author: BLACK, J.,

text:
    Trach v. Thrift Drug Inc.

      C.P. of Lehigh County,
    no. 97-C-1535.

      John P. Karoly Jr., for plaintiff.

      Alan K. Cotier, for defendant.
    May 16, 2000
   BLACK, J.,

Defendant, Thrift Drug Inc., dispensed the wrong medication to plaintiff, Allen Trach, allegedly causing him serious physical problems, including glaucoma of his right eye and cognitive difficulties. A jury trial resulted in a verdict of $5 million in favor of Trach. Before the court is Thrift Drug’s motion for post-trial relief under Pa.R.C.P. 227.1, seeking a judgment n.o.v. in its favor, or in the alternative, a new trial.

At the trial, Thrift Drug admitted dispensing Doxepin, a tricyclic antidepressant drug, to Trach instead of the antibiotic prescribed by his dentist. Thrift Drug offered no explanation for this error, and we therefore directed a verdict in favor of Trach on the issue of Thrift Drug’s negligence. In response to special interrogatories, the jury found that Thrift Drug’s negligence had caused harm to Trach, and that the amount of money required to compensate Trach for his injuries is $5 million. A molded verdict in this amount was then ordered against Thrift Drag in favor of Trach.

In its post-trial motion, Thrift Drag contends that the testimony of Trach’s expert witness, Dr. John J. Shane, that the Doxepin mistakenly dispensed to Trach caused him substantial harm, was inadmissible as a matter of law. According to Thrift Drag, Dr. Shane’s testimony must be disregarded in toto. Since this was Trach’s only evidence on the issue of causation, Thrift Drag argues that judgment n.o.v. should be entered in its favor. Alternatively, Thrift Drag seeks a new trial on the ground that Shane’s expert opinions were improperly admitted into evidence, or that the verdict was excessive in amount as a result of an improper closing argument by Trach’s counsel- For the reasons set forth below, we deny the motion for judgment n.o.v. and grant a new trial as to damages only.

I. THE FACTS

On July 11, 1995, because of pain in his jaw, Trach went to see his family dentist, Dr. Lentz. After examining Trach, Dr. Lentz suspected some type of infection and therefore prescribed an antibiotic, Amoxil, sometimes referred to as Amoxicillin. Trach took the prescription to a Thrift Drag pharmacy, where it was partially filled the same day. Unfortunately, instead of giving Trach the prescribed medication, Amoxil, the pharmacist’s assistant on duty filled the prescription with Doxepin. Although the prescription called for 40 capsules of 250 milligrams of Amoxil, Trach received instead 29 capsules of 150 milligrams of Doxepin. Trach was told that the pharmacy had only 29 capsules of Amoxil in stock and that he should return in a few days to pick up the rest of his prescription for 40 capsules,

Trach’s prescription called for two pills to bp taken every four hours. He took his first two pills after dinner on July 11. Within an hour or so, he began having strange sensations, including shakiness, dizziness, confusion and headaches. He felt so badly that he had to lie down. When he received a telephone call later in the evening, he had difficulty walking to the telephone and did not feel that he was speaking coherently. After the telephone call, he returned to bed and slept for awhile until his wife awakened him at 11 or 11:30 p.m. to take two more pills. About 1 a.m., he experienced nausea, vomiting, pain in his right eye, difficulty walking, an intoxicated feeling, and a rapid heartbeat. He felt as if he were going to die.

The next day, Wednesday, July 12, Trach did not go to work because he felt so poorly. Instead, he slept most of the day. He awakened only to take his pills; he took two capsules early in the morning, another two capsules at noon, and another two capsules around 3 or 4 o’clock in the afternoon. He continued to experience the same symptoms. Toward the end of the day, Trach’s wife called Dr. Lentz to report her husband’s symptoms. Dr. Lentz told her that he did not believe the medication was causing the symptoms, but that Trach should nevertheless stop taking the pills as a precaution. Acting on Dr. Lentz’s advice, Trach stopped the medication. At that point, he had taken only 10 of the 29 pills over a period of two days.

On Thursday, July 13, Trach again did not go to work. He visited South Side Family Medicine, a clinic, where a physician’s assistant, Jeffrey Trexler, saw him. At this time, Trach continued to feel dizzy and lightheaded. Vision in his right eye was slightly blurred. He also noted a yellow-orange, crescent-shaped object in his right eye that partially obscured his field of vision.

On Friday, July 14, Trach did report to work. However, he could not focus on his job and ended up sleeping most of the day at his desk. That night after work, his throat began to feel sore. Consequently, he resumed taking the pills.

The following day, Saturday, July 15, he cut down on his dosage, taking either one pill every four hours or spacing out his doses over periods greater than four hours. Nevertheless, the symptoms he had originally experienced after taking the pills persisted. Moreover, on Sunday, July 16, Trach began to experience occasional hallucinations in addition to his other symptoms. Because of this, he stopped taking the pills. Up to that point, he had taken 23 of the 29 pills. On Monday, July 17, Trach revisited the physician’s assistant, Jeffrey Trexler, at South Side Family Medicine. Trexler ordered blood work and an MRI.

Trach did not take any pills on July 17 or July 18. However, on July 18, he returned to Thrift Drug to pick up the remaining 11 pills that were part of the initial prescription. When he brought these pills home, his wife noticed that they were different from the six pills that remained from his initial supply. She immediately called Thrift Drag and questioned the pharmacist, James Fellin, about this. After investigating the matter, Fellin told Mrs. Trach that her husband had been given the wrong medication, Doxepin. Fellin then informed Trexler at South Side Family Medicine what had happened, and Trexler directed Trach to go to Sacred Heart Hospital for some additional tests.

Most of Trach’s symptoms disappeared within a month. However, his vision problems and some cognitive problems have remained. The cognitive problems include difficulty concentrating and an inability to think clearly or to accomplish simple tasks.

On August 4, 1995, approximately three weeks after he first ingested the Doxepin, Trach visited Dr. Mark Moran, an ophthalmologist, regarding his eye problems. Dr. Moran at first was unable to make a definitive diagnosis. However, by March 1996, after consultation with various specialists, Dr. Moran concurred in a diagnosis of glaucoma in Trach’s right eye. Dr. Moran described this as “chronic open-angle glaucoma or even more specifically, pigmentary glaucoma.” Trach also has continued to have a crescent-shaped blind spot, known as an arcuate scotoma, in his right eye as a result of optic nerve damage from the glaucoma.

Laser surgery was attempted on Trach in March 1999, to relieve the intraocular pressure in his right eye. However, this surgery could not be completed because of the extreme pain it caused Trach. Trach’s vision problems, according to Dr. Moran, are permanent.

Trach has continued working at the same job he held in July 1995, installing and servicing closed-circuit telephone systems for Protect Alarms, an Allentown company. He lost 15 days of work as a result of problems from the ingestion of Doxepin. More significantly, he has been forced to make adjustments in the way he does his work and is concerned about his ability to retain his job.

Trach has difficulty reading because of his vision problems. These problems also limit his ability to pursue his lifelong hobbies of photography and hunting.

The recommended dosage of Doxepin is 75 milligrams, while the maximum allowable dosage for an individual per day is 300 milligrams. Since each of the capsules provided Trach contained 150 milligrams, whenever he took two capsules, as he usually did, he substantially exceeded the recommended dosage. He also consumed far more than the maximum allowable daily dosage on most of the days he took the medication.

II. THE EXPERT OPINIONS

A. Dr. John J. Shane

Trach called as an expert witness John J. Shane M.D., a physician who is board certified in clinical and anatomical pathology and in toxicology. Dr. Shane is chairman of the Department of Pathology at Lehigh Valley Hospital and is also director of Health Network Laboratories. As a pathologist and toxicologist, Dr. Shane deals with the effects of drugs and chemicals on patients and how these relate to the patients’ symptoms. He does not regularly treat patients himself. However, he consults with the clinical staff to determine if the symptoms that patients present with are consistent with the type and quantity of drugs in their systems. He has instructed neurologists in neuropathology and ophthalmologists in ocular pathology.

Dr. Shane was Trach’s only expert witness on the issue of causation. He never personally examined Trach. Instead, he relied on the medical records of Trach’s treating physicians, such as Dr. Moran, for a diagnosis of Trach’s condition.

Dr. Shane testified as follows: Doxepin is a tricyclic antidepressant that has been on the market for about 20 years. It is not in common use anymore because more effective antidepressants have been developed. Doxepin works by blocking the amine pump that transmits nerve impulses across synapses, the junction points at which nerve cells hook up with each other. The transmission of nerve impulses across synapses depends on an intact chemical environment. Doxepin interferes with this environment by blocking the transmission of the chemical acetylcholine. This blocking action is known as an anti-cholinergic effect.

There may be adverse reactions or side effects from even a therapeutic dose of Doxepin. There are also contraindications for Doxepin, i.e., symptoms or conditions that may be exacerbated by the drug. The known side effects and contraindications have been determined through clinical trials prior to approval of the drug by the Federal Food and Drug Administration and also from clinical experience since the drug has been on the market. The side effects and contraindications for a therapeutic dose of Doxepin are identified in the manufacturer’s package insert and in the Physician’s Desk Reference. The manufacturer’s insert is included with each package of a drug that has been approved for marketing by the FDA. The PDR is a compilation of drugs that are available for the treatment of patients. It is considered authoritative and is relied on regularly by physicians in prescribing drugs to patients. Both the manufacturer’s package insert and the PDR contain product information about the drug, including its chemical composition, the mechanism of action, recommended and maximum dosages, adverse reactions or side effects, and contraindications.

The symptoms experienced by Trach after ingesting Doxepin are consistent with the adverse reactions identified in the manufacturer’s package insert and in the PDR. These adverse reactions or side effects included ataxia (unsteadiness on his feet), dizziness, blurred vision and disorientation. Such side effects can occur from a therapeutic dose of Doxepin. The amount of this dmg ingested by Trach through Thrift Drug’s mistake was far in excess of the maximum allowable dosage set forth in the manufacturer’s insert and the PDR. Thus, it is understandable that the Doxepin had an especially severe effect on Trach.

Glaucoma is a condition of increased ocular pressure in the eye that causes pathologic change to the eye. It may result in damage to the optic nerve that is irreversible, and in some cases leads to loss of vision. Both the manufacturer’s insert and the PDR state that Doxepin is contraindicated for glaucoma. This is for two reasons. First, the anticholinergic effect of Doxepin causes the pupils of the eye to dilate unequally, a condition known as mydriasis. Second, the anticholinergic effect also causes the ciliary muscle of the eye to become inactive, a condition referred to as cycloplegia. The ciliary muscle is what alters the configuration of the lens of the eye to accommodate for changes in the distance of objects. When the ciliary muscle is inactive, the shape of the lens of the eye does not change to accommodate for distance changes.

The combination of mydriasis and cycloplegia leads to blurred vision. It also leads to changes in the eye, specifically a blockage of the Canal of Schlemm, a circulatory channel between the front chamber and back chamber of the eye. The result is increased pressure in the eye. In addition, the dilation of the iris, the colored part of the eye, causes pigmentary loss. The pigment is deposited in the filter system at the Canal of Schlemm, further clogging up the filter and also causing increased pressure in the eye.

This combination of mydriasis and cycloplegia is a mechanism that leads to narrow-angle glaucoma, sometimes referred to as closed-angle glaucoma. However, the distinctions between narrow- or closed-angle glaucoma and open-angle glaucoma are often confused in the medical profession. Consequently, some authorities have recommended that the nomenclature be changed to eliminate the distinction.

Trach’s medical records indicate that he has glaucoma in his right eye and that this has led to functional abnormalities from optic nerve damage caused by the glaucoma. The functional abnormalities include an arcuate scotoma, an arc-shaped area of central vision loss. In this arc-shaped area of his field of vision, Trach cannot see anything. This condition was caused by optic nerve damage from the glaucoma in his right eye. It is an irreversible condition.

To a reasonable degree of toxicological certainty, all the symptoms Trach complained of following his ingestion of Doxepin and those that he continues to complain of are the direct result of the overdose of Doxepin. These symptoms include the glaucoma and scotoma in his right eye as well as the various neurological and cognitive side effects.

The causal connection between Trach’s ingestion of Doxepin and his glaucoma is clear from two factors. These are (1) the timing of the glaucoma shortly after his ingestion of Doxepin and (2) the known anticholin-ergic effect of Doxepin that can cause excessive dilatation of the pupil of the eye.

The continuing cognitive problems exhibited by Trach, including confusion, poor memory, inability to concentrate and the like, are also causally related to his ingestion of Doxepin. The causal connection follows from the fact that these problems first developed immediately after his ingestion of Doxepin and are recognized adverse reactions to Doxepin according to the manufacturer’s insert and the PDR. The ingestion of Doxepin caused a permanent alteration of Trach’s brain chemistry, so that the cognitive difficulties he continues to experience are permanent. The neurological tests administered to Trach after the Doxepin cleared his system revealed no objective neurological deficits. The negativity of these tests supports the conclusion that his continuing cognitive problems are related to his earlier ingestion of Doxepin.

B. Dr. Mark E. Moran

Trach also called as a trial witness Mark E. Moran D.O., an ophthalmologist who has been treating Trach for his eye problems. Dr. Moran did not offer an opinion on the issue of causation. He initially saw Trach on August 4,1995, a few weeks after his ingestion of Doxepin. At first, Dr. Moran did not diagnose Trach’s condition as glaucoma. However, after a number of consultations, by March of 1996, he concurred with a diagnosis of “chronic open-angle glaucoma and even more specifically, pigmentary glaucoma.” Dr. Moran stated that Trach’s glaucoma is a permanent condition.

C. Dr Michael A. Naidoff

Thrift Drug presented the videotaped deposition of Michael A. Naidoff M.D., a board-certified ophthalmologist, who regularly treats glaucoma patients. Dr. Naidoff had never examined Trach. He testified that, based on his review of Trach’s medical records, Trach had open-angle glaucoma or pigmentary glaucoma, a form of open-angle glaucoma. According to Dr. Naidoff, Trach did not have closed-angle or narrow-angle glaucoma. In open-angle glaucoma, there is no physical obstruction within the eye that impedes the flow of fluid; there is a blockage instead in the wall of the eye. Closed-angle or narrow-angle glaucoma, on the other hand, is characterized by a physical obstruction within the eye, causing fluid to build up, and the angle of the eye, where the fluid drains out, to close. Dr. Naidoff opined that although Doxepin can cause closed-angle or narrow-angle glaucoma, there is nothing in the medical literature to support the proposition that it can cause open-angle glaucoma, such as Trach developed. Dr. Naidoff testified that the cause of open-angle glaucoma is not known.

D. Dr. Richard I. Katz

Thrift Drug also presented the testimony of Richard I. Katz M.D., a board-certified neurologist. Dr. Katz also had never examined Trach, and based his testimony on Trach’s medical records. According to Dr. Katz, these records reveal no objective signs of continuing neurological damage, and indicate that Trach is neurologically normal. Dr. Katz denied that Doxepin permanently alters the brain’s chemistry. He opined that the only cognitive difficulties experienced by Trach from the Doxepin were temporary and would have subsided within a month after he stopped taking the drug. Dr. Katz stated that there is nothing in the medical literature to support the proposition that Doxepin is the cause of continuing cognitive difficulties for Trach.

III. THE OBJECTIONS TO DR. SHANE’S TESTIMONY

Thrift Drug asserts two objections to Dr. Shane’s testimony in its motion for post-trial relief. First, Thrift Drug argues that because Dr. Shane is not an ophthalmologist or neurologist, he was not qualified to render an expert opinion on the cause of eye or neurological conditions. Second, Thrift Drug contends that Dr. Shane’s conclusions do not meet the Frye test of general acceptance in the relevant scientific community.

A. Dr Shane’s Qualifications

The new Pennsylvania Rules of Evidence, effective October 1,1998, apply to this case. Rule 702, pertaining to testimony by experts, provides:

“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

According to the comment by the Pennsylvania Supreme Court’s Ad Hoc Committee on Evidence, Rule 702 does not change the law of Pennsylvania on expert witnesses. The court must still make an initial determination whether the subject matter requires expert evidence to aid the jury’s understanding, and, if so, whether the proffered expert has at least a reasonable pretension to special knowledge, skill, experience, training or education in that field. See Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 36-37, 485 A.2d 408, 415 (1984), appeal dismissed, 508 Pa. 643, 500 A.2d 428 (1985).

At trial, we rejected Thrift Drug’s objection to Dr. Shane’s qualifications, and we continue to see no merit to this challenge. The test of an expert’s qualifications has always been a liberal one. In Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 480-81, 664 A.2d 525, 528 (1995), the Supreme Court stated:

“The test to be applied when qualifying [a witness to testify as] an expert witness is whether the witness has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” (emphasis in original) See also, Bennett v. Graham, 552 Pa. 205, 714 A.2d 393 (1998).

Dr. Shane, a board-certified pathologist and toxicologist, clearly has more than a reasonable pretension to specialized knowledge on the subject matter under investigation, i.e., the effect of an overdose of Doxepin on an individual. Dr. Shane not only has a medical degree, but one of his fields of specialization is toxicology, which deals with the effect of toxic substances on the human body. As a board-certified pathologist and medical toxicologist, he has instructed neurologists in neuropathol-ogy and ophthalmologists in ocular pathology. Although he does not see patients on a regular basis, he does consult regularly with clinical staff to correlate patients’ symptoms with the types and quantity of drugs in their systems.

Thrift Drug complains that only an ophthalmologist can testify as to the effects of Doxepin on the eyes, and only a neurologist can testify as to the effect of Doxepin on one’s nervous system. This is not, however, what Rule 702 or the Pennsylvania case law says. It is well established in Pennsylvania that a physician may testify as an expert in a field outside his or her specialty. See e.g., Poleri v. Salkind, 453 Pa. Super. 159, 683 A.2d 649 (1996) (orthopedic surgeon qualified to give opinion concerning physiatrist’s care of plaintiff’s wound); Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d 334 (1996) (general practitioner qualified to testify concerning condition and treatment of spine; radiologist qualified to testify concerning pain and suffering caused by herniated disk); Commonwealth v. Browdie, 439 Pa. Super. 642, 654 A.2d 1159 (1995), aff’d on other grounds, 543 Pa. 337, 671 A.2d 668 (1996) (pediatrician qualified to testify concerning cause of death); Commonwealth v. Berrena, 421 Pa. Super. 247, 617 A.2d 1278 (1992) (psychiatrist qualified to testify to effects of ingesting certain substances); Kearns v. Clark, 343 Pa. Super. 30, 493 A.2d 1358 (1985) (urologist competent to testify about performance of hysterectomy by a gynecologist); PennDOT v. Moss, 146 Pa. Commw. 330, 605 A.2d 1279 (1992) (toxicologist without medical degree competent to testify about effect of drug on person). Moreover, Dr. Shane has specific expertise and experience in analyzing the relationship between a patient’s symptoms and the drugs in the patient’s system. Therefore, Thrift Drug’s objection to Dr. Shane’s qualifications as an expert witness is unfounded and was properly denied at trial.

B. The Frye Test

There is a special rule, known as the Frye rule, that governs the admissibility of expert opinions on scientific matters. The rule originated in a 1923 federal court decision, Frye v. United States, 54 App.D.C. 46, 293 F. 1013 (1923), and was adopted by the Pennsylvania Supreme Court in 1977 in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1277 (1977). Under the Frye rule, “expert evidence on scientific matters must pass through an additional hoop.” Blum v. Merrell Dow Pharmaceuticals Inc., 705 A.2d 1314, 1317 (Pa. Super. 1997), allocatur granted, 558 Pa. 597, 735 A.2d 1267 (1999). To be admissible at trial, the opinions proffered or the methodologies used to reach these opinions must be generally accepted in the relevant scientific community. Id. The purpose of this rale is to avoid “junk science” being presented to the jury. The trial court is to act as a gatekeeper to determine whether the proffered scientific evidence meets this “generally accepted” standard.

The Frye rale has since been superseded in the federal courts by the less restrictive Daubert rale established by the United States Supreme Court in Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Despite considerable support for the Daubert rale in many jurisdictions, the Pennsylvania appellate courts still follow the Frye rale. See Commonwealth v. Arroyo, 555 Pa. 125, 142 n.10, 723 A.2d 162, 170 n.10 (1999).

The new Pennsylvania Rules of Evidence do not themselves refer to the Frye decision or to the notion that scientific evidence must be generally accepted in the relevant scientific community to be admissible. However, the committee’s comment to Rule 702 notes:

“Adoption of Pa.R.E. 702 does not alter Pennsylvania’s adoption of the standard in Frye ... , which requires scientific evidence to have ‘general acceptance’ in the relevant scientific community.”

This is consistent with the principle that the new rules of evidence were not intended to modify existing case law.

1. The Waiver Argument

In the instant case, Thrift Drug filed a motion in limine approximately a month prior to the commencement of trial, seeking to preclude the testimony of Dr. Shane on the ground that his conclusions were not based on “accepted scientific or medical literature” and therefore did not meet the Frye test. Dr. Shane’s expert report dated June 16,1997, acknowledged that a careful search of the literature had revealed “no references on which we can place reliance in predicting the effects of these drugs in massive overdosages. The precise mechanism of action of Doxepin is not known, regardless of the dosage.”

However, the manufacturer’s package insert for Doxepin and the PDR confirmed that most of the symptoms reported by Trach were adverse reactions to a therapeutic dose of the drug. Therefore, we denied the motion in limine and refused to preclude Dr. Shane’s testimony.

At trial, Thrift Drug did not raise the Frye issue during Dr. Shane’s testimony. At the conclusion of all the evidence in the case, Thrift Drug moved to strike his testimony in its entirety on the ground that it did not meet the “general acceptance” requirement of Frye. This motion to strike was denied.

Trach contends that the motion to strike was untimely and that Thrift Drug’s failure to interpose a Frye objection during Dr. Shane’s trial testimony constituted a waiver of this issue. However, under Pa.R.E. 103(a)(1), where a litigant challenges a ruling admitting evidence, the issue is preserved if there has been “a timely objection, motion to strike or motion in limine stating the specific ground of objection.” (emphasis added) The comment to Rule 103 clearly states:

“A ruling on a motion in limine on the record is sufficient to preserve the issue for appeal, without renewal of the objection or offer at trial.”

Since Thrift Drug’s motion in limine specifically raised the Frye rule as the basis for precluding Dr. Shane’s testimony, this motion preserved the Frye issue for post-trial consideration.

2. The Scope of the Frye Rule

Trach next contends that the Frye test applies only to “scientific advances that produce new types of evidence.” Commonwealth v. Crews, 536 Pa. 508, 517, 640 A.2d 395, 399 (1994). Therefore, according to Trach, Dr. Shane’s testimony did not have to pass the Frye test because his opinions were based on long-established scientific principles and did not constitute a new type of evidence.

It is true that Frye itself and the Pennsylvania Supreme Court decisions applying Frye have all been based on new types of scientific evidence. In Frye the court excluded evidence of a lie detector test based upon measured changes in systolic blood pressure, on the ground that the relevant scientific community did not generally accept the validity of such a test. In Commonwealth v. Topa, supra, our Supreme Court, for the same reason, excluded spectrogram voiceprint evidence to identify the defendant as the person who made a recorded telephone call. See also, Commonwealth v. Blasioli, 552 Pa. 149, 713 A.2d 1117 (1998) (admitting DNA evidence); Commonwealth v. Crews, supra (allowing testimony as to the results of DNA testing, but excluding the statistical analysis for lack of agreement in the scientific community); Commonwealth v. Dunkle, 529 Pa. 168, 602 A.2d 830 (1992) (excluding testimony of a “child sexual abuse syndrome” for want of general acceptance in the field of psychology); and Commonwealth v. Nazarovitch, 496 Pa. 97, 436 A.2d 170 (1981) (excluding hypnotically refreshed testimony as lacking general acceptance in the relevant scientific community).

Nevertheless, in recent cases, Pennsylvania’s intermediate appellate courts have taken a broader view of Frye. Thus, in Wack v. Farmland Industries Inc., 744 A.2d 265 (Pa. Super. 1999), the Superior Court excluded the testimony of plaintiffs’ causation expert that wife-plaintiff’s cancer was caused by her exposure to benzene from defendant’s oil tanks. The court held that the causal connection between benzene and the specific type of cancer that wife-plaintiff contracted was not generally accepted in the scientific community. The court found inapplicable the studies relied on by plaintiffs’ experts supporting a general causal connection between exposure to petroleum products and other forms of cancer.

Other recent decisions have applied Frye to reach similar results. In Blum v. Merrell Dow Pharmaceuticals Inc., supra, the Superior Court excluded expert evidence linking the drug Bendectin with a birth defect, clubfeet, on the ground that neither the causal connection nor the methodology used by plaintiffs’ chief expert met the Frye test of general acceptance in the scientific community. In McKenzie v. Westinghouse Electric Corp., 61A A.2d 1167 (Pa. Commw. 1996), appeal denied, 547 Pa. 733,689 A.2d 237 (1997), the Commonwealth Court invoked the Frye rule in rejecting expert evidence that chemicals in contaminated drinking water were the cause of a birth defect. See also, Wimberly v. Wyeth Laboratories Inc., 48 Leh. L.J. 47 (1998) (rejecting expert testimony of a causal connection between Norplant, a birth control drug implanted under the skin, and plaintiff’s stroke because the expert did not establish that such a causal connection was generally accepted in the scientific community).

The Supreme Court has granted allocatur in the Blum case, and we are hopeful that the court, will use this occasion to clarify the rules for expert testimony in Pennsylvania. However, unless and until the Supreme Court overrules or qualifies Blum and the other intermediate appellate court decisions to the same effect, we are required to follow these decisions and to apply the Frye test to all expert testimony in matters of science, whether or not the testimony involves a novel type of scientific evidence.

3. Application of the Frye Rule

According to Blum, there are “two ways to analyze the question of whether the causation testimony proffered ... meets the Frye/Topa standard. One focuses on whether the causal relationship is generally accepted by the scientific community, and the other on whether the methodology is generally accepted by the scientific community.” Blum, 705 A.2d at 1322.

It is not completely clear from Blum whether the proffered expert evidence must satisfy both methods of analysis or whether either is sufficient. We think the better view is that expert evidence of causation should be admissible if it passes muster under either analysis. However, in the instant case, as in Blum, we reach the same result with respect to Dr. Shane’s testimony regardless of the mode of analysis.

Dr. Shane’s opinions fall into three categories: (1) that the ingestion of Doxepin by Trach caused the neurological and cognitive difficulties and blurred vision that he experienced shortly afterwards; (2) that Trach’s cognitive difficulties are permanent; and (3) that the ingestion of Doxepin caused Trach’s glaucoma and the resulting scotoma. With respect to the initial adverse reactions, Dr. Shane cited both the manufacturer’s package insert and the PDR as support for his opinion. We find that these publications do establish general acceptance in the scientific community of the side effects of Doxepin. Included among these side effects are the very symptoms experienced by Trach shortly after ingesting Doxepin, such as shakiness, dizziness, confusion and blurred vision. Since these are recognized adverse reactions from a therapeutic dose of Doxepin, there is ample support for Dr. Shane’s opinion that the substantial overdose of Doxepin ingested by Trach was the cause of his neurological and cognitive difficulties and the blurred vision he experienced shortly after ingesting the drug. Therefore, Shane’s opinion to this effect was properly admitted into evidence at the trial.

However, with regard to the other opinions of Dr. Shane, we reach a different conclusion. Trach did not establish the general acceptance in the medical community of a causal connection between the ingestion of Doxepin and either permanent cognitive difficulties or open-angle glaucoma. Although Dr. Shane himself testified that his opinions on these matters were based on widely accepted scientific principles, he failed to offer sufficient evidence of this. As the Superior Court stated in Blum:

“Testimony by a qualified expert ‘doesn’t become “scientific knowledge” just because it’s uttered by a scientist; nor can an expert’s self-serving assertion that his conclusions were “derived by the scientific method” be deemed conclusive.’ ” Blum, 705 A.2d at 1323 (quoting Daubert, 43 F.3d at 1315-16).

In this case, Dr. Shane did not produce or identify any specific medical literature or any scientific studies that support his opinions on permanent cognitive difficulties or glaucoma. In his report letter of June 16, 1997, he acknowledged that he could find nothing in the medical literature on the effect of an overdose of Doxepin.

When asked at trial whether there was any support in the medical literature for his opinions, Dr. Shane gave this response:

“Oh, absolutely. Every opinion I have given today is supported very definitely in the medical literature. It’s supported in things that are available on every physician’s desk like the Physician’s Desk Reference. It’s supported in the medical literature by the various textbooks. It is supported in the medical literature by the textbook on toxicology written by Randall Bassault. It’s supported by other textbooks. Ellenhom will support what I have said. I said nothing today to this jury that isn’t supported by medical literature.
“What’s not in the medical literature is how does it block that distal end of the synapse? We don’t know. And we don’t have a lot of history on massive overdoses because the drug has been out of favor sufficiently long that folks have not overdosed. It has not been a popular — it has not been an available or a popular street drug.”

Dr. Shane’s reliance on the PDR as support for his opinions on permanent cognitive difficulties and glaucoma is obviously misplaced. The PDR, though certainly an authoritative publication, does not state that Doxepin causes a permanent change in a person’s brain chemistry or that it leads to permanent cognitive difficulties or glaucoma.

The references in the PDR to neurological and cognitive adverse reactions do not indicate whether these conditions are permanent or temporary. Since Trach has the burden of proof on this issue, he cannot rely on the ambiguity of the PDR to prove his point. The PDR is not evidence of a scientific consensus that Doxepin can cause permanent cognitive difficulties.

Nor does the PDR assert a causal link between Doxepin and glaucoma. The PDR does refer to glaucoma as “contraindicated” for Doxepin. This does not mean, however, that Doxepin causes glaucoma, but only that a person who already has glaucoma should not take Doxepin. Significantly, the PDR does not identify glaucoma as an adverse reaction or side effect of Doxepin. Therefore, the PDR is not evidence of general acceptance in the medical community that Doxepin causes glaucoma.

The PDR, of course, refers to adverse reactions and contraindications of a therapeutic dose of Doxepin. In this case, Trach ingested a substantial overdose. It is possible that a large overdose could be a cause of glaucoma. The fact that glaucoma is identified as a contraindication suggests a possible biological relationship. However, it is impossible to infer from the PDR that the scientific community generally accepts the proposition that an overdose of Doxepin can cause glaucoma.

Dr. Shane’s reference to textbooks by Randall Bassault and Ellenhom is also insufficient to support his conclusions. The textbooks were not produced, and we do not know their exact titles. Nor were any specific page references given. We have no way of knowing from the evidence presented exactly what these books say about Doxepin and its effects. It is also noteworthy that Dr. Shane’s reference to these textbooks immediately follows his assertion that the PDR supports his opinions at issue. Since we have seen that the PDR does not support these opinions, we cannot assume, sight unseen, that these textbooks do either.

The testimony of the other expert witnesses contradicts the claim that Dr. Shane’s opinions on permanent cognitive difficulties and glaucoma are generally accepted in the medical community. Dr. Katz, a board-certified neurologist, testified that there is nothing in the medical literature to support a causal connection between the ingestion of Doxepin and permanent cognitive difficulties. According to Dr. Katz, there is no scientific basis for one to conclude that Doxepin causes a permanent alteration of one’s brain chemistry. In his opinion, as soon as the Doxepin had worked its way through Trach’s system, a period of perhaps a month, any neurological or cognitive problems relating to the Doxepin, such as those referred in the PDR and the manufacturer’s package insert, should have ceased. Similarly, Dr. Naidoff, a board-certified ophthalmologist, testified that there is nothing in the medical literature to support a causal link between Doxepin and open-angle glaucoma. According to Dr. Naidoff, there is no consensus in the medical community as to the cause of open-angle glaucoma.

There was evidence that Trach’s visual problems occurred for the first time shortly after his ingestion of Doxepin. However, under the law, a temporal connection is not legally sufficient to prove causation. Post hoc, ergo propter hoc is a well-known logical fallacy. If Trach’s glaucoma had first appeared shortly after an automobile accident, we could not automatically conclude that the automobile accident had caused his glaucoma. Under the Frye rule as elucidated in Blum, proof of legal causation requires an expert opinion that sets forth a conclusion or uses a methodology generally accepted in the relevant scientific community. In this case, whether we focus on Dr. Shane’s ultimate conclusion about the cause of Trach’s glaucoma or on the methodology by which this conclusion was arrived at, we can discern no evidence of general acceptance in the medical community.

Some courts have suggested that a particularly strong temporal relationship between an event and a medical condition may lessen the requirement for expert evidence of causation. For example, in Cavallo v. Star Enterprise, 892 F. Supp. 756, 774 (E.D. Va. 1995), aff’d in relevant part, 100 F.3d 1150, 1159 (4th Cir. 1996), cert. denied, 522 U.S. 1044 (1998), the United States District Court for the Eastern District of Virginia wrote:

“Also worth emphasizing is that the circumstances of each case are unique, and the absence of scientific validation through published studies and tested hypotheses is not always fatal to an expert’s opinion. Specifically, there may be instances where the temporal connection between exposure to a given chemical and subsequent injury is so compelling as to dispense with the need for reliance on standard methods of toxicology. Thus, if a person were doused with chemical X and immediately thereafter developed symptom Y, the need for published literature showing a correlation between the two may be lessened. Similarly, statistical evidence can be persuasive in certain contexts. For instance, if a known chemical is accidentally introduced into a company’s ventilation system, and all of the workers exposed immediately develop the same adverse reaction, then the episode itself may be sufficiently indicative of causation.”

However, in the federal courts, the Daubert rule prevails. Under Daubert, general acceptance in the relevant scientific community is not required; it is only one of the factors to be considered in determining the admissibility of expert evidence. The case now before us is governed by the Frye rule, which does require proof of general acceptance in the relevant scientific community.

This case is quite different from Matthews v. Clarion Hospital, 742 A.2d 1111 (Pa. Super. 1999), where the plaintiff fell off an operating table and fractured her arm. There the court did not require any expert evidence on causation. However, this was not merely because of the immediacy of the injury, but also because it is a matter of common knowledge that a person falling from a significant height onto a hard surface can break a bone. Unlike the situation in Matthews, supra, the cause of glaucoma is not a matter of common knowledge. As we have noted above, according to Dr. Naidoff, even the medical community does not agree on the cause of open-angle glaucoma. Moreover, the temporal relationship between Trach’s ingestion of Doxepin and his contraction of glaucoma is unclear. Dr. Moran did not diagnose Trach with glaucoma when he first examined him in August 1995. It was not until the following March that the diagnosis of glaucoma was made.

In McKenzie, the Commonwealth Court indicated that the expert’s conclusion on causation must itself be generally accepted in the relevant scientific community. In Blum, the Superior Court suggested that a second type of analysis should also be considered, i.e., “whether the methodology underlying the proffered expert testimony is generally accepted by the scientific community.” Blum, 705 A.2d at 1323. We indicated above that an expert opinion that withstands this second type of analysis should be admissible. Otherwise a plaintiff with a legitimate claim may be denied relief if his claim arises from an unusual occurrence that has not been the result of definitive scientific studies. For example, in this case, Trach ingested a massive overdose of Doxepin. This is not the kind of experience that is likely to have been the subject of scientific study because it happens so rarely. None of the witnesses was able to refer to any epidemiological studies finding either an association or a lack of association between the ingestion of an overdose of Doxepin and glaucoma. Nor can the hypothesis of a linkage be tested by the usual scientific method of controlled studies because, as Trach’s counsel has stated:

“No one, with the exception of perhaps Dr. Mengele or other Nazi physician, would ever consider providing to any human being or group thereof the amount of Doxepin ingested by the plaintiff here.”

For this reason, we have not considered as fatal to Trach’s case the absence of medical literature or published studies reaching the conclusions espoused by Dr. Shane. However, without such literature or studies, we must pay special attention to his reasoning process, or “the methodology underlying the proffered expert testimony” to determine whether it is generally accepted by the scientific community. Here, we find that Dr. Shane’s testimony is lacking.

The difficulty is'that Dr. Shane’s reasoning process is inconsistent with the diagnosis of open-angle glaucoma. Dr. Shane explained the mechanism by which Doxepin caused Trach’s glaucoma as follows:

“The combination of both, the cycloplegia and the mydriasis leads to the blurred vision. But what it also leads to is changes in the eye. It leads to a closed angle— it leads to a blockage of the Canal of Schlemm, S-C-HL-E-M-M, which is a circulatory channel between the front chamber and the back chamber of your eye. And it leads to increased pressure in the eye.
“Secondarily, with that iris of your eye, iris is the colored part of your eye that opens and closes with varying amounts of light. When you go into a dark room your pupils are largest because the iris is opened. It has dilated. The profound dilatation of that iris causes pigmen-tary loss, loss of pigment. That pigment is deposited in the filter system at the Canal of Schlemm. So it clogs up the filter again leading by another mechanism to increased pressure in the eye.”

This explanation, however, which is based upon a presumed blockage of the Canal of Schlemm, applies only to closed-angle or narrow-angle glaucoma. Dr. Moran, Trach’s treating ophthalmologist, diagnosed him as having open-angle glaucoma, where there is no obstruction impeding the flow of fluid within the eye. The mechanism proposed by Dr. Shane does not explain how Trach developed open-angle glaucoma. Since Dr. Moran was called as a witness by Trach and was the only expert witness who actually examined him, Dr. Moran’s diagnosis of open-angle glaucoma must be given credence. Thus, it cannot be said that Dr. Shane’s reasoning process as to the cause of Trach’s glaucoma or the methodology on which his opinion is based is supported by a general consensus of the medical community.

Dr. Shane attempted to gloss over the inconsistency in his explanation by stating that the distinction between open-end glaucoma and closed- or narrow-angle glaucoma is no longer considered important. However, Dr. Shane failed to demonstrate a consensus of the medical community on this point. Dr. Moran used the term “open-angle glaucoma” in his diagnosis. Dr. Naidoff explicitly rejected the notion that there is no difference between narrow-angle and open-angle glaucoma. Even Dr. Shane’s report letter treats “narrow-angle glaucoma” as a relevant term, when he states:

“Doxepin is... clearly described as an agent that may have adverse effect in terms of the causation of narrow-angle glaucoma.” (emphasis added)

Therefore, Dr. Shane’s claim that there is no significant difference between the various forms of glaucoma does not itself meet the Frye test. Hence it cannot be the basis for an end run around Frye on the causation issue.

This case is analogous to Checchio v. Frankford Hospital-Torresdale Division, 717 A.2d 1058 (Pa. Super. 1998), where shortly after birth, the minor plaintiff suffered oxygen deprivation, known as hypoxia, due to a respiratory stress syndrome, resulting in brain injury. Two experts, one a pediatric neurologist and the other a neonatalogist, testified for the plaintiffs on the causation issue. The pediatric neurologist stated that, as a result of the hypoxia, the minor plaintiff suffers from mental retardation with behavioral and communication problems. The neonatalogist testified that the hypoxia caused neurological impairment affecting his language and mental function. Both of these experts relied on their own knowledge and experience for their opinions, rather than on any documented scientific authority. The Supreme Court affirmed the trial court’s grant of summary judgment for the defendant on the ground that the experts’ opinions did not meet the Frye test of general acceptance in the scientific community. The proposed testimony of the plaintiffs’ experts “scrupulously avoided the medical literature and was based entirely on subjective assessments of both cause and effect.” Checchio, 111 A.2d at 1062.

Similarly, in the instant case, Dr. Shane did not cite any specific medical literature or studies stating that Doxepin causes either permanent cognitive damage or glaucoma. Dr. Shane’s opinions on these issues were based on his own reasoning from general toxicological principles. There is no evidence that any other members of the medical community share his conclusions or concur in his reasoning process.

For the reasons stated, Dr. Shane’s opinion that there was a causal connection between Trach’s ingestion of Doxepin and the symptoms he experienced shortly af-terwards, as described in the PDR and the manufacturer’s package insert, was properly submitted to the jury. However, Dr. Shane’s opinion that Trach’s ingestion of Doxepin caused him permanent cognitive damage as well as glaucoma does not meet the Frye test and should not have been submitted to the jury.

Medical science is an evolving discipline, and etiologies that are not generally accepted in the medical community today may well be generally accepted tomorrow. For example, there is now a consensus in the medical community that asbestos causes lung disease. As a result, there are now many meritorious asbestos claims. Twenty years ago these suits would all have been dismissed under the Frye rule. Thus, it is quite possible that Trach’s overdose of Doxepin may have caused him permanent cognitive difficulties and open-angle glaucoma. Nevertheless, until medical science is able to demonstrate this causal relationship, our courts of law must exercise restraint. Damage awards are to be based not on speculation, but only on competent proof. Trach may be able to assemble such proof for the retrial of the damage issue. We do not foreclose this possibility. However, our decision on the current motion must be based on the evidence presented at trial. That evidence, as we have seen, falls short. It does not meet the Frye test of general acceptance in the relevant scientific community.

IV. THE MOTION FOR JUDGMENT N.O.V.

Judgment n.o.v. is an extreme remedy that may be granted only in a clear case. See Lilley v. Johns-Manville Corp., 408 Pa. Super. 83, 596 A.2d 203 (1991), allocatur denied, 530 Pa. 644, 607 A.2d 254 (1992). The record must be read in a light most favorable to the verdict winner, who is entitled to every favorable inference. A motion for judgment n.o.v. must be denied, unless reading the record even in this most favorable light, there is insufficient competent evidence to support the verdict. See Vargo v. Koppers Co. Inc., 452 Pa. Super. 275, 681 A.2d 815 (1996), rev ’d on other grounds, 552 Pa. 371, 715 A.2d 423 (1998). Such a motion may not be granted on the basis of testimony presented by the losing party. See Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989).

In this case, we see no basis for the entry of judgment n.o.v., and Thrift Drug’s motion for such relief is denied. Thrift Drug conceded that it gave Trach the wrong medication, and it failed to offer any excuse or explanation for this error. Therefore, we properly directed the jury to find that Thrift Drug was negligent. Trach and his wife described the symptoms he experienced after ingesting the Doxepin, and Dr. Shane opined to a reasonable degree of medical certainty that these symptoms were caused by the ingestion of Doxepin. To the extent these symptoms are described in the PDR and the manufacturer’s package insert as adverse reactions of Doxepin, Dr. Shane’s opinion was legally proper. Therefore, there was sufficient evidence for the jury to find, as it did, that Thrift Drug’s negligence was a substantial factor in causing harm to Trach. It cannot be said that there was no competent evidence to support a verdict in favor of Trach.

V. THE MOTION FOR NEW TRIAL

A new trial is to be granted where evidence that affected the outcome of the case was improperly submitted to the jury. See Atkins v. Pottstown Memorial Medical Center, 430 Pa. Super. 279, 634 A.2d 258 (1993). Where improperly admitted evidence does not affect the jury’s finding of liability, a new trial may be limited to the issue of damages only. See Mano v. Madden, 738 A.2d 493 (Pa. Super. 1999).

“A new trial limited to the issue of damages will be granted where: (1) the issue of damages is not ‘intertwined’ with the issue of liability; and (2) where the issue of liability has been ‘fairly determined’ or is ‘free from doubt.’ ” Kiser v. Schulte, 538 Pa. 219, 233, 648 A.2d 1, 8 (1994).

Because we find that Dr. Shane’s opinions on causation with respect to Trach’s glaucoma and his continuing cognitive difficulties do not meet the Frye test, these opinions should not have been submitted to the jury. Therefore, reluctant as we are to disturb a jury verdict, under existing appellate court decisions we have no alternative but to grant a new trial. The disputed evidence, however, goes only to the issue of damages; it does not affect Thrift Drug’s liability to Trach. Since the damages issue is not intertwined with the issue of liability, and the liability issue has been fairly determined and is free from doubt, the new trial will be limited to the issue of damages only.

In view of our decision to grant a new trial on damages, we do not reach the other issues raised by Thrift Drug in its post-trial motion. We do note, though, regarding the closing argument of Trach’s counsel, that Thrift Drug asserted only one objection to this argument at trial, and that objection was sustained. Therefore, any other objections to the closing argument have been waived.

ORDER

Now, May 16,2000, upon consideration of defendant’s motion for post-trial relief, after review of the briefs submitted by the parties and after oral argument, for the reasons set forth in the accompanying opinion, it is ordered as follows:

(1) Defendant’s motion for judgment n.o.v, is denied.

(2) Defendant’s motion for new trial is granted as to the issue of damages only. In all other respects the motion for new trial is denied.

      . At the close of Trach’s case, a compulsory nonsuit was granted in favor of the co-defendant, J. Fellin. Mr. Fellin is no longer involved in this case.

      . N.T. 6/17/99 at 116.

      . N.T. 6/16/99 at 168-251.

      . N.T. 6/17/99 at 114-48.

      . N.T. 6/17/99 at 116.

      . Deposition of Michael A. Naidoff M.D., 6/8/99, defendant’s trial exhibit 4.

      . Id. at 17.

      . N.T. 6/16/99 at 252-315.

      . Under the Daubert rale, the admissibility of scientific evidence does not require proof of general acceptance in the relevant scientific community. Instead, the trial judge makes “a preliminary assessment whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts at issue.” Daubert, 509 U.S. at 592-93, 113 S.Ct. at 2796. General acceptance in the scientific community is only one of the factors to be considered by the court in making this assessment.

      . Defendant’s motion in limine to preclude testimony of plaintiff’s expert, ¶7.

      . Report letter of Dr. John J. Shane 6/16/97 at 2, defendant’s motion in limine to preclude testimony of plaintiff’s expert, exhibit “A.”

      . Order 6/15/99.

      . For a critical view of these cases, see Cuker, Mark R., “Caselaw out of ‘Wack’: Part I and Part II,” 23 PLW 253 (February 28, 2000) and 23 PLW 279 (March 6,2000). The author contends that the Superior and Commonwealth Court decisions since 1996 have usurped the jury’s function by improperly using Frye to exclude evidence of medical causation from qualified experts.

      . Allocatur was granted in January 1999. The Supreme Court heard argument last October, but has not yet handed down its decision. Although we would have preferred to have the benefit of this decision, we do not know when this decision will be forthcoming, and we believe we should not delay any longer in deciding the case now before us.

      . N.T. 6/16/99 at 220-21.

      . After this, therefore because of this.

      . Plaintiff’s brief in opposition to defendant’s motion for post-trial relief at 41.

      . N.T. 6/16/99 at 197-98.

      . Report letter of Dr. John J. Shane 6/16/97 at 2, defendant’s motion in limine to preclude testimony of plaintiff’s expert, exhibit “A.”


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Schneider v. Chaitman

      C.P. of Lackawanna County,
    no 97 CIV 3412.

      Matthew D’Annunzio, for plaintiff.

      James A. Gibbons, for defendants Cognetti.

      Jeffrey B. McCarron, for defendants Howell.

      Edward Mannino, for defendants Ross.
    April 11, 2000
   MINORA, J.,

I. INTRODUCTION

Currently before the court are numerous preliminary objections raised by various defendants. We will identify the respective defendants and their preliminary objections and dispose of all of them to facilitate judicial economy.

We note that many of the legal issues currently before the court were addressed in the companion case of Samall Associates Inc. v. Helen Davis Chaitman, Individually and as t/a Ross & Hardies (C.P. Lackawanna Cty., no. 96 CV 3569) which is attached hereto and incorporated by reference as exhibit A, and we will make reference thereto as this current matter dictates.

This current action involves a complaint filed by the plaintiff on June 28, 1999. In Count I of the complaint, the plaintiff is alleging a cause of action against the Chaitman defendants for wrongful use of civil proceedings pursuant to 42 Pa.C.S. §8351 et seq. in regard to the underlying bankruptcy and state court proceedings. In Count II of the complaint, the plaintiff alleges the same cause of action against the Ross & Hardies defendants. Count III alleges the same cause of action against the Dorsan Inc. defendant. Count IV alleges the same cause of action against the Krause defendant. Count V alleges the same cause of action against the Howell Firm defendant. Count VI alleges the same cause of action against the Cognetti defendants. Count VII alleges the same cause of action against the Foley Firm defendants.

This instant complaint as well as the companion complaint filed in Samall Associates Inc. v. Helen Davis Chaitman, Individually and as t/a Ross & Hardies (C.P. Lackawanna Cty., no. 96 CV 3569) spawned a myriad of preliminary objections. In the case sub judice, the court entertained briefs of counsel and heard oral arguments on January 19,2000 and March 27,2000. As mentioned above, we will now dispose of all preliminary objections before the court.

The Cognetti and Foley Firm defendants filed preliminary objections on July 19, 1999, alleging lack of jurisdiction over those defendants due to improper service of process. In addition, the Cognetti and Foley Firm defendants demurrer to the causes of action filed against them for the same reasons cited in the Samall case, supra, in that this court has previously ruled in a related case that the prosecution of an appeal does not form the basis for a claim of wrongful use of civil proceedings.

The Chaitman defendants and the Ross & Hardies defendants filed preliminary objections on July 20,1999, demurring to Counts I and II of this instant complaint based on the same ruling by the court on March 9, 1998 in Samall, supra, where this court found, as a matter of law, that the filing of an appeal does not constitute the procurement, initiation or continuation of civil proceedings against another under 45 Pa.C.S. §8351(a) and that, as a matter of law, due to the federal pre-emption, a cause of action for wrongful use of civil proceedings may not be instituted in state court based upon action taken in a bankruptcy proceeding. The Chaitman defendants and the Ross & Hardies defendants also raised a demurrer based on the fact that the underlying first bankruptcy proceeding was not terminated in favor of the person against whom it was brought as required by 42 Pa.C.S. §8351 (a)(2).

The Krause and Howell Firm defendants filed preliminary objections to the instant complaint on July 22,1999 as to Counts IV and V based on the Somalí ruling cited above, including those contentions set forth by the other objecting defendants.

Therefore, the preliminary objections of the Chaitman and Ross & Hardies defendants, the Krause and Howell Firm defendants, and the Cognetti and Foley Firm defendants share common ground or key substantive issues set forth above. Only the Cognetti and Foley Firm defendants raise an additional procedural objection of improper service of process.

DISCUSSION

A. Service of Process Upon the Cognetti and Foley Firm Defendants

Before we address the substantive issues raised by the three sets of objecting defendants, we will dispose of the Cognetti and Foley Firm objections regarding service of process.

Pennsylvania Rule of Civil Procedure 402(a) (2) (iii) indicates that “original process may be served by handing a copy at any office or usual place of business of the defendant to his agent or to the person for the time being in charge thereof.”

Pennsylvania Rule of Civil Procedure 423 similarly indicates that service of original process upon a partnership and all partners named in the action or upon an incorporated association shall be made upon any of the following persons, provided the person served is not a plaintiff in the action:

“(1) any partner, officer or registered agent of the partnership or association, or
“(2) an agent authorized by the partnership or association in writing to receive service of process for it, or
“(3) the manager, clerk or other person for the time being in charge of any regular place of business or activity of the partnership or association.”

The Cognetti and Foley Firm defendants’ objections regarding jurisdiction and service of process stem from their contention that service upon associate attorney Vincent Cimini does not comply with the requirements of Pa.R.C.P. 402(a)(2)(iii) or Pa.R.C.P 423. We disagree.

If the defendant and other members of the office where the defendant works possess a high degree of legal knowledge and sophistication, and the office regularly handles legal documents and notices, it may not be necessary to show that defendant possesses a high degree of propriety interest or control in the office because, in this kind of situation, there is a reasonable likelihood that the person reviewing the copy of the process will understand its significance and pass it on to the proper principal of the defendant. In a similar situation, attorneys working as county public defenders were validly served by substituted service at the office of the county public defender, although their interest in the office fell short of that of a proprietor or manager, because the nature of the office, which regularly handled legal notices, such as notices of service and the qualifications of its staff, reasonably ensured that the defendants would receive the copy of the process. Williams v. Office of Public Defender, 402 Pa. Super. 188, 586 A.2d 924 (1990), appeal denied, 531 Pa. 661, 613 A.2d 1210 (1992); 2 Standard Pa. Practice 2d §10:86 pp. 210-11.

Certainly, serving attorney Vincent Cimini, known to this court as an able lawyer with intelligence and a sense of responsibility, would comply with the spirit if not the letter of the law cited above.

Therefore, defendant Cognetti and defendant Foley Firm’s preliminary objections regarding jurisdiction and lack of proper service will be denied and dismissed.

B. The Standards for a Preliminary Objection in the Nature of a Demurrer

Before turning to the collective preliminary objections in the nature of demurrers set forth by the various defendants, we will briefly set forth the standards for a demurrer.

The question presented by preliminary objections in the nature of a demurrer is whether on the facts averred, the law says with certainty that no recovery is possible. Shick v. Shirey, 552 Pa. 590, 593, 716 A.2d 1231, 1233 (1998); Richards v. May Dept. Stores, 100 Lacka. Jur. 334, 338 (1999). In ruling on preliminary objections, the court must accept as true all well-pleaded allegations of material fact and all inferences that may be reasonably deduced from those averments. Wagner v. Borough of Rainsburg, 714 A.2d 1164, 1166 (Pa. Commw. 1998); Shumek v. Scranton Counseling Center, 100 Lacka. Jur. 173, 175 (1999). Preliminary objections which result in the dismissal of a claim should be sustained only in cases clear and free from doubt. Drain v. Covenant Life Insurance Co., 551 Pa. 570, 575, 712 A.2d 273, 275 (1998); American Housing Trust v. Jones, 548 Pa. 311, 316, 696 A.2d 1181, 1183-84 (1997). Where any doubt exists as to whether a demurrer should be sustained, it should be resolved in favor of overruling the demurrer. Shick, supra; Petition of Pippy, 711 A.2d 1048, 1050 (Pa. Commw. 1998); Gerbert v. Granahan, 101 Lacka. Jur. 75 (2000).

With those standards in mind, we can now examine the collective substantive preliminary objections raised by the various objecting defendants in the light of this court’s recent decision, the companion case of Samall Associates Inc. v. Helen Davis Chaitman, Individually and as t/a Ross & Hardies (memorandum and order dated March 9, 1998; C.P. Lackawanna Cty., no. 96 CV 3569) (exhibit A). Further, the court will be guided by the clear precedent of Pennsylvania appellate case law and not the cases from other states urged upon this court for adoption by some of the litigants.

C. Defendant Cognetti and Defendant Foley Firm’s Preliminary Objections in the Nature of a Demurrer Based on the Contention That the Prosecution of an Appeal Does Not Form the Basis of a Claim for Wrongful Use of Civil Proceedings Under 42 Pa.C.S. §8351(a)

It is clear from the pleadings that Counts VI and VII of the complaint are based on the defendant Cognetti and defendant Foley Firm’s sole participation in an appeal process.

As we stated in Samall, supra and as cited in Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 383, 627 A.2d 190, 193 (1993), a frivolous appeal will not support an action for wrongful use of a civil proceeding.

Therefore, it is clear as a matter of law, that defendant Cognetti and defendant Foley Firm’s preliminary objections to Counts VI and VII of plaintiff’s complaint should be sustained and those causes of action dismissed in their entirety against them.

D. Defendant Chaitman and Defendant Ross & Hardies’ Preliminary Objections in the Nature of a Demurrer Based on Appellate Activity Not Forming the Basis for Wrongful Use of Civil Proceedings Under 42 Pa.C.S. §8351(a), Federal Bankruptcy Pre-emption and the Fact the First Bankruptcy Proceeding Was Not Terminated in Favor of the Person Against Whom It Was Brought As Required by 42 Pa.C.S. §8351(a)(2)

Counts I and II against defendant Chaitman and defendant Ross & Hardies based on their involvement with appellate activity must also fail for the same reasons set forth above in part C. Samall, supra; Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 383, 627 A.2d 190, 193 (1993).

In addition, portions of Counts I and II must fail for the reasons that state law tort claims for wrongful use of civil proceedings based on bankruptcy court proceedings are pre-empted by the remedies available under the Bankruptcy Code. See Samall, supra; Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super. 1998), appeal denied, 556 Pa. 701, 729 A.2d 1130 (1998).

Since the parts of Counts I and II dealing with appellate activity and bankruptcy proceedings have to be dismissed as a matter of law for the reasons set forth above, it is not necessary to address the third preliminary objection of defendants Chaitman and Ross & Hardies [i.e., that the first bankruptcy proceeding was not terminated in favor of the person against whom it was brought as required by 42 Pa.C.S. §8351(a)(2)].

Therefore, it is clear, as a matter of law, that defendant Chaitman’s and defendant Ross & Hardies’ preliminary objections to Counts I and II dealing with their involvement with the appellate and/or bankruptcy proceedings should be sustained. However, those portions of Counts I and II dealing with defendants’ involvement in the underlying participation in Pike and Lackawanna counties in the filing of petitions to strike and/or open judgments do not lend themselves to the granting of a demurrer at this time. It is not clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief in regards to the defendants Chaitman and Ross & Hardies’ involvement in the underlying Pike and Lackawanna county proceedings mentioned above. See Samall, supra at 8-11.

Therefore, defendants Chaitman and Ross & Hardies’ preliminary objections will be sustained in part and denied in part as in the companion Samall case, supra.

E. Defendants Krause and Howell Firm’s Preliminary Objections in the Nature of a Demurrer Based on Their Involvement in Appellate and/or Bankruptcy Proceedings

The same reasoning set forth in part D of this opinion and Samall, supra at 11-13 also apply to defendants Krause and the Howell Firm. Therefore, it is clear, as a matter of law, that defendant Krause’s and defendant Howell Firm’s preliminary objections to Counts IV and V dealing with their involvement with appellate and/or bankruptcy proceedings should be sustained. However, those portions of Counts I and II dealing with defendants’ involvement in the underlying participation in Pike and Lackawanna counties in the filing of petitions to strike and/or open judgments do not lend themselves to the granting of a demurrer at this time. It is not clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief in regards to defendant Krause’s and defendant Howell Firm’s involvement in the underlying Pike and Lackawanna county proceedings mentioned above.

Therefore, defendant Krause’s and defendant Howell Firm’s preliminary objections will be sustained in part and denied in part as in the companion Samall case, supra.

We will issue an appropriate order summarizing our holdings.

ORDER

And now, to wit, April 11, 2000, it is hereby ordered and decreed that the defendants’ preliminary objections are sustained in part and overruled in part as per the following categorization and consistent with the above memorandum:

(1) The Cognetti and Foley Firm defendants’ preliminary objections based on a lack of jurisdiction and improper service are overruled;

(2) The Cognetti and Foley Firm defendants’ preliminary objections in the nature of a demurrer as to Counts VI and VII are sustained. Since the Cognetti and Foley Firm defendants only participated in appellate proceedings, which are legally insufficient to sustain a cause of action, the instant actions against them are dismissed in their entirety.

Defendants Chaitman and Ross & Hardies’ preliminary objections in the nature of a demurrer based on appellate activity and federal bankruptcy pre-emption are sustained. Their preliminary objections in the nature of a demurrer in regard to their involvement in the petition to open and/or strike judgment in the underlying Pike and Lackawanna county actions are overruled.

All claims against them based on their involvement in appellate and/or bankruptcy proceedings are dismissed. The plaintiff will be allowed to proceed only on the remainder of his complaint arising out of civil actions in Pike and Lackawanna counties.

(4) Defendants Krause and Howell Firm’s preliminary objections in the nature of a demurrer based on appellate activity and federal bankruptcy pre-emption are sustained. Their preliminary objections in the nature of a demurrer in regard to their involvement in the petitions to open and/or strike judgment in the underlying Pike and Lackawanna county actions are overruled.

March 9, 1998

All claims against them based on their involvement in appellate and/or bankruptcy proceedings are dismissed. The plaintiff will be allowed to proceed only on the remainder of his complaint.

EXHIBIT “A”

Somalí Associates Inc. v. Helen Davis Chaitman

MINORA, J.,

This action comes before the court by way of numerous preliminary objections filed by both the defendants and the plaintiffs. The preliminary objections of the defendants collectively sound in the nature of a demurrer against counts contained in the plaintiffs’ amended complaint that allege the defendants engaged in wrongful use of civil proceedings in violation of the Dragonetti Act. The plaintiffs, Samall Associates Inc., have also lodged preliminary objections to the preliminary objections of the Ross & Hardies defendants. The preliminary objections allege that Ross pled facts outside of the record and which are otherwise improper pursuant to Pa.R.C.R 1028(a)(2). An argument was held before this court on November 3, 1997, and the parties have briefed their respective positions. This memorandum and order follow.

FACTS

This is an action against numerous lawyers and their respective law firms, asserting liability to the plaintiff for wrongful use of civil proceedings in violation of 42 Pa.C.S. §8531(a). Plaintiffs are holders of confessed judgments and debt instruments which they had purchased from Northeastern Bank of Pennsylvania, now PNC Bank. The judgments were based on debts owed to the bank by the Milford Group Inc. The shareholders of the Milford Group Inc. were Gerald Swendsen and Melvin Swendsen.

In 1991, Milford filed a petition in Bankruptcy Court for the Middle District of Pennsylvania. In 1992, the Swendsens filed a petition to strike or open judgments in the Court of Common Pleas of Pike County, which sought to open or strike four separate confessed judgments which had been filed by the plaintiffs. The Swend-sens were represented in that action by defendants Helen Davis Chaitman and her law firm, Ross, as well as Lee C. Krause, Esquire, and his law firm, Howell, Krause & Schlosser. The petition to open and/or strike was denied on December 21,1993, and the Swendsens, through their counsel, filed a notice of appeal to the Pennsylvania Superior Court on January 14, 1994.

Subsequent to the filing of a notice of appeal, the Swendsens, through their same counsel, applied to the Superior Court for a stay of execution on the judgments; the application was denied on February 18, 1994. The Cognetti defendants entered their appearance in the Superior Court on behalf of the Swendsens on April 20, 1994. No further activity occurred in the appeal and the court dismissed the appeal on October 24, 1994.

Meanwhile, the Swendsens, Milford and Dorsan Inc. commenced an action against a number of parties (which include the current plaintiffs) in the Lackawanna County Court of Common Pleas on December 2, 1992. The Swendsens, Milford and Dorsan Inc. were represented by Chaitman and her firm, Ross, as well as Krause and his law firm, Howell. The Cognetti defendants were not involved at this level. The case was dismissed on November 30, 1993 as a result of preliminary objections filed by the then-defendants. The Swendsens, Dorsan Inc. and the trustee in the Milford bankruptcy appealed the dismissal by this court to the Pennsylvania Superior Court on December 27, 1993. The notice of appeal was filed by Chaitman, Krause and their respective firms.

Cognetti entered their appearance four months later on April 20, 1994, but only on behalf of the Swendsens and Dorsan Inc. The Superior Court affirmed the dismissal of the Lackawanna County action on January 18, 1995. On February 14,1995, the Swendsens, Dorsan Inc. and the trustee petitioned the Pennsylvania Supreme Court for allowance of appeal. The Cognetti defendants were not involved in seeking review in the Pennsylvania Supreme Court. The petition for allowance of appeal was denied by the Pennsylvania Supreme Court on July 20, 1995.

In March 1994, the trustee in the Milford bankruptcy had initiated an adversary proceeding by filing a complaint in the bankruptcy court, seeking equitable subordination of the claim against Milford held by plaintiff Samall Associates. The trustee was represented by Chaitman and her firm, Ross. Simultaneously, the trustee filed a motion in the bankruptcy, seeking to enjoin plaintiff Samall from levying and executing on assets of the Swendsens. The bankruptcy court denied the request for a stay on March 31,1994. On April 11,1994, the Cognetti defendants filed a notice of appeal to the U.S. District Court, seeking review of the bankruptcy court’s denial of the trustee’s motion for a stay on behalf of the Swendsens. The appeal was not pursued, the plaintiffs filed a brief motion to dismiss for failure to prosecute, and the motion was granted on July 29, 1994.

The amended complaint generally asserts the following causes of action:

Against the Cognetti defendants for improper claims made on behalf of the Swendsens in appeals in the Pike County and Lackawanna County matters, and again in an appeal from an order of the bankruptcy court denying a motion for stay filed by co-defendant, Helen Davis Chaitman, in the bankruptcy proceedings.

Against the Ross defendants for filing baseless claims in petitions to strike and/or open judgments in Pike County on behalf of the Swendsens; in representing the Swendsens and Dorsan Inc. in the first adversary action in bankruptcy court from which the court abstained in favor of the Lackawanna County action; and for representation of Dorsan Inc. and the Swendsens in the Lackawanna action and appeals.

Against the Howell defendants for representing Dor-san Inc. and the Swendsens in the foregoing matters and, in addition, in an improper motion for stay filed in bankruptcy court.

Defendants’ Motion for Stay

The Cognetti, Ross and Howell defendants in this action have moved for a stay, pending the resolution of a declaratory judgment action initiated by the trustee in bankruptcy for the Milford Group Inc., alleging, inter alia, the plaintiffs in the action presently before the court, pending in the United States Bankruptcy Court for the Middle District of Pennsylvania. It is true that the trial court has the inherent power to stay the proceedings in one case during the pendency of another case which may resolve or moot the case presently being stayed. Gwynedd Properties Inc. v. Board of Supervisors of Lower Gwynedd Township, 160 Pa. Commw. 599, 607-608, 635 A.2d 714, 718 (1993). However, this court is choosing to exercise its discretion by deciding this matter and ruling on the preliminary objections filed by the respective parties involved in this case.

DISCUSSION

In considering a demurrer, all material facts set forth in the complaint, as well as all references reasonably deducible therefrom, are admitted as true. The court cannot accept as true, conclusions of law. The question presented by the demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which any relief may be granted. A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory. Pittsburgh National Bank v. Perr, 431 Pa. Super. 580, 584, 637 A.2d 334, 336 (1994). Since the sustaining of a demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 407 (1985).

If there is any doubt, this should be resolved in favor of overruling the demurrer. National Recovery Systems v. Frebraro, 287 Pa. Super. 442, 444, 430 A.2d 686, 687 (1981). “[I]n pleading its case, the complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense.” PennDOT v. Bethlehem Steel Corp., 33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977). A preliminary objection in the nature of a demurrer cannot be used to raise substantive defenses against a plaintiff’s right to recover. 2 Goodrich-Amram 2d, §1017(b):25 (1991).

The test a court uses in ruling on a demurrer in the form of a preliminary objection is whether, upon the facts averred, it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Sharon Paving & Construction Co. v. Sharon, 19 Mercer Cty. L.J. 155 (1982).

Cognetti Defendants’ Preliminary Objections

Counts V and VI of the amended complaint allege violations of the Dragonetti Act by the Cognetti defendants for their participation and the appeal of the Pike County action. Counts XII, XIII, XIX and XX allege liability against the Cognetti defendants for their participation in the appeal of the Lackawanna County action before the Pennsylvania Superior Court. Counts XXI and XXII allege violations of the Dragonetti Act, which provides a cause of action for wrongful use of civil proceedings, by the Cognetti defendants in connection with their appeal of the bankruptcy court’s denial of the trustee’s motion for a stay of execution.

We will begin analysis by examining the preliminary objections of the Cognetti defendants with regard to counts in the plaintiffs’ amended complaint that pertain to the Cognetti defendants’ participation in the Pike County action and its appeal. The Ross defendants withdrew their appearance on behalf of their clients, the Swendsens, and on April 4, 1994, the Cognetti defendants entered their appearance on behalf of the Swend-sens. However, after the entry of appearance by the Cognetti defendants, no further activity occurred on the appeal, and the appeal itself was dismissed by the court sua sponte on October 24,1994 for failure to prosecute.

In December 1992, the Swendsens, Milford and Dorsan Inc. commenced an action against the current plaintiffs in the Lackawanna County Court of Common Pleas. The cause of action was dismissed upon the granting of defendants’ preliminary objections for failure to state a claim upon which relief can be granted. The Swendsens were represented on appeal by the Ross defendants; on April 4,1994, the Cognetti defendants also entered an appearance on behalf of the appellants. However, the petition for allowance of appeal was denied by the Pennsylvania Supreme Court on July 20, 1995. Counts XII and XHI of the plaintiffs’ amended complaint deal with actions of the Cognetti defendants in the above appeal.

In March 1994, the trustee in the Milford bankruptcy initiated an adversary proceeding by filing a complaint in the bankruptcy court, seeking equitable subordination of plaintiff Samall’s claim against Milford. The trustee was represented by the Ross defendants. On March 31, 1994, the bankruptcy court denied the trustee’s request for a stay of execution. On April 11, 1994, the Cognetti defendants filed a notice of appeal to the U.S. District Court for the Middle District. The appeal was not pursued, and Samall’s motion to dismiss was granted on July 29,1994. These actions are covered by Counts XXI and XXII of plaintiffs’ amended complaint.

“The essence of the tort of wrongful use of civil proceedings is the institution of a civil action for a malicious purpose and without probable cause.” Rosen v. American Bank of Rolla, 426 Pa. Super. 376, 382, 627 A.2d 190, 193 (1993). “[I]t has been held that a frivolous appeal will not support an action for wrongful use of a civil proceeding.... In... these cases there was not a wrongful initiation or continuation of a separate civil action against the plaintiff.” Id. at 383, 627 A.2d at 193. (emphasis added) (citation omitted)

Since the participation of the Cognetti defendants wholly took place on the appellate level of the cases at issue, this court sustains all of the Cognetti defendants’ preliminary objections to the plaintiffs’ amended complaint. The court finds it clear and free from doubt that the plaintiffs have failed to bring a cause of action upon which relief can be granted and, further, that the plaintiffs, based upon their own pleadings, will be unable to prove facts legally sufficient to establish their right to relief. This is so because such a claim cannot, be based solely upon appellate activity as is the case against the Cognetti defendants.

Further, during the drafting of this memorandum and order, this court was presented with the case of Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super. 1998), wherein the Superior Court of Pennsylvania held that, “[T]he Bankruptcy Code permits no state law remedies for abuse of its provisions.” Shiner at 1238. Therefore, with regard to the Cognetti defendant handling of the bankruptcy appeal, this area is pre-empted from state consideration by the Bankruptcy Code and, therefore, cannot serve as a basis for a Dragonetti cause of action.

For reasons stated above, all of the Cognetti defendants’ preliminary objections are granted.

We will now examine the Ross defendants’ preliminary objections to the plaintiffs’ amended complaint.

Ross Defendants’ Preliminary Objections

The proceedings conducted by the Ross defendants in the Pike County action were the filing of a petition to strike or open judgments, filed in four pending actions in Pike County, seeking to open judgments that had been entered by confession, and the subsequent filing of an appeal from the Pike County court’s denial of the petition to strike or open judgments.

This court finds that the Ross defendants have not satisfied the burden placed on those filing preliminary objections relative to striking or opening judgments sounding in a demurrer. As previously stated, one of the requirements of a cause of action for wrongful use of civil proceedings under.42 Pa.C.S. §8351 is the individual bringing the action in question acted “in a grossly negligent manner or without probable cause and primarily for a purpose other than securing the proper discovery, joinder of parties or adjudication of the claim in which the proceedings are based ... .” 42 Pa.C.S. §8351(a)(1). This position was once again reiterated in Rosen, where the court held: “The essence of the tort of wrongful use of civil proceedings is the institution of a civil action for a malicious purpose and without probable cause.” Id. at 382, 627 A.2d at 193.

In view of the requirements for a cause of action for wrongful use of civil proceedings and the requirements for the granting of a demurrer, we hold that at this stage of the pleadings, it is unclear whether the Ross defendants’ participation in attempts to strike and/or open confessed judgments held by the plaintiffs was done for a malicious purpose or without probable cause. Because this factual issue is unresolved, the Ross defendants’ preliminary objections to Count I of the plaintiffs’ complaint pertaining to the petition to strike or open the judgments in the Pike County action are denied. It is not clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief.

The court now will analyze the following counts objected to by the defendants. Count II of the amended complaint pertains to the appeal taken in the Pike County action. This court maintains its position as previously stated above while addressing the preliminary objections of the Cognetti defendants in light of the holding in Rosen. Thus, the preliminary objections raised by the Ross defendants dealing with appeals initiated by them to the Pike County court’s denial of the petition to strike or open the confessed judgments at issue are granted.

For these reasons and all those stated above, the Ross defendants’ preliminary objections to Count I in plaintiffs’ amended complaint are denied, and the preliminary objections to Count II are granted.

Next, we will examine Counts VIII and IX pertaining to the Ross defendants’ participation in the first bankruptcy court proceeding. During the drafting of this memorandum and order, this court was presented with the case of Shiner v. Moriarty, 706 A.2d 1228 (Pa. Super. 1998) as previously noted. In Shiner, the Superior Court of Pennsylvania held: “[T]he Bankruptcy Code permits no state law remedies for abuse of its provisions.” Id. at 1238. The Shiner court further elaborated on federal pre-emption for actions deriving from alleged wrongful use of bankruptcy proceedings as follows: “complex, detailed, and comprehensive provisions of the lengthy Bankruptcy Code ... demonstrates Congress’s intent to create a whole system under federal control.” Id.

Thus, in light of this recent decision from the Superior Court, we find that Counts VIII and IX must be dismissed, for it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief. A cause of action for wrongful use of civil proceedings may not be instituted in state court; based upon a bankruptcy proceeding, such an action must be raised in bankruptcy court due to federal pre-emption in this area of law as per Shiner.

Therefore, the Ross defendants’ preliminary objections to Counts VIII and IX in the plaintiffs’ amended complaint pertaining to the above referenced bankruptcy proceeding are granted for these reasons and all those stated above.

We will now address remaining Counts XV and XVI dealing with the Ross defendants’ involvement in the Lackawanna County action. This court is again maintaining its previously stated position that an appeal cannot be the basis for a cause of action for wrongful use of civil proceedings; therefore, the preliminary objection to Count XVI contained in the plaintiffs’ amended complaint, alleging a claim under 42 Pa.C.S. §8351(a) arising out of any appeals filed to higher courts by the Ross defendants, is granted. Thus, this court holds that the Ross defendants’ preliminary objections pertaining to Count XVI in the plaintiffs’ complaint dealing with appeals taken from an action of the Lackawanna County court are granted for the same reasons as those previously stated in this opinion.

Additionally, the Ross defendants have stated that the Lackawanna County action is practically identical to the Pike County action. Thus, we reach the same conclusion as above. We find that it is unclear, at this stage of the pleadings, whether the Ross defendants’ participation in attempts to strike and/or open confessed judgments was done for a “malicious purpose and without probable cause” as required by the pertinent case law. Rosen at 382, 627 A.2d at 193. Therefore, we hold that the Ross defendants have failed to meet the high burden placed on defendants filing preliminary objections in demurrer because it is not clear and free from doubt that the plaintiffs will be unable to prove facts legally sufficient to establish their right to relief. Therefore, the Ross defendants’ preliminary objection to Count XV of the plaintiffs’ amended complaint pertaining to the striking and/ or opening of the judgments in Lackawanna County are denied.

For these reasons and all those stated above, the Ross defendants’ preliminary objections to Count XV are denied and Count XVI are granted.

The plaintiffs have raised their own preliminary objections to a portion of the Ross defendants’ preliminary objections at paragraphs 9 and 10 pertaining to action taken by the Pike County court that is not part of the record. However, in view of the fact that this court has denied the Ross defendants’ preliminary objections on that issue, the matter is now moot and requires no further consideration by this court.

Howell Defendants’ Preliminary Objections

The allegations against the Howell defendants are the same as those asserted against the previously discussed defendants and will be resolved in the same manner. Counts III and IV of the plaintiffs’ amended complaint deal with the Howell defendants’ involvement in the action to open and/or strike the judgments against the Swendsens in Pike County and appeals taken as a result of that action. This court has previously held, in this opinion, that it is unclear whether the participants in this action acted in a grossly negligent manner and without probable cause as required to sustain a cause of action under the Dragonetti Act, when filing petitions to open and/or strike judgments. See supra. Therefore, the defendants have failed to meet the high burden placed on defendants filing preliminary objections in demurrer. Thus, this court finds that it is not clear and free from doubt that the plaintiffs will be unable to prove facts legally sufficient to establish their right to relief. Therefore, the Howell defendants’ preliminary objection to Count III of the plaintiffs’ amended complaint pertaining to the striking and/or opening of the confessed judgments at issue is also denied.

This court also holds that the Howell defendants’ preliminary objections made to Count IV in the plaintiffs’ amended complaint stemming from appeals taken on the denial of the Howell defendants’ petition to open and/or strike the judgments are granted for the same reasons as those previously stated in this opinion.

For these reasons and all those stated above, the Howell defendants’ preliminary objections to Count III are denied and Count IV are granted.

The Howell defendants have also made preliminary objections to Counts X, XI, XVII and XVIII in the plaintiffs’ amended complaint dealing with the first bankruptcy proceeding and the Lackawanna County action. Once again, we hold as we did above. In light of the holding in Shiner, we find that Counts X and XI must be dismissed, for it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish a right to relief. Since a cause of action for wrongful use of civil proceedings may not be instituted in state court based upon bankruptcy proceedings, such an action must be raised in bankruptcy court due to federal pre-emption of this area. See Shiner, supra.

Therefore, the Howell defendants’ preliminary objections to Counts X and XI of the plaintiffs’ amended complaint dealing with the first bankruptcy proceeding are granted, as this court finds that the Howell defendants’ right to a demurrer on this issue is clear and free from doubt.

Once again, this court must also deal with the Lack-awanna County action as we have above. The holding of this court is the same for the Howell defendants as for the others previously discussed. We again find that it is unclear whether or not the Howell defendants’ participation in attempts to strike and/or reopen confessed judgments held by the plaintiffs was done in a grossly negligent manner and without probable cause. Therefore, the Howell defendants have also failed to meet the high burden placed on defendants filing preliminary objections in demurrer. Thus, this court finds that it is not clear and free from doubt that the plaintiffs will be unable to prove facts legally sufficient to establish their right to relief. Therefore, the Howell defendants’ preliminary objection to Count XVII of the plaintiffs’ amended complaint pertaining to the striking and/or opening of the confessed judgments at issue is denied. However, the Howell defendants’ preliminary objections pertaining to Count XVIII in the plaintiffs’ complaint dealing with appeals taken from action of the Lackawanna County court are granted for the same reasons as those provided above.

For these reasons and all those stated above, the Howell defendants’ preliminary objections to Count XVII of the plaintiffs’ amended complaint are denied, and Count XVIII of the plaintiffs’ amended complaint is granted.

Finally, Counts XXIII and XXIV of the plaintiffs’ amended complaint arise out of bankruptcy court proceedings in connection with a motion filed in bankruptcy court for a temporary restraining order and preliminary injunction to enjoin Samall from executing on the judgments.

We find these actions by the Howell defendants fall under the same parameters as the previously addressed dealing with bankruptcy proceedings. Thus, we find that in view of the holding in Shiner, it is clear and free from doubt that the plaintiffs will be unable to prove facts legally sufficient to establish their right to relief due to the federal pre-emption of this issue discussed above. Accordingly, the Howell defendants’ preliminary objections to Counts XXIII and XXIV of the plaintiffs’ amended complaint pertaining to the above-mentioned bankruptcy proceedings are granted.

CONCLUSION

In sum, this court holds that all preliminary objections raised by the defendants against counts in the plaintiffs’ amended complaint pertaining to the filing of petitions to strike and/or open judgments in both Pike and Lackawanna counties are denied for all of the reasons stated above.

We also hold that all preliminary objections raised by the defendants against counts in the plaintiffs’ amended complaint pertaining to the appeals taken in both Pike and Lackawanna counties are granted for all of the reasons stated above.

This court further holds that all preliminary objections raised by the defendants against counts in the plaintiffs’ amended complaint pertaining to the bankruptcy proceeding are granted in accordance with the reasons stated above.

Finally, this court holds that the preliminary objections raised by the Howell defendants against counts in the plaintiffs’ amended complaint pertaining to attempts by the Howell defendants to prevent Samall from executing judgments in federal bankruptcy court are granted for all of the reasons stated above.

For these reasons and those stated above, the defendants’ preliminary objections are sustained in part and overruled in part. An appropriate order follows.

ORDER

And now, to wit, March 9, 1998, it is hereby ordered that the defendants’ preliminary objections are sustained in part and overruled in part as per the following categorization and consistent with the above memorandum:

(1) The Cognetti defendants’ preliminary objections to Counts V, VI, XII, XIII, XIX, XX, XXI and XXII of the plaintiffs’ amended complaint are granted.

(2) The Ross defendants’ preliminary objections to Counts I and XV of the plaintiffs’ amended complaint are denied.

(3) The Ross defendants’ preliminary objections to Counts II, VIII, IX and XVI of the plaintiffs’ amended complaint are granted.

(4) The Howell defendants’ preliminary objections to Counts III and XVII of the plaintiffs’ amended complaint are denied.

(5) The Howell defendants’ preliminary objections to Counts IV, X, XI, XVm, XXIII and XXIV of the plaintiffs’ amended complaint are granted.

(6) Finally, this court has not ruled on the plaintiffs’ preliminary objections as they were rendered moot by this court’s denial of the Ross defendants’ preliminary objections at issue.

This order pertains to the causes of action that arose from both the Pike and Lackawanna county actions and actions commenced in the Federal Bankruptcy Court for the Middle District of Pennsylvania.