusion on the part of the jurors. Thus, under the circumstances, the charge does not require the granting of a new trial. Plaintiffs contend that the court erred in failing to charge the jury regarding allegedly irrelevant considerations. The plaintiffs had requested an instruction found in Pa.SSJI (Civ.) §10.07 which addressed the fact that a physician’s license to practice or his insurance coverage could be jeopardized by a verdict rendered against him.

Defendants again argue that this issue has been waived. We agree. Plaintiffs never asked for the requested charge and never objected to the court’s ultimate decision not to give the disputed instruction. The record shows that the court first raised the issue. When the court later reconsidered the defense objection, plaintiffs never excepted to the ruling. Moreover, plaintiffs never objected at the conclusion of the charge. Thus, the issue was not preserved for appeal. See Pa.R.A.P. 302(b); Crosbie, supra.

Be that as it may, the court is still of the opinion that it properly declined to give that instruction. The suggested charge is not approved by the Supreme Court of Pennsylvania. See 1 S. Feldman, Pennsylvania Trial Guide, §12.20 (2d ed. 1987).

A physician’s license can be revoked or suspended for unprofessional conduct. Osteopathic Medical Practice Act, 63 P.S. §271.15 (a)(8). See also, Medical Practice Act of 1985, 63 P.S. §422.41(8)(ii). Unprofessional conduct is defined by those statutes to include any failure to conform to the standards of acceptable and prevailing practice. 63 P.S. §§271.15(a)(8), 422.41(8)(ii). While it is true that a physician’s license is not automatically suspended by virtue of an adverse malpractice verdict, the simple fact remains that the appropriate licensing body may use an adverse verdict to initiate an investigation against the physician. Health Care Service Malpractice Act, 40 P.S. §1301.901.

While there is a genuine threat to a physician’s license following an adverse verdict, a mere claim against him could also have a deleterious effect. Under 31 Pa. Code §242.11, a health care insurer must notify the director of the Medical Professional Liability Catastrophe Loss Fund (CAT Fund) of claims, not verdicts, that are likely to exceed a health care provider’s coverage. The director of the CAT Fund then can make a surcharge or an emergency surcharge in order to maintain the financial integrity of the CAT Fund. The doctor must pay this surcharge or penalties may be imposed upon him. He could lose his CAT Fund coverage or his license. 31 Pa. Code §242.17(a),(b). Because a mere claim against a physician could jeopardize his license or insurance coverage, the court was correct in declining to read Pa.SSJI (Civ.) §10.07 to the jury.

Contrary to plaintiffs’ argument, the jury was not told to consider how the case could harm the doctors’ reputations. While a jury instruction or a closing argument raising such a point would probably be wrong, there was no such instruction given nor was there any such objectionable argument made. 74 ALR 2d 662 (1960). It does not logically follow that a jury should be told to disregard the impact of its verdict upon the defendant. No cases were cited by the parties for the proposition that the jury should be told to ignore the effect of its verdict on the defendant.

Thus, in the face of articulable harm to defendant doctors, the court was correct in refusing to instruct on the allegedly irrelevant considerations per Pa.SSJI (Civ.) §10.07.

Finally plaintiffs argue that the jury instructions on causation were inadequate. The court’s basic charge on causation was as follows:

“Now, the defendant physician — and I’m talking about legal cause now — is legally responsible or liable for the injuries suffered by his patient if the defendants’ negligent conduct is a legal cause of those injuries.

“In order for the negligent conduct to be a legal cause, that conduct must have been a substantial factor in bringing about the injuries in question.

“If the injuries in question would have been sustained even if the physician had not been negligent, then the negligent conduct of the defendant physician, if you so find that he was negligent, would not be a substantial factor in causing the injuries in question.

“So, to put it in another manner, the negligent conduct of the defendant is a substantial factor in causing his patient’s injuries if those injuries would not have been sustained had the physician not acted in a negligent manner.

“Now, when a defendant physician negligently fails to act, or negligently delays in employing indicated diagnostic or therapeutic measures, and his negligence is a substantial contributing factor in causing injuries to his patient, the plaintiff does riot have to prove to a certainty that proper care would have, as a medical fact, prevented the injuries in question. If a defendant physician’s negligent action or inaction had effectively terminated his patient’s chances of avoiding injuries, he may not raise conjectures as to the measures — as to the measure of chances that he has put beyond the possibility of avoiding injuries and the defendant has destroyed that possibility, he is liable to the plaintiff.

“A causal connection between the injuries suffered and the defendant’s failure to exercise reasonable care may be proved by evidence that the risk of incurring those injuries was increased by the defendant’s negligent conduct.”

Later the court added:

“Now, one other matter that I’m going to charge you on and then we’ll get into the final instructions. The plaintiff is entitled to recover damages for all injuries which the defendant’s negligence was a substantial factor in producing. The defendant’s negligence need not be the sole cause of the injuries. Other causes may have contributed to producing the final result. The fact that some other factor may have been a contributing cause of an injury does not relieve a defendant of liability unless you find that such other cause would have produced the injury complained of independently of the negligence.”

The basic charge is virtually identical to Pa.SSJI (Civ.) §§10.03, 10.03B. The recommended charge is based on Hamil v. Bashlin, 481 Pa. 256, 392 A.2d 1280 (1978); and Gradel v. Inouya, 491 Pa. 534, 421 A.2d 674 (1980).

The supplemental charge, dealing with the effect of other causes, is virtually identical to the charge approved by the Supreme Court in Gradel and by the Superior Court in Kearns v. Clark, 343 Pa. Super. 30, 493 A.2d 1358 (1985). There was no error.

The plaintiffs’ only particular challenge to the causation instruction was that the charge did not differentiate between acts of third parties and forces of nature. Such a distinction, however, was not necessary. The basic charge was neutral as to the source of the other causes which the jury could consider. The charge in Gradel — which involved the occurrence of cancer, another natural force — was similarly neutral in its description of the other causes that could exist along with defendant’s causal responsibility. There is simply no reason for the court to particularize the charge when the general charge is sufficient to put the issue before the jury.

This court feels that the charge on causation was proper and no prejudice resulted from the failure to grant plaintiffs’ requested point for charge. The post-trial motion therefore will be denied.

ORDER

' And now, July 30, 1990, for thé reasons stated in the opinion filed even date herewith, it is hereby ordered, adjudged, and decreed that plaintiffs’ motion for post-trial relief is hereby denied.


author: LAWRENCE, J.,

text:
    Lavenson v. Loomis

      Arthur Wolk, for plaintiff.

      Daniel Huyett, for defendants.
    August 8, 1990
   LAWRENCE, J.,

Plaintiff, Jay Lavenson, appeals from this court’s order of June 19, 1990 granting defendants’ petition to disqualify plaintiff’s attorney from further representation of plaintiff in this action.

BACKGROUND

On October 17, 1989 Jay Lavenson filed suit against Aviation Insurance Center Inc., James Loomis and The Loomis Companies, Ltd. for breach of an employment contract, tortious interference with that contract and non-payment of commissions while plaintiff was employed as president of AIC from 1985 to 1988. Throughout this period, Loomis and his wife were the sole shareholders of AIC. Loomis was the president and the chairman of the board of The Loomis Companies, and he and his wife were the sole shareholders of that company.

On November 13, 1989, defendants filed the within petition to disqualify plaintiff’s counsel, Arthur Wolk, which was granted.

DISCUSSION

A trial court is authorized to disqualify an attorney where there has been a breach of the Rules of Professional Conduct. See Slater v. Rimar Inc., 462 Pa. 138, 338 A.2d 584 (1975). Defendants claim that two fundamental rules of ethical conduct have been violated by plaintiff’s attorney. First, they contend that plaintiff’s attorney has run afoul of Pennsylvania Rule of Professional Conduct 1.6, which charges an attorney with the ethical obligation to preserve confidential client information. Subsection (d). of this rule provides that this duty outlasts the termination of the lawyer’s employment.

Second, defendants assert that plaintiff’s attorney is in violation of rule 1.9, which sets forth an attorney’s required conduct with regard to his or her conflict of interest with former clients:

“A lawyer who has formerly represented a client in a matter shall not thereafter:

“(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after a full disclosure of the circumstances and consultation.”

Disqualification of an attorney on the ground of conflict of interest is thus justified if a court finds (1) the existence of a prior attorney-client relationship between the party seeking disqualification and the attorney in question, and (2) the matters involved in the current action are substantially related to the subject matter of the former representation. North Penn Hospital v. Hughes Foulkrod Construction Co., 22 D.&C. 3d 652 (1981).

Disqualification is essential in the present case. Defendants are Wolk’s former clients, and the present litigation bears a substantial relationship to the prior representation.

A significant part of plaintiff’s lawsuit and defendants’ petition to disqualify centers on a program kriown as the Helicopter Association Insurance, program. The program itself was to evolve from a formal written agreement between Helicopters Association International, an organization of helicopter owners and operators, and AIC, an insurance agency. Under this agreement, AIC was to find favorable insurance coverage for HAI members who received helicopter training and who properly maintained their helicopters.

The groundwork for the HAI program was laid from 1985 to 1987, when extensive negotiations between the principals of both AIC and HAI took place and an agreement between them was finalized. The instant petition arises out of Arthur Wolk’s involvement in effectuating this agreement. There is no dispute that Wolk was involved in the HAI agreement. Wolk contends, however, that his involvement was solely limited to representing Jay Lavenson personally and that he did not represent the defendants. Conversely, the defendants assert that although they never formally retained Wolk to represent them with regard to HAI and despite no fee ever having been paid to Wolk as a result of his work, he was their counsel in connection with the HAI/AIC agreement.

The existence of an attorney-client relationship does not depend on either an explicit agreement or the payment of a fee. E.F. Hutton & Co. v. Brown, 305 F.Supp. 371 (S.D. Texas, 1969); Hendershot v. Hendershot, 28 D.&C. 3d 239 (1982). The existence of an attorney-client relationship may be implied from the conduct of the parties. E.F. Hutton & Co., supra. The existence of the attorney-client relationship can also be found when it is not unreasonable for the client to have understood that he or she was represented by a particular attorney. Id. Whether an attorney-client relationship existed depends on the client’s belief that he is consulting a lawyer in that capacity and his manifested intention to seek professional advice. Westinghouse Electric v. Kerr-McGee Corp., 480 F.2d 1311 (7th Cir. 1978). Even an implied professional relationship can result in a finding of a conflict of interest. Id.

The nature of Wolk’s participation in the HAI program is delineated by the deposition testimony of Wolk, Lavenson, Loomis and the documentary evidence of record related to the HAI/AIC transaction. James Loomis testified at his deposition that he believed Wolk represented AIC, himself and The Loomis Companies in connection with the HAI program. (Loomis deposition at 20, 24, 29, 51.) He stated that Wolk not only participated in the negotiation of the HAI/AIC agreement, he was also involved in the drafting phase. (Loomis deposition at 57.)

An initial draft of the HAI/AIC agreement was sent to Wolk and placed into his law office word processor. (Lavenson deposition at 58-9.) Wolk made substantial changes to this draft. (Lavenson deposition at 63-4; 200144-200154.) After this, Wolk had ongoing involvement in the drafting of the document. For instance, Wolk’s letter of August 13, 1986, addressed to Lavenson as president of AIC, stated that he was forwarding to Lavenson as president of AIG a draft of the AIC/HAI agreement. (Wolk deposition at 20-1; 200174.) He attached a draft of the HAI agreement which he acknowledged was in his own handwriting. (Wolk deposition at 22; 200206-200220.) Additionally, in a November 4, 1986 letter from Wolk to Loomis, Lavenson and Peter Meshin, AIC Director of Operations, Wolk ¿nclosed a copy of another revised HAI agreement for their review and thanked them “for the opportunity to participate in drafting this document.” (Wolk deposition at 33, 35; 200140.)

In a November 10, 1986 letter to James Loomis and Jay Lavenson, Wolk stated that he was enclosing still another revised HAI agreement to “include the changes Jim requested.” (Wolk deposition at 33; 200138.)

Most significantly, a review of the first page of any of these drafts indicates that the agreement,was at all times between HAI and AIC, not Jay Laven-son. Lavenson was not a party to the HAI/AIC agreement. Any legal representation Wolk provided to Lavenson was done in Lavenson’s capacity as president of AIC.

The record is clear that during the HAI/AIC negotiations, the only attorney on the AIC side was Wolk. (Loomis deposition at 65; Lavenson deposition at 83.) Representatives of HAI corresponded directly with Wolk on a number of matters relating to the HAI agreement, and he was frequently carbon-copied on communications between various parties relating to HAI program issues. (Loomis deposition at 126, 133-4, Lavenson deposition at 35; 100045, 100019-100020.) During a meeting in Arlington, Virginia between AIC and HAI at which HAI president and attorneys were present, as well as Loomis, Lavenson and Peter Meshin, Wolk participated in a telephone conference call. At that time he discussed with the representatives of those corporations the issue of AIC’s potential liability as a result of advertisements and promotions relating to helicopter manufacturers’ training programs. (La-venson deposition at 56-7.) Wolk himself admitted to having spoken directly to Loomis about the HAI program on another occasion as well. (Wolk deposition at 23-4.)

Wolk advocated on behalf of AIC on other key aspects of the agreement. Wolk made numerous suggestions to help eliminate, or reduce, risks to AIC incurred as a result of the HAI program. In March 1987, he formulated language to appear in promotional brochures and advertisements produced and distributed by AIC as a part of the HAI program. This language had the effect of further decreasing AIC’s liability exposure. (Wolk deposition at 35-6; Lavenson deposition at 72-3; 200106.) He was also instrumental in creating a safety enhancement program in April 1987 to be part of the HAI agreement. (Lavenson deposition at 75-6; 20081.) In addition, he reviewed documents involving AIC’s efforts to contract with underwriters for the HAI program. (Lavenson deposition at 78; 200012-200033.)

In addition to Loomis believing that Wolk was AIC’s counsel on the HAI agreement, Loomis was also under the impression that Wolk was the'attorney representing Loomis’ individual interests and those of his independent entities. This is supported by the evidence.

One of Loomis’ primary concerns throughout the negotiations was that neither Loomis individually nor The Loomis Companies be exposed to liability as a result of the HAI program. In his professional capacity as an attorney, Wolk rendered legal advice to Loomis and The Loomis Companies on this issue. Wolk was successful in implementing changes in the HAI agreement so as to address fully Loomis’ concerns. Loomis testified as follows at his deposition:

“He [Wolk] was advising us, myself and Mr. Lavenson on how to remove myself and Loomis Companies from any potential liability lawsuits that could be brought in connection with the HAI helicopter program.” (Loomis deposition at 23.)

“We agreed to hire Mr. Wolk to negotiate the HAI agreemént to protect not only AIC but myself and Loomis companies.” (Loomis deposition at 29.)

“The legal side of the contract was a great concern for myself and Mr. Lavenson. And Mr. Wolk was keeping The Loomis Companies, myself removed from the program being that this was [sic] high liability limits. I did not want to be exposed or to expose any of the other entities to a potential lawsuit.” (Loomis deposition at 81.)

Correspondence transmitted by the figures involved in the HAI program further reflects that it was Wolk who was sought, time and again, to address Loomis’ concerns about his exposure in the HAI program. For example, a March 30, 1987 letter from Lavenson to Wolk illustrates that Wolk’s counsel was needed on an HAI proposal directed to James Loomis in his capacity as chairman of the board of The Loomis Companies. In the letter, Lavenson directs Wolk to discuss and resolve with “Jim” his desire to “make absolutely certain The Loomis Companies will not be involved legally or brought in any other way if [sic] the event HAI tries to find its way around AIC by going against The Loomis Companies and/or Jim Loomis have done absolutely nothing.” (Lavenson deposition at 74-5; 200085.)

Similarly, an April 2, 1987 letter from Wolk to James Loomis highlights Wolk’s acknowledgment of interests critical to defendants. In that letter, Wolk sent Loomis, for his review and signature, a proposed agreement with HAI concerning The Loomis Companies’ liability in the HAI program. (Loomis deposition at 131-3; Loomis deposition at 25.)

Clearly, Wolk’s accommodation of Loomis’ concerns for his own potential liability exposure and for that of his affiliated companies on these (and other) occasions undermines Wolk’s assertion that he was only Lavenson’s counsel. Indeed, Wolk’s’ conduct in pursuing an agreement with HAI on behalf of AIC while ensuring that the interests of Loomis and The Loomis Companies remained intact generated a reasonable belief among the defendants that Wolk was acting on their behalf.

Furthermore, although no fee was actually paid to Wolk, there was a discussion between Lavenson and Loomis regarding payment of a $10,000 fee to Wolk for legal work he performed on the HAI deal. The following exchange took place at Lavenson’s deposition between Mr. Lavenson and defendants’ attorney:

Q: Mr. Lavenson, there was a discussion before Mr. Wolk became involved in the HAI agreement or program . . . about paying him a $1,000 fee; do you remember that?

A: No. I remember the discussion did not take place before.

Q: When did it take place then?

A: Many months after.

Q: And that would be sometime during 1986?

A: Yes, I guess.

Q: In any event, it would be before the end of 1986; would it not?

A: . . . Yes. The discussion, you mean?

Q: Right. And you discussed with Loomis the possibility of paying Mr. Wolk a nominal fee of $1,000?

A: No. . . . Jim Loomis said to me that he thought at some time down the line we ought to send Arthur $10,000..

Q: And you said?

A: And I said that might be appropriate. Let’s see what happens, but I’m not sure about it at this time.

Q: . . . Your recollection of any fee that would be paid to Mr. Wolk for his involvement on behalf of AIC is in connection with the $10,000 fee that you just referred to earlier; is that correct?

A: Yep. (Lavenson deposition at 84-5.)

While we stated previously that the existence of an attorney-client relationship between Wolk and the defendants was not dependent upon payment of legal fees to Wolk, Loomis’ contemplation of rendering a large sum of money to Wolk in 1986 certainly suggests that such a relationship existed at that time. Based on this and the other evidence presented, we agree with defendants that they could have reasonably believed that Wolk was acting in their interests during the formation- of the HAI agreement and that therefore, at the very least, an implied attorney-client relationship existed.

This is not to suggest that Wolk is being disingenuous. He may have truly believed that only Laven-son was his client and that his assistance to Loomis and The Loomis companies was incidental to that representation. But even Wolk’s perception of the situation is not dispositive of the issue before this court. Regardless of what Wolk may have thought about the scope of his representation, his efforts were at all times directed at negotiating and drafting the most favorable HAI agreement possible on behalf of AIC and one not inimical to the interests of James Loomis individually and as owner of The Loomis Companies. Under these circumstances, the defendants’ belief that Wolk was their attorney was certainly reasonable.

The second element necessary to disqualify an attorney, i.e. that a substantial relationship exists between the present action and the prior representation, is present in this case as well. The substantial relationship test does not require that the former and present suits involve similar causes of action; the two cases may be entirely dissimilar. Realco Services Inc. v. Holt, 479 F.Supp. 867 (E.D. Pa. 1979.) Rather, the test has been interpreted to mean that if the client in the prior representation “might have” imparted confidential information to his lawyer to aid the lawyer in dealing with particular issues, and if issues arise in the second suit which would permit the use of such confidences against the original client, the substantial relationship test is met, and disqualification is required. Id.

The lawyer “might have acquired” the information in issue if (a) the lawyer and the client ought to have talked about particular facts during the course of the representation, or (b) the information is of such a character that it would not have been unusual for it to have been discussed between lawyer and client during their relationship. Id. Further, a finding of a substantial relationship between the prior representation and the present suit raises an “irre-buttable presumption” that confidential information was disclosed during the course of the prior representation. Oyster v. Bell Asbestos Mines, 568 F.Supp. 80 (E.D. Pa. 1983).

In the case at bar, plaintiff’s complaint includes the following allegations, (1) the defendants extracted and usurped the HAI/AIC program concept from Lavenson; (2) defendants interfered with La-venson’s performance of his employment by AIC and, in particular, with his performance on the HAI program; (3) the defendants wrongfully denied plaintiff commissions due him in connection with the HAI program; and (4) Loomis defamed plaintiff to HAI principals in a letter concerning plaintiff’s performance on the HAI deal. Plaintiff asserts that, he conceived the idea for the HAI program, that he contacted insurance markets with which he was familiar and. had prior relationships in order to establish a basis for the program and that he cultivated and interested the insurance marketplace to put the program into effect.

Loomis attempted to articulate the flavor of the confidential communications he related to Wolk. He testified that Wolk was “privy to all the intricate works of the program and how it got done and the percentages that the manufacturers participated in . . . He was also privy to the underwriting companies that we spoke to.” (Loomis deposition at 84.)

Loomis also provided Wolk with information concerning the structure of The Loomis Companies. (Loomis deposition at 124.) In this regard, Loomis stated, “Arthur, knowing how I think and deal and having the information how the program works, the continual connections between myself and all the entities, obviously gives him a very decisive edge on filing the lawsuit against me.” (Loomis deposition at 94.)

Concerning discussions with Wolk about Laven-son, Loomis testified, “I discussed with Mr. Wolk some of the matters that Mr. Lavenson wants to try to place in his program and told him some of the inside information that I had found out from the carriers.” (Loomis deposition at 102.)

Loomis had told Wolk that he did not want Lavenson to know about their discussion of “how he [Lavenson] presented himself and how he presented the program, the numbers he used, the lies he told.” (Loomis deposition at 102.)

He also had a “discussion [with Wolk] in how Jay represented himself, not only to what he had completed or what he thought he had completed as far as the HAI program and the amount of business he could produce.” (Loomis deposition at 92.)

Given Wolk’s close contact with defendants and the HAI program, almost from its inception, it would not have been unusual for these communications to have taken place between Wolk and defendants, as well as other subjects raised in plaintiff’s complaint. It is conceivable that Wolk might have learned confidential information that could be used to support plaintiff’s position in the present lawsuit. Indeed, plaintiff accuses the defendants of tortious interference with the ideas and the concept underlying the very contract that Wolk drafted on behalf of the defendants. Quite clearly, the information Wolk might have acquired from his previous representation is “substantially related” to the subject of plaintiff’s lawsuit.

Under these circumstances, Wolk is presumed to possess confidential information that could be useful to Lavenson against his former clients and was properly disqualified from the case. Plaintiff’s appeal should, therefore, be dismissed.

      . Defendants have filed a motion to quash plaintiff’s appeal wherein they contend that the June 19, 1990 order is interlocutory and therefore not appealable. While there is considerable authority in support of the order being considered non-appealable at this stage (see Middleberg v. Middleberg, 427 Pa. 114, 233 A.2d 889 (1967); see also 42 Pa.C.S. §702(b), governing interlocutory appeals by permission, under which plaintiff chose not to proceed), we defer to the wisdom of the appellate court on this issue and confine the opinion to the merits of the case.

      . Lavenson was an insurance consultant who was president of AIC from July 1985 to December 1988. He was also Wolk’s longtime personal friend who hoped to retire on commissions from the HAI program.

      . The six-digit numbers referred to in the citations correspond to exhibits which were identified and discussed at the depositions.

      . Wolk mentioned in his. deposition that the HAI program was supposed to be Lavenson’s personal enterprise and that AIC was brought in only to honor HAI’s need to negotiate with a corporation. (Wolk deposition at 28-9.) Wolk stated, however, that it was not determined at the time if the HAI program was personal for Lavenson. (Wolk deposition at 22.)


author: SHEELY, P.J.,

text:
    Commonwealth v. Sheriff

      Jonathan R. Birbeck, assistant district attorney, for the Commonwealth.

      Ellen K. Barry, for defendant.

      August 16, 1990
   SHEELY, P.J.,

On October 13, 1989 at 11:34 p.m., defendant, Kenneth A. Sheriff, while riding his bicycle in the Borough of New Cumberland, struck a vehicle parked on Bridge Street.

Lieutenant Beistline, who was in close proximity to the scene of the accident, observed the defendant urinating on himself. The officer also detected the odor of alcohol on the defendant’s breath and observed that his speech was mumbled and slurred.

Patrolman Kauffman of the New Cumberland Police Department was then called to the scene where he noticed a plastic water bottle containing beer which was attached to the defendant’s bicycle. Defendant, who was injured in the accident, was transported by ambulance to the Harrisburg Hospital for treatment. At the hospital, blood was taken from the defendant for medical purposes. The police were not involved in the decision to take blood.

Defendant was later charged with violating 75 Pa.C.S. §3731(a)(l) and (a)(4) of the Motor Vehicle Code. Officer Kauffman then subpoenaed the results of the defendant’s blood tests. Defendant’s blood alcohol content measured 0.28 percent.

A suppression hearing was held on April 6, 1990, at which time this court reserved judgment pending the filing of briefs and oral argument. The issues were presented in argument court on May 30, 1990.

This case presents interesting questions of law, some of which have not yet been considered by our appellate courts. The threshold issue which must be addressed first is whether the legislature contemplated the prosecution of bicyclists for operating bicycles on our public highways while under the influence of intoxicants.

DISCUSSION

There are seven statutory provisions relevant to our analysis of this issue. Title 75 Pa.C.S. §3731(a)(l) makes it a misdemeanor of the second degree for any person to “drive, operate or be in actual physical control of the movement of any vehicle while . . . under the influence of alcohol to a degree which renders the person incapable of safe driving.” (emphasis supplied) Section 3731(a)(4) makes it a misdemeanor of the second degree for any person to “drive, operate or be in actual physical control of the movement of any vehicle while . . . the amount of alcohol by weight in the blood of the person is .10 percent or greater.”

Section 1547, dealing with implied consent, states:

“Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood or urine, for the purpose of determining the alcoholic content of blood. . . .” (emphasis supplied)

Section 102 of Title 75 defines vehicle as “Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” A motor vehicle is defined in section 102 as “a vehicle which is self-propelled except one which is propelled solely by human power or by electric power obtained from overhead trolley wires, but not operated upon rails.” (emphasis supplied) A pe-dalcycle, also defined in section 102, is “a vehicle propelled solely by human-powered pedals.”

Finally, section 3501(a) provides:

“Every person riding a pedalcycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special provisions in this subchapter and except as to those provisions of this title which by their nature can have no application.”

We must first decide whether a bicycle is a vehicle for purposes of our DUI statute. Because this question has not been answered by our courts, it may be helpful to briefly discuss how other state courts have resolved the problem.

Ohio’s DUI statute prohibits the use of any “vehicle” while under the influence of intoxicants. The court in State v. Shepard, 1 Oh. App. 3d 104, 439 N.E.2d 920 (1981), held that “[t]he prohibitions . . . against operating a vehicle while under the influence of alcohol apply to.persons operating bicycles while so influenced.” 439 N.E.2d at 922. By so holding, the court incorporated a bicycle moved by human power into the definition of “vehicle” and declared that the legislature’s intent was adequately expressed. Id. at 921.

In Florida, a person is guilty of DUI “if such person is driving or in actual physical control of a vehicle. . . .” Fla. Stat. §316.193 (1985). (emphasis supplied) Section 316.003(2) defines “vehicle,” and is substantially the same as 75 Pa.C.S. §102. The court in State v. Howard, 510 So.2d 612 (Fla. Dist. Ct. App. 1987), held that a bicycle is a vehicle, and therefore, the DUI statute is applicable to a person operating a bicycle while under the influence. Id. at 613. The court declared that its decision was also supported by a statute which provides that every person propelling a vehicle by human power has all the rights and duties applicable to a driver of “any other vehicle under this chapter. ...” Fla. Stat. §316.2065(1) (1985). This provision is also very similar to 75 Pa.C.S. §3501(a).

Oregon’s DUI statute makes the driving of a “vehicle” under the influence of intoxicants a criminal act. Or. Rev. Stat. §487.540 (repealed). The court in State v. Woodruff, 81 Or. App. 484, 726 P.2d 396 (1986), found that a bicycle plainly fits the definition of “vehicle” which is defined in Or. Rev. Stat. §487.750(2) (repealed). Woodruff, 726 P.2d at 397. The court held, therefore, that Oregon’s DUI statute applied to bicyclists. Id.

Turning to the law of Pennsylvania, under 75 Pa.C.S. §3731, it is a crime only to drive or operate a vehicle while under the influence. The first step in our analysis must be to define “vehicle.” Section 102 defines a vehicle as “Every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon rails or tracks.” By its own terms, section 102 seems to incorporate a bicycle into its definition of vehicle. The definition of “pedalcycle” in section 102 also sheds some light on our inquiry. A pedalcycle is a “vehicle propelled solely by human-powered pedals.” The defendant admit? in his brief, and common sense dictates, that the terms pedalcycle and bicycle are the same, and can be used interchangeably.

The cases cited by the Commonwealth are inap-posite to our inquiry into whether a bicycle is a vehicle, as all the cases are civil in nature. For instance, the Commonwealth cites Olson v. Swain, 162 Pa. Super. 101, 60 A.2d 548 (1948) for the proposition that “a bicycle is deemed a vehicle so far as its operation upon the public highways is concerned.” Id. Olson, however, is a 1948 case based on a wrongful death suit; the issue being whether the deceased was contributorily negligent as a matter of law.

However, section 102 by its own terms defines pedalcycle as “a vehicle. . . .” Because a bicycle is defined as a vehicle, we are drawn to the conclusion that a drunken bicyclist can be prosecuted under section 3731.

Our conclusion is supported by 75 Pa.C.S. §3501(a) which reads:

“General rule — Every person riding a pedalcycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title, except as to special provisions in this subchapter and except as to those provisions of this title which by their nature can have no application.”

It is clear that the bicyclist is, and should be, subject to the same duties as the ahtomobile driver. The drunken bicyclist poses a danger to both himself and others who use the roads. A bicycle is certainly capable of making quick maneuvers and swerving into oncoming traffic, causing motorists to take instant evasive action. The problem is illustrated by this case: The defendant collided with a parked car. Had there been any appreciable traffic on the road, the defendant’s actions could have caused serious damage and injuries to others.

Summarizing, we find that a bicycle is a “vehicle,” and an intoxicated bicyclist is therefore subject to prosecution for driving under the influence as provided for in 75 Pa.C.S. §3731.

SUPPRESSION MOTION

Having determined that an intoxicated bicyclist can be prosecuted under section 3731, this court must now consider defendant’s motion to suppress the results of the blood test. We find that these results are inadmissible as evidence and therefore grant defendant’s motion to suppress.

Title 75 Pa.C.S. §1547 is entitled, “Chemical testing to determine amount of alcohol or controlled substance.” Section 1547(a) states the general rule:

“Any person who drives, operates or is in actual physical control of the movement of a motor vehicle in this Commonwealth shall be deemed to have given consent to one or more chemical tests of breath, blood, or urine for the purpose of determining the alcoholic content of blood. ...” (emphasis supplied)

Section 1547(a), because it applies to motor vehicles, seems to conflict with section 3731, which applies to vehicles. Section 1547(a), however, is not ambiguous. When construing a statute, 1 Pa.C.S. §1921(b) mandates that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” It is therefore clear that only when a motor vehicle is involved does one consent to tests of breath, blood or urine. It is equally clear that a bicycle does not fit the definition of motor vehicle provided in section 102.

Section 1547(c) makes no mention whether a motor vehicle must be involved or whether a vehicle is sufficient for the admissibility of test results. Section 1547(c) reads:

“Test results admissible in evidence — In any summary proceeding or criminal proceeding in which the defendant is charged with a violation of section 3731 or any other violation of this title arising out of the same action, the amount of alcohol or controlled substance in the defendant’s blood, as shown by chemical testing of the person’s breath, blood or urine, which tests were conducted by qualified persons using approved equipment, shall be admissible in evidence.”

The general rule as stated in section 1547(a) is that only operators of motor vehicles implicitly consent to chemical tests, while section 1547(c) states that test results are admissible in the prosecution of a violation of section 3731. Section 3731 applies to “vehicles,” and as stated earlier, a bicycle is a vehicle.

We are of the opinion that the legislature intended the general rule to prevail. The implied consent law only applies to operators of motor vehicles, and as such is not applicable to the operator of a bicycle. If the general rule of section 1547(a) does not apply, then section 1547(c) also cannot apply to the bicyclist, and the evidence is therefore inadmissible.

We note that at least one other state court has ruled the same way. In State v. Woodruff, 81 Or. App. 484, 726 P.2d 396 (1986), the Oregon Court of Appeals affirmed the trial court’s determination that the results of a bicyclist’s breath test should be suppressed. The court held that the implied consent law “by its terms, applies only to a person ‘who operates a motor vehicle. ’ It thus has no application to a bicyclist.” 726 P.2d at 397-8. (citation omitted)

Our decision is further supported by 75 Pa.C.S. §3755(a), entitled “Reports by emergency room personnel.” It states:

General rule — If as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe a violation of section 3731 . . . was involved, the emergency room physician or his designee shall promptly take blood samples from those persons. . . . Test results sháll be released upon request of the person tested, his attorney, his physician or governmental officials or agencies.” (emphasis supplied)

By the plain meaning of the statute, it is restricted to motor vehicle accidents and applies only to the person who was in control of the movement “of any motor vehicle. ...” Section 3755 is therefore not applicable.

Because 75 Pa.C.S. §1547 is not applicable to bicyclists, the results of defendant’s blood test, should not be admissible as evidence. '

ORDER OF COURT

And now, August 16, 1990, defendant’s request for dismissal of charges is denied. Defendant’s request for suppression of the results of blood tests is granted.

       Defendant was charged with violating section 3731(a)(1) and section 3731(a)(4). A successful prosecution under section 3731(a)(4) would certainly entail the use of a chemical test. If chemical tests were not taken or were suppressed before trial, the Commonwealth could still proceed with prosecution under section 3731(a)(1). It is clear that these two provisions are independent bases for finding a violation. “[T]here is no requirement that the Commonwealth present evidence of an intoxilyzer test in order to sustain a conviction for driving under the influence.” Commonwealth v. Gamber, 352 Pa. Super. 36, 45, 506 A.2d 1324, 1329 (1986).


author: WOOD, J.,

text:
    Octorara Education Association v. West Fallowfield Township

      Lyn B. Shoenfeld, for plaintiff.

      Winifred Moran Sebastian, for defendant West Fallowfield Township.

      Allan J. Jarvis, for defendant Octorara Area School District.
    August 21, 1990
   WOOD, J.,

This action commenced when plaintiff filed an action for declaratory judgment under 42 Pa.C.S. §7533 which challenged both the imposition of an occupational privilege tax by defendant West Fallowfield Township and the collection of this tax by defendant Octorara Area School District.

Defendant township enacted the tax pursuant to the local Tax Enabling Act, 53 Pa.C.S. §6902(9). From December 1984 through the present, the district has continued on an annual basis to withhold this tax from all of its employees, including plaintiffs who are on the staff of Octorara Elementary School located in Highland Township.

The following facts were established at a hearing on this matter held June 27, 1990: the Octorara School District grounds contain four school buildings, one of which is its elementary school in Highland Township. The elementary school is approximately 30 to 40 yards from the West Fallow-field Township line. On the West Fallowfield side the district has its intermediate school and administrative offices. Testimony revealed that although plaintiff teachers worked for the Octorara School District, they had few contacts with the administrative offices located in West Fallowfield. The business manager of the district testified that the “legal office” of the district is located in West Fallowfield. He also testified that the elementary school sometimes used playing fields in West Fallowfield.

West Fallowfield argues that it may collect an occupational privilege tax from plaintiffs because they are administratively governed out of the main office in West Fallowfield, thereby making the plaintiff’s place of employment West Fallowfield. Plaintiffs contend that the imposition of the tax is a geographical issue: that is, if,you work in West Fallowfield, you are subject to the tax; if you don’t, you are not. Thus, the key issue here is one of first impression and requires that I give meaning to the term “place of employment” found in section 6902(9). The pertinent section of the statute reads as follows:

“(9) To levy, assess or collect any tax on individuals for the privilege of engaging in an occupation (occupational privilege tax) except that such a tax may be levied, assessed and collected only by the political subdivision of the taxpayer’s place of employment:

“Payment of any occupational privilege tax to any political subdivision by any person pursuant to an ordinance or resolution passed or adopted under the authority of this act shall be limited to $10 on each person for each calendar year.

“The situs of such tax shall be the place of employment, but, in the event a person is engaged in more than one occupation, or an occupation which requires his working in more than one political subdivision during the calendar year, the priority of the claim to collect such occupational privilege tax shall be in the following order: first, the political subdivision in which a person maintains, his principal office or is principally employed; second, the political subdivision in which the person resides and works, if such a tax is levied by that political subdivision; third, the political subdivision in which a person is employed and which imposes the tax nearest in miles to the person’s home. The place of employment shall be determined as of the day the taxpayer first becomes subject to the tax during the calendar year.

“It is the intent of this provision that no person shall pay more than $10 in any calendar year as an occupational privilege tax irrespective of the number of political subdivisions within which such person may be employed within any given calendar year.” (emphasis supplied)

In construing statutes, I must follow the rules of construction set forth in the Statutory Constructioh Act of 1972, 1 Pa.C.S. §1501, et seq. Accordingly, the terms in section 6902(9) must be given their plain meaning: 1 Pa.C.S. §1903; Erie Western Pennsylvania Port Authority v. Rugare, 29 Pa. Commw. 83, 370 A.2d 768 (1977). In addition, 1 Pa.C.S. §1928(b)(3) mandates that statutes imposing taxes must be strictly construed in favor of the taxpayer: Coney Island II Inc. v. Pottsville Area School District, 12 Pa. Commw. 461, 457 A.2d 580 (1983). Here, section 6902(9) states:

“Except that such a tax may be levied, assessed and collected only by the political subdivision of the taxpayer’s place of employment . -. . The situs of such tax shall be the place of employment. ...”

The political 'subdivision of these taxpayers’ place of employment is Highland Township. Section 6902(9) does not state the situs of the tax is the location where the paychecks originate, but rather where the taxpayer is employed^ i.e. where he or she works. Thus, I agree with plaintiff’s contention that the imposition of an occupational privilege tax is limited geographically to the township in which the taxpayer works. Pursuant to section 6902(9), West Fallowfield Township is not permitted to levy, assess and collect any occupational privilege tax from persons not engaged in occupations within the geographical boundaries of West Fallowfield Township.

West Fallowfield’s brief cites Gilberti v. City of Pittsburgh, 511 Pa. 100, 511 A.2d 1321 (1986) to support its theory that the township may collect taxes from plaintiff teachers under the business privilege tax provision found in 53 Pa.C.S. §6902(12). However, Gilberti can be distinguished from the case at bar. The taxpayer in Gilberti is a business office which exercises the privilege of maintaining its business operations within Pittsburgh and is therefore subject to the city’s business privilege tax. The court in Gilberti states:

“Indeed, having a place of business within the city enables the taxpayer to have a base of operations from which to manage, direct, and control business activities occurring both inside and outside city limits.” Gilberti, supra.

This set of facts is not analogous to the case at bar, which involves only individual employees subject to an occupational privilege tax. Accordingly, I enter the following

ORDER

And now, August 21,1990, pursuant to 53 Pa.C.S. §6902, the authority of West Fallowfield Township to collect an occupational privilege tax is limited to those who work, within the’township’s geographical boundaries, and does not include those employed and working at the Highland Elementary School. Because the parties agreed at hearing that they could work out the finances following my ruling, I will enter no further directives, but will instead retain jurisdiction in the event the parties cannot agree on the financial details.


author: KEELER, J,

text:
    Abadie v. Riddle Memorial Hospital

      John M. Hickey, for plaintiff.

      Susan L. Wallack, for defendant.
    July 18, 1990
   KEELER, J,

Plaintiff filed suit arising out of an incident which occurred on February 3, 1989, at Riddle Memorial Hospital located in Delaware County, Pennsylvania. The original complaint sounded in the tort of intentional infliction of emotional distress and punitive damages. Preliminary objections in the nature of demurrers to the two counts of plaintiff’s complaint were timely filed. After a thorough review of the pleadings, associated documents and the applicable case law, we entered an order sustaining the demurrers and granting plaintiff leave to amend.

Plaintiff availed herself of the opportunity to replead the case. While many of her allegations remained unchanged, plaintiff supplemented her complaint by adding an allegation “that the hospital employees intentionally abandoned her when the plaintiff was in the zone of danger. . .” Amended complaint at paragraph 14. Once again preliminary objections were, filed. Scrutiny of the amended pleadings, the preliminary objections and the plaintiff’s response compel the court to dismiss plaintiff’s amended complaint. Due to the unusual nature of the case and the complexities of the law, we feel it appropriate to explain the rationale underlying this decision.

Marilyn Abadie, plaintiff, went to Riddle Memorial Hospital in order to undergo a lower gastrointestinal X-ray. As the complaint alleges, “she was placed on a high, cold table top with an intervenous [sic] needle in her arm undrapped [sic] but for a hospital gown.” Complaint and amended complaint at paragraph 3. It is further alleged that plaintiff was emotionally fragile and suffered from severe anxiety disorders. While waiting alone in the X-ray room:

“[S]he heard loud roaring noises followed by loud, vulgar and common language and laughter. This caused the plaintiff to become extremely upset and on the verge of collapse. ...

“It was later discovered that what had actually transpired at the time and place aforesaid was that a female employee of the defendant had a birthday or similar event. As a gift other employees of the defendant had hired a male dancer to strip naked. This particular dancer started his act dressed in a gorilla costume and as part of his act was mimicking that animal’s sounds. The common language and laughter that followed came from employees of the defendant who were cheering as the ‘dancer’ exposed his body.” Complaint and amended complaint at paragraphs 4 and 5.

Defendants originally demurred asserting that Pennsylvania jurisprudence does not recognize the tort of intentional infliction of emotional distress. Both parties briefed this particular issue at length. However, the court’s review of the case law leads to an ambiguity. Several Superior Court decisions suggest that Pennsylvania has adopted the existence of intentional infliction of emotional distress as a cognizable cause of action. See Stoddard v. Davidson, 355 Pa. Super. 262, 513 A.2d 419 (1986); Bartanus v. Lis, 332 Pa. Super. 48, 480 A.2d 1178 (1984). See also, Restatement (Second) of Torts §46 (1965) (outrageous conduct causing severe emotional distress). Yet, a more recent Supreme Court decision specifically notes that it “has acknowledged but has never had occasion to specifically adopt section 46 as the law in Pennsylvania.” Kazatsky v. King David Memorial Park, 515 Pa. 183, 185, 527 A.2d 988, 988 (1988). (footnote omitted) See also, Ford v. Isdaner, 374 Pa. Super. 40, 542 A.2d 137 (1988). The holding in Kazatsky affirmed a compulsory non-suit and declared that recovery on a claim of intentional infliction of emotional distress is predicated on proof of the alleged emotional distress by competent medical evidence. Id. at 197, 520 A.2d at 995. Despite the express lack of precedent establishing a cause of action under the rubric of the tort for intentional infliction of emotional distress, the Kazatsky case certainly does not preclude efforts to sustain such an action. See generally, Papieves v. Lawrence, 437 Pa. 373, 376-7, 263 A.2d 118, 120 (1970) (“[ejvery cause of action in tort. . . was once a novel claim, and the absence of Pennsylvania authority ... is not an end to the issue”).

The Restatement upon which this tort is based provides as follows:

“One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Restatement (Second) of Torts §46(1) (1981).'

Therefore, the central essential element necessary to establish a cause of action requires a showing of outrageous conduct on the part of the tort-feasor. Indeed, the comments to the Restatement describe such conduct in detail.

“Extreme and outrageous conduct. The cases thus far decided have found liability only where the defendant’s conduct has been extreme and outrageous. It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’

“The liability clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. The rough edges of our society are still in need of a good deal of filing down, and in the meantime plaintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind. There is no occasion for the law to intervene in every case where some one’s [sic] feelings are hurt.” Restatement (Second) of Torts §46, comment d, quoted in Kazatsky, supra at 190-1, 527 A.2d at 991-2.

Given plaintiff’s allegations, and despite the plaintiff’s unusual sensitivities, we cannot say that the conduct of the hospital personnel, who were located in a separate room, was so egregious or extreme as to legitimate this cause of action. Moreover, the actions of defendant’s personnel do not admit of a finding that their conduct was calculated to cause the type of distress which the plaintiff allegedly sustained. Absent intent, this case cannot go forward.

In her amended complaint, the suggestion of abandonment seems to be the focus of the wrongful conduct. Defense counsel addressed the issue of abandonment and carefully noted that causes of action for abandonment in the context of medical treatment are limited to particular circumstances all of which involve the need for immediate care. See generally, Anno., Physician Abandonment of Case, 57 ALR 2d 432 (1958). Apparently Pennsylvania’s appellate courts have not had occasion to pass directly upon this theory. Moreover, plaintiff’s counsel claims that the case does not charge defendants with abandonment but rather that abandonment was part and parcel of defendant’s negligence. Unfortunately, the damages pleaded suggest only mental anguish as the injury sustained.

At best, this case might be justified under a theory of negligent infliction of emotional distress. Nevertheless, in Pennsylvania, such a case must be grounded upon negligent conduct which results in physical manifestations of harm. See Crivellaro v. Pennsylvania Power & Light Co., 341 Pa. Super. 173, 180-1, 491 A.2d 207, 210-1 (1985); Cathcart v. Keene Indus. Insulation, 324 Pa. Super. 123, 151-2, 471 A.2d 493, 507-8 (1984). Allegations of physical harm are conspicuously absent from plaintiff’s complaint and amended complaint.

Certainly, hospital employees should be cognizant of the anxieties and concerns of individuals present on the premises for surgical interventions. For this lack of awareness, those employees may be faulted for poor judgment. At the same time, the court recognizes that health-care professionals are engaged in a rigorous and emotionally taxing occupation. As such, they too are permitted outlets which allow them to continue working under highly pressurized conditions. See Bosk, C., Forgive and Remember: Managing Medical Failure (1979) (gallows humor and other forms of release act as coping mechanisms for health-care professionals working in a hospital environment); Fox, R., and Swazey, J., The Courage to Fail A Social View of Organ Transplants and Dialysis (2d ed., rev. 1979) (same). See also, Freud, S., Humor, in Collected Papers V at 215-21 (Hogarth Press, London 1950).

Not every perceived wrong by an individual entitles that individual to compensation. This situation does not suggest that the defendant’s employees transcended all bounds of decency in their birthday celebration. Neither the law nor the present facts would justify submission of this case to a jury to address the wrong purportedly perpetrated upon the plaintiff.

Inasmuch as the claim for punitive damages is derived from the claim for intentional infliction of emotional distress, the court’s disposition of the former dictates a consistent disposition of the latter. In light of the foregoing, the court granted the demurrers filed by the defendant as to counts I and II of both the plaintiff’s complaint and amended complaint.

ORDER

And now, July 18, 1990, upon consideration of defendant’s preliminary objections to plaintiff’s amended complaint and plaintiff’s response thereto, as well as the memoranda filed, it is hereby ordered that defendant’s preliminary objections are sustained and plaintiff’s amended complaint is dismissed.