author: NEALON, J.,

text:
    Sedor v. Community Medical Center

      C.P. of Lackawanna County,
    no. 05 CV 2143.

      Joseph T. Wright and Danielle M. Mulcahey, for plaintiffs.

      Richard K. Hodges, for defendants Community Medical Center and Rudd.

      Michael J. Revness and Robert T. Grolnick, for defendants Soy, Sky Medical LLC, and Sky Orthopaedics LLC.

      James D. Golkow, Jennifer Reynolds, and Thomas A. O ’Connor, for defendants Biomet Inc., Biomet Orthopedics Inc., and Biomet Manufacturing Corp.
    July 19, 2010
   NEALON, J.,

A neurosurgeon who was struck by a hospital bed that was being transported by a hospital employee with the gratuitous assistance of an orthopedic implants sales representative has filed suit against those individuals, their employers and the manufacturer and distributor of the orthopedic implants that were being delivered to the hospital by the independent contractor sales representative. Following a partial summaiy judgment ruling that no master-servant relationship existed between the implants distributor and the salesman for purposes of vicarious liability, the implants manufacturer and distributor filed another summary judgment motion arguing that the neurosurgeon cannot establish the duty and causation elements of a negligence claim as a matter of law. Since the record does not support in any manner the conclusion that the manufacturer or distributor had a duty to instruct an independent contractor’s employee to refrain from handling another party’s equipment, the neurosurgeon has not established that the manufacturer or distributor owed a duty to train a non-employee “not to handle or transport beds or any other large equipment within the hospital.” Consequently, the supplemental motion for summary judgment filed by the implants manufacturer and distributor will be granted.

I. FACTUAL BACKGROUND

This personal injury suit arises from an incident which occurred on February 22, 2005 in the corridor of the operating room suite at defendant Community Medical Center (CMC). On that date, a neurosurgeon, plaintiff David J. Sedor MD. was reviewing a medical chart at the nurses’ station while a CMC employee, defendant Nadine Rudd, was attempting to transport a hospital bed through the hallway. Also present in the surgical suite corridor was an orthopedic products sales representative, defendant John Soy, who was employed by defendant Sky Medical LLC. On his own initiative, Soy offered assistance to Rudd in transporting the bed and as they were negotiating a turn in the vicinity of the nurses’ station, they struck Dr. Sedor with the bed. (Deposition of Nadine Rudd dated 3/1 /06, pp. 25-26; deposition of John Soy dated 5/23/06, pp. 10-11, 27-30, 33-35, 37, 40-43, 46-60.) Dr. Sedor maintains that he suffered injuries and associated infections as a result of the impact, which ultimately required him to undergo a mid-thigh amputation of his right leg. (Plaintiffs’ second amended complaint, ¶¶18, 24, 38.)

At the time of the bed incident, Soy’s employer, Sky Medical, was a party to a distributorship agreement with defendant Biomet Orthopedics Inc, which granted Sky Medical “the exclusive right to promote the sale of products of Biomet Orthopedics Inc.” in an 18-county region. The Biomet-Sky Medical agreement specifies that Sky Medical would act “as a commission sales representative for Biomet” with the full understanding that Sky Medical was “an independent contractor and not an employee of Biomet.” (Biomet-Sky Medical distributorship agreement dated 4/16/03, p. 1.) The agreement distinctly states that Sky Medical “will not be deemed an agent of Biomet for any purpose whatsoever and neither [Sky Medical] nor any of its agents or employees will have any right or authority to assume or create any obligation of any kind, whether express or implied, on behalf of Biomet.” (Id. p. 2.) Biomet agreed to indemnify Sky Medical only for those claims “arising from or alleged to arise from any deficiencies or defects in the design,manufacture, packaging or labeling of Biomet products causing bodily injury (including death) or property damage to others.” (Id., p. 11; deposition of Gerald Langan dated 6/18/08, pp. 45-47; deposition of William A. Hartman dated 8/27/08, pp. 11, 23-26.) It is undisputed that Biomet has never manufactured, sold or distributed hospital beds. (Langan depo., p. 38; Hartman depo., p. 23.)

In his capacity as a sales representative for Sky Medial, Soy was responsible for (a) delivering orthopedic implants and instrumentation to surgeons for hip, knee, shoulder and elbow procedures and (b) being present during all orthopedic implant operations in order to provide technical assistance to the surgical team. (Soy depo., pp. 6-7, 9, 16; Langan depo., pp. 9, 49; Hartman depo., p. 24.) On the date in question, Soy was present in the CMC operating suite while he was “covering cases for Sky Medical.” (Soy depo., p. 44.) The movement of hospital beds was not within the scope of Soy’s employment responsibilities, and Soy was not promoting Biomet’s products or furthering its business interests when he assisted Rudd in transporting the CMC bed. (Gerald Langan depo., pp. 41-42, 50; Hartman depo., p. 24.) In fact, Dr. Sedor’s own liability expert, Elizabeth H. Arruda R.N., B.S.N., has opined that “[i]n his role of orthopedic sales representative, Mr. Soy should have had no contact with hospital equipment outside of his product line.” (Report of Elizabeth H. Arruda R.N., B;S.N. dated 8/12/08 at p. 4.) Ms. Arruda has concluded that “Mr. Soy worked outside of this role” when he assisted Rudd in pushing the bed. (Id.)

It bears noting that prior to his employment with Sky Medical, Soy worked as a nurses aide and scrub nurse at CMC from 1992 to 2003. (Soy depo., p. 7.) During the course of his CMC employment, Soy viewed a training video which discussed the proper transportation of hospital beds and equipment. (Id, pp. 31-33.) Moreover, Soy has expressly testified that as of February 22,2005, he knew that he “shouldn’t handle any of the hospital equipment” as a Sky Medical sales representative. (Id., p. 69.)

Biomet filed a motion for summary judgment seeking to dismiss Dr. Sedor’s claim for vicarious liability based upon the actions of Soy or Sky Medical. In opposing Biomet’s motion, Dr. Sedor argued, inter alia, that he also has advanced a direct liability claim against Biomet for “failing to properly train agents, servants and employees not to handle or transport beds and other large equipment within hospitals.” (Plaintiffs’ second amended complaint, ¶37^).) Relying upon the language of the Biomet-Sky Medical distributorship agreement and the Sky Medical-Soy employment agreement, the depositions and discovery materials submitted by the parties and the governing precedent, Judge Robert A. Mazzoni granted Biomet’s motion for summary judgment “as it pertains to [Sedor’s] vicarious liability claim only” by holding as a matter of law that no master-servant relationship existed between Biomet and Soy/Sky Medical. (Trial court opinion dated 6/25/09 at p. 19.) However, Judge Mazzoni deferred any ruling with regard to Dr. Sedor’s “negligent training” claim and stated:

“This court’s inquiry is limited in scope. [Biomet’s] motion for summary relief addresses whether defendant Biomet is vicariously liable for the conduct of Sky Medical/Soy predicated on an alleged master-servant relationship. As reflected in plaintiffs’ second amended complaint, there are direct claims of liability directed against Biomet. (See para. 37(a) of plaintiffs’ second amended complaint.)” {Id., at p. 4 n.2) (emphasis in original)

Following the completion of discovery, Biomet presented a supplemental motion for summary judgment seeking to dismiss Dr. Sedor’s remaining claim for failure to “properly train [Soy] not to handle or transport beds and other large equipment within hospitals.” Biomet maintains that its product line is limited to orthopedic implants and instrumentation and has never included hospital beds. Citing uncontroverted discovery materials, Biomet further notes that Soy’s employment responsibilities with Sky Medical required him to deliver implants and instrumentation to the hospital for use by orthopedic surgeons and to answer any physician inquires at the time of surgery. Biomet asserts that Dr. Sedor’s negligent training claim should be dismissed based upon the lack of an actionable duty since “there is no legal authority for the imposition of a legal duty on Biomet to train independent contractors in areas well outside of [its] product line and having nothing to do with their job.” (Biomet defendants’ supplemental motion for summary judgment, ¶19.)

Biomet also argues that Dr. Sedor is unable to establish the requisite causal connection between Biomet’s purported negligence and any harm suffered by Dr. Sedor. As noted above, Soy has testified that during his prior employment with CMC, he viewed a training video which included instruction regarding the proper pushing and pulling of a hospital bed. Additionally, Soy conceded during his discovery deposition that he knew that he was not allowed to handle any hospital equipment while he was present at the CMC as a Sky Medical sales representative. Thus, inasmuch as Soy had already received training regarding safe transportation of hospital beds and was admittedly aware that he should not handle CMC’s equipment, Biomet contends that its alleged failure “to properly train [Soy] not to handle or transport beds and other large equipment within hospitals” cannot constitute the proximate cause of Dr. Sector’s alleged harm. (Biomet defendants’ brief in support, p. 9.)

Dr. Sedor counters that pursuant to the Biomet-Sky Medical distributorship agreement, “Biomet undertook the obligation to train Sky’s employees in the sale and distribution of Biomet’s products.” (Plaintiffs’ brief in opposition, p. 9.) Dr. Sedor posits that “[w]hen orthopedic sales representatives are placed in the operating room arena in the context of the sale of orthopedic devices, it is foreseeable that they may utilize or handle hospital equipment which has no part in their duties.” (Id., p. 11.) According to Dr. Sedor, it also “was foreseeable that harm could be occasioned by the failure to properly train the [Sky Medical] employees regarding what they could and could not do in the hospital setting,” (Id., p. 9.) Following the completion of oral argument on June 29,2010, Biomet’s supplemental motion for summary judgment became ripe for disposition.

II. DISCUSSION

(A) Standard of Review

Summary judgment is appropriate only where the record clearly demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Barnish v. KWI Building Company, 602 Pa. 402, 420, 980 A.2d 535, 546 (2009). When considering a motion for summary judgment, the record must be viewed 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. Chepkevich v. Hidden Valley Resort L.P., 2010 WL 2482363 at * 1 n.1 (Pa. 2010); Abrams v. Pneumo Abex Corp., 602 Pa. 627, 634-35, 981 A.2d 198, 203 (2009). The moving party bears the burden of proving that no genuine issue of fact exists and that the movant is entitled to judgment as a matter of law. Stimmler v. Chestnut Hill Hospital, 602 Pa. 539, 554, 981 A.2d 145, 154 (2009).

For a plaintiff to prevail in a negligence action, the plaintiff must establish that: (1) the defendant owed a duty of care to the plaintiff recognized by the law; (2) the defendant breached or failed to conform to that duty; (3) a causal connection exists between the breach and the plaintiff’s resulting injury; and (4) the plaintiff suffered an actual loss or damage. Merlini ex rel. Merlini v. Gallitzin Water Authority, 602 Pa. 346, 354, 980 A.2d 502, 506 (2009); Boyanosky v. Gould Inc., 46 D.&C. 4th 164, 170-71 (Lacka. Cty. 1999). The existence of a duty is a question of law for the court to decide. R. W v. Manzek, 585 Pa. 335, 346, 888 A.2d 740, 746 (2005); Montagazzi v. Crisci, 994 A.2d 626, 631 (Pa. Super. 2010); Jones v. Bresset, 47 D.&C.4th 60,70 (Lacka. Cty. 2000). If a plaintiff fails to establish the existence of a cognizable duty, the plaintiff cannot maintain a cause of action in negligence and summary judgment in favor of the defendant is appropriate. McMahon v. Pleasant Valley West Association, 952 A.2d 731, 735 (Pa. Super. 2008), appeal denied, 599 Pa. 702, 961 A.2d 860 (2008).

Proximate cause similarly has been described as “essentially an issue of law,” Matos v. Rivera, 436 Pa. Super. 509, 515-16, 648 A.2d 337, 341 (1994), appeal denied, 540 Pa. 632, 658 A.2d 795 (1995), and a finding of causation depends upon whether the policy of the law will extend legal responsibility for the defendant’s alleged negligent conduct to the consequences that have in fact occurred. Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000), appeal denied, 566 Pa. 632, 781 A.2d 137 (2001); Novak v. Jeannette District Memorial Hospital, 410 Pa. Super. 603, 606, 600 A.2d 616, 618 (1991). It is incumbent upon the trial judge to make a threshold determination of proximate cause before submitting the issue of actual cause to the jury. Brown, supra; Midgette v. Wal-Mart Stores Inc., 317 F. Supp.2d 550, 563 (E.D. Pa. 2004) (holding that store’s failure to train employees on how to recognize and address domestic abuse and to have adequate work place security could not constitute proximate cause of harm suffered by female employee who was shot by her abusive husband in defendant’s store after he purchased ammunition there), aff’d., 121 Fed. Appx. 980 (3d Cir. 2005). Where the remoteness of a causal connection between the defendant’s conduct and the harm suffered is so clear that a jury could not reasonably differ on the question of causation, it is the function of the court to decide the issue of causation as a matter of law. See Brown, 760 A.2d at 868-69; Askew by Askew v. Zeller, 361 Pa. Super. 35, 42, 521 A.2d 459, 463 (1987); Boice v. Tyler Memorial Hospital, 2007 WL 2903424 at * 6 (M.D. Pa. 2007) (Vanaskie, J.).

(B) Duty To Train Third Party

The only remaining claim against Biomet which was not dismissed by Judge Mazzoni is the assertion that Biomet was negligent for “failing to properly train agents, servants and employees not to handle or transport beds and other large equipment within hospitals.” However, since Judge Mazzoni declared as a matter of law that no master-servant relationship existed Biomet and Soy, the allegation that Biomet failed “to properly train agents, servants and employees” would not encompass a non-employee such as Soy. Nevertheless, assuming arguendo that Dr. Sedor’s negligent training claim could be interpreted as referencing Soy, we must decide whether Biomet had a legal duty to train an independent contractor to refrain from moving a hospital bed while that individual was present in an operating room suite.

The determination of whether a duty exists in a particular case involves the weighing of the following five factors: (1) the relationship between the parties; (2) the social utility of the defendant’s conduct; (3) the nature of the risk and foreseeability of the harm incurred; (4) the consequences of imposing a duty upon the defendant; and (5) the overall public interest in the proposed solution. Manzek, 585 Pa. at 347, 888 A.2d at 747; Montagazzi, supra. In deciding whether to create a duty of care in a given context, the most important consideration is social policy, McCandless v. Edwards, 908 A.2d 900, 903 (Pa. Super. 2006), appeal denied, 592 Pa. 768, 923 A.2d 1174 (2007); F.D.P v. Ferrara, 804 A.2d 1221, 1231 (Pa. Super. 2002), appeal denied, 577 Pa. 721, 847 A.2d 1286 (2004).

Generally, there is no duty to control the acts of a third party unless the defendant stands in a “special relationship” with either the person whose conduct needs to be controlled or the intended victim of such conduct. McMahon, 952 A.2d at 736 (citing Restatement (Second) of Torts §315); Paliometros v. Loyola, 932 A.2d 128, 133 (Pa. Super. 2007); Ferrara, 804 A.2d at 1228. In Pennsylvania, such “special relationships” are limited to those described in sections 316-319 of the Restatement (Second) of Torts and include a parent’s duty to control a child (section 316), a master’s duty to control a servant (section 317), a landowner’s duty to control a licensee (section 318), and the duty of those in charge of individuals with dangerous propensities to control those particular individuals (section 319). McMahon, supra; McCandless, 908 A.2d at 903 n. 1; Brishine v. Outside In School of Experiential Education Inc., 799 A.2d 89, 93 (Pa, Super. 2002), appeal denied, 572 Pa. 746, 816 A.2d 1101 (2003). None of the relationships identified in sections 316-319 of the Restatement applies to the relationship which existed between Soy and Biomet on February 22, 2005.

Examination of the relevant criteria which govern every duty analysis does not support the recognition of a duty on the part of Biomet to provide training to an independent contractor’s employee relative to the movement of hospital beds or the handling of hospital equipment. First, with regard to the relationship between the parties, Biomet had no relationship with Dr. Sedor since he is not an orthopedic surgeon who Sky Medical solicited to utilize Biomet implants during surgery. As for Soy’s status vis-á-vis Biomet, he was the employee of an independent contractor, Sky Medical, and did not stand in a “special relationship” with Biomet at the time of the subject incident. Biomet arguably had an obligation to furnish instruction to Sky Medical’s employees regarding the Biomet products that they distributed, and Biomet did in fact provide “total product line training” to Soy concerning the design, features, and use of Biomet’s products. (Langan depo., pp. 16-17,25-26,38; Hartman depo., pp. 12-13.) But Biomet has never manufactured or sold hospital beds and did not have the legal responsibility to instruct or train an independent contractor’s employee not to handle or transport hospital beds. Indeed, neither Biomet nor Soy’s own employer, Sky Medical, offered any instruction to Soy relating to the movement of hospital beds. (Langan depo., pp. 30-31; Hartman depo., p. 21.)

Second, the social utility of the proffered training does not weigh in favor of imposing a duty to instruct independent contractors to refrain from handling hospital equipment. Compare, Lindstrom v. City of Corry, 563 Pa. 579, 585, 763 A.2d 394, 397 (2000) (holding that municipality owed no common-law duty to a fleeing motorist and stating that “[t]he second factor weighs against imposing a duty, as the social utility of a police officer’s attempt to apprehend a person suspected of violating the law is beyond dispute.”) and Kenner v. Kappa Alpha Psi Fraternity Inc., 808 A.2d 178, 183 (Pa. Super. 2002) (finding that fraternity had a duty to protect fraternity initiate from harm and reasoning that “[t]he second factor weighs in favor of imposing a duty, as the social utility of a national fraternity’s efforts to stop hazing is not in dispute.”), appeal denied, 575 Pa. 697, 836 A.2d 122 (2003), Biomet provides training to its independent contractors’ employees with respect to Biomet’s implants and instrumentation which those sales representatives will be required to handle. According to Dr. Sedor’s expert and the deposition testimony of Soy and his employer, Soy was acting outside the scope of his employment responsibilities when he assisted Rudd in transporting CMC’s bed. Dr. Sedor has not articulated the proposed social utility of extending Biomet’s training duties to include the equipment of others which those sales representatives admittedly should not handle. See Althaus ex rel. Althaus v. Cohen, 562 Pa. 547, 554, 756 A.2d 1166, 1170 (2000) (declining to recognize a duty of care toward the parents of a sexual abuse victim and observing that “social utility disfavors expanding therapists’ duty of care to non-patients, especially where the non-patients are the accused victimizes.”).

The third factor — the foreseeability of the risk and harm involved — militates strongly against the creation of a duty on the part of Biomet. The tortious incident in dispute did not involve a Biomet product nor did it occur during an orthopedic implant procedure which warranted Soy’s presence in the surgical suite. Since Dr. Sedor was not an orthopedic surgeon using Biomet implants or instrumentation, it was not foreseeable to Biomet that a Sky Medical employee would have any contact with Dr. Sedor. Moreover, although Biomet clearly should have anticipated that Sky Medical’s sales representatives would handle Biomet’s equipment, it could not foresee that those sales representatives would act outside the scope of their employment responsibilities by assisting with the transport of hospital beds. It is unreasonable to require a party to train another party’s employee to abstain from conduct that is wholly unforeseeable.

Fourth, it would be unduly burdensome and costly for orthopedic product manufacturers or distributors to be required to provide training or instruction to non-employees about the use of equipment owned by other parties. See, Commerce Bank/Pennsylvania v. First Union National Bank, 911 A.2d 133, 139 (Pa. Super. 2006) (finding that banks do not owe a duty to take action against any account being used in checlc-kiting scheme so as to protect third-party banks from future similar conduct, and remarking that “[t]he consequences of imposing a duty would prove onerous.”). If such an obligation were to be recognized, the breadth of that duty would be limitless. For example, an independent contractor who is similarly motivated by samaritanism could theoretically offer assistance to a maintenance worker struggling to clean a rapidly spreading spill of liquid on the floor or a health care professional rushing to board an elevator in an emergency. Recognition of the duty proposed by Dr. Sedor could conceivably obligate Biomet and other medical device distributors to train independent contractors’ employees not to touch elevator doors or buttons, pails, mops, or an infinite supply of equipment that may be owned by hospitals. See, Wisniski v. Brown & Brown Ins. Co. of PA, 906 A.2d 571, 581 (Pa. Super. 2006) (concluding that insurance brokers have no duty to inspect a business property for purposes of offering flood insurance and stating that “[i]f this court recognized a duty of brokers to inspect business properties, it is difficult to see a principled basis for failing to extend that duty to homes, land, cars, boats, and other insurable items.”), appeal denied, 591 Pa. 728, 920 A.2d 834 (2007). Individualized training of that magnitude would prove to be inordinately expensive, with the resulting additional cost ultimately being passed on to those patients receiving orthopedic implants. See, Salvatore v. State Farm Mutual Automobile Insurance Company, 869 A.2d 511, 515 (Pa. Super. 2005) (declaring that automobile insurer which sold previously stolen automobile to a dealer at public auction owed no duty to a subsequent buyer to insure that the car was removed from the National Crime Information Center (NCIC) computer database of stolen vehicles prior to placing the car in the stream of commerce, and reasoning that “[Requiring insurers to expend additional time and resources to assure that every stolen car that is returned is properly removed from the NCIC would be costly and unnecessary.”). Thus, the consequences of imposing such a training duty upon Biomet would be arduous and costly.

Finally, there does not appear to be a strong public interest in requiring a medical product manufacturer or distributor to instruct independent contractors’ employees to refrain from handling hospital beds or equipment. See Atcovitz v. Gulph Mills Tennis Club Inc., 571 Pa. 580, 588-90, 812 A.2d 1218, 1223-24 (2002) (analyzing the overall public interest in the proposed solution and finding that a tennis club did not owe a duty to acquire and maintain an automated external defibrillator on its premises for emergency use). Dr. Sedor asserts “that Biomet is in business and its only interest is to sell its product and earn profits” such that “the risk should fall on Biomet rather than the innocent victim.” (Plaintiffs’ brief in opposition, p. 12.) However, Sky Medical and the other “commission sales representative[s] for Biomet” are in the best position to train their own employees, and to the extent that any duty exists to instruct orthopedic sales representatives not to handle hospital equipment, that responsibility should be borne by the sales representatives’ employers. Excavation Technologies Inc. v. Columbia Gas Company of Pennsylvania, 936 A.2d 111, 121 (Pa. Super. 2007) (“Permitting recovery for excavators, designers, or project owners for a utility’s inaccurate marking of its lines would unreasonably shift the burden of risks away from those parties that can contractually provide for such risks and place the economic risk for delay in completing the project on a party not involved in the project’s contractual negotiations.”), affirmed, 640 Pa. 50, 985 A.2d 840 (2009).

Based upon the foregoing factors, and even after examining the record in the light most favorable to the non-moving party, Dr. Sedor has failed to establish that Biomet had a duty to train Soy not to handle hospital beds or large equipment while he was present in the surgical suite at CMC. Hence, Dr. Sedor cannot maintain a cause of action in negligence against Biomet. As such, Biomet has demonstrated that it is clearly entitled to judgment as a matter of law and its supplemental motion for summary judgment will be granted.

ORDER

And now, July 19, 2010, upon consideration of “defendants Biomet Inc., Biomet Orthopedics Inc, and Biomet Manufacturing Corporation’s supplemental motion for summary judgment,” the exhibits and memoranda of law submitted by the parties, and the oral argument of counsel on June 29, 2010, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) The supplemental motion for summary judgment filed by defendants Biomet Inc., Biomet Orthopedics Inc, and Biomet Manufacturing Corporation is granted; and

(2) The clerk of Judicial Records is directed to enter judgment in favor of defendants Biomet Inc., Biomet Orthopedics Inc. and Biomet Manufacturing Corporation only.

      . From 2003 to 2006, Sky Medical operated as the exclusive distributor of orthopedic implants sold by Biomet Orthopedics Inc. under the Biomet trademark. In 2006, Sky Medical’s owners, Gerald Langan and William Walling, ceased Sky Medical’s relationship with Biomet Orthopedics Inc. and entered into a new distributorship agreement with a different orthopedic products manufacturer, Zimmer Incorporated. In consummating their new distributorship arrangement, Mr. Langan and Mr. Walling dissolved Sky Medical LLC and formed a separate entity, Sky Orthopaedics LLC. (Deposition of Gerald Langan dated 6/18/08, pp. 6, 10, 12-15.) Plaintiffs have named Sky Orthopaedics LLC as a defendant in this matter.

      . Although Soy’s entire deposition is contained in the court record, only selected portions of Rudd’s deposition and the initial deposition of Dr. Sedor on March 1, 2006 have been produced as exhibits. The complete transcript of Dr. Sedor’s second deposition on August 28, 2008 is included in the reproduced record, but does not contain any questioning or testimony relating to the incident on February 22,2005. (See Biomet defendants’ supplemental motion for summary judgment, exhibits C, E; plaintiffs’ brief in opposition, exhibits A-B.) Soy testified that the bed “bumped” Dr. Sedor in the buttocks whereas Rudd described the point of impact as Dr. Sedor’s “hip” area. (Rudd depo., 26; Soy depo., pp. 11-13, 48, 55-56.) In his second amended complaint, Dr. Sedor has averred that the bed struck “him forcefully on the right knee, lower leg and foot.” (Plaintiffs’ second amended complaint, ¶17.)

      . Defendant Biomet Manufacturing Corporation manufactures medical devices, but does not sell or distribute the devices that it manufactures. Rather, the sale of those devices is conducted by defendant Biomet Orthopedics Inc., which is a wholly owned subsidiary of defendant Biomet Inc. (Affidavit of William A. Hartman, director of product management for Biomet Orthopedics, LLC, f/k/a Biomet Orthopedics Inc., ¶¶5-6.) For ease of reference, the Biomet defendants will be referred to collectively as “Biomet.”

      . As per sections 1(a) and 6(a) of Soy’s employment agreement, Soy’s contractual duties included the marketing of Sky Medical’s products, the establishment and maintenance of sales and service relationships, attendance at sales meetings and training sessions, and non-dissemination of confidential or proprietary information of Sky Medical. (See Sky Medical-Soy “Employee sales representative agreement” dated 8/4/04 pp. 1,3.)

      . In limited circumstances, a contract may create a duty which requires a party to the agreement to use due care in performing a contract for the benefit of the other party to the agreement, as well as for third parties, depending upon the nature of the undertaking in the contract. See Boyanosky, 46 D.&C.4th at 171-75 (subcontractor retained to develop safety plan for remediation work at Superfund site assumed a legal duty of care to protect the safety of all workers at the site, because the subcontractor expressly agreed to ensure that the workers were provided with training and safety equipment and to correct any conditions that could result in hazardous exposure or injury). However, the Biomet-Sky Medical agreement only provides assurances related to Biomet’s own products and does not express or imply training requirements pertaining to other entity’s products that theoretically could be present in a hospital setting. Therefore, there is no contractual basis for imposing upon Biomet the training duty being advocated by Dr. Sedor.

      . It is foreseeable that a scrub nurse or nurse’s aide will handle or transport beds, and Soy did receive training addressing the proper movement of hospital beds during his earlier employment with CMC. (Soy depo., pp. 7, 31-33.)

      . As per the Biomet — Sky Medical distributorship agreement, Biomet agreed to indemnify Sky Medical only for any personal injury claims allegedly arising from deficiencies or defects in the design, manufacture, packaging or labeling of Biomet products.

      . Since Dr. Sedor has failed to demonstrate the existence of a duty on Biomet’s behalf, it is unnecessary to address Biomet alternate argument that any causal connection between its conduct and Dr. Sedor’s harm is so remote that a jury could not reasonably differ on the absence of proximate causation. However, it is difficult to envision how a jury could conclude that the lack of training by Biomet to refrain from handling hospital beds could constitute the proximate cause of Dr. Sedor’s injuries in light of the fact that Soy has admitted that he already knew that he “shouldn’t handle any of the hospital equipment.” (Soy depo., p. 69.) In essence, Biomet would be instructing or training Soy to avoid doing that which he knew he should not do as a sales representative.


source: Caselaw Access Project

author: WHERRY, S.J.,

license: Public Domain

text:
    In re Adoption of A.G.D.

      C.P. of Lawrence County,
    no. 20011 of 2010, O.C.A.

      Norman J. Barilla, for petitioner.

      Nick A. Turco Jr., for respondent.
    August 31, 2010
   WHERRY, S.J.,

— This case was before the court on July 21 and July 26, 2010 on a petition for involuntary termination of parental rights of the natural father, Craig S. Damron Jr., filed by the natural mother, Linann R. Damron.

The minor child, A.G.D., was bom on October 29, 2007. At the time of the minor child’s birth, the natural parents were married and living together at 354 Moyer Road, New Castle, Pennsylvania. Within a year of A.G.D. being bom, Natural Father had an affair with another woman; this affair resulted in a second child being born on May 22, 2009. The parties in this action were subsequently separated. The petitioner continued to reside at the marital residence with the minor child. Natural Father left the home, and he currently lives with his mother at P.O. Box 108, Edinburg, Pennsylvania.

Testimony established that Natural Father last saw the minor child on February 14, 2009. Prior to this last visit, Natural Father exercised his custody rights on a sporadic basis. Visitation arrangements had been made through the court after petitioner obtained a protection from abuse order against the natural father. The court order granted Natural Father visitation two days per week at his father’s (grandfather’s) house. When Natural Father saw the minor child, the visits often resulted in a negative environment, as more time was spent fighting with the petitioner, rather than visiting with the minor child. This eventually led to the grandfather refusing to supervise the custody visits; arrangements were then made for Natural Father to visit the minor child at petitioner’s grandmother’s house.

Throughout this entire time frame, Natural Father admittedly used drugs and alcohol. He described himself to the court as a “monster” while on drugs, and did not begin to view himself in a better light until he enrolled himself in rehab for the second time, on January 18,2009. Natural Father completed rehab February 11, 2009, and continued to seek treatment for 18 months thereafter as an outpatient. Subsequent to Natural Father completing rehab, he only saw A.G.D. one time, on February 14, 2009, as previously stated. Natural Father testified that he made various attempts to contact the petitioner, but she never responded to his requests to see the child. Natural Father additionally stated that any time he pursued the petitioner for visitation she would threaten to call the police because he was “harassing” her. Natural Father reasoned that because he was on parole at that time, this created a significant barrier, which preventing him from exercising custody.

Grandfather, however, continued to maintain a relationship with petitioner and has custody of the minor child on a regular basis. Grandfather frequently baby-sits A.G.D. while petitioner is at work. Unfortunately, grandfather no longer has a relationship with his son, A.G.D. ’s natural father, and consequently, Natural Father felt unable to contact his father to make arrangements to see the minor child. Natural Father even believed that A.G.D.’s mother and the grandfather were conspiring to prevent him from seeing the minor child.

Natural Father believes that the above stated circumstances establishes significant justification for failing to exercise his parental rights or perform his parental duties.

The statutory grounds for termination of parental rights are set forth at 23 Pa.C.S. §2511, which provides in pertinent part as follows:

“(a) General Rule — The rights of a parent in regard to a child may be terminated after a petition [is] filed on any of the following grounds:
“(1) The party by conduct continuing for a period of at least six months immediately preceding the filing of the petition either has evidenced a settled purpose of relinquishing parental claim to a child or has refused or failed to perform parental duties.
“(2) The repeated and continued incapacity, abuse, neglect, or refusal of the parent has caused the child to be without essential parental care, control or subsistence necessary for his physical or mental well-being and the conditions and causes of the incapacity, abuse, neglect or refusal cannot or will not be remedied by the parent.
“(b) Other considerations — The court, in terminating the rights of a parent, shall give primary consideration to the developmental, physical and emotional needs and welfare of the child. The rights of a parent shall not be terminated solely on the basis of environmental factors such as inadequate housing, furnishings, income, clothing and medical care if found to be beyond the control of the parent. With respect to any petition filed . . . the court shall not consider any effort by the parent to remedy the conditions described therein which are first initiated subsequent to the giving of notice of the filing of the petition.”

Case law clearly interprets section 2511 as requiring a two-part analysis in any termination proceeding. In re Adoption of J.M., 991 A.2d 321, 323 (Pa. Super. 2010). Initially, the court must focus on the conduct of the parent, where the petitioning party must establish by clear and convincing evidence that the parent’s conduct satisfies the statutory grounds set forth in section 2511. If the petitioning party is able to meet this burden, the court shall then proceed to a second analysis, and determine how the needs and general welfare of the child can best be served. In re L.M., 923 A.2d 505, 511 (Pa. Super. 2007).

Before proceeding with the first prong of its analysis, this court reiterates the fact that the moving party must produce clear and convincing evidence of conduct sustained for at least six months prior to the filing of the termination petition, which reveals a settled intent to relinquish parental claim to a child or refusal or failure to perform parental duties. Matter of Adoption of Charles E.D.M. II, 550 Pa. 595, 600, 708 A.2d 88, 91 (1998). The trial court must further consider any explanations the non-custodial parent has for the apparent failure to assume parental duties, as well as any barriers put in place by the custodial parent, in an effort to prohibit contact and communication between the non-custodial parent and the minor child. In re Shives, 363 Pa. Super. 225, 229, 525 A.2d 801, 803 (1987).

At the hearing, no party refuted the fact that the natural father last saw the minor child on February 14,2009. Natural Father, in an effort to justify his failure to see the child, stated that the petitioner threatened to call the police and file harassment charges. A review of the record indicates that petitioner never filed any charges against Natural Father with the exception the initial protection from abuse order.

While the court believes that many barriers were put in place by petitioner and possibly even by grandfather, the testimony presented at the hearing established that Natural Father did little if anything to overcome these obstacles. It is not sufficient for Natural Father to claim or even prove that the petitioner made it extremely difficult for Natural Father to see the minor child. A parent must exert a “sincere and genuine effort to maintain a parent-child relationship; the parent must use all available resources to preserve the parental relationship and must exercise ‘reasonable firmness ’in resisting obstacles placed in the path of maintaining the parent-child relationship." In re C.M.S., 832 A.2d 457, 462 (Pa. Super. 2003) (citing: In re Shives, 363 Pa. Super. 225, 229, 525 A.2d 801, 803 (1987). (emphasis added)

Additional testimony presented by Natural Father, and his mother, Nancy Damron, established that he was frequently advised by both his parents to wait for a custody hearing to be initiated to sort out visitation and more appropriate custody arrangements. While the court recognizes that the legal process in any case can often be an overwhelming course to travel for those who do not frequently venture upon its terrain, a person’s rights cannot be safeguarded by waiting for a more appropriate or convenient time to initiate litigation. In re Adoption of Godzak, 719 A.2d 365, 368 (Pa. Super. 1998). The Superior Court, in In re Adoption of Godzak, held that parental rights will not be preserved “by waiting for a more suitable or convenient time to perform one’s parental responsibilities while others provide the child with his or her immediate physical and emotional needs.” Id.

Father testified that he tried to obtain legal aid from Neighborhood Legal Services; however, they represented the petitioner in the previous PFA order and they were unable to represent Natural Father in other matters regarding Linann R. Damron. While this may be yet another obstacle for Natural Father to overcome in order to exercise his parental rights, the court does not view it as a sufficient excuse to justify his failure to act. Natural Father’s actions were insufficient for this court to conclude that he exercised a reasonable level of firmness to exercise his rights. Contrast with; In re Adoption of C.M.W., 412 Pa. Super. 360, 603 A.2d 622 (1992) (where father displayed reasonable efforts necessary to overcome the obstacles put in place by child’s mother, where mother changed names, moved several times, and failed to notify father of addresses or contact information).

Well over a year elapsed from February 14, 2009, until this petition was filed on March 11, 2010, without the natural father making any genuine attempt to see A.G.D. The petitioner neither moved nor changed her home phone number, which was the same number used by the parties while they were married. Natural Father’s inaction cannot be justifiably rationalized by his fear that any contact with petitioner would result in a violation of his parole. He never sent cards or presents to the minor child, let alone initiate a custody complaint. Accordingly, the court finds that Natural Father meets the statutory requirements set forth in section 2511(a)(1) and the evidence presented by the petitioner establishes that Natural Father failed to perform any parental duties for a period of time exceeding six months.

This court next considers three factors set forth by the Pennsylvania Supreme Court in the case oí In the Matter of Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998). The court considers Natural Father’s explanations for his failure to perform any parental duties; the post-abandonment contact between Natural Father and the minor child; and finally, the effect of terminating Natural Father’s rights pursuant to section 2511(b). Id.

With respect to Natural Father’s explanation for his conduct, this court believes, as previously stated, that Natural Father’s fear of violating his parole is insufficient. There are many ways which Natural Father could have exercised his legal custody without having to contact the petitioner. The record reflects that Natural Father did not petition the courts for any type of relief, with respect to custody of the minor child; he merely sat idle and waited for a custody action to be initiated by someone else. Natural Father additionally reasoned that, because he has been recovering from alcohol and substance abuse since his completion of rehab in February of2009, he was not in a desirable state to be around A.G.D. This court, however, does not believe that Natural Father’s rationale is sufficiently adequate when it considers that Natural Father has a second child, whom he has cared for and exercised custody with, during this same time frame.

With respect to the past-abandonment contact, there is a lack of necessary evidence to establish that Natural Father attempted to establish a bond with the minor child. Although the Natural Father did place a happy birthday add in the local paper, this is of little effect on a 2-year-old child, who cannot appreciate the gesture or even understand its purpose. Furthermore, while the petitioner has been receiving child support within the last five months, evidence presented during the two-day hearing established that these payments were being made by the paternal grandmother on Natural Father’s behalf.

And finally, with respect to the effect of termination of parental rights on the minor child, this court finds that said termination would be in the child’s best interest for the reasons set for forth below.

While this court finds Natural Father to be very forthcoming with his history of substance abuse and failure to be an appropriate father figure in A.G.D.’s life, this finding does not change the facts, that for a significant period of time, Natural Father failed to perform any parental duties and that no bond currently exists between Natural Father and the minor child. This court cannot and will not consider Natural Father’s future ability to care for A.G.D. This court can only consider the facts presented thus far. Furthermore, any future failure on Natural Father’s behalf would have a significant and detrimental effect on the minor child. See e.g., In re Adoption of R.J.S., 901 A.2d 502, 513 (Pa. Super. 2006).

The natural Mother of A.G.D., petitioner in this action, has provided a stable and loving environment for A.G.D. to grow and develop in. Petitioner has maintained steady employment and is clearly able to continue to raise the minor child in a proper manner where the child’s emotional, physical, intellectual and developmental needs are met. Additionally, petitioner presents to this court her fiance, Robert Forkey, who is currently willing to adopt A.G.D. Mr. Forkey is gainfully employed as a forklift operator and spends all of his spare time with petitioner and the minor child. Mr. Forkey is fully aware that if he does adopt A.G.D. he will have the legal responsibility to care and provide for A.G.D. and is willing to accept this responsibility.

Natural Father objects to Mr. Forkey’s ability to adopt A.G.D. because Mr. Forkey and the petitioner are not currently married. In closing arguments, counsel for Natural Father referenced the case of In re Adoption of J.M., 991 A.2d 321 (Pa. Super. 2010) in support of his objection.

After a close review of In re Adoption of J.M., this court interprets this case to be an accurate depiction of the circumstances currently before the court. In J.M., the Superior Court held that section 2901 of the Adoption Act permits a non-spouse to adopt a child where one of the child’s natural parents continues to retain custody “upon good cause shown”. J.M., 991 A.2d at 326 (citing: In re Adoption of R.B.F., 569 Pa. 269, 280, 803 A.2d 1195, 1202 (2002)). A court, in allowing a non-spouse to adopt a child, is afforded the discretion to determine whether the adoption petition should be granted. R.B.F., 803 A.2d at 1201-1202. However, the future occurrence of an adoption proceeding taking place has no bearing on this court’s present ability to terminate Natural Father’s parental rights, if such a termination meets the statutory requirements and is in the best interest of the child.

Taking all of the above factors and circumstances into consideration, the court finds that terminating Natural Father’s rights is warranted and necessary pursuant to section 2511(a), and that severing Natural Father’s parental rights would best serve the child’s developmental, emotional, and physical needs. Accordingly, the court will enter the following order.

ORDER

And now, August 31, 2010, the court finds the testimony of petitioner, Linann R. Damron, to be credible and sufficient to establish by clear and convincing evidence the grounds for involuntary termination of parental rights pursuant to 23 Pa.C.S. §2511 (a)(1) and (2).

(1) At arriving at this decision, the court has considered the statutory authority for involuntary termination of parental rights, 23 Pa.C.S. §2511(a)(1) and (2); and appellate case authority, including but not limited to, In the Matter of Adoption of Charles E.D.M., 550 Pa. 595, 708 A.2d 88 (1998); In re Adoption of R.J.S., 901 A.2d 502 (Pa. Super. 2006); and In re Adoption of J.M., 991 A.2d 321 (Pa. Super. 2010).

(2) Based upon the foregoing statutory authority and consideration of the appellate court cases cited above, among others, the court hereby terminates the parental rights of the natural father, Craig S. Damron Jr., to the minor child, A.G.D.

(3) Custody of A.G.D. is hereby award to the natural mother, Linann R. Damron.

(4) The respondent, Craig S. Damron Jr. shall have no right to object to or receive of adoption proceedings with respect to the above child.

(5) Attached to the order and made part hereof is the statutory notice to natural parent relative to the right to place personal information on file with the court and the Department of Health, which shall be served on the natural parent, together with a certified copy of this order of court.

(6) The prothonotary shall properly serve notice of this order by regular mail or personal service upon counsel of record for the parties.

NOTICE TO NATURAL PARENT(S)

Following a court hearing, your parental rights to your child have been terminated. You have the right to place personal information on file with the court and with the Department of Health.

This information may not be disclosed to anyone. However, you may give the court and the Department of Health any other information placed on file about the natural parent(s). This information may only be given to: (1) the child if 18 years old or older; or, (2) the child’s adoptive parents or legal guardians if the child is under 18 years of age. The child may see these records if you give permission by filing a consent form with the court and the Department of Health. If both parents sign consent forms, the child can receive the information on the birth certificate. If only one parent signs a consent form, only the identity of that parent may be given to the child.

You may update the records to show your current address or other information about yourself.

You may withdraw your permission for the child to see these records at any time by filing a withdrawal of consent form with the court and the Department of Health.

      . Where the court stated that, “The court cannot and will not subordinate indefinitely a child’s need for permanence and stability to a parent’s claims of progress and hope for the future.”


author: LASH, J,

text:
    Pepe v. Pepe

      C.P. of Berks County,
    no. 10-9464.

      Terry D. Weiler, for plaintiff.

      Ashley M. Eckert, for defendant.
    September 9, 2010
   LASH, J,

The matter before this court is the preliminary objection of plaintiff, Isis I. Pepe (Mother), to the petition of defendant, Joseph W. Pepe, Sr. (Father), to modify custody order. Mother contends that Father’s petition to modify was improperly filed in Berks County, as venue is proper in Schuylkill County, where previous proceedings were held and a final order was entered on December 4,2008. It is this order which Father seeks to modify.

The parties are the parents of two minor children, Zachary, bom September 10,1999, and Isabel, bom April 18, 2001, (minor children). The parties were formerly married, receiving a divorce from Schuylkill County Court on May 3, 2007.

A custody action was filed in Schuylkill County where the parties resided at that time. Sometime in 2007, during the pendency of the proceedings, Mother moved with the minor children to Berks County, Pennsylvania. Father continued to reside in Schuylkill County.

On or about September 21, 2007, the Schuylkill County court entered a custody order providing that Father would have primary custody, with Mother to have partial custody. This order was temporary, pending final disposition.

Trial was subsequently held before the Schuylkill County court. The court then issued its final order, dated December 4, 2008, awarding primary custody to Mother, with Father to have partial physical custody. Father appealed the decision, which was affirmed by the Pennsylvania Superior Court. As a result of the order of December 4,2008, the minor children moved into Mother’s residence in Berks County, Pennsylvania, and have continued to reside in Berks County since that time.

On or about May 19, 2010, Father filed the within petition to modify the custody order arguing, among other things, that the current order is no longer in the minor children’s best interests. Mother then filed her preliminary objection, alleging that the petition to modify should be heard by Schuylkill County court as Schuylkill County court has been involved in all previous proceedings and is familiar with the case. Mother also alleged that Father was seeking a more favorable forum.

Father responded by arguing that Berks County court is, in fact, the proper venue, that is also a more convenient forum, as the minor children and Mother reside in Berks County, and the minor children’s teachers, therapists, and doctors are located in Berks County. Father denies that he is forum shopping. Argument on the preliminary objection was held on September 1, 2010.

Issues venue are governed by Pa.R.C.P. 1915.2. The provision applicable to this proceeding is 1915.2(a)(1), which states:

“(a) An action may be brought in any county
“(l)(i) which is the home county of the child at the time of commencement of the proceeding, or
“(ii) which had been the child’s home county within six months before commencement of the proceeding and the child is absent from the county but a parent or person acting as parent continues to live in the county;”
“Home county” is defined, in pertinent part, in Pa.R.C.P. 1915.1 tornean:
“the county in which the child immediately preceding the time involved lived with the child’s parents, aparent, or a person acting as parent, or in an institution, for at least six consecutive months, and in the case of a child less than six months old, the county in which the child lived from birth with any of the persons mentioned....

It is apparent that Berks County is now the home county of the minor children.

Mother’s argument stems from her belief that the Schuylkill County court should have priority to hear the petition to modify based on the previous action. This is grounded on the concept that custody matters, including final orders, are always subject to modification. As such, a court of proper jurisdiction and venue in previous matters should have continuing jurisdiction over the parties.

We look to the definition of “action” set forth in Pa.R.C.P. 1915.1. Action is defined to mean “all proceedings for custody, partial custody or visitation, and proceedings for modification of prior orders of any court.” Thus, while a petition to modify a custody order may involve the same parties and children as the original action and seeks to modify an order entered in said original action, the petition to modify is nevertheless, by definition, considered a separate, independent action.

Further, there is no provision in Pa.R.C.P. 1915.2 allowing venue for a county based simply on its involvement in previous proceedings. Accordingly, the fact that Schuylkill County court was involved in protracted proceedings of the parties and a custody trial does not in and of itself qualify Schuylkill County as a court of proper venue to hear the petition to modify.

As the minor children have not been a resident of Schuylkill County for over 20 months, Schuylkill County no longer qualifies as a home county of the minor children and does not possess venue. Berks County is therefore, the only proper venue.

Mother also argues that under Pa.R.C.P. 1915.2(c), relating to a court transferring an action to an appropriate court of another county, the issue of venue is for the Schuylkill County court to decide. The proper procedure therefore would be to file the petition to modify in Schuylkill County, and request Schuylkill County transfer the matter to Berks County. However, 1915.2(c) relates to the transfer of pending actions. As the Schuylkill County action is no longer pending and as the only action pending is the matter before Berks County court, this rule is not applicable.

ORDER

And now, September 9, 2010, upon consideration of the preliminary objections of plaintiff to defendant’s petition to modify custody order, response thereto, briefs filed by the parties and after argument held, the preliminary objections are overruled.

      . Pa.R.C.P. 1915.2(a) also sets forth additional provisions for venue, none of which are applicable here.


author: ZULICK, J,

text:
    Bank of America v. DE&S Properties

      C.P. of Monroe County,
    no. 589 CV 2009.

      Daniel S. Bernheim III, for petitioner.

      MarkS. Love and Michael V. Gazza, for respondents.
    August 9, 2010
   ZULICK, J,

This is a petition to set aside a judicial sale held on June 10, 2009 of a property formerly owned by an Aleksander Gikher. Bank of America N. A. filed a “motion to set aside tax claim sale” on May 19, 2010. DE&S Properties Inc. d/b/a Classic Quality Homes (DE&S), the judicial sale purchaser, filed an answer to the petition on July 23, 2010. A hearing was scheduled on the petition for July 27, 2010. The Monroe County Tax Claim Bureau did not file an answer but did file a brief.

FINDINGS OF FACT

(1) Aleksander Gikher acquired a lot at 6258 Park Place, Tobyhanna, Pennsylvania, from Lukasasz Junczewsi by deed dated July 18, 2007 and recorded on the same date in the Monroe County Office for the Recording of Deeds, in deed book volume 2311 at page. 1556. See petitioner’s exhibit 2.

(2) On July 20, 2007, Aleksander Gikher obtained a mortgage from Bank of America N.A. securing a note for $ 100,000. The mortgage was recorded in the Monroe County office for the recording of deeds on August 30, 2007.
(3) The mortgagor’s name stated in the mortgage was “Alex Gikher” not Aleksander Gikher.
(4) The description of the property subject to the mortgage was “Deed recorded in book 2311, page 1556, parcel ID 3-8E-1-52, Coolbaugh Twp., which currently has the address of 6258 Park Place, Tobyhanna, Pennsylvania, 18466.”
(5) The record book reference of book 2311, page 1556 in the mortgage property description was to the property owned by Aleksander Gikher.
(6) The parcel ID no. 3-8E-1-52 was to another property owned by Aleksander Gikher, not the one which was the subject of the judicial sale.
(7) The parcel ID no. of the property sold at judicial sale was 3-8C-1-447.
(8) Mr. Gikher did not pay the 2006 taxes on the property and the property was exposed to upset tax sale in September 2008. There were no purchasers of the property at the upset sale.
(9) The Monroe County Tax Claim Bureau petitioned the court to sell the Gikher property at judicial sale.
(10) On June 10, 2009, the property was exposed at a judicial sale and DE&S Properties Inc. d/b/a Classic Quality Homes purchased the property for $337 plus costs.
(11) The parties stipulated that the Monroe County Tax Claim Bureau did not give notice of the judicial sale to petitioner Bank of America N.A., mortgagee of Alex Gikher, in the July 20, 2007 mortgage.
(12) Beverly Dirvonas, a principal of Pocono Property Abstract Inc., testified as an expert in the abstracting of land titles. Ms. Dirvonas said that she did a search in the Monroe County Recorder of Deeds office which revealed the presence of the deed from Junczewsi to Aleksander Gikher recorded July 18, 2007, a mortgage to Bank of America N.A. from Aleksander Gikher recorded August 9,2007 and a mortgage from Alex Gikher to Bank of America N.A. recorded August 30,2007. She said that when she found the mortgage from Alex Gikher to Bank of America N.A. in Coolbaugh Township dated August 30, 2007, the name “Alex” was similar enough to Aleksander for her to check that mortgage.
(13) When Ms. Dirvonas checked the Alex Gikher mortgage she saw that the description of the mortgage matched the record book and page of the property acquired by Aleksander Gikher from Lukasz Junczewsi.
(14) Ms. Dirvonas testified that in her opinion, a properly conducted title search would have revealed the existence of the Bank of America mortgage, because of the similarity of the name “Alex Gikher” to the owner’s name of “Aleksander Gikheri.”
(15) After purchasing the Gikher property at judicial sale for a bid of $337.56, plus costs of $881.30, respondent DE&S Properties, d/b/a Classic Quality Homes, built a home on the lot.

DISCUSSION

The Real Estate Tax Sale Law, 72 Pa.C.S. §5860.610, provides that when a property does not sell at upset sale for unpaid taxes, the tax claim bureau may petition the court for a judicial sale of the property. A judicial sale will sell the property “freed and cleared of all taxes and municipal claims, mortgages, liens, charges and estates . . . .” 72 Pa.C.S. §5860.612. The statute sets forth the requirements of notice to the owner of record and lien-holders of the property to be sold:

“In cases where the upset price shall not be bid at any such sale, the sale shall be continued, but not beyond the end of the calendar year, without further advertising, and the bureau may, at any time during or after the continuance, and shall, immediately at the written direction of a taxing district, file its petition in the court of common pleas of the county to sell the property under sections 612 and 612.1. The bureau shall set forth on the petition (1) the tax claim upon which the property was exposed for sale, (2) that neither the owner, his heirs or legal representatives of any lien creditor, his heirs, assigns or legal representatives or any lien creditor, his heirs, assigns or legal representatives or other person interested has caused stay of sale, discharge of tax claim or removal from sale, (3) that the property was exposed to public sale and the date of such sale, (4) that before exposing the property to public sale the bureau fixed an upset price, as herein provided, and (5) that it was unable to obtain a bid sufficient to pay said upset price. Upon presentation of such petition, accompanied with searches showing the state of the record and the ownership of the property and all... mortgages... against the same, the court shall grant a rule upon all parties thus shown to be interested to appear and show cause why a decree should not be made that said property be sold, freed and cleared of their respective . . . mortgages . . . .” 72 P.S. §5860.610. (emphasis added)

Section 610 of the RETSL requires the bureau to do a title search to determine the owners and lienholders of the property, and to serve those entities with notice of the judicial sale. The parties have stipulated that Bank of America was not named as a lienholder in the bureau’s search of the property, and as a result, did not receive notice of the judicial sale.

The risk that a tax bureau negligently performed the title search is borne by the purchaser at judicial sale. Plank v. Monroe County Tax Claim Bureau, 735 A.2d 178, 183 (Pa. Commw. 1999). The rule of caveat emptor, i.e., let the buyer beware, applies to property sold at real estate tax sales. In re Judicial Sale, Tax Claim Bureau of Northampton County, 720 A.2d 818 (Pa. Commw. 1998). There is a statute to that effect:

“In all public sales of land hereafter made by the treasurer or commissioners of the several counties of this Commonwealth, in pursuance of the laws of this Commonwealth the rule of caveat emptor shall apply, except in cases of double assessment, or where the taxes on which the sale is made shall have been previously paid, or where the lands do not lie within the county; and neither said treasurer nor commissioners shall be required to refund the purchase money, costs or taxes paid upon any tract or tracts of land as sold as aforesaid.” Section 1 of the Act of April 21,1856, P.L. 477, as amended, 72 P.S. §5931.

It is also well-settled that land purchased at a tax sale comes with no guarantee of title. Fulton County v. Tate, 47 Pa. 532(1864).

DE&S concedes that lienholders are entitled to notice of the sale and that lack of such notice to a lienholder would render the sale defective as to that party. DE&S argues however, that Bank of America is not a lien-holder entitled to notice, because its recorded mortgage to “Alex Gikher” did not provide constructive notice of a mortgage lien on property of Aleksander Gikher. DE&S cites the case of Crouse v. Murphy, 140 Pa. 335 21 A. 358 (1891) for the proposition that a mortgage recorded under a name different than the record owner’s name is does not impose a lien on a bona fide purchaser. In Crouse, the Supreme Court ruled that a mortgage recorded in the name of Daniel Murphy against property owned by Daniel J. Murphy was not constructive notice of the lien. DE&S also cites Apollo Borough v. Clepper, 44 Pa. Super. 185 (1910). There the Superior Court stated that a municipal claim filed in the name of Lizzie Clepper would not be a lien on lands owned by Nancy Clepper. That case turned however, on whether the claim was in personam or in rem.

BAC has cited more recent cases of the Pennsylvania Supreme Court which support the argument that a purchaser should have been on notice that this mortgage affected property of Aleksander Gikher. In Burns v. Ross, 215 Pa. 293, 64 A.526 (1906), the court held that ajudgment entered against “Frank Ross” was a lien against lands of “Francis Ross.” The indexing statute’s “requirements are met when the first or Christian name of a defendant is so indexed that a prospective purchaser examining the index ought to know from it of the existence of a lien against the property which he is about to purchase.” Id. at 296, 64 A. at 527.

“When it is commonly known that certain first or Christian names are interchangeably used, and the initial and dominant letters of each are identical, indicating to the eye that they are the same and giving the same sound and substance to each, the judgment index must be searched for each. In the absence of a statutory requirement that the Christian name of a defendant in a judgment must be indexed exactly as it is written in the deed under which he holds title, any other rule would offend reason. When the appellant as a prospective purchaser of the Ross property, was looking for liens against Francis Ross, why should he not have looked for those indexed against ‘Frank’? The two names are the same, and are used, as is universally known, as being the same: Standard Dictionary in English, vol. 2, p. 2138; Webster’s International Dictionary, p. 1902. When looking for liens against “Jacob’ a searcher must know that the world knows no difference between ‘Jacob’ and ‘Jake,’ and that a judgment indexed against ‘Jake’ may be a lien on the property of ‘Jacob’. As a rule ‘Mike’ is used for the more dignified ‘Michael’, and the bearer of the latter name as the grantee of a title to him is generally known, not only to himself, but to the community in which he lives, as plain ‘Mike’; and so a stronger illustration is the name ‘Frank’ given to ‘Francis’. It is a matter of common knowledge that seldom is one bearing the Christian name of ‘Francis’ known by any other name than ‘Frank’. These illustrations need be pursued no further. When the appellant was looking for the title to be free from encumbrances case upon it by Francis Ross, it was his duty to see that the owner had not encumbered it in the name of ‘Frank Ross’.” Id. at 296-97, 64 A. at 527.

BAC also cites Coral Gables Inc. v. Kerl, 334 Pa. 441, 6 A.2d 275 (1939). There, the court addressed a question of lien priority. One judgment was in the name of Caroline Kerl and another was in the name of Caroline C. Kerl. The court noted that there was no other person by the name of Kerl living in Allegheny County at the time. The court found that the lack of a middle initial did not cause the judgment to lose its priority.

“The sole function of a name is to identify the person whom it is intended to designate, and therefore all that is legally necessary in the docketing and indexing of judgments is that the defendant should be individuated with a degree of accuracy sufficient either to lead a reasonably careful searcher to conclude that he is the person who is the object of the search, or to suggest to the searcher the wisdom of inquiry to ascertain the fact. Where there is enough to put an ordinarily prudent person upon guard, inquiry becomes a duty, and if an investigation, reasonably pursued, would disclose the identity of the judgment debtor, the subsequent lienor is bound by notice of the previous judgment even though inaccurately recorded. As was said in Stark v. Lamberton, 282 Pa. 219, 221, 127 A. 631, 632: ‘The law merely requires an index that will naturally lead the investigator to a discovery of the judgment and an identity of the defendant.’ If the index meets that requirement it has served its legal purpose.” Id. at 447, 6 A.2d at 278.

Here the name Aleksander Gikher is a rather unusual one. Ms. Dirvonas testified that when she put the name into the search index of the recorder of deeds Landex system, six entries appeared. In these six entries, three variations of Mr. Gikher’s name appeared,’’Aleksander Gikher,” “Aleksandr Gikher,” and “Alex Gikher.” The name Alex is a common nickname of Alexander, and Aleksander is clearly a foreign spelling of Alexander. A reasonably prudent title searcher would have checked “Alex Gikher”. If that was done, the Landex system would have directed the searcher to the BAC mortgage which identified the Aleksander Gikher deed in the mortgage description. While this was certainly an example of poor drafting of a mortgage, BAC should have been given notice of the sale as a mortgage holder of the owner of the property.

This does not end the inquiry, because BAC contends that the judicial sale should be set aside. DE&S and the Monroe County Tax Claim Bureau contend that the proper remedy for BAC is not to set aside the sale, but to hold that the BAC mortgage lien was not discharged.

Failure of notice to a mortgagee does not vitiate a tax sale. In re Tax Claim Bureau of Lehigh County, 96 Pa. Commw. 452, 507 A.2d 1294 (1986), appeal denied, 514 Pa. 640, 523 A.2d 346 (1987). See also, Plank v. Monroe County Tax Claim Bureau, supra. A purchaser at a judicial tax sale takes title to the property free and clear of all mortgages and liens. Section 612 of the law, 72 P.S. §5860.612. However, where a mortgagee is not provided adequate notice of the judicial tax sale, that mortgagee’s lien is undischarged and the purchasers at the judicial tax sale take the property subject to that mortgage. In re Tax Claim Bureau of Westmoreland County, 149 Pa. Commw. 532, 613 A.2d 634, appeal denied, 533 Pa. 615, 618 A.2d 404 (1992). The sale will not be set aside.

CONCLUSIONS OF LAW

(1) Bank of America did not receive notice of the 2009 judicial sale of the Gikher property which it was entitled to receive pursuant to 72 Pa.C.S. §610 due to its recorded mortgage which was a lien on the property.

(2) Bank of America’s mortgage was not divested by the judicial sale.

ORDER

And now, August 9, 2010, following hearing and consideration of the parties’ arguments and briefs, it is ordered as follows:

(1) Bank of America’s mortgage recorded on August 30,2007 in the office for the Recording of Deeds in and for Monroe County, Pennsylvania in record book volume 2314, page 9885 was not divested as a mortgage lien from the Aleksander Gikher property more particularly described in the same office in record book volume 2311, page 1556. The mortgage lien continues in full force and effect.
(2) Bank of Americas request to set aside the judicial sale is denied.