author: LASH, J.,

text:
    DeCola v. PennDOT

      C.P. of Berks County,
    no. 01-7292.

      Joel L. Frank, for plaintiff.

      John W. Stahl, for defendant.
    September 17, 2004
   LASH, J.,

— The matter before this court is the motion of defendant, Department of Transportation, Commonwealth of Pennsylvania (Penn-DOT), for summary judgment. Specifically, PennDOT claims sovereign immunity pursuant to 1 Pa.C.S. §2310 and 42 Pa.C.S. §8521 et seq. Plaintiff, Jennifer DeCola, claims that the doctrine of sovereign immunity is waived because of an applicable exception, namely, 42 Pa.C.S. §8522(b)(4) relating to a dangerous condition of Commonwealth agency highways. Argument was held on September 8,2004. For reasons set forth herein, we grant PennDOT’s motion and enter summary judgment against plaintiff.

In Jones v. SEPTA, 565 Pa. 210, 216, 772 A.2d 435, 438 (2001), the Supreme Court recently restated the standard for granting summary judgment:

“Summary judgment will be entered only where there is no genuine issue as to any material fact and it is clear that the moving party is entitled to a judgment as a matter of law. Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 690 A.2d 169, 171 (1997). Summary judgment is proper in cases in which ‘an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to a cause of action or defense in which a jury trial would require the issues be submitted to a jury.’ Pa.R.C.P. 1035.2(2). We [rejview the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303, 304 (1992).”

For purposes of this motion, plaintiff accepts Penn-DOT’s version of the facts, which is as follows:

On October 11, 1997, when plaintiff was 16 years old and had a driver’s license for four days, she was the operator of a motor vehicle on Forgedale Road (S.R. 1021) in Rockland Township, Berks County. While plaintiff was attempting to negotiate an “S” curve, a speeding car heading in the opposite direction traveled close to or partly over the yellow centerlines, causing plaintiff to swerve to the right. Her vehicle went off the road, crossed a gravel driveway and a grassy yard, re-entered the road, rotated 180 degrees counterclockwise, slid out of control and started to roll over. While rolling over, the left side of her car struck a tree stump located three feet outside the right side white pavement edgeline (12 feet, nine inches from the centerline). Plaintiff alleges that her vehicle was damaged by striking the stump and that she was seriously injured.

Forgedale Road, at the accident, is a state-designated highway (known as S.R. 1021 in Berks County) under the jurisdiction of PennDOT. PennDOT’s right-of-way at the site of the accident is 33 feet wide, or 16 1/2 feet on each side of the centerline. Forgedale Road has one lane in each direction and no shoulders. The opposing lanes are separated by a double yellow line. It is posted with a 45 MPH speed limit.

For the sake of this argument, we also accept as true that the tree stump involved in the accident was within the right-of-way held by PennDOT on Forgedale Road. Secondly, we accept that PennDOT had actual or constructive knowledge of the stump.

As stated, plaintiff is relying on 42 Pa.C.S. §8522(b) (4) as the basis for waiver of immunity. That section provides, in pertinent part:

“(b) Acts which may impose liability. — The following acts by a Commonwealth party may result in the imposition of liability on the Commonwealth and the defense of sovereign immunity shall not be raised to claims for damages caused by: ....
“(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency,....”

Plaintiff’s theory on negligence is that the impact of plaintiff’s vehicle with the stump caused plaintiff’s injuries, that the stump, being located within the right-of-way of PennDOT, was within PennDOT’s control, that the stump should have been removed by PennDOT prior to the accident taking place, and that PennDOT’s failure to remove the stump manifested a dangerous and hazardous condition so as to make the highway and right-of-way dangerous for vehicular traffic. Under this theory, for plaintiff to establish a waiver of immunity, the term “highway,” contained in section 8522(b)(4),. would have to be broadly defined to include the right-of-way, even though the right-of-way is not paved or open to vehicular traffic.

Appellant precedent holds otherwise. In the case of Babcock v. PennDOT, 156 Pa. Commw. 69, 626 A.2d 672 (1993), the Commonwealth Court distinguishes right-of-way from the paved portion of the street for purposes of section 8522(b)(4). In Babcock, the plaintiff was injured after her car left the paved highway and struck a log located on a grassy area several feet from the paved surface of the highway, within PennDOTs right-of-way. In affirming summary judgment against the plaintiff, the Commonwealth Court stated:

“Babcock has cited no authority that indicates that PennDOT must maintain all property within its right-of-way in a condition which renders it safe for car travel. To accept Babcock's argument would place the intolerable burden upon PennDOT of forcing it to maintain any property within its unopened right-of-way in a condition allowing safe car travel. The right-of-way off the highway or cartway is clearly neither intended to be used nor is regularly used for vehicular travel.” 156 Pa. Commw. at 75, 626 A.2d at 675.

In Gramlich v. Lower Southampton Township, 838 A.2d 843 (Pa. Commw. 2003), citing Babcock, the Commonwealth Court ruled that a highway, for purposes of sovereign immunity, encompasses the “cartway,” that is, the paved and traveled portion of the highway, and the berm or shoulder, the paved portion to either side of the actual traveled portion of the road, not the right-of-way. The right-of-way off the highway is clearly neither intended to be used nor is regularly used for vehicular travel. 838 A.2d at 846-47.

We note also that under Babcock, citing Snyder v. Harmon, 522 Pa. 424, 433, 562 A.2d 307, 311 (1989), the exception is not applicable because the stump did not cause the injury. The Commonwealth Court set forth:

“For the real estate exception to sovereign immunity to apply, our Supreme Court opined that the dangerous condition must cause the injury and ‘must derive, originate from, or have as its source the Commonwealth realty.’ Snyder v. Harmon, 522 Pa. 424, 433, 562 A.2d 307, 311 (1989). The exception will not apply where the injury is merely 'facilitated’ by the dangerous condition of the real estate and not caused by it..; . Here, it is obvious that the tree or log did not cause the accident, but at most may have facilitated the injury or caused further injury. The accident was caused by the car leaving the road and shoulder, striking the embankment and overturning. Clearly, a log lying on the ground could not have injured Babcock unless her car had first slid off the highway, overturned and then slid further off the shoulder into the embankment.” 156 Pa. Commw. at 74, 626 A.2d at 674.

Similarly, the injuries to plaintiff were caused by the negligence of the driver of the oncoming vehicle, plaintiff herself, or both individuals, for plaintiff’s vehicle would never have hit the stump if she had not lost control of her vehicle and left the paved portion of the highway, eventually colliding with the stump.

Plaintiff urges that the Babcock holding does not establish a per se rule that the duty of PennDOT does not extend from the cartpath into the right-of-way, but rather these decisions should be handled on a case-by-case basis. In support, plaintiff cites Patton v. PennDOT, 669 A.2d 1090 (Pa. Commw. 1996), reversed on other grounds, 546 Pa. 562, 686 A.2d 1302 (1997). In Patton, the plaintiff’s decedent was killed when a large tree limb overhanging the state highway on which she traveled, fell onto her car. The presence of the tree limb constituted a dangerous and hazardous condition due to the topping of the tree and the disproportionate size of the limb.

The Patton case is distinguishable. The oversized limb, by its presence directly above the highway, compromised the safety of the highway itself and constituted a dangerous condition to anyone traveling at that location. Penn-DOT was charged with maintaining the safety of the highway, and its failure to remove the tree branch prior to the accident was the type of negligence for which immunity was waived by section 8522(b)(4). Conversely, the presence of the stump could not and did not affect the safety of any motorist traveling on Forgedale Road. The stump only became a factor in plaintiff’s injuries after she exited the highway.

Accordingly, we enter the following order:

ORDER

And now, September 17,2004, upon consideration of the motion of defendant, Department of Transportation, Commonwealth of Pennsylvania, for summary judgment, response by plaintiff, briefs filed by the parties, and after argument held, defendant’s motion is hereby granted. Judgment is entered in favor of defendant, Department of Transportation, Commonwealth of Pennsylvania, and against plaintiff, Jennifer DeCola.


source: Caselaw Access Project

author: BERNSTEIN, J.,

license: Public Domain

text:
    Zwiercan v. General Motors Corp.

      Marc P. Weingarten, for plaintiff.

      JohnJ. O’Donnell and John E. O’Neil, for defendant.
    October 4, 2004
   BERNSTEIN, J.,

— The sole issue before this court is whether the prerequisites for certification are satisfied. The purpose behind class action suits is “to provide a means by which the claims of many individuals could be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing small claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“In determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
“(b) Where equitable or declaratory relief alone is sought, the court shall consider
“(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
“(2) whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class.
“(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455(1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element....” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “the weight and credibility of the evidence are not factors at this stage____” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, “the term ‘prima facie right to custody’ means only that the party has a colorable claim to custody of the child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williamsburg Community School District v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of the Borough of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made; ... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. Debbs v. Chrysler Corp., 810 A.2d 137, 154 (Pa. Super. 2002). The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration. 1977 explanatory comment to Pa.R.C.P. 1707. Where evidence conflicts, doubt should be resolved in favor of class certification. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa. Super, at 128, 451 A.2d at 454. Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, the credibility of the witnesses and the substantive merits of defenses raised.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Professional Flooring Co. v. Bushar Corp., 61 D.&C.4th 147, 153 (Montg. Cty. 2003), citing Debbs v. Chrysler Corp., 810 A.2d 137, 153 (Pa. Super. 2002); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co. Inc., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test. The burden of persuasion and the risk of non-persuasion however, rests with the plaintiff.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that decisions applying the Riles for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp, 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super. at 128, 451 A.2d at 454, citing and quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case... any error should be committed in favor of allowing the class action”).

Likewise, the Commonwealth Court has held that “in doubtful cases, any error should be committed in favor of allowing class certification.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophy is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later develop-merits in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super. at 129, 451 A.2d at 454.

Within this context, the court will examine the requisite factors for class certification.

I. NUMEROSITY

To be eligible for certification, appellant must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain, on the energies and resources of the litigants should such potential plaintiffs sue individually.” Temple University of the Commonwealth System of Higher Education v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Co. v. Bell of Pa., 293 Pa. Super. 219, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (204 plaintiffs sufficiently numerous). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super. at 132, 451 A.2d at 456. There is no question that the number of potential claimants alleged to be part of this class meet the numerosity requirement.

II. COMMONALITY

The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra at 133, 451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). However, where the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra at 133 n.5, 451 A.2d at 457 n.5.

“While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D ’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 452, 500 A.2d 1137, 1142 (1985). In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). (emphasis in original) Where there exists intervening and possibly superseding causes of damage however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231, 530 A.2d 499, 504(1987).

Related to this requirement for certification is whether trial on a class basis is a fair and efficient method of adjudication under the criteria set forth in Rule 1708.

1. Predominance of Common Questions of Law and Fact

Another important requirement in determining whether a class should be certified are the requirements of Rules 1702(a)(5) and 1708(a)(1); whether common questions of law and fact predominate over any question affecting only individual members. In addition to the existence of common questions of law and fact, plaintiffs must also establish that the common issues predominate. Accordingly, the analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janicik, supra at 141, 451 A.2d at 461.

Since the criteria of Rule 1702(2) and (5) have not been met by the proofs presented at the class certification hearing or the record presented therein, no discussion of the other requirements for certification is necessary.

Plaintiff’s claim for certification is based on the contention that a single uniform design defect in the front seats of numerous vehicles manufactured by defendants make them extraordinarily dangerous in the event of rear-end collision, creating such a likelihood of death or serious bodily injury that defendants violated the Pennsylvania UTPCPL, and that reliance by the purchaser can be presumed on a class basis without individualized proof.

Plaintiff proposes to certify a class for trial as follows:

“All residents of the Commonwealth of Pennsylvania who own, for personal use, any of the automobiles identified on the list attached as exhibit one hereto....” [not published herein] The list of automobiles and models proposed for class inclusion has changed from the time of filing of the complaint, and plaintiff in her memorandum in support of class certification concedes that no final class designation can be designated until the time of trial. In a footnote in plaintiff’s motion for class certification, plaintiff claims to specifically reserve the right to amend the vehicles of the class.

In support of her motion for class certification, plaintiff relies on the testimony of two experts, Alan Cantor, an engineering consultant who has worked for 30 years in the research and development of automobile occupant seating, occupant restraint systems, and occupant crash protection devices, and Randall Whitfield, a statistical consultant, president and director of Quality Control Systems Corporation, who for 17 years has provided statistical and programming services for public health research regarding accidents and injuries. Both are qualified to offer opinions in their field of expertise. Their expert opinion evidence was presented by report, neither testified in court.

For the reasons set forth below, individual issues predominate and the requirements for class certification have not been met and class certification is denied.

Even though the class of vehicles proposed for inclusion in this class action has repeatedly changed during the course of the litigation, and even though plaintiff’s counsel is unwilling to definitively restrict the vehicles to those proposed for inclusion at the time of the certification hearing, at least nine model years of vehicles are proposed for inclusion. Within these-model years are more than 55 separate models manufactured by seven General Motors divisions. The class includes distinct types of vehicles having significantly different seating configurations. The cars are of significantly different sizes and weights. The proposed class includes four-door sedans, coupes, station wagons, sports cars, mini vans, convertibles, and large and small SUVs. The vehicles requested for inclusion in this class include the GL Metro, a compact car, and the Chevy Tahoe, a large SUV.

No party presented any live expert testimony. The record contains the reports of four experts: Alan Cantor, Randall Whitfield, Joseph Rice, and William E. Wecker. All experts, including plaintiff’s experts, concede that numerous factors affect the risk of injury in a rear-end collision. According to plaintiff’s expert Cantor, the collapse of a seat is a function of the car and the passengers that are in it. Expert Cantor admits: “Again it’s a function of the car, the person’s weight, and the factors of the impact and structural integrity of the vehicle.”

“Q. All those factors can vary from car to car and accident to accident?
“A. Absolutely.”

Plaintiff’s expert further concedes that the class vehicles differ in length, width, curb weight, gross vehicle weight, drive train, rear bumper overhang, type of body construction, seating position and every other dimension. Plaintiff’s expert Cantor concedes that the bumper height may affect the potential for injury and that bumper height is a function not only of the type of vehicle involved in the accident but also the specifics of the crash itself.

Plaintiff’s expert says:

“Q. If override occurs in a crash, would you expect the potential for injury to be different than if under ride occurred?
“A. Maybe . . . depending on the severity, in some crashes the override or under ride characteristics may help lower acceleration in the occupant compartment. In others it may induce intrusion. So it really depends on the specifics of the crash itself.”

Defendant’s expert Rice entirely concurs with plaintiff’s expert Cantor’s opinion that these individual differences in vehicle shape, size and construction can affect the likelihood of injury in a rear-end collision.

Plaintiff’s expert also concedes that “head restraints can differ all over the place. They can differ in height, they can differ in adjustability. Some of the headrests General Motors uses are adjustable, some are fixed head rests. Some are — some have a slight forward angle, some have no forward angle. Some have a larger width than others. There is a tremendous inconsistency in the GM headrest.” Likewise he concedes “GM uses certain families of adjusters but there is no common adjuster.” Likewise the expert agreed that there is no such thing as a single or common GM reclinen

Plaintiff’s expert also concedes that the force on the seat occupant can be affected by weight and acceleration:

“Q. So a higher weight person is going to have a seat defect more than a lower weight person?
“A. Given everything else being equal in the same crash.”

Despite his concessions and description of the numerous factors that go into the likelihood of injury in a rear-end collision, plaintiff’s expert offers the general opinion that over 55 separate models of a vast variety of vehicle types and styles and configurations are all defective. Plaintiff’s expert’s theory rests on the assumption that there is a single GM seat and a single GM construction of the seat in each of the class vehicles. This factual assumption is unsupported by the record. He claims to supplement his opinion with specific evaluations he performed in other personal injury lawsuits, an experiment of one seat taken from a 1994 Saturn evaluated outside of the context of its vehicle seating configuration, and seat strength testing results on AR9 seats removed from nine GM vehicles. He also reviewed a rear-moving barrier test videotape of a single 1994 Saturn vehicle and reviewed strength test results on 19 seats from unidentified GM vehicles. He also reviewed a sled test conducted on an unidentified GM production seat from an unidentified GM vehicle.

Mr. Cantor takes the results of this experiment, his prior opinions generated for litigation and his vast experience in the field, and opines that all front seats in any class vehicle are insufficiently strong and will collapse in a moderate speed rear impact therefore posing a severe and unreasonable, significant risk of serious personal injury. He concludes that all the seats in all the class vehicles will perform substantially the same and expose all occupants to the same unreasonable risk of injury. Plaintiff’s expert Cantor concedes that the other vehicles manufactured by the defendant are not defective.

Although he presents no universal condemnation of GM seats, he renders his opinion on a list of vehicles different from the proposed definition of class vehicles. He includes 1999 and 2000 model year vehicles, the 1990 through 1996 Buiclc Estate Wagon, the 1997 and 1998 Cadillac Eldorado, the 1998 Cadillac Seville, the 1997 to 2000 Cadillac Catena, the 1991 to 1998 Chevrolet Celebrity, and the 1991 to 2000 Saturn models, none of which are proposed for inclusion in the class.

A detailed analysis of the seats which were in fact reviewed by expert Cantor reveals that seat strength tests occurred on two types of GM vehicle seats, the AR9 and AM6. There are at least 25 different types of seats in the class vehicles and all AR9 seats are not the same, nor do they perform similarly. Additionally, street strength tests were performed on not more than nine out of the 69 vehicle makes and models proposed for inclusion. The rear-moving barrier tests reviewed were performed only on Saturn vehicles. Saturn vehicles are not included in the class definition.

Plaintiff’s expert has failed to take into any account in his analysis the significant differences among the vehicles of the proposed class. The limited investigation performed by plaintiff’s expert involves theoretical evaluations analyzed outside of the context of the totality of the vehicle configuration. Plaintiff Zwiercan’s vehicle is a 1997 Chevrolet Blazer. Plaintiff’s expert did not conduct any investigation or even any inspection of that vehicle. Defendant’s expert Rice presents a chart of eight different types of GM seats in the proposed class vehicles, no contrary opinion by any expert is of record. At exhibits C, D and G of expert Rice’s report he describes how the complexity of these seat configurations has not been addressed by plaintiff.

Expert Cantor’s analysis is further flawed because it is exclusively based on a single criteria, rearward strength. This analysis flies in the face of his repeated concessions that numerous other factors including vehicle characteristics, occupant characteristics, and the particular circumstances of each collision affects seat performance and injury potential.

Likewise, because numerous factors must properly enter in any safety evaluation, the testing on which Cantor relies is divorced from reality. Testing on seats taken from the vehicles for strength testing cannot provide definitive proof of how a seat will perform with every occupant under every rear-end accident scenario. This is conceded by expert Cantor in the numerous concessions of all the various factors which must necessarily go into evaluating any vehicle seating system. No explanation or justification for ignoring these acknowledged significant factors is offered.

The only other expert testimony by report provided by plaintiff is that of Randall Whitfield. Mr. Whitfield is a statistical consultant, president and director of Quality Control Systems Corporation. For 17 years he has provided statistical and programming services for public health research on accidents and injuries. Mr. Whitfield does not render any opinion on Ms. Zwiercan’s vehicle and concedes he does not even know what vehicle Ms. Zwiercan owns. Mr. Whitfield was not asked to study the risk of injury or death in class vehicles and of course did not do so. Mr. Whitfield was only asked to analyze the potential for seat collapse in rear-end collisions generally. From an analysis of nationwide data, he projected an annual estimate of rear-end collisions in Pennsylvania.

Mr. Whitfield analyzed General Estimate System (GES) data from 1988 reporting rear-impact collisions and Crashworthiness Data System (CDS) data of all police-reported motor vehicle crashes in the United States between 1995 and 2000 where a vehicle was towed from the scene. Based on GES data he determined that 10,000 front seat occupants had been incapacitated or killed. From CDS information he concluded that 7 percent of front occupants had moved from the upright or slightly reclined to the full rearward position following an accident. Mr. Whitfield did not analyze the data to determine whether any of the occupants in class vehicle seats which were found in a fully reclined position following an accident were injured:

“Q. OK, I am correct that your study did not attempt to quantify the number or risk of injury to people that were riding in those vehicles?
“A. It did not.”

He did not perform any such analysis of injury although this analysis could have been performed using the same database. No evaluation whether or not any of the individuals whose vehicle seat ended in a fully reclined position were in fact injured was presented by plaintiff at the certification hearing.

Plaintiff’s expert Whitfield determined that in 1998, the police nationwide reported 15,000 rear-end collisions where at least one vehicle required towing. Using this data, he opined that there were 10,000 front seat occupants who were incapacitated, injured or killed in such accidents. That data, projected onto vehicles manufactured between 1995 and 2000, led Mr. Whitfield to the conclusion that the seatbacks of 7 percent of front occupants moved from an upright or slightly reclined position to a full rearward position following impact. The database relied on for 1998 involved 1,768 towed vehicles involved in a rear-impact collision. This projected to 162,222 vehicles nationwide in 1988. Expert Whitfield projected that 10,323 occupants had been killed or incapacitatingly injured nationwide in 1988.

Reviewing Crashworthiness Data System, which is a random sample of all police reported crashes between 1995 and 2000 where a vehicle was towed from the scene, expert Whitfield located 349 front seat occupants where the data contained information on front seat position, post-impact. Of these 349, approximately 10 percent or 35 seats had moved to a fully reclined position post-impact. Expert Whitfield then extrapolated from these 35 occupants of post-impact fully reclined seats to a projection of 13,270 such events nationwide.

This analysis is lacking in several significant respects. The cars on which Mr. Whitfield’s opinion is based differs from the definition of class vehicles. For example, 1999 model year vehicles are included in the analysis but not in the class. 1990 to 1992 Chevrolet Sprint vehicles are included in the analysis but not in the class. The 1990 Pontiac Sunbird, the 1990 to 1992 Pontiac Flier Fly, the 1997 to 1999 Cadillac Cateria, the 1990 to 1999 Chevrolet Suburban and the 1991 to 1999 Saturn models are all included in the analysis but not in the class. Expert Whitfield was not aware that non-class vehicles had been included in his analysis, and obviously therefore made no calculation as to whether their inclusion is significant or insignificant to his conclusion. In addition to using the wrong vehicles, not one class vehicle (which begins with model year 1990 vehicles) could possibly have been included in the data from which his extrapolations were made, or in his analysis, because the data analyzed ended in 1998.

Nonetheless, expert Whitfield’s analysis of CDS data revealed that of the 349 occupants of rear-end collisions for which there was post-accident position information, 35 front seats had moved to a fully reclined position. Of the 35 vehicles on which these seatback “failures” were found, five were found in Saturn vehicles. Saturn vehicles are not in the proposed class. Accordingly, fully one-seventh of the 35 examples upon which expert Whitfield’s opinions are based are totally irrelevant to any accurate statistical analysis of potential injuries in class vehicles. Mr. Whitfield learned of this significant over-reporting of seat failure relative to class vehicles at his deposition. Nonetheless, no subsequent analysis was undertaken. Plaintiff made no attempt to demonstrate to the court the effect of this one-seventh over-reporting in the number of vehicles whose front seats failed. Defendant’s expert William E. Wecker Ph.D.’s report did analyze and compare injuries in class vehicles to injuries in non-class vehicles. Given that plaintiff has presented no rebuttal evidence, this analysis must be accepted as more accurate than plaintiff’s analysis which is demonstrably based on overstated numbers.

Mr. Whitfield’s explanation as to why a database excluding all class vehicles was used is completely inapposite to justifying the validity of his extrapolations. He explained that the study contained no class vehicles because the analysis was performed only to demonstrate what defendant GM knew or should have known about accident frequency. If this was the intention with which the study was designed, then no extrapolation to class certification vehicles was ever intended or designed into the study, further questioning its validity. The 1988 GES data is further polluted from reasonable analysis relevant to the class certification question because heavy trucks, motorcycles, buses and other “unknown” vehicles are contained in the database. No such vehicles are contained in the proposed class vehicles.

Further, Dr. Whitfield’s opinion on Pennsylvania accidents based upon national GES data was formed with the unanalyzed assumption that projection from this national data is consistent with available Pennsylvania data. The same data on which Mr. Whitfield’s nationwide results were obtained could have been isolated to Pennsylvania and analyzed for accidents in Pennsylvania alone. Instead of using the actually recorded data and without any explanation or justification, only an extrapolation was performed, and only an extrapolation was offered into evidence.

The database used is inadequate for other reasons. The data used by expert Whitfield does not identify whether the occupants who sustained serious injuries had been located in the front or rear vehicle. Plaintiff’s claim in this class action is that the seats are defective as to occupants of the front vehicle only. Since no analysis was presented or explanation offered, the court has no ability whatsoever to evaluate whether the number of injured parties contained in the data analyzed who were in the rear striking vehicle is insignificant, significant, or overwhelming in numbers. Likewise, the data does not indicate any cause for the serious injuries noted. Expert Whitfield, without explanation or justification, assumes that the injury was due to the seatback position post-accident. Likewise, no information concerning speed of the vehicles is contained in the data.

Despite this mass of confounding irrelevant data contained in the database, expert Whitfield found only 35 occupants in vehicles where a front seat was fully reclined after a rear impact. Of these 35 occupants, the only vehicles whose identity was revealed in the class certification hearing record is that five of these occupants were in Saturn vehicles, which, as previously noted, is a vehicle not contained in the class. In the entire analysis, only 30 possibly relevant examples were identified and no evidence was offered which even demonstrated that any of these 30 examples were truly relevant to the class certification question because relevant to the class description.

Despite having had the opportunity to recalculate his analysis based on the 30 potential class occupants and despite the ability to precisely determine the make and model of the vehicles, no supplemental analysis was produced. Indeed, by no evidence has the plaintiff proven that any of the remaining 30 vehicles, on which Mr. Whitfield bases his entire analysis, are class vehicles. Since plaintiff’s expert had the opportunity and time to conduct such an analysis and chose not to do so, it is reasonable to infer that, had such analysis been performed, it would not have been favorable to the plaintiff’s position.

However, even without that reasonable factual inference, the fact that 30 vehicles of an unknown type had fully reclined seats following a rear-end collision does not provide any evidence that occupants of class vehicles sustained or didn’t sustain any such injury-producing accidents. Indeed, since only a maximum 30 class vehicles of the 349 vehicles involved in rear-end collisions could possibly have had fully reclined seats post-accident, the conclusion is inescapable that at least 90 percent of class vehicles did not sustain any seatback collapse in rear impact collisions. Clearly plaintiff’s expert analysis must be rejected as insufficiently related to the questions presented to determine whether commonality of issues make a class action possible.

The analysis of Dr. Joseph S. Rice, presented by the defense, must be considered and evaluated where his testimony is not inconsistent with the testimony presented by any report of plaintiff’s experts and has not been brought into question by any cross-examination. Dr. Rice concludes that the risk of rear-end collision in any particular vehicle is very low, opining that more than 99 percent of the vehicles included in the class will never be involved in a rear-end collision. His opinion is that rear-impact collisions account for approximately 11 percent of all accidents but only 1.1 percent of occupants in them sustain serious injury. In his opinion, most injuries sustained in rear-end collisions are whiplash or rebound injuries where a passenger comes into contact with some portion of the interior of the front seat area, a type of injury which is irrelevant to plaintiff’s claim.

Accordingly, based upon the proper analysis of all the expert reports presented and all the other evidence in accordance with the applicable standards and burden of proof, plaintiff has failed to prove that the class vehicles contain a relevant common design, the effect of which is not transcended by all the other factors which necessarily go into designing a safe seat and determining the cause of injury. Having failed to satisfy her prima facie burden that the result, in rear-end collisions, is of such uniformity due to common seatback design, the court has no need to reach the question of whether the potential risk of serious bodily injury or death is of such a significant degree as to overcome the requirement of proof of individual reliance to permit certification of a UTPCPL claim as a class action.

Although plaintiff has only a prima facie burden of proof by substantial evidence, plaintiff must nonetheless present evidence that is logically relevant to the issues in the case. Failing to do so necessarily results in plaintiff failing to meet her burden of persuasion.

For the reasons set forth above, certification of class is denied and the matter will be scheduled for individual trial.

ORDER

And now, October 4, 2004, upon consideration of plaintiff’s motion for class certification, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the contemporaneous memorandum opinion, it is hereby ordered and decreed that the above certification of class is denied and the matter will be scheduled for individual trial.

A pretrial conference as to plaintiff’s individual claims is hereby scheduled for Monday, January 10, 2005, beginning at 10 a.m., in Room 530, City Hall, Philadelphia, Pennsylvania. Individual discovery may proceed.

      . Summary judgment based on the need for proof of individual reliance for UTPCPL claim (as set forth in Debbs v. Chrysler, 810 A.2d 137 (Pa. Super. 2002)), was denied by the Honorable Gene Cohen on the following basis: “In the instant case, there can be no doubt as to the materiality of the alleged defect. As more fully outlined in the court’s September 11,2002 opinion, plaintiff has alleged defect in the front seats of defendant’s class vehicles are likely to cause paralysis or even death. Zwiercan v. General Motors Corporation, 58 D.&C.4th 251 (Phila. Cty. 2002). It is further alleged that defendant deliberately withheld its knowledge of this material and potentially life-threatening defect. Given the severity of the consequences at issue in Zwiercan, materiality cannot be questioned. Therefore, this court finds plaintiff is entitled to a class-wide presumption of reliance where it can be proven that the defect may cause serious bodily harm or death.” While this court is aware of the decision in DiGregorio v. Keystone Health Plan East, 840 A.2d 361 (Pa. Super. 2003), abrogating the concurrent jurisdiction rule where a prior judge has made a palpable and demonstratable error of law, the court finds this extraordinary remedy not applicable and that the ruling of Judge Cohen on summary judgment is the law of the case.

      . Dep. volume 1, 45: lines 10-14, page 52, lines 11 through 17.

      . Cantor deposition page 81, line 7 to page 82, line 10.

      . Volume 2, page 109, line 5 to page 111, line 6.

      . Cantor deposition, volume 1, page 101, lines 11 through 19.

      . Deposition volume 1, page 103, lines 15 through 18.

      . Cantor deposition volume 1; page 107, lines 1 through 4.

      . Volume 1, page 259, lines 2 through 10.

      . (Whilfield report at 1-2.)

      . Deposition of Whitfield, page 168, lines 7 through 10.

      . Whitfield report at 6.

      . Whitfield report at 4; Whitfield dep. page 132, line 4 to page 132, line 12.

      . Where no live testimony is presented, and no challenge to expert witness testimony is presented by cross-examination, the court is compelled to credit all non-contradicted expert opinion.


author: ACKERMAN, P.J.,

text:
    Morrison v. Diocese of Altoona-Johnstown

      C.P. of Westmoreland County,
    no. 1236 of 2004.

      Helen R. Kotler, for plaintiff.

      Eric N. Anderson and Carol A. Eck, for defendant.
    October 20, 2004
   ACKERMAN, P.J.,

— Before the court are preliminary objections filed by the defendants, Diocese of Altoona-Johnstown, Bishop Joseph H. Adamec, Bishop James Hogan, Benedictine Society a/lc/a Benedictine Society of Westmoreland County a/k/a St. Vincent Archabbey, and Archabbot Douglas Nowicki, collectively referred to as the Diocesan defendants and/or the Benedictine defendants, to the complaint filed by the plaintiff, John Morrison. Plaintiff has also filed a preliminary objection to the defendants’ preliminary objections based upon the statute of limitations. For the reasons that follow, the preliminary objections will be sustained in part and overruled in part.

The primary allegations of plaintiff’s complaint stem from alleged sexual abuse of plaintiff by Father Alvin T. Downey that occurred in approximately 1980 and 1981 when plaintiff was 16 and 17 years of age. (Compl. ¶¶2, 3.) Plaintiff met Father Downey when Father Downey was substituting for a vacationing priest at St. John the Evangelist Catholic Church and plaintiff served as an altar boy. (Compl. ¶¶29,38,39,42.) Plaintiff alleges that he was abused by Father Downey in approximately May of 1980 at the residence of plaintiff’s mother. (Compl. ¶¶45, 46.) Plaintiff further alleges that he was sexually abused by Father Downey, Father Athanasius Cherry and Father Andrew Campbell as a group when plaintiff visited St. Vincent Archabbey in April of 1981. (Compl. ¶¶51, 53.) Plaintiff alleges that in March of 2002 he became aware that the Diocesan and Benedictine defendants “concealed sexually abusive conduct by Benedictine priests and others assigned to the Diocese, knew about abusive priests in the Diocese both before and after the plaintiff was abused, continued to conceal said misconduct, failed to effectively act on information regarding the misconduct of the aforesaid priests, all of which aided, enabled, encouraged and resulted in priests causing injuries to the plaintiff.” (Compl. ¶59.) These allegations form the basis of the first 15 counts of plaintiff’s 18-count complaint.

Plaintiff’s allegations that form the bases of the remaining three counts of plaintiff’s complaint surround events that occurred in 2002 and 2003. Plaintiff disclosed the alleged abuse by Fathers Downey, Cherry and Campbell to his mother on July 2, 2002. (Compl. ¶43.) On July 22,2002, the plaintiff met with Bishop Adamec and Archabbot Nowicki to advise them of the past abuse and to discuss plaintiff’s emotional and psychological condition. (Compl. ¶¶65, 262.) At this meeting, plaintiff was accompanied by his mother and a local physician, who came to support the plaintiff. (Compl. ¶65.) Through Bishop Adamec and Archabbot Nowicki, defendants agreed to pay psychological treatment bills, which were not covered by insurance, for the plaintiff. (Compl. ¶¶69, 70, 262.) Plaintiff alleges that, in a letter dated April 15, 2003, Archabbot Nowicki informed the plaintiff that, for payments to continue, it would be necessary for defendants to review a clear treatment plan that would include both comprehensive psychiatric and psychological evaluation “to ensure that the recommended treatment plan is well reasoned and has a high probability of being a benefit to him.” (Compl. ¶76.) Plaintiff alleged that defendants began paying counseling bills for his treatment, but then ceased paying, suddenly imposing oppressive conditions upon the plaintiff. (Compl. ¶264.)

Additionally, with respect to this second category of allegations, plaintiff alleges that defendants’ offer to pay for his therapy was not to benefit plaintiff but to enable defendants to obtain confidential information about plaintiff not otherwise available to them in the event plaintiff should bring a legal action (Compl. ¶249.) Plaintiff alleges that these acts constituted a conflict of interest and breach of fiduciary duty by defendants. (Compl. ¶249.)

The standard of review of preliminary objections is a limited one. AM/PM Franchise Association v. Atlantic Richfield Co., 526 Pa. 110, 121, 584 A.2d 915, 921 (1991). I must accept as true all material facts set forth in the complaint, as well as all inferences reasonably deducible from those facts. Sherk v. County of Dauphin, 531 Pa. 515, 516, 614 A.2d 226, 227 (1992). In order to grant a demurrer, the law must say with certainty that no recovery is possible. Id. at 517, 614 A.2d at 227. Furthermore, any doubt that exists as to whether a demurrer should be sustained must be resolved by overruling the objection. Id. at 517, 614 A.2d at 227.

I. CAUSES OF ACTION BASED UPON 1980 AND 1981 ABUSE

A. Statute of Limitations

The defendants have filed preliminary objections based upon the statute of limitations for the causes of action set forth by plaintiff arising from the alleged abuse that occurred in 1980 and 1981. Plaintiff filed a preliminary objection to the defendants’ preliminary objections founded upon the statute of limitations argument, and contends that the affirmative defense of the statute of limitations is limited to being raised by defendants in new matter, whereupon plaintiff could file a reply asserting estoppel and waiver. Plaintiff raised the statute of limitations in his complaint, and asserted facts in an effort to show that the statute of limitations was tolled by operation of the discovery rule and/or through fraud and concealment of the defendants. However, the issue of whether the discovery rule operates to toll the statute of limitations can be asserted one of two ways: (1) by asserting it in a responsive pleading when defendant raises the statute of limitations in new matter; or (2) by “pleading in the complaint sufficient facts to sustain application of the rule ... .” Prevish v. Northwest Medical Center—Oil City Campus, 692 A.2d 192, 197 (Pa. Super. 1997). Since the plaintiff has raised defenses in his complaint to the barring of his claims by the obvious issue of the statute of limitations, this issue may be properly addressed in preliminary objections.

The applicable statute of limitations for plaintiff’s causes of action based upon the alleged abuse in 1980 and 1981 is two years. 42 Pa.C.S. §5524. The statute of limitations begins to run as soon as the right to institute and maintain suit arises. Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. Super. 2002) (quoting Cappelli v. York Operating Co. Inc., 711 A.2d 481, 484-85 (Pa. Super. 1998)). Lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations. Dalrymple v. Brown, 549 Pa. 217, 223, 701 A.2d 164, 167 (1997). It is the duty of the party asserting a cause of action “to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the right of recovery is based and to institute suit within the prescribed period.” Weik, 794 A.2d at 909 (quoting Cappelli, supra). Aggrieved individuals are required to bring their claims within a certain time of the injury “so that the passage of time does not damage the defendant’s ability to adequately defend against claims made.” Dalrymple, 549 Pa. at 223, 701 A.2d at 167.

The discovery rule is an equitable one, which excludes the period of time during which the injured party is reasonably unaware that injury has been sustained. Id. The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence. Id. Where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Id. (citing Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992)). The standard of reasonable diligence is an objective or external standard that is the same for all individuals; it is not a subjective standard that is unique to a particular plaintiff. Id. at 224, 701 A.2d at 167; Kingston Coal Co. v. Felton Mining Co., 456 Pa. Super. 270, 280, 690 A.2d 284, 289 (1997). It is a standard of reasonable diligence as applied to a “reasonable person.” Dalrymple, 549 Pa. at 224, 701 A.2d at 167. When a plaintiff “possesses the salient facts concerning the occurrence of his injury and who or what caused it,” the plaintiff has a duty and the ability to investigate further. White v. Owens-Corning Fiberglas Corp., 447 Pa. Super. 5, 21, 668 A.2d 136, 144 (1995).

Plaintiff admits that he knew he suffered an “injury” by Fathers Downey, Campbell and Cherry at the time of the alleged sexual assaults in 1980 and 1981. (Compl. ¶59.) However, plaintiff alleges that he was not aware of the knowledge and involvement of the Diocesan and Benedictine defendants with respect to the predator priests, which aided, enabled, encouraged and resulted in the individual priests causing the injury to the plaintiff, until various public disclosures were made by defendants beginning in March of 2002. (Compl. ¶59.) Essentially, plaintiff’s argument is that he was aware that he was injured when he was abused by the priests, but was not aware of the involvement of others, the Diocesan and Benedictine defendants, which plaintiff alleges contributed to the occurrence of the injuries plaintiff sustained.

“Reasonable diligence” is defined as a reasonable effort to discover the cause of an injury under the facts and circumstances presented in the case. Cochran v. GAF Corp., 542 Pa. 210, 217, 666 A.2d 245, 249 (1995). The standard espoused by the courts of this Commonwealth is as follows:

“Long ago we recognized that ‘[tjhere are few facts which diligence cannot discover, but there must be some reason to awaken inquiry and direct diligence in the channel in which it would be successful. Under [an objective] standard, the plaintiff’s actions must be evaluated to determine whether he exhibited ‘those qualities of attention, knowledge, intelligence and judgment which society requires of its members for the protection of their own interests and the interests of others.’... Despite the objective nature of the reasonable diligence standard, ‘[i]t is sufficiently flexible, however, to take into account difference[s] between persons and their capacity to meet certain situations and the circumstances confronting them at the time in question.’... Thus, this case law teaches that a plaintiff is not under an absolute duty to discover the cause of his [injury]. Instead, he must exercise only the level of diligence that a reasonable man would employ under the facts and circumstances presented in a particular case.” Cochran, 542 Pa. at 217, 666 A.2d at 249 (quoting opinion in support of reversal in Baumgart v. Keene, 542 Pa. 194, 207, 666 A.2d 238, 244 (1995)). (citations omitted)

The limitations period begins to run when the injured party “possesses sufficient critical facts to put him on notice that a wrong has been committed and that he need investigate to detennine whether he is entitled to redress.” Weik, 794 A.2d at 909 (quoting Cappelli, 711 A.2d at 485).

The standard to be applied is “whether the information, through the exercise of due diligence, was knowable to the plaintiff.” Cappelli, 711 A.2d at 488. The failure of plaintiff to make inquiry when information is available is the failure of plaintiff to exercise reasonable diligence as a matter of law. Id.; Kingston Coal Co., 456 Pa. Super, at 280, 690 A.2d at 289.

In this case, there are no allegations that plaintiff reported the abuse to anyone or made inquiries of the defendants regarding the abuse that occurred in 1980 and 1981 until 2002. (¶¶43, 63, 65.) Plaintiff failed to make any inquiry regarding the involvement of defendants until disclosures were made by defendants in the media in 2002. Plaintiff has alleged that he trusted the defendants and believed that defendants were not entities that would tolerate such behavior. Plaintiff would request to be excused from the requirement that he exercise due diligence solely due to the status of defendant organizations’ affiliation with the church.

Whether plaintiff was reasonable in his belief that the defendants would not tolerate such conduct, and whether plaintiff exercised due diligence under the facts and circumstances presented in this case, require factual determinations that must be determined by a jury. This is not an issue that is so clear that reasonable minds could not differ such that the commencement of the statute of limitations can be determined as a matter of law.

Likewise, plaintiff alleges that defendants participated in fraud or concealment such that defendants should be estopped from asserting the defense of the statute of limitations. The complaint contains a series of allegations regarding fraudulent misrepresentations and/or concealment by defendants, i.e., that the Diocesan defendants engaged in a covert policy and practice to conceal the problem of sexual abuse of children by parish clergy. (Compl. ¶111.) Plaintiff pleads fraudulent concealment of essential facts under the Diocesan defendants’ control, giving rise to plaintiff’s causes of action against the Diocesan defendants, which facts were not knowable to the plaintiff. (Compl. ¶¶126, 224.) Plaintiff alleges that defendants participated in the systematic suppression and distortion of facts concerning the defendants’ knowledge and notice of the problem of sexually abusive priests in the Diocese, including Benedictine priests that were assigned to the Diocese, and that the defendants’ efforts to cover up, suppress and distort what they knew effectively concealed the existence of their own negligent behavior from the plaintiff. (Compl. ¶¶222-23.) Plaintiff asserts that defendants, by use of fraudulent concealment, duress and coercion prior to, during and after the termination of the sexual abuse of the plaintiff, prevented him from asserting his claims against the defendants. (Compl. ¶129.) Plaintiff alleges that he believed that neither the Diocesan defendants nor the Benedictine defendants would tolerate criminal misconduct that presented a known threat to children by a priest. (Compl. ¶155.)

If, through fraud or concealment, defendant caused plaintiff to relax his vigilance or deviate from his right of inquiry, defendant is estopped from invoking the bar of the statute of limitations. Lange v. Burd, 800 A.2d 336 (Pa. Super. 2002). Plaintiff need not prove that defendants’ conduct rose to the level of fraud in the strictest sense (intent to deceive). Burton-Lister v. Siegel, Sivitz and Lebed Associates, 798 A.2d 231, 237 (Pa. Super. 2002). Unintentional fraud or concealment is sufficient. Id. Mere mistake, misunderstanding or lack of knowledge, however, is insufficient to estop defendants from invoking the statute of limitations defense. Id. Plaintiff has the burden of proving fraud or concealment by evidence that is clear, precise and convincing. Kingston Coal Co., 456 Pa. Super, at 283-84, 690 A2d at 290-91. The defendants must have committed some affirmative independent act of concealment upon which the plaintiff justifiably relied. Id. at 284, 690 A.2d at 291.

Fraudulent concealment, however, will not toll the running of the statute of limitations where the plaintiff has not exercised reasonable diligence. Forbes v. Eagleson, 19 F. Supp.2d 352 (E.D. Pa. 1998) (“a plaintiff who is not reasonably diligent in attempting to discover his or her claims will not enjoy the tolling of the limitations period simply because the defendant engaged in fraudulent concealment”). As discussed supra, the issue of whether plaintiff was reasonable in his belief that the defendants would not tolerate such conduct presents a factual question that cannot be decided as a matter of law. Therefore, the defendants’ preliminary objections based upon the statute of limitations will be overruled.

Statutory Violation/Negligence Per Se

Defendants have filed preliminary objections to Count I of plaintiff’s complaint, which is based upon the failure of defendants to report suspected child abuse pursuant to the Pennsylvania Child Protective Services Law (PCPSL), citing 11 PS. §2201 (repealed), and 23 Pa.C.S. §6301 et seq. At the time of the alleged abuse in 1980 and 1981, the PCPSL did not specifically enumerate the clergy as a category of those required to report abuse. The clergy was specifically enumerated under the statute as reporters of abuse in 1995. Plaintiff has not cited any case law from Pennsylvania that has held that the PCPSL has been retroactively applied to include the clergy as reporters of abuse at the time of the 1980 and 1981 abuse. This issue was addressed by the Honorable Alan M. Black of the Court of Common Pleas of Lehigh County, in A.L.M. v. Diocese of Allentown, no. 2004-C-592, and I find his reasoning persuasive. In finding that the amendment to the PCPSL does not apply retroactively, Judge Black relied upon the presumption that “[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly.” 1 Pa.C.S. § 1926. The Pennsylvania Supreme Court in Commonwealth v. Scoleri, 399 Pa. 110, 132-33, 160 A.2d 215, 226-27 (1960), held:

“Whenever a section or part of a law is amended, the amendment shall be construed as merging into the original law, become a part thereof, and replace the part amended and the remainder of the original law and the amendment shall be read together and viewed as one law passed at one time; but the portions of the law which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective.’’'' Id. (emphasis in original)

As Judge Black noted, there is no indication in the amendment to the PCPSL that the General Assembly intended it to be applied retroactively. Accordingly, Count I of plaintiff’s complaint for statutory violation/negligence per se will be dismissed.

B. Subject Matter Jurisdiction

Defendants argue that plaintiff’s causes of action are based solely on the administration and organization of the church and involve purely ecclesiastical affairs, over which the court lacks subject matter jurisdiction pursuant to the First and Fourteenth Amendments to the United States Constitution, which protect the free exercise of religion and guard against excessive entanglement of the state in matters of the church. Courts may not inquire into ecclesiastical questions, i.e., where the resolution of an issue involves questions of discipline, faith, ecclesiastical rule, custom or law. Presbytery of Beaver-Butler v. Middlesex Presbyterian Church, 507 Pa. 255, 260, 489 A.2d 1317, 1319-20 (1985) (citing Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 73 S.Ct. 143, 97 L.Ed. 120 (1952)).

Not all disputes involving religious institutions, however, are doctrinal disputes. Orthodox Church of America v. Pavuk, 114 Pa. Commw. 176, 181, 538 A.2d 632, 634 (1988). If the dispute involves principles of civil law that may be resolved upon the consideration of neutral principles without intruding into the sacred precincts of the church, then the approach is completely secular in operation and is not predicated on any religious doctrine. Presbytery of Beaver-Butler, 507 Pa. at 263, 489 A.2d at 1321. Here, plaintiff’s causes of action stem from conduct that is a state concern. A resolution of these tort claims does not involve the interpretation of doctrinal or theological matters. Where the resolution of the dispute does not involve inquiry into an ecclesiastical question, I am to apply the same principles of law as would be applied to non-religious associations. Gaston v. Diocese of Allentown, 712 A.2d 757, 760 (Pa. Super. 1998). Therefore, this preliminary objection of the defendants will be overruled.

II. CAUSES OF ACTION BASED UPON 2002 AND 2003 CONDUCT

A. Breach of Fiduciaiy Duties in 2002 and 2003

In Count XVI of the complaint, plaintiff alleges that defendants had a fiduciary duty to plaintiff, holding themselves out as trustworthy religious authorities. (Compl. ¶244.) With respect to the defendants’ undertaking to pay uninsured therapy bills of plaintiff, plaintiff alleges that defendants breached their fiduciary obligation to him by failing to make full disclosure to plaintiff, at the time they proposed payment of his bills, of any conflicts of interest or their intent to use confidential information that defendants obtained about plaintiff to refuse to pay plaintiff’s medical bills as promised. (Compl. ¶248.) Plaintiff alleges that the purpose for offering to pay for plaintiff’s psychotherapy was not to benefit plaintiff, but to enable defendants to obtain confidential information about plaintiff that would not otherwise be available to defendants in the event plaintiff should bring a legal action against defendants. (Compl. ¶249.) Plaintiff also alleges that by paying for psychotherapy for plaintiff, defendants hoped to preclude plaintiff from filing any actions, although at no time did defendants state this intention, which constituted a breach of fiduciary duty and a conflict of interest. (Comp. ¶250.) Plaintiff alleges that defendants used the confidential relations they had established with plaintiff to cause plaintiff to believe that defendants were looking out for plaintiff’s best interest, engaging in kindly and charitable endeavors, when defendants were not. (Compl. ¶251.) Plaintiff alleges that the breach of fiduciary duties by defendants caused him harm and damage as follows: (1) re victimizing plaintiff and causing an additional loss of trust; (2) causing him upset and distress in that he relied on representations made by defendants; (3) interfering with his planned treatment based on representations made by defendants; (4) interfering with a relationship with plaintiff’s doctors; (5) forcing plaintiff to disclose private information to try to obtain promised treatment, none of which was previously disclosed; and (6) causing additional emotional distress and aggravating a pre-existing condition. (Compl. ¶253.)

A review of plaintiff’s allegations in the “Factual history” section of the complaint, which is incorporated into the breach of fiduciary duty cause of action, is as follows. Plaintiff learned of the involvement of defendants with respect to the alleged cover-up of predator priests in March of 2002. (Compl. ¶¶59-60.) On July 8, 2002, plaintiff was admitted to a psychiatric hospital with suicidal thoughts, depression, anxiety, alcoholism and suffering from post-traumatic stress disorder. (Compl. ¶64.)

On July 2,2002, plaintiff, along with his mother and a local physician who came in support of plaintiff, met with defendants, Bishop Adamec and Archabbot Nowicki. (Compl. ¶65.) At the meeting, defendants promised to pay for plaintiff’s psychotherapy that was not covered by health insurance, the only stated condition for payment. (Compl. ¶67.) Plaintiff relied on these representations that he would be able to pursue medical treatment as needed to recover or ameliorate the long-time effects of the sexual abuse, and began or continued treatment with the understanding that the defendant would “unconditionally pay for uninsured counseling treatment and a psychiatric evaluation.” (Compl. ¶69.) The defendants paid some of the submitted bills for therapy that were not covered by insurance. (Compl. ¶70.) Plaintiff alleges that at some point he was unable to work and lost his health insurance. (Compl. ¶71.)

On February 6,2003, plaintiff was referred by a counselor to see a highly trained and well-respected psychologist for specialized therapy, which he believed would be paid by defendants. (Compl. ¶72.) On February 18,2003, counsel for defendants contacted the new psychologist and told him that his undisclosed client would only pay for the first $110 session unless the psychologist wrote a letter to the attorney indicating what additional treatments were needed and the approximate charge of each. (Compl. ¶73.) With plaintiff’s permission, the psychologist wrote a brief report indicating that his initial evaluation disclosed that plaintiff suffered from post-traumatic stress disorder, alcohol addiction and depression, which would require years of psychotherapy, and that the psychologist would await a reply before beginning further treatment (Compl. ¶74.) On April 11, 2003, counsel for defendants informed the psychologist that he should not schedule any additional treatments until futher notice from the attorney, who had paid for the one session with the psychologist. (Compl. ¶75.)

On April 15,2003, Archabbot Nowicki informed plaintiff in a letter that in order for the defendants to continue payments, he would have to review a clear treatment plan that would include both comprehensive psychiatric and psychological evaluation “to ensure that the recommended treatment plan is well reasoned and has a high probability of being of benefit” to plaintiff. (Compl. ¶76.) Archabbot Nowicki also requested that plaintiff undergo a psychiatric exam and psychological testing in Pittsburgh, although plaintiff resided in State College and had no drivers’ license. (Compl. ¶77.)

Thereafter, defendants did not pay for further treatment, which made plaintiff feel victimized again since, in order to get the promised treatment, he was now required to travel to Pittsburgh and then have his treatment reviewed by those who had allowed him to be harmed, none of which was disclosed to plaintiff when the promises were made. (Compl. ¶78.) Plaintiff alleges that Archabbot Nowicki called plaintiff’s mother in May of 2003, and disclosed that the real basis of the exam was to have someone from “here” separate the depression from the alcohol problem. Plaintiff avers that the defendants exercised their position of superiority and purported authority over plaintiff. (Compl. ¶84.)

In the allegations incorporated into Count XVI for breach of fiduciary duties in 2002 and 2003, plaintiff avers that when he reported the 1980 and 1981 abuse by Father Downey to the defendants at the meeting of July 22, 2002, plaintiff learned that Father Downey was engaged in counseling children and adolescents. (Compl. ¶66.) Plaintiff alleges that defendants represented to plaintiff that Father Downey would be removed from any opportunity to harm children and their families. (Compl. ¶67.) Plaintiff believed that his disclosures of the abuse to defendants might help prevent other minors from suffering sexual abuse and misconduct by the same priests. (Compl. ¶68.) Plaintiff avers that, despite the defendants’ representations to plaintiff that Father Downey was no longer in contact with children and was performing accounting duties, Father Downey continued to interact with vulnerable persons, even as to interviewing and reporting on family members where there were accusations of sexual abuse of children. (Compl. ¶80.)

Defendants have filed preliminary objections to Count XVI on the grounds that there was no legal or fiduciary obligation on the part of defendants to pay for any counseling of plaintiff, and that a fiduciary duty did not arise because of the defendants’ willingness to pay for counseling of the plaintiff. Furthermore, defendants assert that plaintiffs have not alleged a breach of any duty that may have been owed to the plaintiff.

A fiduciary relationship can arise when confidence is reposed by one in the integrity of another, and if the latter voluntarily accepts or assumes to accept the confidence, they cannot act so as to take advantage of the other’s interests without such person’s knowledge or consent. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 254 n.3, 602 A.2d 1277, 1283 n.3 (1992). The significant factor is not the mere existence of a relationship between the plaintiff and defendants, but rather the existence of a duty flowing from that relationship. Hunger v. Grand Central Sanitation, 447 Pa. Super. 575, 595, 670 A.2d 173, 186 (1996) (Beck, J., concurring).

I will first address the allegations surrounding defendants’ representations to plaintiff, upon his reporting of past abuse by Father Downey, that Father Downey would be denied the opportunity of coming into contact with children. As to these allegations, I find such conduct could result in the creation of a fiduciary duty to plaintiff and corresponding breach because the fact-finder could draw an inference that this was a misrepresentation intended to placate the plaintiff in order to gain his trust and thereby lessen the likelihood of the plaintiff pursuing claims against the defendants, in breach of a duty of candor owed by the defendants to the plaintiff. Therefore, as to these allegations, I find that plaintiff has sufficiently pled a cause of action for breach of fiduciary duty.

With respect to plaintiff’s remaining allegations of conduct by defendants regarding the alleged unconditional promise to pay uninsured therapy bills of plaintiff and then their cessation of payments, I find that I cannot determine, with certainty, that plaintiff has not stated a claim for breach of fiduciary duty. For purposes of deciding these preliminary objections, I must accept plaintiff’s averment that the only stated condition for payment was that the therapy had to be uninsured. On the face of the complaint, plaintiff has averred an unconditional promise to pay uninsured therapy bills of plaintiff.

Plaintiff has also averred that he began treatment in reliance upon the unconditional promise to pay. (Compl. ¶69.) Plaintiff has averred that conditions were then imposed on the undertaking that were not disclosed to plaintiff at the time of the offer of payment. Accepting these averments as true, which I must do, I cannot conclude that plaintiff has not pled a cause of action for breach of fiduciary duty.

The above allegations, taken as true, also support a claim based upon promissory estoppel. The doctrine of promissory estoppel is invoked when there is no enforceable agreement between the parties because the agreement is not supported by consideration. Crouse v. Cyclops Industries, 560 Pa. 394, 745 A.2d 606 (2000). Promissory estoppel is applied to avoid injustice by making enforceable a promise made by one party to another, when the promisee relies on the promise, and therefore changes his position to his own detriment. Id. In order to properly plead promissory estoppel, plaintiff’s allegations must show that (1) the promisor made a promise that he should have reasonably expected to induce action or forbearance on the part of the promisee; (2) the promisee actually took action or refrained from taking action in reliance on the promise; and (3) that injustice can be avoided only by enforcing the promise. Id. Viewing the allegations in the light most favorable to the plaintiff, he has averred that the only stated condition for payment was that the therapy bills were not covered by insurance, plaintiff began treatment in reliance upon the otherwise unconditional promise to pay, and then plaintiff was not able to continue with treatment because defendants failed to continue to make payments. Based upon the standard of review that must be employed with respect to preliminary objections, defendants’ preliminary objections to Count XVI must be overruled.

B. Negligent Infliction of Emotional Distress

Defendants have filed preliminary objections to Count XVII of plaintiff’s complaint, which seeks damages for negligent infliction of emotional distress. This cause of action is based upon the allegations regarding breach of fiduciary duties by defendants in 2002 and 2003. Plaintiff alleges that the conduct of defendants caused him to suffer emotional injuries, as well as aggravating his physical conditions including post-traumatic stress disorder, sleeplessness and nightmares. (Compl. ¶271.)

Recovery for negligent infliction of emotional distress has been permitted where a defendant owes plaintiff a pre-existing duty of care, either through contract or a fiduciary duty, and breach of that duty causes the emotional distress alleged. Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 50-53, 633 A.2d 605, 612-15 (1993). Although recovery in the above circumstances is recognized, a new and independent cause of action for negligent infliction of emotional distress is not created. Hunger, 447 Pa. Super, at 595, 670 A.2d at 183 (Beck, J., concurring). Therefore, Count XVII of plaintiff’s complaint for negligent infliction of emotional distress will be dismissed. However, plaintiff will be permitted to seek recovery for such damages stemming from his claim for breach of fiduciary duties in Count XVI.

Defendants would argue that, even as part of the fiduciary duty claim, plaintiff has not sufficiently alleged physical harm to support recovery for negligent infliction of emotional distress. Physical injury must be alleged to sustain a cause of action for emotional distress. Armstrong, 430 Pa. Super, at 44, 633 A.2d at 609. The requirement of physical harm is based on section 436A of the Restatement (Second) of Torts. Id. Temporary fright, nervous shock, nausea, grief, rage and humiliation, if transitory, are not compensable harm. Id. However, long-continued nausea or headaches, repeated hysterical attacks or mental aberration are compensable injuries. Id. Depression, nightmares, nervousness, insomnia and hysteria have been cited as physical symptoms warranting recovery. Id. Plaintiff’s allegations of aggravation of physical conditions, including post-traumatic stress disorder, sleeplessness and nightmares, are sufficient to aver physical harm for recovery of emotional distress.

ORDER

And now, October 20, 2004, upon consideration of the preliminary objections filed by the plaintiff and the defendants, the preliminary objections are sustained in part and overruled in part, as follows:

(1) Plaintiff’s preliminary objection to the defendants’ preliminary objection based upon the statute of limitations is overruled.

(2) Defendants’ preliminary objections to Counts J and XVII of plaintiff’s complaint, for statutory violation/negligence per se and negligent infliction of emotional distress, respectively, are sustained. Counts I and XVII of plaintiff’s complaint are dismissed.

(3) Defendants’ preliminary objections pertaining to the statute of limitations, subject matter jurisdiction and breach of fiduciary duties in 2002 and 2003 are overruled.

      . These counts include (Count I) statutory violation/negligence per se; (Count II) common-law duty of reasonable care; (Count III) breach of fiduciary duty; (Count IV) failure to provide a safe and secure environment in the Diocese; (Count V) failure to provide a safe and secure environment on Benedictine owned and operated property; (Count VI) negligent supervision; (Count VII) persons acting in civil conspiracy; (Count VIII) supplying false information/negligent misrepresentations; (Count IX) failure to protect against foreseeable risk; (Count X) duty to warn of unreasonable risk of harm; (Count XI) negligent supervision or use of improper persons as agents; (Count XII) use of incompetent persons; (Count XIII) fraudulent concealment; (Count XTV) intentional failure to supervise; and (Count XV) intentional failure to warn.

      . These counts include (Count XVI) breach of fiduciary duties in 2002 and 2003; (Count XVII) negligent infliction of emotional distress; and (Count XVIII) punitive damages.

      . Plaintiff also asserts that the statute of limitations was tolled due to fraud and/or concealment on the part of defendants. As will be discussed infra, the discovery rule and the concealment doctrine are distinct doctrines, yet both encompass the same inquiry with respect to the requirement that plaintiff proceed with due diligence.


author: MELLON, J.,

text:
    Nott v. Aetna U.S. Healthcare

      C.P. of Bucks County,
    no. 03-03636-27-1.

      Ronald J. Smolow, for plaintiff.

      Raymond A. Quaglia, for defendant.
    October 14, 2004
   MELLON, J.,

— Plaintiff, Arlene Nott (appellant) appeals this court’s order dated July 27, 2004, granting defendant Aetna Health Inc. (incorrectly identified as “Aetna U.S. Healthcare” by appellant in her complaint) judgment on the pleadings.

This opinion is filed pursuant to Pennsylvania Rule of Appellate Procedure 1925.

FACTUAL AND PROCEDURAL HISTORY

The appellant is an individual residing at 3619 Meridian Drive, Bensalem, Pa. The defendant (Aetna) is a Pennsylvania corporation with its principal place of business in Blue Bell, Pa. At all relevant times, the appellant was a member of Aetna’s “Golden Medicare plan,” a health maintenance organization plan sponsored by Medicare.

On September 18, 1998, appellant was involved in a car accident with a third-party tort-feasor. Subsequently, appellant received medical treatment for injuries, a portion of which was paid for by Aetna pursuant to appellant’s policy.

Aetna’s policy with appellant included a subrogation provision stating Aetna had “the right to repayment of the full costs of all benefits provided by HMO on behalf of the member that are associated with the injury or illness for which the third party is or may be responsible.” This provision included a right to reimbursement by Aetna for “payment made by a third-party tort-feasor or any insurance company on behalf of the third-party tortfeasor.”

Subsequent to receiving money from Aetna for the injuries sustained in said car accident, appellant filed and settled a separate claim against the third-party tort-feasor in September 2001. Aware of appellant’s settlement with the third-party tort-feasor and pursuant to Aetna’s policy, the Rawlings Company, an independent contractor representing Aetna, sought reimbursement of the medical bills already paid to appellant. After negotiations, appellant and Rawlings Company reached an agreement whereby appellant paid $1,000 to Rawlings as settlement of Aetna’s original claim.

In the action filed before this court on June 9, 2003, appellant now claims the repayment of monies to Aetna was contrary to the Motor Vehicle Financial Responsibility Law section 1720. They assert that under MVFRL section 1720, HMOs such as Aetna have no right to reimbursement for monies paid to policyholders for injuries sustained in motor vehicle accidents whether or not such accident victims also succeeded in claims against third-party tort-feasors for the same injuries.

Aetna argues that the MVFRL section 1720 does not apply to HMOs because section 1560(a) of the Health Maintenance Organization Act instructs that for a statute to apply to HMOs, it must reference HMOs in specific and exact terms.

After suit was filed, Aetna moved to remove the case to the United States District Court for the Eastern District of Pennsylvania on July 9, 2003 That court entered an order on January 23, 2004, remanding the case to the Court of Common Pleas, Bucks County, Pennsylvania. Appellant then filed an amended complaint on January 30,2004, in which five counts are alleged against Aetna.

In Count I, appellant alleges Aetna has violated MVFRL section 1720, which prohibits the right of subrogation for a tort recovery. Appellant alleges Aetna improperly subrogated medical bills from policyholder’s settlements and/or judgments in tort cases that were paid pursuant to the HMO plan.

In Count II, appellant alleges that the subrogation and reimbursement provisions of Aetna’s policies are in conflict with Pennsylvania law and were so at the time appellant’s policy was issued, and therefore Aetna breached the lawful terms of said policies.

In Count III, appellant alleges Aetna was unjustly enriched through its allegedly unlawful assertion of liens against policyholders, and therefore a constructive trust should be created as between Aetna and both appellant and class members.

In Count IV, appellant alleges Aetna acted in bad faith towards its insured in that defendant knew its liens were prohibited.

In Count V, appellant seeks appropriate declaratory and injunctive relief from the court based on Aetna’s allegedly improper assertion of liens.

Defendant filed an answer and new matter on February 27, 2004; appellant filed an answer to the new matter on March 18, 2004. Appellant subsequently filed a petition for class action certification on April 1, 2004, to which Aetna filed a reply on April 20,2004. Prior to a scheduled hearing on the class action certification petition, Aetna filed a motion for judgment on the pleadings on May 4, 2004. Appellant’s petition for leave to amend complaint for a second time was filed on May 27, 2004, and appellant’s opposition to Aetna’s motion for judgment on the pleadings was filed on May 28,2004.

On July 27, 2004, upon consideration of Aetna’s motion for judgment on the pleadings, oral argument held on June 28, 2004, and all responses thereto, Aetna’s motion was granted and appellant’s complaint was dismissed. We dismissed the complaint because HMOA section 1560, which controls in this case, requires that any statute enacted after this Act must “specifically and in exact terms appl(y) to such health maintenance organization.” MVFRL section 1720 fails to specifically prohibit subrogation by HMOs, and therefore we found the actions taken by Aetna to be proper. It is from this order that appellant appeals.

STATEMENT OF MATTERS

COMPLAINED OF ON APPEAL

Pursuant to an order of the court dated August 30, 2004, and Pennsylvania Rule of Appellate Procedure 1925(b), appellant filed a concise statement of matters complained of on September 7,2004. The matters complained of on appeal as alleged by appellant are as follows:

“(1) The trial court erred in granting Aetna’s motion for judgment on the pleadings because:
“(a) The trial court abused its discretion and committed an error of law in concluding that HMOs are exempt from MVFRL section 1720.
“(b) The trial court abused its discretion and committed an error of law in dismissing appellant’s claim that Aetna breached its contractual obligation with the appellant and all class members in collecting a subrogation/reimbursement lien.
“(c) The trial court abused its discretion and committed an error of law in dismissing appellant’s claim in equity in failing to conclude that subrogation would be inequitable and unjust because appellant and the plaintiff class were unable, as a matter of law, to collect medical expenses from the tort-feasor according to section 1722 of the MVFRL.
“(d) The trial court abused its discretion and committed an error of law in dismissing appellant’s claim for declaratory and injunctive relief.
“(2) The trial court abused its discretion and committed an error of law in failing to allow appellant to amend her complaint.”

DISCUSSION

The Trial Court Did Not Abuse Its Discretion or Commit an Error of Law in Concluding that HMOs Are Exempt From MVFRL Section 1720

The General Assembly in 1984 enacted MVFRL section 1720 with the intent of prohibiting the right of subrogation by insurance companies for medical bills paid by their policyholders arising out of tort cases. Aetna claims this prohibition does not apply to HMOs because HMOA section 1560 states:

“Except as otherwise provided in this Act, a health maintenance organization operating under the provisions of this Act shall not be subject to the laws of this state now in force relating to insurance corporations engaged in the business of insurance nor to any law hereafter enacted relating to the business of insurance unless such law specifically and in exact terms applies to such health maintenance organization.” (emphasis added)

This court must determine if the prohibition in MVFRL section 1720 applies to HMOs. Our analysis begins with a reading of MVFRL section 1720, which in pertinent part states:

“In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits available under section 1711 ... 1712 ... or 1715 ... or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719.” (emphasis added)

Appellant argues that the catchall language “by a program, group contract or other arrangement” is sufficient to satisfy the requirement of HMOA section 1560 because the HMO policy held by appellant is a group contract and is thus specifically excluded by the language of MVFRL section 1720.

Appellant’s reliance on this catchall language requires a breakdown of the terms of both MVFRL section 1720 and HMOA section 1560. If the terminology of a statute is clear and unambiguous, it is not necessary to resort to a full analysis of the rules of statutory construction. Rather, the judiciary must read unambiguous statutes “in accordance with their plain meaning and common usage.”

Neither party in this case argues the language of either MVFRL section 1720 or HMOA section 1560 is ambiguous, and this court finds both statutes to be clearly constructed. Therefore, we must analyze the plain meaning of the language in question.

The language that Aetna’s argument relies upon are the terms “specific” and “exact.” Webster’s Ninth New Collegiate Dictionary defines “specific” as “constituting or falling into a specific category; free from ambiguity; or accurate.” It further defines “exact” as “exhibiting or marked by strict, particular and complete accordance with fact.”

The appellant asks this court to find that the language “program, group contract or other arrangement” specifically and in exact terms refers to HMOs as required by HMOA section 1560. This court finds that given the definitions of “specific” and “exact,” there are no circumstances in which the catchall language of MVFRL section 1720 can be construed to apply to HMOs. It is for this reason that appellant’s claim has no merit.

Given the plain language reading of section 1560 and section 1720, whether or not section 1720 should apply to HMOs is not a matter for this court, but rather for the Commonwealth’s General Assembly. The plain language of both statutes is clear, and no language in section 1720 specifically and in exact terms applies the statute to HMOs.

The Trial Court Did Not Abuse Its Discretion and Commit an Error of Law in Dismissing Plaintiff’s Claim That Aetna Breached Its Contractual Obligation With the Plaintiff and All Class Members in Collecting a Subrogation/ Reimbursement Lien

This claim is dependant on appellant’s argument that section 1720 is applicable to HMOs. This court has determined such a premise has no merit, and therefore this claim fails as a matter of law.

The Trial Court Did Not Abuse Its Discretion and Commit an Error of Law in Dismissing Plaintiff’s Claims in Equity by Failing To Conclude that Subrogation Would Be Inequitable and Unjust Because Plaintiff and the Plaintiff Class Were Unable, As a Matter of Law, To Collect Medical Expenses From the Tort-Feasor According to Section 1722 of the MVFRL

This claim is dependant on appellant’s argument that section 1720 is applicable to HMOs. This court has determined such a premise has no merit, and therefore this claim fails as a matter of law.

Furthermore, no claims based upon section 1722 of the Pennsylvania MVFRL were included in appellant’s first complaint or plaintiff’s first amended complaint. Therefore, appellant is precluded from appealing this court’s order dated July 27,2004, based upon any claims that rely upon section 1722 of the MVFRL.

The Trial Court Did Not Abuse Its Discretion and Commit an Error of Law in Dismissing Plaintiff’s Claim for Declaratory and Injunctive Relief

This claim is dependant on appellant’s argument that section 1720 is applicable to HMOs. This court has determined such a premise has no merit, and therefore this claim fails as a matter of law.

The Trial Court Did Not Abuse Its Discretion or Commit an Error of Law in Failing To Allow Appellant To Amend Her Complaint

Aetna filed their motion for judgment on the pleadings on May 4,2004. Appellant filed a petition for leave to amend her complaint for the second time on May 27, 2004.

Given that Aetna’s motion was filed prior to appellant’s motion to amend, and that Aetna’s motion was granted on June 2, 2004, appellant’s motion was rendered moot.

CONCLUSION

For the foregoing reasons this court entered its order of July 27, 2004.

      . See “Complaint” ¶1.

      . See “Answer” ¶2.

      . See “Answer” ¶4.

      . See “Complaint” ¶6.

      . See “Complaint” ¶7.

      . See “Complaint” ¶8.

      . See “Notice of removal.”

      . See “U.S. District Court order” dated January 23, 2004.

      . See “Amended complaint.”

      . See 75 Pa.C.S. §1720, which in relevant part states: “In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits available under section 1711 ... 1712... 1715 ... or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719.” See also, “Amended complaint” ¶22.

      . See “Amended complaint” ¶¶22, 23.

      . See “Amended complaint” ¶26. Specifically, plaintiff alleges such provisions violate 75 Pa.C.S. §1720.

      . See “Amended complaint” ¶29.

      . See “Amended complaint” ¶¶32, 33.

      . See “Amended complaint” ¶37.

      . See “Amended complain!” ¶43.

      . See “Answer and new matter.”

      . See “Answer to new matter.”

      . See “Petition for class action certification.”

      . See “Opposition to plaintiff’s petition for class action certification.”

      . See “Order dated April 13, 2004.”

      . See “Motion for judgment on the pleadings.”

      . See “Petition for leave to amend the complaint.”

      . See “Plaintiff’s opposition to defendant’s motion for judgment on the pleadings.”

      . See “Order” of July 27, 2004.

      . See “Order” of August 30, 2004.

      . See Pa.RA.P. 1925(b).

      . See “Concise statement of matters complained of.”

      . See “Concise statement of matters complained of.1

      . See Peters v. Commonwealth, Department of Forests and Waters, 465 Pa. 372, 350 A.2d 812 (1976).

      . See Commonwealth v. Bell, 512 Pa. 334, 339, 516 A.2d 1172, 1175 (1986).

      . See Webster’s Ninth New Collegiate Dictionary, Mcrriam-Webster Inc., 1990.

      . Id.