author: QUIÑONES ALEJANDRO, J.,

text:
    Bullock v. City of Philadelphia

      Ralph D. Friedman, for plaintiff.

      Stephen E. Atkins and Alan C. Ostrow, for defendant.
    March 20, 2002
   QUIÑONES ALEJANDRO, J.,

INTRODUCTION

Janice Bullock (plaintiff), an African American female, was employed as a social worker by the Department of Public Health, Office of Mental Health and Mental Retardation, an agency of the City of Philadelphia (defendant) pursuant to the provisions of the Philadelphia Civil Service Commission and the collective bargaining agreement between the defendant and AFSCME, District Council 47. Sometime in April 1994, she was promoted to the position of Health Services Social Worker II. On May 23, 1996, plaintiff, then over the age of 40, was dismissed from her position after a history of being disciplined and suspended for poor performance, an inability to follow policy and/or accept supervision, avoiding work, and for failure to complete her duties and/or provide patient services. Plaintiff filed an appeal of her dismissal with the commission, and on March 20, 1997, the commission denied her appeal.

On April 21,1997, plaintiff appealed the commission’s decision to the Philadelphia Court of Common Pleas. On January 28, 1998, plaintiff’s appeal was denied and the commission’s decision was affirmed.

On February 24, 1998, plaintiff filed an appeal with the Commonwealth Court averring that the trial court erred when denying her an opportunity to present new evidence and when improperly considering two unfair and discriminatory performance evaluations. On September 18, 1998, the appellate court denied the appeal, affirmed the trial court, and found that the record before the commission was complete and that the performance evaluations reviewed by the trial court were part of the record certified by the commission. The appellate court reasoned that any objections that plaintiff may have had to the performance evaluations should have been brought initially before the commission and were not; thus, the argument was deemed waived.

Dissatisfied, plaintiff filed an appeal to the Supreme Court, and on May 27, 1999, plaintiff’s petition for allowance of an appeal to the Supreme Court was denied.

On May 7, 2001, plaintiff filed the instant action against defendant and averred that she was unlawfully discharged from her city employment on May 23,1996, because of defendant’s clandestine policy of discrimination on the basis of disability, age and race.

On July 25,2001, the matter was removed to the United States District Court for the Eastern District of Pennsylvania. Subsequently, defendant filed a motion to dismiss plaintiff’s complaint pursuant to the provisions of Fed.R.C.P. 12(b)(6) and argued that plaintiff’s claims were barred by: the doctrine of res judicata, the Rooker-Feldman doctrine, the failure to exhaust administrative remedies as required by law, the failure to state a claim for which relief may be granted, the statute of limitations, and/or laches. In response to this motion, plaintiff argued that her unlawful dismissal was actually done in “retaliation” for her disability for which a notice of compensation payable had been issued on March 31, 1993, and which, allegedly, has never been terminated in accordance with the provisions of the Pennsylvania Workers’ Compensation Act. Prior to the motion to dismiss being decided, the parties agreed to remand the case to state court as no federal claim was being asserted, thus depriving the federal court of subject matter jurisdiction. By order dated September 7, 2001, this case was formally remanded to the Philadelphia Court of Common Pleas.

On November 26, 2001, defendant filed preliminary objections to plaintiff’s complaint in the nature of a demurrer and argued, inter alia, that plaintiff’s wrongful discharge assertions and claims of discrimination are barred: (1) because the City of Philadelphia hired plaintiff pursuant to the commission’s regulations and the collective bargaining agreement between the City of Philadelphia and AFSCME, District Council 47 and, consequently, plaintiff was never an at-will employee; (2) by the doctrine of claim preclusion; (3) as pre-empted, because plaintiff’s claims of sex and/or age discrimination must be presented under the Pennsylvania Human Relations Act; and (4) because plaintiff does not allege a prima facie case of retaliatory discharge. On December 24, 2001, plaintiff filed a response in opposition to defendant’s prehminary objections. These pleadings were assigned to this motion judge on December 28, 2001, and by order dated January 7,2002, defendant’s preliminary objections were sustained and plaintiff’s complaint was dismissed.

Dissatisfied, on January 30, 2002, plaintiff filed an appeal with the Commonwealth Court.

ISSUE

In response to an order issued in accordance with Pa.R.A.P. 1925(b), plaintiff, on March 11,2002, filed of record a statement of matters complained of on appeal and argued that this motion judge erred in sustaining defendant’s preliminary objections in that:

“(1) plaintiff’s allegation that she was dismissed from her employment by defendant in retaliation for her being eligible for workmen’s compensation benefits was a matter not adjudicated by the Civil Service Commission; and
“(2) if the court determined dismissal of the action was warranted because of prior litigation before the Civil Service Commission, such a conclusion is in error because the law creating the action for retaliatory dismissal was not decided until 1998, which was two years after the Civil Service Commission hearing.”

LAW AND DISCUSSION

Preliminary objections in the nature of a demurrer test the legal sufficiency of the plaintiff’s complaint. Sexton v. PNC Bank, 2002 WL 216145 (Pa. Super.); see also, Tucker v. Philadelphia Daily News, 757 A.2d 938, 942 (Pa. Super. 2000), rearg. denied, September 6, 2000, app. granted, November 29, 2001. “In order to sustain preliminary objections, it must appear with certainty that the law will not permit recovery, and any doubt should be resolved by a refusal to sustain them.” Dorfman v. Pennsylvania Social Services Union Local 668 of Service Employees International Union, 752 A.2d 933, 936 (Pa. Commw. 2000). The court must accept as true all well-pleaded material allegations, as well as all inferences reasonably deducible therefrom. Giordano v. Ridge, 737 A.2d 350, 352 (Pa. Commw. 1999), aff’d, 559 Pa. 283, 739 A.2d 1052 (1999), aff’d, 562 Pa. 154, 753 A.2d 1277 (2000), recon. denied, August 10, 2000, cert. denied, 531 U.S. 928 (U.S. Pa. 2000). The court needs not, however, accept as true conclusions of law, unwarranted inferences from the facts, argumentative allegations, or expressions of opinion. Id. The scope of the appellate court’s review of an order sustaining preliminary objections in the nature of a demurrer is to determine whether the trial court abused its discretion or committed an error of law. Baravordeh v. Borough Council of Prospect Park, 706 A.2d 362 (Pa. Commw. 1998), rearg. denied, app. denied, 555 Pa. 733, 725 A.2d 183 (1998), app. denied, 556 Pa. 679, 727 A.2d 133 (1998).

As stated, defendant proffers various arguments as to why plaintiff’s complaint should be dismissed. In her appeal, however, plaintiff limits her challenges to retaliatory discrimination and the case law setting forth said cause of action. Notwithstanding, this motion judge will also address some of the concerns raised by defendant’s preliminary objections.

First, defendant argues that the doctrine of claim preclusion warrants dismissal of plaintiff’s complaint. Specifically, where a final judgment on the merits has been rendered by a court of competent jurisdiction, the doctrine of res judicata bars any future suit on the same cause of action between the same parties. Chada v. Chada, 756 A.2d 39, 42 (Pa. Super. 2000), citing 10 Standard Pennsylvania Practice 2d §65:32. “The term ‘res judicata’ has been used to encompass two related, but distinct, principles: technical res judicata, which is sometimes called claim preclusion, and collateral estoppel, which is sometimes called issue preclusion.” Temple University v. W.C.A.B. (Parson), 753 A.2d 289, 291 (Pa. Commw. 2000), recon. denied, (emphasis added), app. denied, 564 Pa. 721, 764 A.2d 1075 (2000).

As stated, claim preclusion prevents a future lawsuit between the same parties on the same cause of action after a final judgment is entered on the merits of the action. Id. Claim preclusion requires that both the former and latter suits possess the following common elements: (1) identity in the thing sued upon, (2) identity in the cause of action, (3) identity of the parties, and (4) identity of the quality or capacity of the parties suing or being sued. Chada, supra; Temple, supra.

Here, plaintiff argues that she was discharged from her city position for reason(s) other than just cause. This is exactly the same claim she made in the initial proceedings heard in 1997 before the commission. At that time, the commission found that plaintiff had been discharged for just cause. This ruling was later affirmed by the Commonwealth Court.

However, plaintiff contends that at the commission level in 1997, she did not argue her wrongful discharge based on the grounds of retaliation. While that may be true, the doctrine of claim preclusion applies not only to matters that were actually litigated but also to those matters that should have been litigated in the prior proceeding. Temple, supra. Plaintiff rebuts that she could not have litigated the issue of retaliatory discharge because the law creating such a cause of action was not established until two years after the underlying proceeding was litigated. Specifically, plaintiff relies on the matter of Shick v. Shirey, which held that a cause of action exists for an at-will employee who alleges retaliatory discharge for filing a workers’ compensation claim for which relief could be granted under the law. Plaintiff infers that the holding of Shick should be applied retroactively in this matter. This motion judge disagrees, and believes that plaintiff’s reliance on Shick is misplaced.

“The United States Constitution and the Pennsylvania Constitution neither mandate nor preclude a retroactive application of a new decision.” Cleveland v. Johns-Manville Corp., 547 Pa. 402, 412, 690 A.2d 1146, 1151 (1997). “[Wjhen a case is given ‘retroactive’ application in this Commonwealth, it only affects future cases and cases that are pending at the time the new rule is announced.” Davis ex rel. Davis v. Government Employees Insurance Co., 775 A.2d 871, 875 (Pa. Super. 2001), rearg. denied, (emphasis added) “Moreover, of those pending cases, only cases that have preserved the issue decided in the new case will benefit from the new rule. Id. Accordingly, a decision in one case will not affect preceding cases fully disposed of at the time the new rule is announced.” Id. “[A] sweeping rule of retroactive application is not justified.” Cleveland, supra at 413, 690 A.2d at 1151. “Retroactive application is a matter of judicial discretion and must be exercised on a case by case basis.” Id.; Ridge v. State Employees’ Retirement Bd., 690 A.2d 1312, 1314 (Pa. Commw. 1997).

Judicial discretion in this area is guided by consideration of three factors: (1) the purpose to be served by the new rule, (2) the extent of the reliance on the old rule, and (3) the effect on the administration of justice by the retroactive application of the new rule. Davis, supra.

Plaintiff contends that the city wrongfully discharged her in retaliation for filing for workers’ compensation benefits, and that she did not present this argument to the commission since the case law which created a cause of action for retaliatory dismissal had not yet been decided. Without repeating the entire procedural history, it is undisputed that: (a) plaintiff’s appeal before the commission was denied on March 20,1997; (b) the commission’s ruling was affirmed by the trial court on January 28, 1998; (c) the Supreme Court decided Shick, supra, on August 20, 1998; (d) on September 18, 1998, the Commonwealth Court denied plaintiff’s appeal and affirmed the trial court’s decision; and (e) on May 27,1999, the Supreme Court denied plaintiff’s petition for allowance of an appeal. At no time in the appeals process did plaintiff argue or petition the higher courts to address, once Shick was decided, the issue of retaliatory dismissal.

In addition, plaintiff is not an at-will employee pursuant to her membership in the collective bargaining agreement and employment under the civil service system. Thus, the holding of Shick does not apply to plaintiff. Further, as an employee covered by a collective bargaining agreement and the civil service system, plaintiff can only be discharged for cause. Therefore, plaintiff cannot sue for wrongful discharge under Pennsylvania common law. Phillips v. Babcock & Wilcox, 349 Pa. Super. 351, 503 A.2d 36 (1986), app. denied, 514 Pa. 618, 521 A.2d 933 (1987).

Lastly, this motion judge opines that the instant action is by no means a pending action, in that the underlying action was fully adjudicated by September 18,1998. On the other hand, the instant matter is not a new or future case, as anticipated by the general rule of retroactive application, because its basis is the underlying alleged wrongful termination of May 23, 1996, and raises the argument of termination without just cause. Consequently, this motion judge opines that plaintiff’s complaint has no merit.

CONCLUSION

Based on the foregoing statutes and case law, this motion judge is of the opinion that no error was committed in sustaining defendant’s preliminary objections and dismissing plaintiff’s complaint. This motion judge respectfully requests that plaintiff’s appeal be dismissed and that the order dated January 7, 2002, be affirmed.

      . Pursuant to Civil Service Regulation 17.061.

      . Bullock v. Philadelphia Civil Service Commission, 719 A.2d 855, unreported memorandum opinion (Pa. Commw. 1998), alloc, denied.

      . No. 01-CV-3714.

      . Via the Commonwealth of Pennsylvania, Department of Labor and Industry.

      . Plaintiff’s memorandum of law contra defendant’s motion to dismiss. No. 01-CV-3714.

      . See plaintiff’s statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b), supra.

        . 552 Pa. 590, 716 A.2d 1231 (1998).


source: Caselaw Access Project

author: HERRON, J.,

license: Public Domain

text:
    Rohm & Haas Co. v. Continental Casualty Co.

      William J. O’Brian and John G. Harkins, for plaintiff.

      Gary W. Westerberg, Jerome B. Shestack and Elit R. Felix II, for defendants.
    February 26, 2002
   HERRON, J.,

Plaintiff Rohm & Haas Co. (R&H) has presented a motion for a new trial or, in the alternative, leave to conduct discovery and for a hearing. The motion is based on allegedly prejudicial events that took place nearly five years ago and that R&H discovered nearly three years ago. Because of R&H’s delay in presenting the motion, as well as the substantive difficulties with the motion itself, it is denied.

BACKGROUND

This case originated in November 1991 as a declaratory judgment action brought by R&H against defendants The Home Insurance Company, Certain Underwriters at Lloyd’s, London, Certain London Market Insurance Companies, and a number of its other insurers. The focus of the dispute was coverage under comprehensive general liability insurance policies for environmental remediation at two separate R&H sites in Myerstown, Pennsylvania (Whitmoyer site) and Bristol, Pennsylvania (Bristol site).

The trial was bifurcated by stipulation. The liability phase was tried before a jury from January 22, 1997 to March 26, 1997. On April 1, 1997, the jury returned a verdict in favor of the defendants on liability for both sites and denied coverage, whereupon R&H filed a motion for post-trial relief. On July 21,1997, Judge Jaffe granted R&H’s motion for judgment n.o.v. with respect to the Whitmoyer site, but denied the motion with respect to the Bristol site. Judge Jaffe then proceeded to try the damages phase without a jury from September 16, 1997, to November 7, 1997, and on December 31, 1997, entered judgment denying coverage as to the Bristol site but requiring the defendants to pay certain costs associated with the Whitmoyer site. The defendant then filed an appeal with regard to the Whitmoyer site judgment.

On appeal, the Superior Court issued a decision on May 6, 1999, reversing Judge Jaffe’s grant of judgment n.o.v., reinstating the jury’s verdict and remanding the case for entry of judgment on the verdict. R&H then appealed to the Supreme Court, which affirmed the Superior Court’s decision in all respects on October 18,2001. The Supreme Court denied R&H’s petition for reargument on December 5, 2001, and the case was remanded to the court of common pleas on December 18, 2001.

While this matter was on appeal, a complicating event was brought to the attention of Robert N. Feltoon, counsel for R&H. On May 20, 1999, Judge Jaffe, who had retired from the bench soon after judgment was entered, returned Mr. Feltoon’s phone call regarding the Superior Court’s decision and told him that during the jury phase, Sharon Dennison, one of the jurors, approached him in the courthouse but outside the courtroom and outside the presence of counsel. Ms. Dennison told Judge Jaffe that she was reading A Civil Action, a book about a lawsuit brought by residents of a Massachusetts town against W.R. Grace Corporation and Beatrice Foods for the adverse health effects that the corporations’ industrial pollution had on the town’s residents. Ms. Dennison commented further that the suit in the book was “just like this case” and that the book discussed one of the witnesses at trial in the instant case. This witness was Dr. George F. Pinder, who testified on behalf of R&H with regard to the Bristol site and who is supposedly portrayed in an unflattering light in the book. Judge Jaffe made no record of the exchange, and R&H remained unaware of Ms. Dennison’s comments until May 20, 1999.

R&H now asserts in the motion that Ms. Dennison’s conduct undermined her ability to fulfill her obligations as an impartial juror and requires that a new trial be held. In the alternative, R&H asks that it be permitted to engage in discovery to develop a record on alleged juror misconduct. At no time prior to filing the motion did R&H raise these issues or the underlying evidence before the appellate courts or this court.

DISCUSSION

The key issues raised by the parties are twofold: first, the procedural question of whether the motion is untimely, and second, the substantive question of whether R&H is entitled to the relief it seeks. On both of these issues, the defendants are correct, and the motion is denied.

I. R&H Has Waived Its Right To Have the Motion Considered

The defendants argue that R&H’s failure over the past two and one-half years to raise its “new evidence” in the manners available to it bar it from even presenting the motion. According to the defendants, both the trial court and the appellate courts provided forums for presenting the evidence, and R&H failed to take advantage of these opportunities. This argument is persuasive and poses an obstacle to reaching the merits of the motion.

As a general rule, Pa.R.C.R 227.1(c) requires that post-trial motions, including motions for a new trial, be filed within 10 days of the date of entry of a verdict. However, this is not a hard and fast deadline, and under certain circumstances, a court may allow post-trial motions to be heard. See e.g., Wittig v. Carlacci, 370 Pa. Super. 584, 586, 537 A.2d 29, 30 (1988) (A court has “broad discretion” to entertain untimely post-trial motions.).

The defendants contend that the broad discretion afforded the court is not so far-reaching as to make the motion appropriate. The primary case on which the defendants rely is Hornick v. Bethlehem Mines Corp., 310 Pa. 225, 165 A. 36 (1933), where the trial court entered judgment in favor of the plaintiffs on January 8, 1932, and the Superior Court affirmed on April 28, 1932. On May 17,1932, the defendant presented a petition to open the judgment to the trial, asserting that new evidence had been discovered since the trial. After the trial court denied the defendant’s petition, the defendant filed a second appeal, in response to which the Superior Court rejected the defendant’s argument that the trial court had abused its discretion:

“It is to be observed... that no reason is given for not moving on or about March 1,1932, as soon as the information is said to have been acquired. At that date, by appropriate petition, defendant could have brought the matter to the attention of this court before the appeal was disposed of on the merits as appellant then presented them. Instead of applying to the court below, as defendant apparently might have done, during the long period between the date of the verdict, January 17, 1931, and the time of taking the appeal to this court, January 29, 1932, or of thereafter applying to this court prior to argument March 21, 1932, as was done, for example, in Ralston v. Phila. Rapid Transit Co., No. 2, 267 Pa. 278, 282, 110 A. 336 (1920), or prior to the decision of April 11, 1932, defendant filed a petition for reargument, as has been stated, and even then said nothing about the alleged after-discovered evidence. In such circumstances, we cannot say that there was abuse of discretion in dismissing the petition.” 310 Pa. at 230-31, 165 A. at 38.

Thus, Hornick indicates that newly discovered evidence may be brought to the attention of an appellate court while the matter is on appeal to preserve the discovering party’s right to present the issue. Cf. Commonwealth v. Lloyd, 319 Pa. Super. 6, 11-12, 465 A.2d 1025, 1027 (1983) (reinstating motion for a new trial based on evidence discovered after trial and relinquishing jurisdiction to lower court).

This assessment of Homick’s meaning is bolstered by Fischer v. Hunsberger, 153 Pa. Super. 572, 35 A.2d 91 (1943), in which the trial court entered judgment against the defendant on June 24,1941, with a subsequent affirmance by the Superior Court and subsequent denials of reargument and appeal by the Superior Court, and the Pennsylvania and United States Supreme Courts. Over five months after the final denial, the defendant filed a petition to open judgment based on newly discovered evidence. The court affirmed the trial court’s denial of the petition, stating that “[w]e know of no authority given a trial court to open and review a judgment entered on a verdict in a common-law action, because of alleged after-discovered evidence, after the judgment has been finally adjudicated and affirmed by an appellate court. ...” 153 Pa. Super, at 573-74, 35 A.2d at 92. Ultimately, these cases are sufficient to convince the court that R&H could have raised the arguments presented in the motion before the appellate courts entertaining the appeal in this matter.

R&H attempts to distinguish Hornick and Fischer on several grounds. Among these grounds are the facts that the Superior Court in Hornick addressed only whether the trial court abused its discretion, not whether it acted correctly, that the new evidence in Fischer related to the merits of the case and that the Fischer judgment had been finally adjudicated and affirmed. These arguments are spurious, at best, and do not undermine the basic similarities to the instant matter. Accordingly, the Pennsylvania appellate courts could have reviewed the arguments raised in the motion. As a second prong of attack, defendants assert that even if R&H could not have presented its motion to the appellate courts, it could have raised its new evidence before the trial court while the Whitmoyer site appeal was underway. Pa.R.A.P. 1701(c) addresses the effect of an appeal on a trial court’s jurisdiction:

“(c) Limited to matters in dispute. Where only a particular item, claim or assessment adjudged in the matter is involved in an appeal, or in a petition for review proceeding relating to a quasijudicial order, the appeal or petition for review proceeding shall operate to prevent the trial court or other government unit from proceeding further with only such item, claim or assessment, unless otherwise ordered by the trial court or other government unit or by the appellate court or a judge thereof as necessary to preserve the rights of the appellant.” Pa.R.A.P. 1701(c). (emphasis added)

See also, Griffin v. Derzack, 456 Pa. Super. 440, 456, 690 A.2d 1192, 1199 (1997) (Appeals from order terminating mother’s parental rights and order returning children to foster parents’ home did not deprive court of jurisdiction to conduct contempt hearings against foster parents concerning violations of orders concerning care and custody of children because “the orders challenged in pending appeals were neither relevant to nor at issue in contempt proceedings”); Commonwealth v. Moyer, 421 Pa. Super. 102, 106-107, 617 A.2d 744, 746-47 (1992) (holding that the trial court had jurisdiction to sentence appellant for robbery and burglary because the appeal that was pending related only to appellant’s murder conviction and because “[t]he stay prescribed in Rule 1701 (a) ... is limited to matters in dispute on appeal”).

In this instance, Dr. Pinder testified almost exclusively with regard to the Bristol site, and the appeal related to only the Whitmoyer site, leaving judgment as to the Bristol site within the potential purview of the trial court. Any alleged improper influence on the jury could therefore have been addressed and examined by the trial court, as well. Accordingly, both the trial court and the appellate courts were available for R&H to raise the after-discovered evidence.

In spite of these opportunities, R&H failed to take advantage of the avenues available for raising its “new evidence.” After becoming aware of Judge Jaffe’s conversation with Ms. Dennison, R&H made numerous filings with Pennsylvania’s appellate courts. None of these filings raised the issue of Ms. Dennison’s conduct or requested that the case be remanded to the trial court to address any after-discovered evidence. Similarly, at no point prior to filing the motion did R&H present any after-discovered evidence to the trial court or attempt to do so. This inaction militates in favor of treating the arguments raised in the motion as waived.

R&H proffers several excuses as to why its delay in presenting the motion or taking similar action does not constitute a waiver of its right to request a new trial or additional discovery. Among these arguments are the assertions that there was insufficient time to raise new issues on appeal, that presenting new issues on appeal would have led to judicial inefficiency and distracted the appellate courts from the important questions on appeal and that the failure to raise the new issues was intended to protect Judge Jaffe and Ms. Dennison from embarrassment.

None of these excuses are valid. R&H’s final filing with the Pennsylvania Supreme Court was not made until September 15,2000, nearly four months after Mr. Feltoon spoke with Judge Jaffe about his interaction with Ms. Dennison. In addition, any purported benefit to judicial efficiency is negated by the fact that raising the motion now has the potential to impose a second appeals process in this case.

Moreover, R&H has not suggested and the court cannot construct a rule that would allow R&H to present the motion while preserving a final judgment. If the court were to excuse the delay based on the fact that R&H was battling before the Commonwealth’s appellate courts, after-discovered evidence could be held as a party’s ace-in-the-hole for years while the potentially lengthy appeals process continued. This would undermine the obvious interest in preserving the sanctity of a judgment. See Clark v. Troutman, 509 Pa. 336, 340, 502 A.2d 137, 139 (1985) (“Finality of litigation is essential so that parties may rely on judgments in ordering their private affairs and so that the moral force of court judgments will not be undermined.”). If R&H were entitled to have the motion considered, it would render a judgment meaningless and would permit a party’s investigation into procedural and substantive issues to continue long after the trial had been completed.

The court also notes that each of R&H’s arguments as to why a party does not waive the arguments it does not raise loses its coherence when one considers the effect on the administration of justice and the court system as a whole. Several Pennsylvania courts have remarked that an improper influence on a jury is a blow not only to the specific party affected, but also to the integrity of the fact finding process and the function and role of the jury. Commonwealth v. Saunders, 454 Pa. Super. 561, 569, 686 A.2d 25, 29 (1996) (noting that “measures [need be] taken to insure the integrity of the jury function”); Commonwealth v. Trolene, 263 Pa. Super. 263, 271, 397 A.2d 1200, 1204 (1979) (noting the goal of “preserving] the public integrity of our system of justice from any appearance of impropriety”). A party that is aware of but fails to present evidence of an improper influence on a juror may therefore be breaching its obligations to the tribunal, regardless of whom the improper influence benefited. Indeed, if the court excuses R&H’s failure to raise Ms. Dennison’s conduct earlier, it sends the message that a party has no immediate obligation to disclose improper conduct that may have bent a jury’s verdict in its favor. This the court will not do.

In sum, R&H had the opportunity to present its new evidence to either the trial court or the appellate courts. Its failure to do so for almost three years makes the motion untimely, and the court has no obligation to entertain it now.

II. R&H Has Not Presented Grounds for the Court To Grant a New Trial or Additional Discovery

Although R&H’s motion is untimely, the court will nevertheless address the motion on substantive grounds, as well. In the motion, R&H requests a new trial or, in the alternative, additional discovery and a hearing to investigate other possible extraneous influences on the jury. This request is based on both Ms. Dennison’s reading of A Civil Action and her ex parte contact with Judge Jaffe. Because the motion is without any legitimate substantive basis, both of the requests for relief are denied.

1. R&H Is Not Entitled to a New Trial

In determining whether to grant a new trial based on either allegedly extraneous matters considered by a jury or ex parte conduct between a juror and the judge, a court must examine whether such matters create a reasonable likelihood of prejudice. Carter by Carter v. United States Steel Corp., 529 Pa. 409, 421, 604 A.2d 1010, 1016-17 (1992). To determine whether a reasonable likelihood of prejudice exists, a trial court should look, in part, at “(1) whether the extraneous influence relates to a central issue in the case or merely involves a collateral issue; (2) whether the extraneous influence provided the jury with information they did not have before them at trial; and (3) whether the extraneous influence was emotional or inflammatory in nature.” Id. 529 Pa. at 421-22, 604 A.2d at 1017.

The burden of establishing a reasonable likelihood of prejudice is a relatively severe one. In Carter, for example, two jurors had watched a television broadcast regarding a subsequent accident on the defendant’s property and communicated with other jurors about the broadcast. Even though evidence of similar subsequent accidents had been precluded at trial, the Pennsylvania Supreme Court reversed the trial court’s order granting a new trial because a reasonable likelihood of prejudice had not been shown. See also, Orndoff v. Wilson, 760 A.2d 1, 3-4 (Pa. Super. 2000) (Jury foreman’s visit to scene of accident, despite instructions not to do so, was not prejudicial.); Passarelli v. Shields, 191 Pa. Super. 194, 156 A.2d 343, 348 (1959) (Where jurors read newspaper article of arbitration board’s earlier verdict for plaintiff, the court’s instruction that the jurors were not to consider the article ensured that the defendant was not prejudiced.). Cf. Commonwealth v. Miller, 247 Pa. Super. 132, 139, 371 A.2d 1362, 1366 (1977) (Defendant convicted for involvement with robbery and shooting was not entitled to a mistrial even though juror stated that guns are dangerous and that juror hated guns because this did not “indicate such bias by the juror which would affect his impartiality or ability to fairly consider the evidence in determining guilt or innocence.”).

Although Ms. Dennison’s reading of A Civil Action constitutes an influence that was not presented at trial, it is not central to the issues in dispute. Moreover, it is clearly open to speculation and heated disagreement between the parties as to whether the content of the book is so highly emotional and inflammatory as to have had an effect on Ms. Dennison or to have caused her to disregard the instructions directing her to decide the case on the merits. Furthermore, the description of Dr. Pinder in A Civil Action is certainly not all negative or uniformly detracting. While some of the characteristics ascribed to Dr. Pinder’s mannerisms are not particularly complimentary, the book describes him as “pre-eminent in his field” and “the world’s leading expert on groundwater,” and states that “[e]very geologist who knew anything about groundwater had heard of Pinder.” A Civil Action at 325-26. The plaintiffs’ attorney felt “fortunate” to have Pinder as a witness, and the defendants’ attorney “tried to recruit Pinder as an expert witness ..., but found that [the plaintiffs’ attorney] had gotten to ... Pinder, first.” Id. Even W.R. Grace’s expert witness stated that he respected Dr. Pinder “as a person and as a professional.” Id. at 353. The portion of A Civil Action describing Dr. Pinder and his testimony concludes by stating that “[a]s it later turned out, Pinder was generally right” and that the final report reviewing the site in question “vindicated Pinder....” Id. at 339. Thus, when read as a whole, Dr. Pinder’s portrayal in A Civil Action is not the overwhelmingly unfavorable telling that R&H would have the court believe.

The fact that A Civil Action may present large corporations in general in an unflattering light also is not sufficient to find a reasonable likelihood of prejudice. Even if the book “portrays a highly unfavorable image of large corporations and their environmental practices,” PI. br. 5, as R&H asserts, any impact that the book would have in general is limited by several factors. First, the instant case involved R&H suing its insurers over policy coverage, and not the conflict between another large corporation (i.e., not R&H) and leukemia-stricken townspersons over serious injuries that is presented in A Civil Action. There is a world of difference between deciding if R&H’s knowledge of the sites’ condition permitted the defendants to deny coverage under the policy, and determining if several large corporations poisoned the water supply of a small town. In addition, Judge Jaffe gave instructions that the jury’s decision was to be based on only the evidence presented and that the case was not about “whether Rohm and Haas or the insurance companies are good or evil.” Tr. Mar. 26, 1997 p.m. sess. at 29, 30, 35. Cf. Paz v. United States, 462 F.2d 740, 745 (5th Cir. 1972) (remanding case where jurors read books that described conduct similar to that of which defendant was accused and that had been left injury room, and no corrective or cautionary instruction was given); Carter, 529 Pa. at 423, 604 A.2d at 1017 (relying on trial court’s instruction to jurors to look solely at the evidence and the law of the case to conclude that there was no reasonable likelihood of prejudice). Moreover, granting a new trial because one juror read a book that maligns an entity vaguely similar to a litigating party would require either that a court screen all outside influences to which a juror could be subjected or that orders granting new trials be issued more frequently. Neither of these options is particularly appealing.

Thus, there is no reasonable likelihood that R&H was prejudiced by Ms. Dennison’s reading A Civil Action. To hold otherwise would allow a discontented party to challenge any jury verdict where a single juror had an awareness of an outside influence that was only tangentially related to the issues presented.

Judge Jaffe’s ex parte contact with Ms. Dennison similarly does not support granting a new trial. The rule prohibiting ex parte conduct cannot be examined in a vacuum:

“The reason for prohibiting a trial judge from communicating with a jury ex parte is to prevent the court from unduly influencing the jury and to afford counsel an opportunity to become aware and to seek to correct any error which might occur. Where there is no showing either that the court’s action may have influenced the jury or that its directions were erroneous, then the reason for the rule dissolves.” Commonwealth v. Bradley, 501 Pa. 25, 37, 459 A.2d 733, 739 (1983) (quoting Yarsunas v. Boros, 423 Pa. 364, 368, 223 A.2d 696, 698 (1966) (Roberts, J., dissenting)), (emphasis in original) See also, Colosimo v. Pennsylvania Electric Co., 513 Pa. 155, 163, 518 A.2d 1206, 1210 (1986) (“[T]he trial court is not authorized to grant a new trial unless prejudice to the moving party was likely from the contact.”); Commonwealth v. Richardson, 476 Pa. 571, 579, 383 A.2d 510, 514 (1978) (“It would be jurisprudentially unsound to endorse a rule of law proscribing every circumstance, whether deliberately contrived or not, which provided an opportunity for an untoward influence to be exercised, without the necessity of establishing that there was, in fact, prejudice resulting from the event.”). There is no allegation that Judge Jaffe made any comments to Ms. Dennison, and Ms. Dennison’s expression of her thoughts alone does not create a reasonable likelihood of prejudice. Certainly, Judge Jaffe acted inappropriately under the circumstances. See Bradley, 501 Pa. at 37-38, 459 A.2d at 739 (“[Fjailure to maintain an accurate and reviewable contemporaneous record of all instructions and communications between the court and a jury may force an implication of prejudice where arguably none exists.”). However, this does not warrant granting a new trial.

R&H appears to take a second swipe at sustaining its argument, relying on the Pennsylvania Supreme Court’s statement that after-discovered evidence may merit a new trial where “(1) the evidence could not have been brought to the attention of the trial court in the exercise of due diligence, and (2) that the existence of the evidence would have compelled a different result in the case.” Reilly by Reilly v. SEPTA, 507 Pa. 204, 224, 489 A.2d 1291, 1301 (1985). For the same reasons that there is no reasonable likelihood of prejudice, it is difficult to fathom how any of the alleged conduct would have compelled a verdict in R&H’s favor, and R&H’s request for a new trial is denied.

2. R&H Is Not Entitled To Additional Discovery

There is also no reason why R&H is entitled to additional discovery on this matter. Although discharged jurors may testify as to the existence of outside influences during their deliberation, they generally may not speak to the actual effect of the extraneous matter on their deliberations:

“Briefly stated, the need to ensure fair trials, free from improper influences must be balanced with the need for finality and for protecting the sanctity of the jury room. The rule in Pennsylvania, as well as in a majority of jurisdictions, is that a juror is incompetent to testify as to what occurred during deliberations----This rule is often referred to as the ‘no impeachment’ rule. However, in order to accommodate the competing policies in this area, a narrow exception has been recognized. The exception permits post-trial testimony of extraneous influences which might have affected [prejudiced] the jury during deliberations. . . . Under this exception, the juror may testify only as to the existence of the outside influence, but not as to the effect this outside influence may have had on deliberations. . . . Under no circumstances may jurors testify regarding their subjective reasoning processes.” Carter, 529 Pa. at 415, 604 A.2d at 1013. (citations and quotation marks omitted) See also, Pa.R.E. 606; Commonwealth v. Zlatovich, 440 Pa. 388, 396, 269 A.2d 469, 473 (1970) (“[Wjhile we permit discharged jurors to testify as to the existence of outside influences during their deliberation, nevertheless, we prohibit them from testifying as to the effect which these extra-evidentiary influences had upon the jurors in reaching a decision. ...”). (emphasis in original)

In situations where a juror may have been influenced by outside conduct, the Pennsylvania Supreme Court has advised as follows:

“Because a trial judge is precluded from considering evidence concerning the subjective impact of an extraneous influence on any juror, it has been widely recognized that the test for determining the prejudicial effect of an extraneous influence is an objective one. In order to determine whether an extraneous influence is prejudicial, a trial judge must determine how an objective, typical juror would be affected by such an influence. ... In addition, cases from other jurisdictions which have considered the prejudicial erect of an extraneous influence, make clear that prejudice is to be determined in light of the facts and circumstances in each case. Where the precise extraneous matter is known but direct evidence as to its effect on the deliberations is not permitted, a sound balance is struck by a rule which looks to the probability of prejudice from the face of the extraneous matter in relation to the circumstances of the particular case. ” Carter, 529 Pa. at 420, 604 A.2d at 1016. (citations and quotation marks omitted) (emphasis added)

Simply put, it is difficult to see what additional discovery would add to R&H’s argument. Indeed, this memorandum construes all facts in R&H’s favor and accepts their allegations as true. Moreover, R&H’s reliance on Boring v. LaMarca, 435 Pa. Super. 487, 646 A.2d 1199 (1994), is misplaced. In Boring, a juror had read a portion of an unspecified law book addressing the terms bad faith, written notice and writing during deliberations, but there was no evidence on the record as to what precisely the book stated or how it compared with what had been presented at trial. On appeal, the Superior Court pointed out that the ambiguous nature of the extraneous influence could have been determined through depositions or a post-trial hearing and reversed the trial court’s grant of a new trial in part on this basis. 435 Pa. Super, at 493, 646 A.2d at 1203. In the instant dispute, in contrast, additional discovery would provide nothing beyond what the court has already presumed to be true for the purposes of this discussion. Accordingly, R&H is not entitled to additional discovery.

CONCLUSION

For both substantive and procedural reasons, R&H is not entitled to a new trial or additional discovery. Accordingly, the motion is denied.

ORDER

And now, February 26, 2002, upon consideration of the motion for a new trial based on newly discovered evidence of improper juror exposure to extraneous prejudicial information and for leave to conduct discovery and for a hearing on the issue of improper juror exposure to extraneous prejudicial information of plaintiff Rohm & Haas Co., and the response thereto of defendants Certain Underwriters at Lloyd’s, London and Certain London Market Insurance Companies, and in accordance with the contemporaneously filed opinion, it is hereby ordered and decreed that the motion is denied. Judgment is hereby entered on the verdict in accordance with the decision of the Pennsylvania Superior Court as affirmed in its entirety by the Pennsylvania Supreme Court.

      . The jury found in favor of the defendants based, in part, on the “known loss” doctrine. This doctrine holds that “one may not obtain insurance for a loss that either has already taken place or is already in progress,” Rohm & Haas Co. v. Continental Casualty Co., 732 A.2d 1236, 1256 (Pa. Super. 1999) (citations omitted), and was formally recognized by Pennsylvania appellate courts in this case on appeal. See Rohm & Haas Co. v. Continental Casualty Co., 566 Pa. 464, 781 A.2d 1172 (2001); Rohm & Haas Co. v. Continental Casualty Co., 732 A.2d 1236, 1256 (Pa. Super. 1999).

      . Judge Jaffe wrote an exhaustive opinion summarizing the reasons for his decision. See Rohm & Haas Co. v. Continental Casualty Co., 35 Phila. 193 (1997). R&H filed an appeal with respect to the Bristol site, but withdrew its appeal before it could be heard.

      . In an interview with an investigator on December 20, 2001, Ms. Dennison supposedly acknowledged that many of these events occurred as described.

      . It appears from the Superior Court’s opinion that the defendant made its discovery around March 1, 1932.

      . Among R&H’s filings were an application to the Superior Court for reargument en banc on June 1,1999, a petition to the Pennsylvania Supreme Court for allowance of appeal on August 27, 1999 and two briefs filed with the Pennsylvania Supreme Court on June 30, 2000 and September 15, 2000.

      . To the extent that R&H relies on decisions from outside the Commonwealth, it is worth noting that the test used to determine whether an extraneous influence merits a new trial varies from jurisdiction to jurisdiction. See Carter, 529 Pa. at 421 n.6, 604 A.2d at 1016 n.6 (providing examples of tests used in other jurisdictions).

      . R&H relies on this distinction to attack Ms. Dennison’s comments that A Civil Action was “just like this case” on substantive grounds. However, as discussed infra, the court will not violate the privacy that protects a juror’s thought processes by peering into Ms. Dennison’s head, and the similarities Ms. Dennison perceived between the instant case and A Civil Action are beyond the potential scope of the court’s inquiry.

      . This was not the only way in which Judge Jaffe may have arguably behaved inappropriately in this case, as commented on by the Superior Court:
      “After the jury returned its verdict, the individual jurors returned to the jury room. The trial judge joined them there and, as alleged in the sworn affidavits of two of the jurors present, the judge told the jurors:
      “(a) that he had seen evidence that the jury had not seen and that the jury would have returned a different verdict if it had seen that evidence;
      “(b) that the jury made the wrong decision in its verdict; “(c) that the insurance companies had recently lost another case in Pittsburgh;
      “(d) that Rohm & Haas is a very good company;
      “(e) that the existence of old company records from so far back in time proved that Rohm & Haas had nothing to hide;
      “(f) that Rohm & Haas has sites all over the country that will cost them billions of dollars to settle; and
      “(g) that the jury should have noticed that Travelers and Aetna had settled with Rohm & Haas.
      “One of the jurors reported T then asked [the judge] how his honor could be so biased when I thought a judge was to be impartial, to which [the judge] responded that he was only human.’ ” 732 A.2d at 1245-46.


author: COHEN, J.,

text:
    Vasaturo v. Nason & Cullen Inc.

      Mark F. Pinnie and Anthony S. Pinnie, for plaintiffs.

      James J. Donahue and Warren G. Kantz, for defendant Nason and Cullen.

      Angela Maione Costagan, for defendant Duggan and Marcon.
    March 7, 2001
   COHEN, J.,

This contractual indemnification case was tried before this court sitting without a jury on October 19,2000. The putative plaintiff, Nason & Cullen Inc., had settled with the plaintiffs, Joseph and Lisa Vasaturo, prior to litigation for $225,000. Pursuant to the indemnification clause in the contract between Nason and the additional defendant, Duggan & Marcon Inc., the court found in favor of Nason and against Duggan in the amount of $225,000 plus reasonable attorneys’ fees. The court reviewed post-verdict motions of both parties. The court then granted Nason’s motion to mold the verdict to include attorneys’ fees in the amount of $70,724.67 and denied Duggan’s motion for judgment n.o.v. and entered judgment in the amount of $295,724.67 in favor of Nason and against Duggan on February 15, 2001.

FACTS

Mr. Joseph Vasaturo testified that on December 9, 1996, while employed as a spray fireproofer by Duggan, he was injured on the job at the High School for Creative and Performing Arts in Philadelphia. (N/T p. 19.) Spray fireproofing involves applying cementitious material to the steel of a building as it is being constructed. (N/T p. 20.) The witness testified that he and his assistant laborer, Mark Peters, were spraying the ceiling, the roof deck, and the beams in the penthouse at the school when the accident occurred. (N/T pp. 20-21.)

Mr. Vasaturo testified that as he and Mr. Peters were moving their scaffold toward the wall to complete another section, the scaffold caught up on a pipe or something that was mounted on the floor or fixed or just laying there.” (N/T p. 22.) He testified that once the scaffold’s wheel hit the object, which was 12 to 15 inches in diameter, the wheel came off and the scaffold fell over. (N/T pp. 23-24.) The witness testified that when the scaffold fell it did not fall directly on him. (N/T p. 29.) Mr. Vasaturo testified that although he felt instant pain at that time, he continued working. (N/T p. 23.)

According to his testimony, Mr. Vasaturo complained to his supervisor, Jim Smith, about the condition of the penthouse prior to the accident. (N/T p. 30.) Mr. Vasaturo testified that Mr. Smith told him to “do the best I could,” keep a log of everything, and report it to Bill Frazier, who was the superintendent for Nason. (N/T p. 31.) He testified that he also complained to Mr. Frazier and asked Mr. Frazier to have some objects moved out of the penthouse and to stop putting more objects in the room. (N/T pp. 31-32.)

The witness further testified that during the beginning of their work in the penthouse he, Mr. Peters, and other Duggan employees tried to clean up the penthouse. Mr. Vasaturo testified that they did not move the piece of pipe in question during this cleanup because there were pieces of “little pipes and knuckles laying everywhere.” He testified that they could only move so many items and that they believed they had a “clear enough space.” (N/Tp. 33.)

Bill Frazier, who was the superintendent for Nason at the school on the day of the accident, testified that in his role as superintendent he was in charge of all of the subcontractors that worked directly for Nason. (N/T p. 60.) The witness testified that prior to the accident, he and Mr. Vasaturo had inspected the penthouse and decided that he could work in the room. (N/T pp. 61-62.)

According to Mr. Frazier’s testimony, the mechanical equipment, which weighed approximately 15 tons, had to be placed in the penthouse before the roof was closed because of its size. Mr. Frazier testified that the roof had to be closed before the fireproofing began, thus a decision was made to bring in the mechanical equipment, seal the roof, and begin the job. (N/T pp. 62-63.) He testified that before the spray fireproofing began, everyone was directed to clean up the penthouse as much as possible and move anything that was not “anchored down” to the other side. (N/T p. 63.)

The principal issue is the interpretation of the contract. In this case the court found that the contract required indemnification if the injured party’s employer was in any way negligent and that negligence contributed to the accident. The employer had a duty to clear the roof of debris and failed to do so.

DISCUSSION

I. The Verdict Was Entered in Favor of Nason and Against Duggan Because the Indemnification Clause in the Contract Was Valid and Enforceable

An employer may be liable to a third party for injuries sustained by its own employees where indemnification is “expressly provided for in a written contract....” 77 P.S. §481(b). The indemnification clause in the contract must be clear and cover indemnification by the employer for injuries to its own employees due to the negligence of the indemnitee. Bester v. Essex Crane Rental Corp., 422 Pa. Super. 178, 186, 619 A.2d 304, 307 (1993), appeal denied, 539 Pa. 641, 651 A.2d 530 (1994), citing Szymanski-Gallagher v. Chestnut Realty, 409 Pa. Super. 323, 597 A.2d 1225 (1991). If the contract meets this requirement, the employer is not further required to expressly waive immunity under section 481(b) of the Workers’ Compensation Act. Id. However, the parties’ intent to indemnify against such claims must “clearly appear” from the terms of the agreement. Id., citing Remas v. Duquesne Light Co., 371 Pa. Super. 183, 537 A.2d 881 (1988).

The workmen’s compensation statute in Pennsylvania typically provides the sole remedy for an employee to recover against his or her employer for work-related injuries. See 77 P.S. §481. However, the statute provides an exception to the general rule:

“In the event injury or death to an employee is caused by a third party, then such employee ... may bring their action at law against such third party, but the employer ... shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action.” 77 P.S. §481(b).

Although the statute makes it clear that an indemnification clause, which is at issue here, must be express, the legislature failed to state the precise language it required. Thus, a substantial amount of case law has developed in this area.

Two recent cases reinforce the notion that the contract between the employer and the indemnitee must expressly provide for the employer’s liability where the injury was caused by the negligence of the indemnitee. See Mace v. Atlantic Refining & Marketing Corp., 717 A.2d 1050 (Pa. Super. 1998), allocatur granted, 562 Pa. 664, 753 A.2d 819 (2000); Bester v. Essex Crane, 422 Pa. Super. 178, 619 A.2d 304. In Mace, a customer at a mini-mart was beaten with a baseball bat by a store employee. Id. at 1050. The victim sued the employee, Perry; the employer, Barqawi; and the owner, Atlantic. Id. Defendants Atlantic and Barqawi cross-claimed against each other and Atlantic won summary judgment on the claims of the plaintiff and cross-claimant Barqawi. Id. Atlantic’s claim against Barqawi, which was based on contractual indemnity, was also dismissed and was the subject of the appeal to the Superior Court.

Since the indemnification clause in their agreement only barred indemnification where the injury was caused by Atlantic’s sole negligence, the court deemed the clause inapplicable to the situation. Id. at 1052. Atlantic’s argument that the existence of this sole negligence clause implied that it was entitled to indemnity in cases of joint or partial responsibility failed. Id. The court reiterated the age-old rule that because liability for indemnity is a risky venture, the parties must use clear and unequivocal language when assuming such liability. Id.

According to the court,

“[Prior case law] demands precision and parties who rely on ambiguity or inference cannot thereby claim the benefit of indemnity.” Id.

Thus, Atlantic could not claim indemnity in reliance on the sole negligence provision contained in the contract.

The court in Bester also refused to impose indemnity liability where the contract language did not expressly provide that the employer would be held liable in indemnification for injuries to its own employees caused by the negligence of the indemnitee. Id. at 187,619 A.2d at 308. An employee of Russell Construction Company sued Essex Crane, which leased a crane to the contractor, for personal injuries which were caused by one of Essex Crane’s employees. Id. at 180, 619 A.2d at 305. Essex Crane then sought indemnification from Russell Construction Company pursuant to an indemnification clause in their agreement. Id. The court deemed the language of the clause too general because it did not specifically state that Russell would indemnify Essex for its own negligence. Id. at 183, 619 A.2d at 306. The court stated:

“We apply today the requirement in the law that in order for an employer to be held liable in indemnification for injuries to its own employees caused by the negligence of the indemnitee there must be an express provision for this contingency in the indemnification clause.” Id. at 187, 619 A.2d at 308.

The intent of the parties to cover this indemnification must “clearly appear” from the terms of the agreement. Id. at 185, 619 A.2d at 307, citing Remas v. Duquesne Light Co., 371 Pa. Super. 183, 537 A.2d 881 (1988). Every case on the subject since 1907 has reiterated that the indemnification language must be “clear and unequivocal.” See Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907); Pittsburgh Steel Co. v. Patterson-Emerson-Comstock Inc., 404 Pa. 53, 171 A.2d 185 (1961); Babcock & Wilcox Co. v. Fischbach & Moore Inc., 218 Pa. Super. 324, 280 A.2d 582 (1971); Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991); Woodburn v. Consolidation Coal Co., 404 Pa. Super. 359, 590 A.2d 1273 (1991); Hackman v. Moyer Packing, 423 Pa. Super. 378, 621 A.2d 166 (1993) et al. Finally, the Bester court stated that if the indemnification agreement is clear on this issue, the employer is not required to expressly waive its immunity under the Workmen’s Compensation Act. Id. at 185, 619 A.2d at 307, citing Szymanski-Gallagher v. Chestnut Realty, 409 Pa. Super. 323, 597 A.2d 1225 (1991).

In the instant case, the indemnification language in the contract between Nason and Duggan was much stronger than any language previously reviewed by the Superior Court. Paragraph 13 of the agreement reads:

“To the fullest extent permitted by law, Subcontractor shall indemnify, defend and hold harmless the Owner, architect and the Contractor and all of their respective agents, employees, officers, shareholders, directors and representatives from and against all claims, damages, losses and expenses, including but not limited to attorneys’ fees, arising out of or resulting from the performance of the Subcontractor’s Work under this Subcontract, provided that any such claim, damage, loss or expense is attributable to bodily injury, sickness, disease, or death, or to injury to or destruction of tangible property (other than to the work itself) including loss of use resulting therefrom, caused in whole or in part by any act or omission of the Subcontractor or anyone directly or indirectly employed by it or anyone for whose acts it may be liable regardless of whether it is caused in part by a party indemnified hereunder. Such obligation shall not be construed to negate or abridge or otherwise reduce any other right or obligation of indemnity which would otherwise exist as to any party or person described in this paragraph.
“In any and all claims against Owner, the architect, or the Contractor or any of their respective officers, shareholders, directors, representatives, agents or employees by any employee of the Subcontractor, anyone directly or indirectly employed by it or anyone for whose acts it may be liable, the indemnification obligation under this paragraph shall not be limited in any way by any limitation on the amount or type of damages, compensation or benefits payable by or for the Subcontractor under Work ers or Workmens’ Compensation acts, disability benefits acts or other employee benefit acts.
“The obligations of the Subcontractor under this paragraph shall not extend to the liability of the architect, its officers, shareholders, directors, representatives, agents or employees arising out of (1) the preparation or approval of maps, drawings, opinions, reports, surveys, change orders, designs or specifications, or (2) the giving of or failure to give directions or instructions by the architect, its agents, representatives or employees provided such giving or failure to give is the primary cause of the injury or damage.” (emphasis added)

This language goes above and beyond the requirements set forth in Bester. Not only does the clause impose indemnification liability for both Duggan’s and Nason’s own negligence, it also expressly waives statutory immunity under the Workmen’s Compensation Act. It is clear that when Nason and Duggan drafted this agreement, both parties intended to overcome the ambiguities inherent in the statute and the case law. Duggan’s attempt to argue otherwise was futile under these circumstances.

Duggan’s counsel further argued that the court erred in apportioning negligence between Nason and Duggan because the only issue before the court was contractual indemnification. However, Duggan in its brief missed the point that the court had to apportion negligence between the parties in order to apply the law of indemnification. The court determined after hearing all of the evidence in the case that Nason and Duggan were jointly responsible for Mr. Vasaturo’s injuries. The court’s finding that Nason and the other defendants were 75 percent negligent and that Duggan was 25 percent negligent was an appropriate determination to make before imposing indemnification liability on Duggan.

II. Nason Was Entitled to Attorneys’ Fees in the Amount of $70,724.67 Because Duggan Was Liable To Indemnify Nason for any Attorneys’ Fees Incurred Pursuant to the Contract

The indemnification clause in the agreement between Nason and Duggan clearly provides for indemnification of attorneys’ fees. (See agreement, ¶13, supra at pp. 10-11.) Since Duggan was found liable to indemnify Nason under the contract, Nason was entitled to recover its attorneys’ fees as well as the amount of the settlement. (See discussion, supra at I.) Although Nason amended the amount of its attorneys’ fees from $90,000 to $70,724.67 since filing its original motion, Duggan’s inquiry into the reasonableness of the amount was irrelevant. Nason was entitled to recover the amount of its legal bills under the terms of the indemnification agreement. Duggan submitted no evidence of fraudulent billing to convince the court that the fee requested by Nason was not reasonable.

CONCLUSION

Based upon the foregoing analysis, the court granted Nason & Cullen Inc.’s motion to mold the verdict to include attorneys’ fees and denied Duggan & Marcon Inc. ’s motion for judgment n.o.v.


author: SHEPPARD JR., /.,

text:
    Cull v. Cabot Corp.

      John N. Zervanos, Steven B. Jensen, Alicia D. Butler and Allen M. Stewart, for plaintiffs.

      Neil S. Witkes, for defendant.
    May 3, 2001
   SHEPPARD JR., /.,

Defendant Cabot Corporation has filed preliminary objections to the complaint of plaintiffs, Rose and James Cull. For the reasons set forth, this court is issuing a contemporaneous order overruling the objections, in part, and sustaining the objections, in part.

BACKGROUND

Cabot Corporation was the owner of a beryllium manufacturing facility in Hazleton, Pennsylvania (plant). The plant was built by the Beryllium Corporation of America in 1957 and was operated by BCA and its successors until 1981.

Plaintiffs contend that the manufacturing processes at the plant introduced respirable beryllium fumes and dust into the environment in violation of recognized regulatory standards. Cabot allegedly was aware of these violations and engaged in the following reckless and negligent conduct:

• Operating the plant near a residential community;
• Operating the plant without proper pollution or emission control devices;
• Permitting the discharge of dangerous and unhealthful levels of beryllium dust;
• Violating applicable local, state and federal laws and regulations; and
• Failing to monitor the levels of beryllium dust.

The plaintiffs also assert that Cabot engaged in a campaign to conceal the adverse health effects of the plant by denying the seriousness of the health risk posed by the level of beryllium found in the plant’s vicinity.

The plaintiffs live in proximity to the plant and have filed a class action suit on behalf of themselves and those residents who lived within a six-mile radius of the plant during its operation. According to the complaint, the plaintiffs and the class they seek to represent have been exposed to beryllium from the plant and are at risk of developing chronic beryllium disease (CBD) and various other diseases, including lung cancer and respiratory ailments. On this basis, the plaintiffs plead two counts for medical monitoring, the first based on negligence and the second based on strict liability. In its objections, Cabot contends that the complaint is legally insufficient and inadequately specific.

DISCUSSION

I. The Plaintiffs’ Second Count Is Legally Insufficient Because Pennsylvania Does Not Recognize a Cause of Action for Medical Monitoring Based on Strict Liability

For the purposes of reviewing preliminary objections in the form of a demurrer, “all well-pleaded material, factual averments and all inferences fairly deducible therefrom” are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 942 (Pa. Super. 2000). A court should sustain an objection to legal sufficiency only under limited conditions:

“[I]t is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.... Put simply, the question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999).

Here, Cabot contends that an action for medical monitoring cannot be based on strict liability and, thus, the plaintiffs’ second count is legally insufficient. In Simmons v. Pacor Inc., 543 Pa. 664, 674 A.2d 232 (1996) our Pennsylvania Supreme Court adopted the position taken by the Third Circuit in In re Paoli Railroad Yard PCB Litigation, 35 F.3d 717 (3d Cir. 1994), and unanimously recognized a common-law cause of action for medical monitoring:

“[Ujnder the facts of this case and despite the absence of physical manifestation of any asbestos-related diseases, that the plaintiffs should be entitled to such regular medical testing and evaluation as is reasonably necessary and consistent with contemporary scientific principles applied by physicians experienced in the diagnosis and treatment of these types of injuries.” 543 Pa. at 679, 674 A.2d at 239 (quoting Burns v. Jaquays Mining Corp., 156 Ariz. 375, 380, 752 P.2d 28, 33 (1988)).

The elements required for this cause of action were refined in Redland Soccer Club Inc. v. Department of the Army, 548 Pa. 178, 696 A.2d 137 (1997):

“(1) exposure greater than normal background levels;
“(2) to a proven hazardous substance;
“(3) caused by the defendant’s negligence;
“(4) as a proximate result of the exposure, plaintiff has a significantly increased risk of contracting a serious latent disease;
“(5) a monitoring procedure exists that makes the early detection of the disease possible;
“(6) the prescribed monitoring regime is different from that normally recommended in the absence of the exposure; and
“(7) the prescribed monitoring regime is reasonably necessary according to contemporary scientific principles.” 548 Pa. at 195-96, 696 A.2d at 145-46. See also, Guillory v. The American Tobacco Co., no. 97 C 8641, 2001 WL 290603 at *7 n.3 (N.D. Ill. March 20, 2001) (“[m]ost states which recognize medical monitoring claims require the elements as set forth by the Supreme Court of Pennsylvania” in Redland).

Cabot challenges the plaintiffs’ cause of action for medical monitoring based on strict liability on the grounds that a claim for medical monitoring requires proof of negligence and cannot be based on strict liability.

Plaintiffs acknowledge that Pennsylvania “has not specifically addressed the question of whether strict liability, as opposed to negligence, will support a claim for medical monitoring relief.” Plaintiffs’ memorandum at 3. As a result, the plaintiffs base their claim on Barnes v. American Tobacco Co., 161 F.3d 127 (3d Cir. 1998), in which, the plaintiffs contend, the Third Circuit “anticipated that the Pennsylvania Supreme Court would recognize claims such as strict liability as a basis for recovering on a medical monitoring theory.” Plaintiffs’ memorandum at 3 (citing Barnes, 161 F.3d at 152 n.31).

A close examination of Barnes reveals no evidence to support the plaintiffs’ contention. The Barnes court considered what statute of limitations applies to the plaintiffs’ medical monitoring claims, which were based on both negligence and strict liability. The court determined that a two-year statute of hmitations would apply to a negligence medical monitoring claim. To be thorough, the court “assume[d] without deciding that the Pennsylvania Supreme Court would allow... strict products liability to be the underlying theory of liability in a claim for medical monitoring,” and noted that the statute of limitations applicable to a strict liability claim was two years. 161 F.3d at 152 n.31. On this basis, the court concluded that, “[t]o the extent that strict products liability or an intentional tort can act as the underlying theory of liability for a medical monitoring claim, the applicable statute of hmitations would still be two years.” 161 F.3d at 152. This does not establish that the Third Circuit has recognized a medical monitoring cause of action based on strict liability or has held that the Pennsylvania Supreme Court would do so.

The plaintiffs submit several policy justifications that should allow their strict liability-based claim to proceed and maintain that “Cabot has identified no meaningful distinction between a claim for medical monitoring founded on negligence, and one founded on strict liability.” Plaintiffs’ memorandum at 3. None of these policy reasons however, justify ignoring the Pennsylvania Supreme Court’s test, which so clearly indicates that a defendant’s negligence is an essential element of a medical monitoring claim. This is especially true given the limited recognition of medical monitoring as a cause of action. As a result, regardless of any shortcomings in Cabot’s policy arguments, this court cannot conclude that a cause of action for strict liability-based medical monitoring is permitted. Thus, plaintiffs’ second cause of action is stricken.

II. Count One Is Sufficiently Specific

Pennsylvania Rule of Civil Procedure 1028(a)(3) permits preliminary objections based on insufficient specificity in a pleading. To determine if a pleading meets Pennsylvania’s specificity requirements, a court must ascertain whether the facts alleged are “sufficiently specific so as to enable [a] defendant to prepare [its] defense.” Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 1308, 1310 (1991). See also, In re Barnes Foundation, 443 Pa. Super. 369, 381, 661 A.2d 889, 895 (1995) (“ ‘ [a pleading] should formulate the issues by fully summarizing the material facts,’ ... and ‘[a]s a minimum, a pleader must set forth concisely the facts upon which [the] cause of action is based’ ”). Allegations of fraud are held to an even higher standard. Pa.R.C. P. 1019(b). See also, Martin v. Lancaster Battery Co. Inc., 530 Pa. 11, 18, 606 A.2d 444, 448 (1992) (an allegation of fraud must “explain the nature of the claim to the opposing party so as to permit the preparation of a defense” and be “sufficient to convince the court that the averments are not merely subterfuge”); Maleski by Taylor v. DP Realty Trust, 653 A.2d 54, 65 (Pa. Commw. 1994) (to determine whether fraud has been pled with particularity, a court must “look to the complaint as a whole”).

Cabot’s objections to the complaint’s specificity are without merit. The plaintiffs allege that Cabot owed them the duty to ensure that the plant did not cause the plaintiffs to be exposed to toxic levels of beryllium and that Cabot breached this duty through seven specific acts. Complaint at ¶¶32-34. In addition, the plaintiffs’ allegations that they were exposed to toxic levels of beryllium, that Cabot operated without proper pollution control equipment and that Cabot’s actions were in violation of existing law are sufficient to allow Cabot to prepare a defense to the complaint. Id. at ¶¶20, 23.

Similarly, the allegations of fraud are sufficiently particular. Paragraph 21 of the complaint alleges the following:

“Cabot fraudulently concealed the adverse health effects to which they exposed plaintiffs and those similarly situated through an active public relations campaign that denied the seriousness of the health risk for those living in the neighborhood surrounding the Hazleton facility. This public relations effort, which sought to convince the public that only levels of beryllium that exceeded the applicable regulatory standards for workplace exposure were dangerous, was undertaken together with Brush Wellman Inc., another beryllium manufacturer. Together, Cabot and Brush Well[man] conspired to hide their knowledge regarding the true extent of the hazards of beryllium exposure, by publicly proclaiming that no worker had ever developed beryllium disease at exposures below applicable workplace standards, despite their knowledge of contrary evidence.”

These allegations are sufficient to allow Cabot to prepare a defense and to convince the court that these allegations are more than mere subterfuge. Cf. Martin, 530 Pa. at 18-19, 606 A.2d at 448 (allegations of fraud were sufficiently particular where they set forth events that happened “regularly”); Maleski, 653 A.2d at 65 (“a plaintiff is not required to plead evidence in his or her complaint, and therefore, need not allege all of the factual details underlying the claim of fraud”).

In summary, the plaintiffs may proceed on their negligence-based claim for medical monitoring. The objections to Count I are overruled.

CONCLUSION

Count I is complete and sufficiently specific. Because Pennsylvania does not recognize a cause of action for medical monitoring based on strict liability, however, the plaintiffs’ second count is legally insufficient and must be stricken.

This court will enter a contemporaneous order consistent with this opinion.

ORDER

And now, May 3,2001, upon consideration of the preliminary objections of defendant Cabot Corporation to the complaint, the plaintiffs’ response thereto, the respective memoranda and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered that:

(1) The objections asserting legal insufficiency of Count II — Strict liability/medical monitoring are sustained, and Count II is stricken; and

(2) The remaining objections are overruled.

(3) The defendant shall file an answer to the complaint within 20 days of the date of this order.

      . In 1968, BCA and Kawecki Chemical Co. merged to form Kawecki-Berylco Industries Inc. Cabot Corp. subsequently acquired KBI, changed its name to Cabot Berylco Inc. and, in 1982, merged it into Cabot Corp. Cabot Corp. and each of its predecessors are referred to herein as “Cabot.”

      . CBD is a granulomatous disease of the lungs in which the patient develops a cell-mediated immune response to the beryllium. The formation of the granulomas causes tissue to thicken, impeding the flow of oxygen between the lungs and the circulatory system. CBD is known for its latency period, which may extend from six months to 20 years or longer.

      . Cabot also maintains that the entire complaint should be dismissed because the plaintiffs failed to attach a verification. Since the plaintiffs have now filed verifications, this court need not consider this objection. See Lewis v. Erie Ins. Exchange, 281 Pa. Super. 193, 198-99, 421 A.2d 1214, 1217 (1980) (construing Pennsylvania Rule of Civil Procedure 1024 liberally to allow amendment adding verification to complaint).

      . Cabot also contends that, even if a strict liability medical monitoring cause of action were permitted, the plaintiffs have not alleged that the plant’s operations constituted an ultrahazardous activity, as required for a strict liability claim.

      . Indeed, the Barnes court noted that “[ujnder Redland, a plaintiff must prove that he was exposed to a proven hazardous substance as a result of the defendant’s negligence.” 161 F.3d at 152.

      . Courts in the majority of states have rejected medical monitoring as a cause of action. See Badillo v. American Brands Inc., 16 P.3d 435, 438-39 (Nev. 2001) (noting that, at most, only 17 states plus the District of Columbia have recognized a cause of action for medical monitoring). Of the courts that have recognized medical monitoring, it appears that most have required negligence to establish the cause of action. Compare Petito v. A.H. Robins Co., 750 So. 2d 103 (Fla. Dist. Ct. App. 1999) (requiring proof of negligence to establish claim for medical monitoring), and Hansen v. Mountain Fuel Supply Co., 858 P.2d 970 (Utah 1993) (same) with Bower v. Westinghouse Elec. Corp., 522 S.E.2d 424 (W. Va. 1999) (allowing medical monitoring claim based on strict liability).

      . Because this court finds that Pennsylvania does not recognize a cause of action for medical monitoring based on strict liability, there is no need to considered Cabot’s argument that the complaint does not allege an ultrahazardous activity.

      . As an initial matter, the complaint does not include a cause of action for fraud or fraudulent concealment, obviating the need to plead all of the elements for either of those causes of action. Nonetheless, Pennsylvania Rule of Civil Procedure requires that all averments of fraud be averred with particularity.


author: HORAN, J.,

text:
    Nading v. Boice

      C.P. of Butler County,
    no. A.D. 01-10692.

      Mark A. Lope, for plaintiffs.

      Leo M. Stepanian, for defendants.
    February 3, 2003
   HORAN, J.,

Before this court for consideration are the defendants Kenneth and Elizabeth Boice’s preliminary objections filed in response to the plaintiffs David L. Nading and Zachary Nading’s complaint in the above captioned matter. For the following reasons, defendants’ preliminary objections are sustained in part and overruled in part.

BACKGROUND

Plaintiffs filed their complaint on October 15, 2002, alleging that they were injured as a result of a motor vehicle accident with a van driven by defendant Kenneth Boice. Plaintiffs allege that, on July 7, 1999, plaintiff David Nading was driving his pickup truck east on State Route 68 near the intersection of Routes 68 and 268. Plaintiff Zachary Nading was a passenger in the truck. Plaintiffs allege that the defendants’ van was facing a flashing red light and stop sign at the intersection of Routes 68 and 268. Defendants allegedly turned into plaintiffs’ lane of traffic in violation of the traffic signals. Defendants’ van struck the passenger side of plaintiffs’ truck. Plaintiffs allege that defendant Elizabeth Boice owns the van driven by defendant Kenneth Boice. Plaintiffs’ complaint alleges two causes of action against defendants, negligence and negligence per se. Defendants filed preliminary objections and a brief in support to the complaint, arguing that the complaint fails to state a cause of action as to Elizabeth Boice, that it fails to state a claim for attorney’s fees, and that paragraphs 7 through 12 and 18 contain scandalous and impertinent matter. Plaintiffs filed a brief in response to defendants’ preliminary objections, arguing that the owner of the vehicle bears liability for a defective or substandard vehicle. Plaintiffs allege that the braking mechanism on the van was not in proper working order. They also argue that there is no harm to defendants in the request for attorney’s fees in the complaint. Plaintiffs argue that the material in paragraphs 7 through 12 and 18 of the complaint is not scandalous or impertinent.

Oral arguments were held on January 21, 2003.

DISCUSSION

When considering preliminary objections, the court must accept all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom as admitted and true, and decide whether, based upon the facts averred, recovery is impossible as a matter of law. Wiernik v. PHH U.S. Mortg. Corp., 736 A.2d 616 (Pa. Super. 1999). Preliminary objections should only be sustained in cases that are clear and free from doubt. Pennsylvania AFL-CIO ex rel. George v. Commonwealth, 563 Pa. 108, 757 A.2d 917 (2000); Butler v. Illes, 747 A.2d 943 (Pa. Super. 2000); Martinez v. Baxter, 725 A.2d 775 (Pa. Super. 1999). It should be clear from all of the pleaded facts that the pleader will be unable to prove facts sufficient to legally establish a right to relief. Id. Any doubt should be resolved by refusing to sustain the objections. Ellenbogen v. PNC Bank N.A., 731 A.2d 175 (Pa. Super. 1999).

1. Demurrer — Failure To State a Cause of Action Against Defendant Elizabeth Boice

Defendants argue that the complaint fails to state a cause of action against defendant Elizabeth Boice. They argue that plaintiffs have not set forth any allegations that Ms. Boice was negligent. Defendants also argue that plaintiffs’ complaint fails to state a cause of action against Elizabeth Boice for negligent entrustment. Plaintiffs argue that owners have liability for a defective or substandard vehicle. Paragraph 14(d) of plaintiffs’ complaint alleges that defendants were careless or negligent “in failing to have the brakes and braking mechanism on said vehicle in proper working order and/or in failing to properly and promptly operate the brakes and braking mechanism.” Said paragraph is the sole allegation in the complaint that relates to defendant Elizabeth Boice.

In order to state a valid cause of action for negligence, a plaintiff must plead four elements: “(1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risks; (2) failure on the part of the defendant to conform to that standard of conduct, i.e., a breach of duty; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach.” Rauch v. Mike-Mayer, 783 A.2d 815, 824 n.8 (Pa. Super. 2001) (citing Ney v. Axelrod, 723 A.2d 719, 721 (Pa. Super. 1999)). “[A] mere spousal relationship is insufficient to impose liability upon a spouse, as owner of a vehicle, due to the other spouse’s negligent driving of that vehicle.” Hagans v. Constitution State Service Co., 455 Pa. Super. 231, 252, 687 A.2d 1145, 1155 (1997). The Pennsylvania Supreme Court stated the following with respect to an owner’s duty to maintain a vehicle:

“Generally speaking, it is the duty of one operating a motor vehicle on the public highways to see that it is in reasonably good condition and properly equipped, so that it may be at all times controlled, and not become a source of danger to its occupants or to other travelers. To this end, the owner or operator of a motor vehicle must exercise reasonable care in the inspection of the machine and is chargeable with notice of everything that such inspection would disclose.” Dobb v. Stetzler, 369 Pa. 554, 559, 87 A.2d 308, 310 (1952), quoting Delair v. McAdoo, 324 Pa. 392, 395, 188 A. 181, 183 (1936).

Examining the complaint in a light most favorable to the plaintiffs, defendant Elizabeth Boice’s duty to maintain the vehicle in working condition can be inferred from the allegations contained in paragraph 14(d). Said paragraph also alleges that defendant Elizabeth Boice breached her duty by failing to maintain the brakes on her vehicle in working condition. Plaintiffs’ complaint also alleges the negligence elements of cause and damages. As such, plaintiffs’ complaint states a cause of action against defendant Elizabeth Boice for negligence. .

In order to plead a valid claim for negligent entrustment, a plaintiff must plead that the defendant (1) permitted a third person, (2) to use a thing under the control of the defendant, and (3) that the defendant knew or should have known that the third person intended to or was likely to use the thing in such a way that would harm another. Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998). Plaintiffs’ complaint does not make any allegations that set forth a claim for negligent entrustment against Ms. Boice. Therefore, plaintiffs’ complaint fails to set forth a cause of action for negligent entrustment.

Plaintiffs’ complaint states a cause of action for negligence. It does not state a cause of action for negligent entrustment. Therefore, defendants’ preliminary objection as to defendant Elizabeth Boice is overruled as to negligence and sustained as to negligent entrustment.

2. Demurrer — Legal Insufficiency of Claim for Attorney’s Fees

Defendants argue that plaintiffs’ claim for attorney’s fees is legally insufficient because the complaint does not allege facts that support an award of said fees. Plaintiffs argue that the claim for attorney’s fees does not prejudice or harm the defendants.

Absent statutory authorization, an express agreement by the parties or some other established exception, attorney’s fees are not recoverable from an adverse party. Merlino v. Delaware County, 556 Pa. 422, 728 A.2d 949, 951 (1999); Mrozek v. Eiter, 805 A.2d 535, 538 (Pa. Super. 2002). The statutory right to recover attorney’s fees is governed by 42 Pa.C.S. §2503. Section 2503 provides that the following parties are entitled to recover a reasonable counsel fee:

“(6) Any participant who is awarded counsel fees as a sanction against another participant for violation of any general rule which expressly prescribes the award of counsel fees as a sanction for dilatory, obdurate or vexatious conduct during the pendency of any matter.
“(7) Any participant who is awarded counsel fees as a sanction against another participant for dilatory, obdurate or vexatious conduct during the pendency of the matter....
“(9) Any participant who is awarded counsel fees because the conduct of another party in commencing the matter or otherwise was arbitrary, vexatious or in bad faith.
“(10) Any other participant in such circumstances as may be specified by statute heretofore or hereafter enacted.” 42 Pa.C.S. §2503.

Plaintiffs’ complaint alleges that the damages incurred include attorney’s fees, and it demands judgment for fees. The complaint does not allege that defendants’ conduct has been dilatory, obdurate or vexatious during the pendency of the action. It does not allege that the conduct of defendants was arbitrary, vexatious or in bad faith. The complaint does not allege that another statute or established exception applies to plaintiffs’ claim for attorney’s fees. It does not allege that the parties have an express agreement regarding the payment of attorney’s fees. Absent statutory authorization, an express agreement by the parties or some other established exception, attorney’s fees are not recoverable from an adverse party. Merlino, 728 A.2d at 951. Plaintiffs’ complaint does not allege facts that provide a basis for an award of attorney’s fees. As such, plaintiffs fail to state a legally sufficient cause of action for recovery of attorney’s fees. Defendants’ preliminary objection as to attorney’s fees is sustained.

3. Inclusion of Scandalous or Impertinent Matter

Defendants object to paragraphs 7 through 12 and 18 of plaintiffs’ complaint, arguing that they plead evidentiary matter that is scandalous and irrelevant to a cause of action based on negligence. Plaintiffs argue that said paragraphs clarify the events of the accident and the injuries that plaintiff Zachary Nading sustained. At oral argument, defendants withdrew their objection to paragraphs 7 through 12 of the complaint.

Pennsylvania Rule of Civil Procedure 1028(a)(2) states that a preliminary objection is proper if a pleading includes scandalous or impertinent matter or if it fails to conform to law or rule of court. Scandalous and impertinent matter is defined as “allegations ... immaterial and inappropriate to the proof of the cause of action.” Common Cause/Pennsylvania v. Commonwealth, 710 A.2d 108, 115 (Pa. Commw. 1998), citing Commonwealth, Dept. of Environmental Resources v. Peggs Run Coal Co., 55 Pa. Commw. 312, 423 A.2d 765 (1980). If the allegation is wholly irrelevant to the action and is without any influence in leading to the results of the judicial inquiry, said allegation will be deemed impertinent. Jefferies v. Hoffman, 417 Pa. 1, 207 A.2d 774 (1965).

Pennsylvania Rule of Civil Procedure 1019(a) requires the pleader to state the material facts on which the cause of action is based in a concise and summary form. The pleader must disclose sufficient facts to enable the adverse party to prepare a case. Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974). Material facts are those facts that are essential to support the claim. Id. Evidence from which material facts may be inferred should not be alleged in the pleading. Id. A valid cause of action for negligence must set forth four elements: “(1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection, of others against unreasonable risks; (2) failure on the part of the defendant to conform to that standard of conduct, i.e., a breach of duty; (3) a reasonably close causal connection between the breach of duty and the injury sustained; and (4) actual loss or damages that result from the breach.” Rauch, 783 A.2d at 824, n.8.

Paragraph 18 states the following:

“(18) As a result of said accident, plaintiff, Zachary D. Nading, incurred or will incur the damages, injuries and expenses including but not limited to:
“(a) The day after the accident, Zachary D. Nading was taken to Kittanning Hospital due to severe stomach cramps; and
“(b) Doctors advised that Zachary D. Nading required surgery due to bruised intestines; and
“(c) Zachary Nading was transported by ambulance to Pittsburgh Children’s Hospital where tests and x-rays were conducted; and
“(d) Doctors at Children’s Hospital decided to empty Zachary Nading’s stomach to alleviate pressure on his bruised intestines and allow for a better chance of healing the bruised intestine; and
“(e) The procedure was attempted, unsuccessfully, two times, causing Zachary to gag, gasp for breath, vomit, have a bloody nose; and
“(f) Later in the evening, the procedure was successfully completed and the contents of Zachary’s stomach were emptied; and
“(g) Zachary Nading developed a fever of 103° and was hospitalized at Children’s Hospital for three days and four nights.”

Defendants argue that the allegations in paragraph 18 are improper because they plead evidentiary matters. Defendants argue that said evidentiary matters are scandalous. Plaintiffs argue that the allegations in paragraph 18 plead damages and are mere surplusage.

Paragraph 18 of plaintiff’s complaint describes, in detail, plaintiff Zachary Nading’s medical treatment for bruised intestines. A plaintiff must plead the material facts upon which the negligence action is based. Allegations of damage are required to state a negligence action. Thus, damages are material facts upon which a negligence claim is based. The allegations in paragraph 18 relate to the damage element of plaintiffs’ claim for negligence. Said allegations are relevant to the action. They are not scandalous or impertinent.

The allegations in paragraph 18 plead evidence from which the material fact of damage and injury can be inferred. Evidence from which material facts can be inferred should not be alleged. Baker, 324 A.2d at 505. As such, said allegations fail to conform to the law against pleading evidence. Defendants’ preliminary objection to paragraph 18 of plaintiffs’ complaint is sustained.

Accordingly, we enter the following:

ORDER

And now, February 3, 2003, in consideration of defendants’ preliminary objections and brief in support, plaintiffs’ brief in opposition, and oral arguments thereupon, and in accordance with the foregoing memorandum opinion, defendants’ preliminary objections are hereby sustained in part and overruled in part.

Defendants’ preliminary objection as to a cause of action in negligence against defendant Elizabeth Boice is overruled. As to a cause of action for negligent entrustment, it is sustained.

Defendants’ preliminary objections as to attorney’s fees and the inclusion of scandalous or impertinent matter are sustained.

Plaintiffs are hereby granted 20 days to amend their complaint.

      . This court’s decision as to the evidence in paragraph 18 does not limit plaintiffs from attempting to introduce said evidence at trial.