author: WALSH, J.,

text:
    Booth v. Southern Fulton School District

      C.P. of Fulton County,
    no. 152 of 1998-C.

      Dwight C. Harvey, for plaintiffs.

      Andrew J. Kennedy, for defendant.
    October 30, 1998
   WALSH, J.,

PROCEDURAL AND FACTUAL BACKGROUND

This matter initiated by the filing of a complaint on July 15, 1998 that alleges the defendant failed to provide certain medical coverage (vision, dental, and drug prescription) for the plaintiffs. See complaint, ¶18. The plaintiffs pray that this court enter a mandatory injunction requiring defendant to pay past and future premiums for the disputed coverage.

Defendant preliminarily objected to the complaint on a variety of bases. It has first sought demurrers to all of the plaintiffs’ claims alleging that it did not contract to provide the additional medical coverage sought. See defendant’s preliminary objections, ¶¶8-52. Second, defendant claims that a grievance filed by the Southern Fulton Education Association on January 20, 1998, on behalf of plaintiffs Layton, Ritz and L. Keen Elbin precludes this court’s jurisdiction. See id., ¶¶53-56. Defendant also alleges that the same pending grievance precludes this court’s jurisdiction as to the claims of plaintiffs Booth and George Elbin. See id., ¶¶61-67. Next, the defendant claims that the plaintiffs have an adequate remedy at law. See id., ¶¶57-60. Finally, the defendant challenges the complaint on the basis that it is inadequately pled. See id., ¶¶68-71.

As a preliminary matter, it is imperative to identify the collective bargaining agreement or contract that governs each plaintiff’s employment and retirement. Plaintiff Ritz retired June 30,1988, and he is subject to a collective bargaining agreement covering the period July 1, 1986, through June 30, 1989 (CBA no. 1); it is found at exhibit A to the complaint. Plaintiff L. Keen Elbin retired on June 30, 1992, and plaintiff Layton retired August 18,1993. Both plaintiffs L. Keen Elbin and Layton were subject to a collective bargaining agreement dated February 16,1990 (CBA no. 2); it is found at exhibit B to the complaint. Plaintiff Booth retired on June 30,1994, and he is subject to an individual agreement found at exhibit E of the complaint. Plaintiff George Elbin is subject to an individual agreement dated May 28, 1991, found at exhibit D of the complaint.

ISSUES

I. Whether the defendant is entitled to demurrers on the claims that it is required to maintain the additional medical coverage sought by the plaintiffs.

II. Whether the pendency of a prior proceeding precludes this court’s jurisdiction over the claims of plaintiffs Layton, Ritz and L. Keen Elbin.

III. Whether the pendency of a prior proceeding precludes this court’s jurisdiction over the claims of plaintiffs Booth and George Elbin.

IV. Whether the plaintiffs have an adequate remedy at law.

V. Whether the plaintiffs should be required to re-plead their complaint with separate counts.

DISCUSSION

“It is well-established that in the review of preliminary objections, the facts that are well-pleaded, material, and relevant will be considered as true, together with such reasonable inferences as may be drawn from such facts.” Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 567, 650 A.2d 895, 899 (1994). With this standard in mind, this court will now address the defendant’s preliminary objections.

I. Whether the Defendant Is Entitled to Demurrers on the Claims That It Is Required To Maintain the Additional Medical Coverage Sought by the Plaintiffs

“[Pjreliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by a demurrer.... In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery.... If there is any doubt, it should be resolved by the overruling of the demurrer.” Mellon Bank at 567-68, 650 A.2d at 899 (citations omitted); see also, Willet v. Pennsylvania Medical Catastrophe Loss Fund, 549 Pa. 613, 702 A.2d 850 (1997).

“A demurrer is appropriate only if there is a certainty that no recovery is possible, and all doubts must be resolved in favor of the pleader.” Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 426, 565 A.2d 1170, 1183 (1989); see also, Cianfrani v. Commonwealth, State Employees Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984), and Willet, supra.

The plaintiffs claim that they are entitled to enjoy certain medical benefits in their retirement at the defendant’s expense. Complaint at ¶18. Specifically, the plaintiffs argue that the defendant should continue to pay the premiums on their health and dental care insurance, prescription drug coverage and vision care insurance. Id.

In support of their claim for the additional medical coverage, plaintiffs Ritz, L. Keen Elbin, and Layton rely upon the following provision of their agreements:

“Retirement Health Insurance — Provided an employe shall retire at 60 years of age or more and have at least 10 years of continuous service with the school district, or 30 years of teaching service and at least 10 of those years are continuous service with the school district, employer will continue to provide medical, surgical and major medical health insurance coverage for the retiree and dependents with the same level of benefits as then accorded working employes under a written contract with employer until such retiree shall attain the age of 65 years.” CBA no. 2, section VII-H (emphasis added); CBA no. 1, section VII-H. Plaintiffs Booth and George Elbin rely upon the following provision in their individual agreements:
“Retirement Health Insurance Shall Be Provided As Indicated In Section VII-H Of The Current S.F.E.A. [Southern Fulton Education Association] Professional Collective Bargaining Agreement.” Complaint, exhibit D. Prior to reciting the retirees’ benefits, CBA no. 1 and no. 2 outline each fringe benefit that a current employee would enjoy. Those benefits include, inter alia, life insurance, health insurance, dental insurance, prescription drug coverage, and vision care insurance. CBA no. 1 and no. 2, sections VII, A - E. Unfortunately, the term “medical,” as used in section VII-H of both CBAs, is never defined and, therefore, it can rationally be argued that the insurance coverage sought by the plaintiffs is medical in nature and that these retired plaintiffs should enjoy the same level of benefits currently provided to present employees. Because this issue cannot be resolved on the basis of the complaint itself, the defendant’s demurrers are overruled.

II. Whether the Pendency of a Prior Proceeding Precludes This Court’s Jurisdiction Over the Claims of Plaintiffs Layton, Ritz and L. Keen Elbin

The defendant next claims that a pending prior action requires the dismissal of these claims with prejudice. It is alleged that a grievance was filed on behalf of these three plaintiffs by S.F.E.A. on January 20, 1998. See defendant’s preliminary objections, ¶55. The plaintiffs have denied this allegation.

To prevail on a preliminary objection claiming the pendency of prior proceeding, the objecting party must show that the prior case is the same, the parties are the same and that the relief requested is the same. Penox Technologies Inc. v. Foster Medical Corp., 376 Pa. Super. 450, 546 A.2d 114 (1988). In this lawsuit, the defendant has failed to prove to this court’s satisfaction that the grievance filed on January 26,1998, was in fact filed on the behalf of these three plaintiffs. The claim does not even identify the aggrieved parties except as “teachers.” See defendant’s preliminary objections, exhibit no. 3. These plaintiffs are no longer teachers, they are retired teachers and they were so on the date this grievance was filed. On this basis alone, the defendant’s motion can be denied.

Moreover, the relief sought in the alleged grievance was limited to:

“(1) Affected bargaining unit members be made whole in every legal and contractual aspect; (2) Payment for all benefit expenses incurred by affected bargaining unit members as a result of benefit denial; (3) And any other relief deemed appropriate by the arbitrator.” Defendant’s preliminary objections, exhibit no. 3.

This claim can rationally be construed as only seeking reimbursement for past premiums incurred, and not a request to compel the defendant to continue to pay future premiums on the plaintiffs’ behalf. On the other hand, in the present suit, the plaintiffs are seeking “a mandatory injunction, requiring the defendant to pay the premiums for health and dental insurance, prescription drug coverage, and vision care insurance for each of the plaintiffs as provided for by their contract and as the school district has been doing heretofore.” Complaint’s prayer for relief, (emphasis added) If, in one action, a plaintiff seeks an equitable relief and in the second only money damages are sought, the pendency of one action will not preclude the other. See Glazer v. Cambridge Industries Inc., 281 Pa. Super. 621, 422 A.2d 642 (1980). Because the relief sought in the present suit and that sought in the grievance is conceptually different, this suit may go forward despite the mere allegation that a prior claim is pending.

The defendant has further suggested that the exclusive means for initiating a claim interpreting the CB A is through arbitration. These plaintiffs, the defendant argues, should be required to follow through with the grievance procedure as outlined in the CBA. It is true that these plaintiffs, as the defendant’s employees, agreed to a certain grievance procedure in the CBAs. However, presently one clear characteristic that these three plaintiffs now share is that they are all retirees; they are not presently employees of the defendant. An employee is:

“A person in the service of another under any contract of hire, express or implied, oral or written, where the employer has the power or right to control and direct the employee in the material details of how the work is to be performed.” Black’s Law Dictionary, sixth edition (1990).

As retirees, these plaintiffs are no longer in the defendant’s service. On this basis, these plaintiffs should not be required to proceed with arbitration.

The defendant has also directed this court’s attention to a provision of the Public Employee Relations Act mandating arbitration of disputes involving the interpretation of a CBA. See 43 P.S. §1101.903 (1970). As defined by the PERA, “ ‘[pjublic employe’ or ‘employe’ means any individual employed by a public employer.” 43 P.S. §1101.301(2) (1970). These plaintiffs are no longer public employees, and as such they are not governed by the Act.

The defendant’s motion to dismiss the claims of plaintiffs Layton, Ritz and L. Keen Elbin on the basis that another proceeding is pending is hereby denied.

III. Whether the Pendency of a Prior Proceeding Precludes This Court’s Jurisdiction Over the Claims of Plaintiffs Booth and George Elbin

The defendant has preliminarily objected on the basis that a prior proceeding is also pending involving these two plaintiffs. The defendant claims that a grievance was filed on their behalf by the S.F.E.A. seeking the same relief sought in this lawsuit. The discussion involving the elements of a successful lis pendens preliminary objection as outlined in section II, supra, is hereby incorporated by reference as if fully set forth within. Again, the defendant has failed to establish that the grievance was filed on the behalf of these two plaintiffs. Interestingly, the claim form indicates that it was filed on the behalf of the “teachers” in the Southern Fulton School District. See defendant’s preliminary objections, exhibit no. 3. These plaintiffs are not teachers, they are retired principals. The defendant has failed to establish to this court’s satisfaction that the parties in the two actions are the same. On this basis, the defendant’s preliminary objection in the form of a motion to dismiss or stay proceedings is hereby denied.

Moreover, these two plaintiffs are not even subject to mandatory arbitration. They each negotiated individual contracts with the S.F.E.A. that did not include provisions for arbitration. The defendant has suggested that by incorporating the retirement health benefits of section VII-H of the CBA, these plaintiffs’ contracts incorporated the entire CBA including its provisions on mandatory arbitration. See defendant’s preliminary objections, ¶62. This court cannot accept this argument. The incorporation language utilized clearly indicated that only one clause was to be incorporated.

IV. Whether the Plaintiffs Have an Adequate Remedy at Law

The defendant argues that because the plaintiffs are seeking reimbursement of funds they each expended for medical coverage since May 1,1998, that this suit is more properly brought on the law side of the court. The defendant asserts that there is an adequate remedy at law; i.e., require the defendant to reimburse the plaintiffs for the out-of-pocket funds since May 1, 1998. When there is an adequate remedy at law, a suit in equity is not proper. See City of Philadelphia v. Pierre Uniforms Inc., 369 Pa. Super. 246, 535 A.2d 142 (1987); and Pa.R.C.P. 1509(c).

However, presently these plaintiffs are seeking a mandatory injunction requiring the defendant to provide past and future premiums for medical coverage. In this case, equitable jurisdiction is appropriate. If successful in an action at law, these plaintiffs would only be entitled to the reimbursement of their out-of-pocket expenses for premiums paid by them since May 1, 1998. Nothing would preclude the defendant from again denying to pay the premiums on future coverage and requiring the plaintiffs to file a similar lawsuit again. It is entirely appropriate for a court to exercise equitable jurisdiction, when to do so would obviate the need for multiple lawsuits. See Luitweiler v. Northchester Corp., 456 Pa. 530, 319 A.2d 899 (1974); and Virgilli v. Southwestern Pennsylvania Water Authority, 58 Pa. Commw. 340, 427 A.2d 1251 (1981). The defendant’s motion to certify this case to the law side of the court is hereby denied.

V. Whether the Plaintiffs Should Be Required To Re-Plead Their Complaint With Separate Counts

The defendant’s final preliminary objection is a request for a more specific pleading. The defendant claims that it is unable to mount a sufficient defense without a knowledge of which legal theories the plaintiffs wish to pursue. The plaintiffs are apparently seeking recovery on at least two alternative theories, breach of contract and promissory estoppel. However, this complaint contains only a single count with a single demand for relief. Rule 1020(d)(1) requires a plaintiff pleading alternative causes of action to plead them in separate counts. Because these plaintiffs are seeking to recover on the theories of breach of contract and promissory estoppel, they should be required to plead each alternative cause of action in a separate count.

The court will enter the attached order.

ORDER

October 30, 1998, after hearing argument on the defendant’s preliminary objections and reviewing both parties briefs, this court orders as follows:

(1) The defendant’s demurrer to the claims made by plaintiff John C. Ritz is hereby overruled;
(2) The defendant’s demurrer to the claims made by plaintiff L. Keen Elbin is hereby overruled;
(3) The defendant’s demurrer to the claims made by plaintiff Edwin H. Layton is hereby overruled;
(4) The defendant’s demurrer to the claims made by plaintiff George R. Elbin is hereby overruled;
(5) The defendant’s demurrer to the claims made by plaintiff Clyde O. Booth is hereby overruled;
(6) The defendant’s motion to dismiss the claims of plaintiffs Layton, Ritz, and L. Keen Elbin on the basis that another proceeding is pending is hereby denied;
(7) The defendant’s motion to certify the plaintiffs’ claims to the law side of the court is hereby denied;
(8) The defendant’s motion to dismiss the claims of plaintiffs Booth and George Elbin on the basis that another proceeding is pending is hereby denied; and
(9) The defendant’s motion for a more specific pleading is hereby granted. Plaintiffs are hereby directed to file an amended complaint consistent with this opinion within 20 days of the date of service of this order.

      . The current agreement would have been CBA no. 2 and its section VII-H has already been set forth in its entirety supra.

      . In fact, the exhibit referenced by the defendant appears to indicate that a grievance was filed on January 26, 1998.

      . An example of the grievance procedure follows:
      “(C) Specific procedures
      “(i) Level I
      “(a) An employee with a grievance shall first discuss it with the principal having immediate supervision over the employee within five days after the occurrence of the event giving rise to the alleged grievance.
      “(b) If the grievance is not resolved to the satisfaction of the aggrieved person by the above process, he shall submit, within 10 days of the first meeting, a written account of his grievance to such principal and the association. This account shall include the facts giving rise to the grievance, the specific provisions of the agreement that were allegedly violated and the employee’s proposed solution.
      “(c) Within five days of receipt of the written formal grievance, the principal shall reply to the aggrieved person in writing.
      “(ii) Level II
      “If the grievance is not resolved at Level I, the aggrieved person may, within five days after the written decision of the principal, file an appeal with the superintendent stating the ground for such appeal. The superintendent or his designated representative shall within 10 days after receipt confer with the aggrieved person, the principal and other knowledgeable persons to obtain specific evidence regarding the appeal. Within 15 days of the receipt of the appeal the superintendent or his designated representative shall forward a decision to the aggrieved person, the principal and the association.
      “(in) Level HI
      “If the grievance is not resolved at Level II, the aggrieved person may, within five days, file an appeal with the board of school directors of the district. The board may hear the grievance or delegate to a committee the authority to hear and resolve it. In each case, a hearing shall be held within 25 days after receipt of the appeal and the board’s resolution of the grievance shall be made within 10 days after its last hearing. The grievance will be heard at an executive session of the board or committee unless the aggrieved person shall request an open meeting pursuant to the Sunshine Act.
      “(iv) Level IV
      “If the action in Level III above fails to resolve the grievance to the satisfaction of the aggrieved party, the grievance shall be referred to binding arbitration as provided in section 903 of Act 195 within 25 days of the receipt of written notice from the employer.” CBA no. 2, sections X, C.

      . 43 P.S. §1101.201 et seq. (1970).

      . Pa.R.C.P. 1020(d)(1) reads as follows:
      “If a transaction or occurrence gives rise to more than one cause of action against the same person, including causes of action in the alternative, they shall be joined in separate counts in the action against any such person.” (emphasis added)


source: Caselaw Access Project

author: CARPENTER, J.,

license: Public Domain

text:
    Looby v. Local 13 Productions

      C.P. of Montgomery County,
    no. 97-19863.

      Robert J. Foster, for appellants.

      James D. Hilly, for appellees.
    October 25, 1999
   CARPENTER, J.,

FACTS AND PROCEDURAL HISTORY

On New Year’s Eve, 1995, the appellants, Kanika Looby and Paul Caparatto, attended a rave party hosted by the appellees at the Fort Washington Expo Center in Fort Washington, PA. The promotional literature used by the appellees to advertise the party included references to illegal drag use, such as LSD and guaranteed overdose.

The appellants arrived at the party in a car driven by Katrina Coluzzi. While at the party, Coluzzi allegedly consumed intoxicants and/or narcotics. As a result of allegedly ingesting these substances, Coluzzi became unfit to operate a moving vehicle. Nevertheless, at approximately 6 a.m. on January 1,1996, Coluzzi attempted to drive herself and the appellants home from the party. The appellants subsequently were injured when Coluzzi lost control of the vehicle.

The appellants filed suit against the operators of the party. In their complaint, the appellants contended the appellees were liable for their injuries on grounds (1) they encouraged the use of illegal drugs and (2) they were third-party beneficiaries to a security agreement between the appellees and the expo center. Finding no legal basis to support either of the appellant’s claims, this court granted the appellees’ preliminary objections, and dismissed the complaint with prejudice. This appeal follows.

ISSUES

I. Whether this court properly dismissed negligence claims against the appellees where the complaint fails to allege that the appellees furnished narcotic substances to their guests during the party?

II. Whether this court properly determined that the appellees were not third-party beneficiaries of the security agreement between the appellees and the Fort Washington Expo Center?

DISCUSSION

I. This Court Properly Concluded That the Appellees Were Not Liable for the Injuries Sustained by the Appellants Where the Complaint Did Not Allege That the Appellees Furnished Narcotic Substances to Their Guests.

In their concise statement of matters complained of on appeal, the appellants contend this court erred in dismissing their negligence claims. Based on the following analysis, this court disagrees with that assertion.

Initially, it is well settled that a trial court’s decision to grant preliminary objections in the nature of a demurrer should not be upset absent an error of law or a clear abuse of discretion. Bocchicchio v. General Public Utilities Corp., 456 Pa. Super. 23, 689 A.2d 305 (1997). It is equally well settled that there is no common-law liability on the part of a social host for the service of intoxicants to his or her adult guests. Congini by Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983). In Congini, our Supreme Court stated that “in the case of an ordinary able-bodied [person], it is consumption of alcohol rather than the furnishing thereof, that is the proximate cause of any subsequent damage.” Congini, 504 Pa. at 161, 470 A.2d at 517. Presently, the appellants have not alleged that Coluzzi was a minor when she attended the party and allegedly ingested narcotics. While this court recognizes that the appellees cannot claim the moral high ground, hosting, as they did, a rave party, the law in this Commonwealth is clear that social hosts are not liable to adult guests who are injured as a result of ingesting intoxicants. Congini, supra; Alumni Association v. Sullivan, 369 Pa. Super. 596, 535 A.2d 1095 (1987). Coluzzi’s consumption of narcotics was the proximate cause of the appellants’ injuries. Thus, the preliminary objections properly were sustained.

The appellants correctly contended in their response to the appellees’ preliminary objections that our Supreme Court, in Congini, created a narrow exception to the general rale against social host liability. In Congini, our Supreme Court held that social hosts are negligent per se where they furnish intoxicants to minors. In so doing, our Supreme Court concluded that because minors represent a class of persons legislatively determined to be incompetent to recognize the effects of alcohol, it is negligent to furnish them with such. The appellants attempt to stretch that holding to suggest that the appellees should be found liable for encouraging drag use, given its illegal nature. While one could argue that by proscribing drag use our legislature has concluded that the general public is incompetent to recognize the effects of narcotics, the appellants’ argument fails. As our Supreme Court instructs, for Congini’s narrow exception to apply, a social host must have furnished the offending substance. Congini, 504 Pa. at 163, 470 A.2d at 518 (holding that it “[i]s the person’s service which forms the basis of the cause of action”). Nowhere in their complaint, however, do the appellants allege the appellees furnished narcotics. Once again, although the appellees are not to be commended for their actions, no allegations exist to support a finding that they sold or provided narcotics to Coluzzi. Consequently, this court properly concluded that the narrow exception to the general rule against social host liability is inapplicable.

II. The Appellants Were Not Intended Third-Party Beneficiaries of the Security Agreement Between the Appellees and the Fort Washington Expo Center.

The appellants also contend they were third-party beneficiaries to the security agreement between the appellees and the expo center. As a result, they claim their injuries were a direct result of the appellees’ alleged failure to provide security adequate enough to keep Coluzzi from voluntarily ingesting intoxicants and/or narcotics. Again, this court finds the appellants’ claim to be meritless.

The appellants contend in their concise statement that, as paying guests, they were intended third-party beneficiaries to the security agreement between the appellees and the Fort Washington Expo Center. Prefatorily, the question of whether third-party status exists is a matter left to the sound discretion of the court, and is not a fact question to be submitted to the jury. Scarpitti v. Weborg, 530 Pa. 366, 372-73, 609 A.2d 147, 150-51 (1992).

In order to be conferred intended third-party beneficiary status, our Commonwealth requires that the party seeking such status meet the principles set forth in section 302 of the Restatement (Second) of Contracts. Gerace v. Holmes Protection of Philadelphia, 357 Pa. Super. 467, 516 A.2d 354 (1986). Echoing those principles, our Supreme Court has held:

“[A] party becomes a third party beneficiary only where both parties to the contract express an intention to benefit the third party in the contract itself,... unless the circumstances are so compelling that recognition of the beneficiary’s right is appropriate to effectuate the intention of the parties, and the performance satisfies an obligation of the promisee to pay money to the beneficiary or the circumstances indicate that the promisee intends to give the beneficiary the benefit of the promised performance.” Scarpitti, 530 Pa. at 372-73, 609 A.2d at 150-51 (1992). (citations omitted) (emphasis in original)

In Gerace, supra, ring owners whose products were stolen from a jewelry store filed suit against the security company hired by the jewelry store to provide an alarm system. The ring owners claimed they were third-party beneficiaries of the alarm system contract between the jewelry store and the security company. Our Superior Court declined to grant the ring owners third-party status, however. First, the court found there was no obligation running from the jewelry store to the ring owners to pay money for an existing debt. Moreover, it concluded no evidence existed to support a claim that, at the time of contracting, the jewelry store owner “intended to give the benefit of the promised performance to” the ring owners. Gerace, 357 Pa. Super, at 473, 516 A.2d at 358. In Rodriguez v. City of Philadelphia, Department of Human Services, our Commonwealth Court found no third-party status inured where the agreement to provide security was intended to protect the contracting parties from potential liability. 657 A.2d 105, 109 (Pa. Commw. 1995).

Similar to Gerace, in the matter sub judice, no financial obligation existed between the appellees and the appellants. More importantly, no allegations in the complaint support a claim that the appellant and the expo center intended to give the benefit of the promised performance to the appellees. There is no express indication that the appellees were intended to benefit from the security agreement, nor do compelling circumstances appear that would demand the appellees be conferred such status. Moreover, much like in Rodriguez, it appears the standard security language found in the agreement between the appellant and the expo center was crafted to protect the contracting parties alone, including, as it does, references to security for areas such as the loading dock, storage space and truck marshalling areas. Consequently, there is no legal basis to support a finding that the appellants were intended third-party beneficiaries to the security agreement.

As an additional matter, even if the appellees were found to have failed to provide adequate security for the appellants as third-party beneficiaries, they should not be found liable for failing to protect them from themselves. Nowhere in the complaint do the appellees allege Coluzzi involuntarily became unfit to drive, nor do they allege they were forced against their will to travel home with her. Moreover, our Commonwealth recognizes that no liability attaches to one who allows another to drive while under the influence of drugs or alcohol unless that person owns the vehicle or exercises control over it. Congini, 504 Pa. at 164, 470 A.2d at 519. Consequently, even if the appellants were intended third-party beneficiaries to the security agreement, no legal theory exists to hold the appellees responsible since they did not own or exercise control over Coluzzi’s vehicle.

CONCLUSION

Based on the foregoing analysis, this court’s order of September 7,1999, dismissing the appellants’ complaint with prejudice, should be upheld.


author: KENNEDY, J.,

text:
    Welsh v. Stewartstown Borough Authority
    C.P. of York County,
    no. 95-SU-05625-07.

      Michael W. Flannelly, for plaintiff.

      William H. Poole, for defendant.
    November 23, 1998
   KENNEDY, J.,

This matter is before the court on motions for summary judgment presented by plaintiff and defendant. For the reasons that follow, we will deny plaintiff’s motion and grant defendant’s motion insofar as plaintiff has an adequate remedy at law.

FACTUAL AND PROCEDURAL BACKGROUND

H&M Builders Inc. owned four lots in Ebaugh Creek, a subdivision located in Stewartstown Borough, York County. On September 28, 1994, H&M and the Stew-artstown Borough Authority entered into a tapping fee agreement which, contingent on the payment of the fees or the posting of security, gave H&M permits to connect the four lots in Ebaugh Creek to the Stewartstown sewer and water systems. Sometime in 1995, H&M transferred ownership of the lots to Lambert Construction, retaining the permits for itself. On September 14,1995, H&M and Stuart Welsh executed a form requesting that SBA transfer H&M’s permits to Welsh. At its October 25, 1995 meeting, SBA issued new sewer and water connection permits to Lambert Construction for the lots formerly owned by H&M and also approved H&M’s request for transfer of its permits to Welsh.

Welsh filed a two-count complaint in equity on December 19,1995. Count I was a claim for breach of contract seeking specific performance, or in the alternative, the lost value of the permits. Count II was in mandamus, seeking an order compelling SBA to issue permits limiting Welsh’s connection rights to the four lots previously owned by H&M and revoking the permits issued to Lambert Construction for the same four lots.

SBA filed preliminary objections to Welsh’s complaint. SBA claimed Welsh lacked capacity to sue SBA, that H&M was a necessary party to the suit, and that the complaint failed to state a cause of action due to the existence of an adequate remedy at law. This court denied SBA’s preliminary objections on March 18,1996, citing insufficient facts of record. In doing so, the court noted that it would entertain a motion for summary judgment when the factual record was sufficiently developed.

SBA filed its answer and new matter on April 11,1996. Thereafter, Welsh filed his reply to new matter on May 8,1996. The parties conducted discovery and have each filed motions for summary judgment.

ANALYSIS

Motions for summary judgment are governed by Pa.R.C.P. 1035.2 which states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of material fact as to a necessary element of a cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require issues to be submitted to a jury.”

I. Defendant’s Motion

SBA sets forth three arguments in support of its motion for summary judgment. SBA argues that Welsh lacks standing to sue because he was neither a party to, nor a third party beneficiary of, the tapping fee agreement. SBA also argues that Welsh failed to join H&M, a necessary and indispensable party. Finally, SBA argues that Welsh has an adequate remedy at law.

(A) Welsh Has Standing

SBA’s argument regarding standing focuses on Count I of Welsh’s complaint (breach of contract). SBA argues that because Welsh was not a party to, or a third party beneficiary of, the tapping fee agreement, he is not entitled to sue SBA for its breach. In reply, Welsh argues that he possesses standing to sue based on H&M’s assignment of its rights under the tapping fee agreement to him.

“Generally a party to a contract does not become liable for a breach thereof to one who is not a party thereto.” Evans v. Otis Elevator Co., 403 Pa. 13, 18, 168 A.2d 573, 575 (1961). However, “[wjhere an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of his rights.” Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 285, 687 A.2d 1167, 1172 (1997). “Among these rights are the remedies the assignor once possessed.” Id.

Paragraph 8 of the tapping fee agreement establishes the procedure for transfer of the rights created thereunder. Likewise, section IV of Stewartstown Borough Authority resolution no. 1994-02 outlines the procedure for transferring permits. In fact, H&M and Welsh executed a request for permit transfer, on a form prepared by SBA, on September 14, 1995 for the permits involved in this controversy.

Paragraph 10 of the tapping fee agreement requires a written assignment of the agreement by the owner as a precondition to any transfer or approval. SBA points to this provision and argues that there was no valid transfer of rights under the agreement due to H&M and Welsh’s failure to follow the procedure therein. Although the language of the tapping fee agreement is clear, it is equally clear that SBA approved the request for transfer at its October 25, 1995 meeting, thereby waiving the condition. An “obligor may ratify an otherwise invalid or ineffective assignment by his conduct.” Smith, 455 Pa. Super, at 286, 687 A.2d at 1172. If SBA wanted to invoke the condition of written assignment, it should have done so prior to approving the transfer.

SBA also argues that Welsh lacks standing because he is not a third party beneficiary of the tapping fee agreement. Because we have decided that Welsh has standing as an assignee this argument is moot.

(B) H&M Is Not Indispensable

SBA argues that summary judgment is appropriate because Welsh failed to join H&M, an indispensable party. “It is true .. . that unless all indispensable parties are made parties to an action, a court is powerless to grant relief.” Sprague v. Casey, 520 Pa. 38, 48, 550 A.2d 184, 189 (1988). “A party is indispensable when his or her rights are so connected with the claims of the litigants that no decree can be made without impairing those rights.” Id. “A corollary of this principle is that a party against whom no redress is sought need not be joined.” Sprague, 520 Pa. at 48-49, 550 A.2d at 189. Thus “if the merits of a case can be determined without prejudice to the rights of an absent party, the court may proceed.” Id. at 49, 550 A.2d at 189.

In Mechanicsburg Area School District v. Kline, 494 Pa. 476, 481, 431 A.2d 953, 956 (1981), the Pennsylvania Supreme Court set forth the following guidelines for determining whether a party is to be considered indispensable in pending litigation:

“(1) Do absent parties have a right or interest related to the claim?
“(2) If so, what is the nature of that right or interest?
“(3) Is that right or interest essential to the merits of the issue?
“(4) Can justice be afforded without violating the due process rights of absent parties?”

SBA’s argument that H&M is an indispensable party is primarily based on the fact that SBA and H&M were the original parties to the tapping fee agreement. Although H&M was at one time a party to the tapping fee agreement, it is not an indispensable party. As discussed above, the transfer of permits from H&M to Welsh was an assignment. An assignment is “a transfer or setting over of property, or of some right or interest therein, from one person to another, and, unless in some way qualified, it is properly the transfer of one whole interest in an estate, chattel, or other thing.” Purman Estate, 358 Pa. 187, 190, 56 A.2d 86, 88 (1948). Nothing in the record indicates that H&M retained any interest in the permits or under the tapping fee agreement after the transfer was approved by SBA at its October 25, 1998 meeting. Without any interest in the permits or this case, H&M is not an indispensable party.

(C) Welsh Has an Adequate Remedy at Law

SBA’s final argument is that Welsh has an adequate remedy at law and thus is not entitled to the relief sought in his complaint. Count I of Welsh’s complaint seeks specific performance. Essentially he requests an order requiring any sewer and water hookups to be done under the authority of the permits he now possesses. A necessary corollary of this relief would be the revocation of the permits issued to Lambert Construction. In the alternative, Welsh seeks the loss in value of the hookups attributable to the fact that they are no longer applicable to the four lots in Ebaugh Creek. Count II of Welsh’s complaint seeks mandamus in the alternative.

A decree of specific performance “will only be granted if the plaintiff is clearly entitled to such relief, there is no adequate remedy at law, and the chancellor believes that justice requires a decree.” Barnes v. McKellar, 434 Pa. Super. 597, 609, 644 A.2d 770, 776 (1994). “Specific performance compels the surrender of a thing in itself, because that thing is unique and cannot by its nature be duplicated.... The value of the object sought transcends money because it has no peer of location, antiquity, artistry or skill.” Cimina v. Bronich, 517 Pa. 378, 383, 537 A.2d 1355, 1357 (1988). (citation omitted)

Here, the objects in controversy are sewer and water connection permits. Welsh argues that specific performance is appropriate because these permits were linked with specific lots within the Ebaugh Creek subdivision. However, Welsh fails to demonstrate the uniqueness of the permits. The tapping fee agreement on which Welsh bases his case shows that these permits are transferable to both new owners and new lots. Further, the record indicates that Welsh obtained the permits from H&M for the sole purpose of resale to the current owners of the four lots in Ebaugh Creek.

The primary basis of Welsh’s complaint is that the permits he obtained from H&M were attached to particular parcels of land, and that SBA’s actions in separating the permits from these caused him harm. If Welsh is correct in his assertion that SB A’s separation of the permits from particular lots is actionable, he can be adequately compensated with money damages. Welsh himself suggests that the measure of damages is properly the difference in value between the permits attached to the specific lots and the now “at large” permits.

Welsh seeks a writ of mandamus as an alternate theory of relief. “A writ of mandamus ... is an extraordinary remedy which compels official performance of a ministerial act or mandatory duty, as opposed to a discretionary act.... The purpose of mandamus is not to establish legal rights, but to enforce those rights already established beyond peradventure. ... A writ of mandamus may be issued, only where there is a clear legal right in the plaintiff, a corresponding duty in the defendant, and lack of any other appropriate and adequate remedy....” Africa v. Horn, 701 A.2d 273, 275 (Pa. Commw. 1997). (citations omitted)

Welsh’s claim for mandamus fails on the last requirement, the lack of an adequate remedy. As discussed above, if Welsh is correct that SBA’s separation of the permits from the particular lots is actionable, he can be adequately compensated with money damages.

For the foregoing reasons, SBA’s motion for summary judgment is granted insofar as an adequate remedy at law exists.

II. Plaintiff’s Motion

In Welsh’s motion for summary judgment, he seeks an order compelling SBA to specifically perform under the tapping fee agreement and relink Welsh’s permits to the four lots in the Ebaugh Creek subdivision. Alternatively, he asks for partial summary judgment on the issue of liability and a trial on the issue of damages. Welsh also asks for summary judgment under the theory of mandamus, or, alternatively, partial summary judgment and a trial on damages.

As already discussed, Welsh has an adequate remedy at law. Should Welsh prove his claim that SBA breached the agreement assigned to him by H&M, he will be entitled to money damages. As such, Welsh’s motion for summary judgment insofar as it seeks an order for specific performance or mandamus is denied.

In the alternative, Welsh requests summary judgment as to liability and a trial on the issue of damages. Welsh’s breach of contract action is premised on the argument that SBA breached the tapping fee agreement when it separated the permits Welsh obtained from the four lots in Ebaugh Creek and issued permits to Lambert Construction for the very same lots. Welsh points to the tapping fee agreement, Stewartstown Borough resolution no. 1994-02, and the request for permit transfer in support of his argument. SBA argues that summary judgment is inappropriate because there is a material dispute of fact regarding what rights Welsh acquired from H&M and SBA following the assignment and subsequent approval of the request to transfer the permits.

The tapping fee agreement between SBA and H&M refers to four lots in Ebaugh Creek. Under its terms, H&M was entitled to one permit for sewer and water connection for each tapping fee paid. The terms of the tapping fee agreement provide that it is nontransferable for the use of any other subdivision or lot, except as provided therein. The tapping fee agreement also states that each permit shall be issued for a specific lot. The tapping fee agreement requires an owner who wishes to transfer ownership of a permit or lot for which permits have been issued, to file an application for approval with the SBA. Under the terms of the tapping fee agreement, a breach by an owner could result in a forfeiture of money paid and permits acquired. The pertinent sections of Stewartstown Borough resolution 1994-02 mirror the tapping fee agreement. The request for permit transfer specifically named Ebaugh Creek and lots 2, 37, 39 and 50. Stuart W. Welsh is named as the new owner on the request. The request lists the new location as “same as above at this time.”

While it is true that a breach of contract action can be decided on a motion for summary judgment, the fact that granting the motion prematurely ends the case against the non-moving party makes such a grant appropriate in only the clearest of cases. Payton v. Pennsylvania Sling Co., 710 A.2d 1221, 1224 (Pa. Super. 1998). Summary judgment is not appropriate when there are substantial disputes as to the facts regarding the interpretation or application of the terms of a contract. Henry v. First Federal Savings & Loan Association of Greene County, 313 Pa. Super. 128, 134, 459 A.2d 772, 775 (1983).

Welsh argues that the terms of the tapping fee agreement and SBA resolution 1994-02, coupled with the fact that SBA approved H&M’s request for permit transfer to Welsh at its October 25,1995 meeting, entitled Welsh to judgment as a matter of law. In assessing Welsh’s argument, this court is mindful of the requirement that motions for summary judgment must be viewed in the light most favorable to the non-moving party, and that all doubts as to the existence of genuine issues of material fact must be resolved against the moving party. Hayward v. Medical Center of Beaver County, 530 Pa. 320, 324, 608 A.2d 1040, 1042 (1992).

It is true that the tapping fee agreement and SBA resolution 1994-02 both state that permits are to be issued for specific lots. It is also true that SBA approved H&M’s permit transfer request at its October 25, 1995 meeting. Despite these facts, Welsh has not met his burden of establishing that the issue of liability in this case can be decided on summary judgment.

The tapping fee agreement and SBA resolution 1994-02 on which Welsh relies contain the requirement that a lot owner who desires to transfer ownership of lot for which permits had been issued was required to submit an application for approval to SBA. H&M did not submit such an application before transferring the lots to Lambert. Thus, the possibility exists that H&M was in breach when it assigned its rights under the tapping fee agreement to Welsh. Because Welsh, as assignee, steps into H&M’s shoes, this could have a bearing on SBA’s liability for breach.

The permits transfer request signed by Welsh reflects the fact that permit transfers were subject to the approval of SBA. This request lists “same as above at this time” as the lot location for the permits. The record also indicates that H&M’s request for permit transfer was granted at the same meeting at which SBA issued permits to Lambert Construction for the four lots it owned in Ebaugh Creek. Finally, there is deposition testimony in the record that indicates that an owner had never before sold a permitted lot without transferring the permits to the new owner.

While Welsh might ultimately prove that SBA is in breach, this action is not among the “clearest of cases” which are appropriate for summary judgment. Without passing on the merits of any, it appears that several possible scenarios may have been playing themselves out in this case. It may be that Welsh is correct and SBA is in breach under the tapping fee agreement; it may be that H&M breached by not seeking approval before transferring the four lots to Lambert Construction, or it may be that the parties modified the contract by their actions in response to a situation which may not have been contemplated at the time of the contracts creation.

Welsh claims his rights through H&M. Because there are material factual disputes regarding the nature of these rights, Welsh’s motion for summary judgment is denied.

ORDER

Plaintiff’s motion for summary judgment is denied. The defendant’s motion for summary judgment is granted insofar as plaintiff has an adequate remedy at law.


text:
    Waschel v. King Tour & Travel Services Inc.

      Alvin Krantz, for plaintiff.

      William Cilingin, for defendant.
    October 29, 1999
   BERNSTEIN,J.,

Plaintiff Barbara Waschel filed this negligence action against defendants King Tour & Travel Services Inc. d/b/a King Motor Coach Bus Company and Raymond Bidding alleging she sustained injuries while a passenger on a bus. Plaintiff claimed that the bus swerved to avoid striking a pedestrian, thereby causing her to fall to the floor of the bus and suffer injuries. This case presents issues of the duty of care of a common carrier, motor vehicle law, obligations and rules of the road of New Jersey, the sudden emergency doctrine and a defense of plaintiff’s duty to mitigate.

On September 28, 1999, following a pretrial conference at which the case was scheduled for trial in November 1999, an order was issued directing counsel to provide a memorandum of law addressing the applicable procedural and substantive law. Substantive memoranda were never submitted. Instead, counsel provided the court with memoranda of law which addressed only a conflict of law analysis. The defense memorandum of law argued that New Jersey law applied. Simultaneously, counsel submitted a signed stipulation stating that the case should be tried in accordance with Pennsylvania law.

Therefore, this court is presented with the following question: Can the substantive rules of the road of Pennsylvania apply to determine the legal obligations of a bus driver driving on the roads of New Jersey because the party injured in New Jersey is a Pennsylvania resident, and brings suit in Pennsylvania?

On May 30, 1996, plaintiff, a Pennsylvania resident, was a passenger on a chartered bus owned by King Tour & Travel Services Inc., a Pennsylvania corporation. The bus was driven by Mr. Bidding, an employee of King, also a resident of Pennsylvania.

Mr. Bidding was driving on Pacific Avenue, at the intersection of Brighton Avenue in Atlantic City, New Jersey. Approximately halfway into the turn, a pedestrian crossed in front of the bus. To avoid the pedestrian, Mr. Bidding swerved the bus. Plaintiff claims she was hurt. In new matter, defendants assert that plaintiff’s claim is barred by the statute of limitations and limited by plaintiff’s failure to mitigate damages.

A two part choice of law analysis must be applied. A court must first analyze whether a true or false conflict exists. “A false conflict exists if only one jurisdiction’s governmental interests would be impaired by the application of the other jurisdiction’s law. In such a situation, the court must apply the law of the state whose interests would be harmed if its law were not applied.” By contrast, a true conflict exists “when the governmental interests of both jurisdictions would be impaired if their law were not applied.”

Only if a true conflict between the laws exists must any consideration of state interests be given. In making this determination, the court should evaluate what contacts each state has with the accident, “the contacts being relevant only if they relate to the policies and interest underlying the particular issues before the court.” In performing a conflict of laws analysis relating to tort claims, courts may consider the following: the place where the injury occurred; the place where the conduct causing the injury occurred; the domicile, residence, nationality, place of incorporation and place of business of the parties; and the place where the relationship between the parties is centered. The court must perform a qualitative, not quantitative, analysis. If no difference in the law exists, there is no conflict.

It is obvious that if the laws of Pennsylvania and New Jersey are substantively the same, no conflict exists and either state’s law may be applied. In the instant case, counsel have not addressed whether there is any difference between Pennsylvania and New Jersey substantive law in the areas of motor vehicle operation, sudden emergency doctrine or duty to mitigate. For purposes of this opinion, this court will assume there is some significant difference.

Under the Griffith test, the law of the state which has the greater interest in the application of its law governs. Although the law provides for monetary payment there is a more significant purpose than to redistribute wealth after injury. The purpose of the law of negligence is to control behavior to avoid accidents and injury. In the instant case, the bus driver was driving in New Jersey and subject to the New Jersey motor vehicle laws. Pennsylvania rules of the road cannot possibly determine the obligation of a driver driving on the roads of New Jersey. Neither can it possibly control civil responsibility. If it did, and was different, the driver would be in a Hobson’s choice of exposure to New Jersey criminal violation or Pennsylvania civil liability. Therefore, applying Griffith to this case, the law of New Jersey must govern the duty of a driver. There is no significant interest that the Commonwealth of Pennsylvania furthers by having its substantive law applied as to duties of drivers where the alleged tort occurred in New Jersey.

Levin by Levin v. Desert Palace Inc., infra, is analogous. In Levin by Levin, plaintiff, a Pennsylvania resident, claimed that a Nevada hotel was negligent for failing to provide adequate security measures for plaintiff’s property in Nevada. Plaintiff requested that the court apply Pennsylvania law to their Pennsylvania lawsuit. The court denied plaintiff’s request stating:

“Obviously, Pennsylvania has an important interest in protecting the welfare of its citizens. We conclude, however, that this interest is outweighed by Nevada’s interest in regulating the conduct and prescribing the liability of hotel owners within its jurisdiction.... It could not be expected that a hotel should comply with the laws of all the states of which its guests are citizens.”

Similarly, in Hager v. Etting, plaintiff, a citizen of Pennsylvania, was injured while diving off of a dock at a party in New Jersey. The Pennsylvania Superior Court held that, although plaintiff was a Pennsylvania resident, a conflict of law did not even exist. The court stated:

“We see no significant interest that the Commonwealth of Pennsylvania would further by having its law applied as to duties of possessors of land where the alleged tort occurred in New Jersey.”

Similarly, a driver driving in New Jersey must be subject to the laws of New Jersey. Pennsylvania law cannot govern a driver on New Jersey roads. Accordingly, New Jersey substantive law shall govern the trial of this case. Counsel are directed to file points for charge as to all applicable law not later than the start of trial.

      . The Pennsylvania choice of law analysis is governed by Griffith v. United Air Lines Inc., 416 Pa. 1, 203 A.2d 496 (1964). Griffith abandoned the lex loci delicti approach and adopted a methodology which is a combination of the “government interest” analysis and the “significant relationship” approach of section 145 of the Restatement (Second) of Conflict of Laws (1971).

      . Kuchinic v. McCrory, 422 Pa. 620, 623-24, 222 A.2d 897, 899-900 (1966).

      . Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 (3d Cir. 1991).

      . Id. at 187 n.15.

      . Cipolla v. Shaposka, 439 Pa. 563, 566, 267 A.2d 854, 856 (1970).

      . Laconis v. Burlington County Bridge Commission, 400 Pa. Super. 483, 492, 583 A.2d 1218, 1222-23 (1990).

      . Griffith v. United Air Lines Inc., 416 Pa. 1, 22, 203 A.2d 796, 805 (1964).

      . Levin by Levin v. Desert Palace Inc., 318 Pa. Super. 606, 610-11, 465 A.2d 1019, 1021 (1983).

      . Hager v. Etting, 268 Pa. Super. 416, 419, 408 A.2d 856, 858 (1979).


author: MOTT, J.,

text:
    Hayford v. Athens Area School Dist.
    C.P. of Bradford County,
    no. 98CV000613.

      Harold G. Caldwell and Robert L. Miller, for plaintiffs.

      Richard A. Polachek, for defendants.
    June 9, 1999
   MOTT, J.,

The three matters captioned above arise out of the same occurrence. In the essentially identical amended complaints filed by the plaintiffs in these cases, it is alleged that on June 26, 1998, the minor plaintiffs, Shannone Lee Furman, Kohlette D. Davy, and Megan E.A. Lane, were swimming in a pool owned and operated by the defendant, the Athens Area School District. According to the amended complaints, the minors are alleged to have sustained injuries that are permanent in nature due to the negligent chemical treatment and upkeep of the pool by the school district or its agents and employees. As a result, a lawsuit has been brought on the behalf of each of the minors as well as on behalf of the parents and/or legal guardians of each minor.

The school district has filed preliminary objections in each case in the nature of a demurrer and a motion to strike certain averments that are identical in each amended complaint. The contested averments read as follows:

(16) [The school district] knew or should have known that the pool attendant was not professionally qualified to be adding chemical[s] or operating said filtration system.
(18) [The school district] knew or should have known of the proper procedure in the event of a chemical disaster which they failed to follow.
(20)(a) [The school district was negligent in failing] to exercise due care in handling of chemicals, applications of chemicals, and the certification of its employees to handle, control and apply said chemicalsf.]
(21) [The school district] owed a duty to the plaintiff to properly supervise its employees, servants and/or agents in properly operating the filtration system of the swimming pool and in adding chemicals to the system.
(22) [The school district] did not properly supervise the control and operation of the filtration system by its agents, servants and/or employees, nor did [the school district] properly supervise the adding of the chemical into the swimming pool by its agents, servants and/or employees.” Amended complaint filed in 98CV000613.

The school district bases its demurrers on the ground that it is afforded governmental immunity from this suit. In determining to grant a demurer, we must: “resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by a demurrer. ... In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery. ... If there is any doubt, it should be resolved by the overruling of the demurrer.” Mellon Bank N. A. v. Fabinyi, 437 Pa. Super. 559, 567-68, 650 A.2d 895, 899 (1994). (citations omitted)

The school district claims that it is immune from liability for the claims asserted in these amended complaints pursuant to the Act of October 5,1980, P.L. 693, no. 142, 42 Pa.C.S. §851 et seq. dealing with sovereign immunity. Section 8541 of that Act reads that “no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person,” 42 Pa.C.S. §8541. However, an action may be maintained against a governmental unit if two threshold conditions are met and if the injury occurs as the result of one of the eight specific actions enumerated in the Act. 42 Pa.C.S. §8542. The two threshold conditions are: (1) the damages would be recoverable under the common law or a statute, absent the defense of sovereign immunity; and (2) the injury is caused by the negligent act(s) of the governmental unit or an employee thereof acting within the scope of his office or duties. 42 Pa.C.S. §8542(a)(l) and (2). See also, Kilgore v. City of Philadelphia, 553 Pa. 22, 26, 717 A.2d 514, 516 (1998). The school district has not advanced any argument that the two threshold conditions are not met by the facts averred in the plaintiffs’ amended complaints. We find that even a cursory review of those complaints reveals that, taking the plaintiffs’ allegations as true, the threshold conditions are met.

The school district essentially argues that its demurrer should be sustained because none of the alleged negligent acts averred in the amended complaints fall within any of the eight specific exceptions to sovereign immunity enumerated in §8542(b) of the Act. The only exception which, if applicable, may subject the school district to liability is enumerated in 42 Pa.C.S. §8542(b)(3). It is there stated that a governmental unit may be liable for its employees ’, or its own, negligence related to the “care, custody or control of real property” in its possession. 42 Pa.C.S. §8542(b)(3).

Here, it is clear that a swimming pool is a part of the school district’s real property. Moreover, it is clear that the basis of the negligence alleged by the plaintiffs relates to the “care, custody, [and] control” exercised by the school district’s employee over that real property.

Accordingly, we find that the acts of negligence alleged by the plaintiffs fall within the real property exceptions enumerated in 42 Pa.C.S. §8542(b)(3). As such the school district’s demurrer and motion to strike will be overruled.

The school district has also filed a preliminary objection wherein it is asserted that a broad averment of negligence identical to each of the amended complaints lacks the necessary specificity. The contested averment reads as follows:

“(20)(f) [The school district is liable for such] other negligent acts and/or omissions as will become evident in the course of discovery and trial.” Amended complaint filed to 98CV000613.

We agree with the school district that such an allegation is only a boilerplate allegation of negligence and provides no notice to the school district as to what it must defend against. Accordingly, we will sustain the preliminary objection and order the paragraph stricken.

Accordingly, we enter the following:

ORDER

And now, June 9, 1999, the preliminary objections of the defendant, Athens Area School District, are sustained in part and overruled in part. The objections to paragraph 20(f) of the amended complaint filed to 98CV000613; paragraph 21(f) of the amended complaint filed to 98CV000614; and paragraph 15(f) of the amended complaint filed to 98CV000615 are sustained. As a result, those paragraphs are stricken from the amended complaints. In all other respects, the preliminary objections are overruled. As a result, the defendant, Athens Area School District, shall have 20 days from the date of this order to file an answer to each amended complaint.

      . We note here that the five paragraphs are identically averred in the amended complaints for the other two cases and are numbered: 17, 19, 21(a), 22 and 23, in the amended complaint filed to 98CV000614; and 11, 13, 15(a), 16 and 17 in the amended complaint filed to 98CV000615.

      . A demurrer is raised pursuant to Pa.R.C.P. 1028(a)(4).

      . In Kilgore, the author of the majority opinion cited the statutory source of the so called two threshold conditions as 42 Pa.C.S. §8542(b)(l) and (2). In fact, §8542(b)(l) and (2) detail two of the eight acts that may impose governmental liability. Because the Kilgore opinion described the two threshold conditions enumerated in §8542(a)(l) and (2), we will assume that it was intended to cite to that paragraph of the statute.

      . The scope of the real estate exception of §8542(b)(3) is considered by some to have undergone an expansion in its scope since our Supreme Court’s decision in Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997). For an overview of the exception’s applicability post-Griejf, see Kilgore v. City of Philadelphia, supra, and Snyder v. North Allegheny School District, 722 A.2d 239 (Pa. Commw. 1998).

      . Such an objection is raised pursuant to Pa.R.C.P. 1028(a)(3).

      . The paragraph and objection thereto have identical counterparts in the other two actions. The complained of paragraph is numbered as 21(f) in the amended complaint filed to 98CV000614 and as 15(f) in the amended complaint filed to 98CV000615.


author: HERMAN, J.,

text:
    Carbaugh v. Prudential Property and Casualty Insurance Co.

      C.P. of Franklin County,
    no. A.D. 1994-111.

      Charles E. Ganley, for plaintiff.

      Karl A. Hildabrand, for defendant.
    October 5, 1999
   HERMAN, J.,

INTRODUCTION

Before the court is a motion for summary judgment filed by the defendant Prudential Property and Casualty Insurance Company on August 13,1999 to the complaint filed by the plaintiff Doris Carbaugh. The plaintiff, who was an insured of the defendant, was injured in an automobile accident. She brings claims of breach of contract and bad faith arising out of the defendant’s initial refusal to pay medical bills for treatment she underwent after the accident. We have reviewed the record and the briefs. For the reasons which follow, we will grant the defendant’s motion.

BACKGROUND

The plaintiff’s accident occurred on January 21,1993. She began treating with various physicians and submitted bills to the defendant for payment pursuant to her insurance policy which provided for first-party medical benefits. The defendant referred her claim to Claims Review Associates, a peer review organization. Dr. Leonard B. Kamen D.O., the physician engaged by Claims Review Associates to perform a peer review of the plaintiff’s file, issued a report to the defendant on or about September 21, 1993 in which he found the plaintiff had received more weeks of therapy than was justified by the documentation submitted by the treating physicians. One of those physicians, Dr. Jay D. Bayer D.O., received a copy of the report and requested that the defendant reconsider Dr. Kamen’s conclusions. The defendant requested Dr. Bayer to submit any additional information he believed was important to the plaintiff’s claim file. Dr. Bayer forwarded a letter dated October 26,1993 to Belinda Finley, an employee of the defendant who was assigned to handle the plaintiff’s file.

The defendant referred the file to Claims Review Associates for a second peer review. Dr. Bayer’s letter was part of the file at that point. The PRO engaged Dr. Earl J. Wenner Jr. D.O. who issued a peer review reconsideration report on February 18,1994. Dr. Wenner concurred with Dr. Kamen’s finding that some treatment undertaken by the plaintiff’s physicians had been appropriate and necessary to treat her injuries, but that some therapy had been excessive and other available treatments had not been undertaken or were undertaken only after a delay. Dr. Wenner concluded that it was unclear whether all of the plaintiff’s injuries were in fact causally related to the automobile accident. Specifically, he found that the documentation from the treating physicians was somewhat incomplete, and certain tests had not been performed which might have shed light on the nature and origin of the plaintiff’s symptoms. Dr. Wenner believed there was a strong probability the plaintiff had preexisting conditions. Based on Dr. Wenner’s report, the defendant again refused to pay some of the plaintiff’s bills.

The plaintiff filed a writ of summons on March 18, 1994. The complaint was filed on June 2,1994. The defendant engaged Dr. William P. Graham III M.D. to perform an independent medical examination of the plaintiff. In his report of September 21, 1995, Dr. Graham stated he was unaware of any evidence suggesting the plaintiff had preexisting conditions not attributable to the car accident and opined that her condition was compatible with the injuries she sustained in that accident. He also indicated she needed further treatment, specifically surgery. After reviewing Dr. Graham’s IME report, the defendant paid the plaintiff’s outstanding medical bills.

While Dr. Graham’s report was pending, the defendant filed preliminary objections and the court ruled on September 13, 1995. Preliminary objections were also filed to the amended complaint and a second opinion was issued on April 11, 1996. A second amended complaint was filed on April 30, 1996.

DISCUSSION

Breach of Contract Claim

The plaintiff alleges the defendant breached its insurance contract to pay first-party benefits for reasonable and necessary medical treatment for injuries she sustained in the car accident by refusing to pay her medical bills. The plaintiff also alleges the defendant acted in bad faith in refusing to pay those bills. The defendant asserts it is entitled to a grant of summary judgment on both the contract and bad faith claims.

Summary judgment is governed by Pennsylvania Rule of Civil Procedure 1035.2 which states:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

There is no issue to be submitted to a jury where the record contains insufficient evidence of facts to make out a prima facie case. “[T]he mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial.... We have a summary judgment rule in this Commonwealth in order to dispense with a trial of a case ... where a party lacks the beginnings of evidence to establish ... a material issue.” Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1041 (1996). (citations omitted) The nonmoving party, in this case the plaintiff, must come forward with evidence showing the existence of facts essential to her causes of action of breach of contract and bad faith. At the same time, the court in reviewing the motion must view the record in the light most favorable to the nonmoving 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 (1992).

In support of her contract claim, the plaintiff cites section 1797(b)(1) and (4) of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. 1701 et seq. Section (b)(1) allows an insurer to refer a payment claim to a peer review organization which evaluates the circumstances of the claim to determine whether the medical services rendered conform to professional standards of performance and are medically necessary. Section (b)(4) permits an appeal to the court for an insurer’s refusal to pay for medical services and allows for treble damages if the insurer’s conduct is found to be wanton.

There is no dispute that the plaintiff’s medical bills have all been paid. Some were paid before suit was filed and others were paid after the IME report was completed following the onset of suit. The defendant maintains that the plaintiff’s grounds for recovering for breach of contract vanished once all her bills were paid and there is authority for that position. Klinger v. State Farm Mutual Automobile Insurance Co., 895 F. Supp. 709 (M.D. Pa. 1995). We have closely reviewed the pleadings and the plaintiff’s answer to the motion for summary judgment and find that the plaintiff has not produced any evidence or advanced any compelling argument to the contrary. The defendant’s motion for summary judgment will therefore be granted as to this claim.

Bad Faith Claim

The plaintiff also seeks damages for bad faith. This claim arises under 42 Pa.C.S. §8371 which provides:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorneys fees against the insurer.”
“Bad faith” by an insurer is any frivolous or unfounded refusal to pay proceeds of an insurance policy, even if that refusal is not fraudulent. The term denotes conduct undertaken for a dishonest purpose and a breach of the duty of good faith and fair dealing through some motive of self-interest or ill will. Woody v. State Farm Fire and Casualty Co., 965 F. Supp. 691 (E.D. Pa. 1997). A plaintiff must show that the insurer lacks “a reasonable basis” in its refusal to pay and that the insurer “recklessly disregarded its lack of reasonable basis in denying the claim.” Terletsky v. Prudential Property & Casualty Insurance Co., 437 Pa. Super. 108, 125, 649 A.2d 680, 688 (1994). The plaintiff asserts that the following conduct by the defendant demonstrates bad faith: The defendant refused to pay some medical bills and referred them to peer review without a reasonable basis. The defendant relied on a defective peer review reconsideration report in continuing to refuse to pay for some bills. The defendant failed to timely submit the file for reconsideration. The defendant utilized a PRO with whom it was too closely associated, raising the question of whether that PRO could be truly objective in evaluating claims. Finally, the defendant paid all outstanding bills only after suit was filed.

The defendant urges the court that use of the peer review process as permitted by section 1797(b)(1) of the MVFRL cannot as a matter of law constitute bad faith. We have previously rejected this argument, twice in this case and in two similar cases, based on the current state of authority which leaves open the possibility that an insured can bring an action for bad faith under 42 Pa.C.S. §8371 when an insurer utilizes the peer review process. Our rejection of this argument in this case occurred in the context of preliminary objections. It would have been premature for us to dismiss the plaintiff’s bad faith claim based solely on the pleadings. Now that the plaintiff has had the opportunity to develop a record through discovery, the question is whether she has produced evidence of facts essential to that cause of action. A review of the record forces us to answer that question in the negative.

The plaintiff alleges the defendant had no reasonable basis for referring some of her medical bills to the first peer review. What facts has the plaintiff adduced to support this allegation? The plaintiff deposed Beulah Kelliehan who worked as a claims handler for the defendant at the time the plaintiff’s file was under review. Kelliehan was assigned the plaintiff’s file, but only after suit was commenced in March of 1994. Another employee, Belinda Finley, was the claim handler first assigned to review the file. According to Kelliehan, Finley would have been the one to refer some of the bills to peer review to determine whether the medical services the plaintiff received were medically necessary under section 1797(b) of the MVFRL. Plaintiff’s counsel questioned Kelliehan about the plaintiff’s claim file at her deposition:

“Q: Will you be able to look at the first-party file today and explain some of the decisions that were made in this case?
“A: I’ll do the best that I can, because I don’t know the reasons why everybody did what they did.” (Deposition testimony, p. 8.)

The plaintiff did not depose Belinda Finley and therefore her specific reason for referring the file to peer review is not part of the record. In the absence of her testimony, we have directly examined all the documents of record, including the deposition exhibits, but find no evidence whatsoever supporting the notion that the decision to send the plaintiff’s file to the first peer review constituted bad faith. It was the plaintiff’s burden to come forward with specific evidence showing that a question of fact exists for a jury as to whether the defendant’s conduct was unreasonable. We cannot send a case to a jury based on the mere speculation that there was something improper in the decision to refer bills to peer review. The plaintiff has not meet her burden on this issue.

We are well aware of the principle, cited by the plaintiff, that oral testimony alone, either through testimonial affidavits or depositions of the movant or his witnesses, is generally insufficient to establish the absence of a genuine issue of material fact, even if the affidavits or depositions are uncontradicted. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A.2d 523 (1932). The plaintiff urges us not to grant summary judgment based on Kelliehan’s deposition because it is for the jury to evaluate her credibility. Our discussion of Kelliehan’s deposition should not be misconstrued as a blanket acceptance of its truthfulness or accuracy; credibility determinations are indeed the province of the jury, and Kelliehan does not have firsthand knowledge of the circumstances surrounding the determination to send the claim to a PRO. However, it is precisely for this reason that the plaintiff should have deposed Belinda Finley, the person who actually decided to refer the matter to peer review. It was the plaintiff’s burden to produce some evidence showing that Finley’s decision to send the file to peer review was a frivolous one and that she was motivated by a dishonest purpose or ill will. We have no evidence before us in the record pointing to a conflict in the facts on this issue which the jury would need to resolve.

The plaintiff also alleges the insurer acted in bad faith because it referred her file to a PRO with whom it was too closely associated, thereby calling into question that PRO’s ability to objectively review claims. The plaintiff elicited testimony from Kelliehan that the defendant maintained in/out boxes in its office specifically for Claims Review Associates. Kelliehan went on to testify, however, that four or five other PROs also maintained in/out boxes at the defendant’s office during the time period in question. (Kelliehan deposition, pp. 10-11.) This evidence directly undercuts the assertion that the defendant had an unduly close relationship with Claims Review Associates. The plaintiff failed to produce any evidence to show the defendant acted in bad faith by using that PRO to evaluate her bills.

We are aware of the cases cited by the plaintiff which examine the relationship between a PRO and the insurer with whom it contracts. A three-judge panel in Henninger v. State Farm Insurance Co., 719 A.2d 1074 (Pa. Super. 1998), reversed the trial court’s grant of summary judgment to an insurer where the plaintiff had brought suit against the insurer for failure to pay for medical treatments which the plaintiff asserted were reasonable and necessary. The Henninger court held that summary judgment was improper where the insurer based its motion solely on the testimony of two physicians chosen by the PRO to conduct peer reviews of the plaintiff’s claim for benefits. The court relied on the following language in Terminato v. Pennsylvania National Insurance Co., 538 Pa. 60, 645 A.2d 1287 (1994):

“A PRO is not a neutral body. While a PRO cannot be owned by or be otherwise affiliated with the insurance company (31 Pa. Code §68.3(d)), the law provides for the insurance company to select the PRO that will review the claim. The insurance company initially pays the PRO for its services. The insured plays no role in the selection process. Obviously, PROs have a strong financial incentive to appear fair in the eyes of the insurance company. Otherwise, the insurance company will take its business elsewhere. On the other hand, the PRO is not concerned with how the insured views the PRO because this will not affect its future business. Consequently, the PRO does not have the characteristics of an independent body for which the legislature would seek judicial deference.” Id. at 68, 645 A.2d at 1291.

Based on this passage in Terminato, the Henninger court found it inappropriate to grant summary judgment because the plaintiff was entitled to have a jury assess the credibility of the physicians and their conclusions as to whether the plaintiff’s medical treatments were reasonable and necessary. Citing those cases, the instant plaintiff alleges she too is entitled to a jury trial on the issue of bad faith because the PRO used by the defendant was inherently biased in the defendant’s favor.

Our close review of Henninger indicates that it does not support the plaintiff’s claim and is in fact inapposite to the instant case. Henninger does not stand for the proposition that a plaintiff-insured alleging bad faith is entitled to proceed to trial merely because the insurer utilized the peer review process. Rather, that court merely followed Terminato in noting that the peer review process under section 1797 has an inherent bias toward the insurer and that a plaintiff-insured is entitled to have a jury evaluate the PRO’S conclusion about the reasonableness and necessity of medical treatment. The Superior Court did not even address the issue of bad faith under section 8371 of the Judicial Code because the plaintiff did not challenge the trial court’s grant of summary judgment as to that claim, and in fact they are separate inquiries. (See p. 1076 n.5.) There is no authority for the assertion that an insurer acts in bad faith merely by following the peer review process set out in the MVFRL. In response to a motion for summary judgment, the plaintiff must point to facts which specifically show the insurer used the peer review process in a manner constituting bad faith. He cannot simply rest on the idea that a PRO has an inherent bias in favor of the insurer in order to meet the defendant’s summary judgment motion.

The instant plaintiff has adduced no specific evidence showing the defendant acted in bad faith by using the peer review process provided for in section 1797. Therefore, the defendant is entitled to summary judgment on the bad faith claim.

As to the next issue, the plaintiff contends Dr. Wenner’s reconsideration report was defective on its face and therefore the defendant acted in bad faith by relying on that report in refusing to pay bill's. After reviewing the documentation submitted by the plaintiff’s treating physicians, as well as Dr. Kamen’s report, Dr. Wenner concluded there was a strong likelihood that factors predating the automobile accident were at play in the plaintiff’s conditions. The plaintiff alleges Dr. Wenner should have confined himself to determining whether the treatments and bills were reasonable and necessary to treat the plaintiff’s injuries but instead overstepped his peer reviewer role by engaging in a causation analysis, i.e., by suggesting that the accident may not have caused all aspects of the plaintiff’s condition.

As indicated above, section 1797(b)(1) authorizes insurers to refer payment claims to peer review to determine whether medical services rendered are medically necessary. Inherent in this inquiry is whether services for which the insured seeks benefits are necessary in light of the automobile accident; an insurer should not be expected to pay for services to treat conditions which arose from incidents or factors causally unrelated to that accident.

An insurer’s power to deny payment for the treatment of conditions causally unrelated to the accident has yet to be directly addressed by our appellate courts. In Bodtke v. State Farm Mutual Automobile Insurance Co., 432 Pa. Super. 31, 637 A.2d 648 (1994), reversed on other grounds, 540 Pa. 540, 659 A.2d 541 (1995), the court stated that a PRO’S decision that certain injuries of insured were not related to accident and were not covered under automobile policy was within scope of statute governing peer review plan for challenges to reasonableness and necessity of treatment. “[[T]he PRO’S determination that] certain injuries treated were not related to the accident is simply another way of stating that they were not medically necessary.” Id. at 35, 637 A.2d at 649. This language appears only as dicta, however. The issue was raised in Terminato (which was decided a few months after Bodtke) but was not addressed because the court’s ruling was based on other issues. See Terminato, supra at 68 n. 1, 645 A.2dat 1291 n.1.

Following the plaintiff’s argument to its logical conclusion would produce an absurd result contrary to section 1797. For example, an insured suffering the lingering effects of a childhood illness who later sustained injuries in a car accident would be entitled under the plaintiff’s logic to receive payment not only for conditions related to the accident, but also for conditions caused by the preexisting childhood illness. Such a result would undermine not only the legislative scheme, but also the inherent nature of automobile insurance policies, which are contracts specifically premised on the possibility that an insured might suffer an injury from an automobile accident, rather than some other kind of accident or as the result of a disease or illness. In the absence of appellate guidance, we will rale in a manner consistent with the legislative scheme and the rationale underlying the contractual nature of automobile insurance policies.

The plaintiff also alleges the defendant failed to timely submit the plaintiff’s claim to peer review for reconsideration. Dr. Kamen’s PRO report was issued on September 21, 1993. Dr. Bayer requested reconsideration and the insurer asked him to provide any additional information he believed was relevant. Dr. Bayer prepared a lengthy letter dated October 26, 1993 which he sent to Belinda Finley for the reconsideration. In the introduction to his reconsideration report dated February 18,1994, Dr. Wenner sets forth the records which he consulted in reaching his conclusions. In addition to Dr. Kamen’s report and Dr. Bayer’s letter, he reviewed a consultation report of one of the plaintiff’s treating physicians, Dr. Peter G. Wallick M.D., dated December 20, 1993, and Dr. Bayer’s handwritten notes of January 12, 1994. Dr. Wenner’s report was issued just under five weeks after Dr. Bayer’s last handwritten notes were made.

In her brief in opposition to the defendant’s motion for summary judgment, the plaintiff states: “On February 18, 1994, nearly five months after the initial peer review, Dr. Earl J. Wenner conducted the reconsideration. The defendant’s failure to timely submit this claim for reconsideration is in blatant disregard of 75 Pa.C.S. §1797 . . . .” (Page 8.) Section 1797(b)(2) provides that “An insurer, provider or insured may request a reconsideration of the PRO’S initial determination. Such a request for consideration must be made within 30 days of the PRO’S initial determination ....” Dr. Kamen issued his report on September 21, 1993. The defendant sent Dr. Bayer a copy of that report on or about October 21, 1993. Dr. Bayer requested the defendant to seek reconsideration through his letter of October 21, 1993. We have combed the record but cannot find the precise date on which the defendant forwarded the plaintiff’s file to Claims Review Associates or when Claims Review Associates forwarded the file to Dr. Wenner for his review. Without that information, which the plaintiff has the burden of producing, we are left with a record which indicates that an interval of only five weeks passed between the time the last documents were generated by the plaintiff’s treating physicians and the issuance of Dr. Wenner’s report, which logically he could not have completed until he had received and reviewed all relevant treatment information. The plaintiff cannot avoid summary judgment on this issue.

Finally, the plaintiff alleges the defendant acted in bad faith by paying all outstanding bills only after suit was filed. Beulah Kelliehan testified that the file was transferred to her after suit was filed and she assigned counsel to meet the complaint’s allegations. Once suit was commenced, the defendant engaged Dr. Graham to conduct an independent medical examination. The defendant paid all outstanding bills upon receipt of Dr. Graham’s report. Kelliehan identified several other individuals who worked on the file during the litigation phase and stated that she herself made no decisions as to when the outstanding bills should be paid.

Simply because Dr. Graham ultimately agreed with Dr. Bayer’s initial finding that the plaintiff’s injuries were related to the automobile accident does not constitute evidence that defendant refused in bad faith to pay certain benefits. The plaintiff could have ascertained whether there was something improper behind the delay in payment by deposing one or more of those individuals directly responsible for the timing of that decision. Again, in the absence of such evidence, we are left with nothing more than a speculation that the defendant’s conduct was in bad faith and this is an inadequate basis on which to proceed to trial.

The plaintiff has not come forward with sufficient evidence of facts essential to her cause of action for bad faith to warrant sending the case to a jury. The record before us “lacks the beginnings of evidence to establish a material issue” of fact. Ertel, supra. The motion for summary judgment will be granted. An appropriate order of court will be entered as part of this opinion.

ORDER

Now, October 5,1999, the defendant’s motion for summary judgment as to the plaintiff’s claims of breach of contract and bad faith is hereby granted.

      . Dr. Kamen’s report appears in the record as exhibit A attached to the defendant’s answer to the complaint.

      . Dr. Wenner’s report appears in the record as exhibit I attached to the complaint. Dr. Bayer’s letter of October 26,1993 which Dr. Wenner references does not itself appear in the record.

      . Dr. Graham’s IME report appears in the record as exhibit J attached to the complaint.

      . Strictly speaking, the plaintiff’s cause of action does not arise “in contract,” but from the MVFRL, which is a statute.

      . The plaintiff also argues the defendant violated section 1797(b)(2) by relying on the conclusions of two PRO physicians whose areas of specialty were different from those of Dr. Bayer. This issue is raised here for the first time in the plaintiff’s brief and therefore was not brought before the court in a timely manner.

      . Opinions filed September 13, 1995 and April 11, 1996 in this case; Milton S. Hershey Medical Center v. State Farm Insurance Co., 21 D.&C.4th 62 (1992) (C.P. Franklin County); Backstrom v. State Farm Insurance Co., A.D. 1997-219, C.P. Franklin County, January 26, 1998.

      . Thel6 exhibits attached to Kelliehan’s deposition and about which she was questioned are documents generated by the defendant, Claims Review Associates and Dr. Bayer during the claims review process.

      . The plaintiff could have sought leave of court to supplement the record with additional discovery or depositions in order to flesh out the factual record pursuant to Pa.R.C.P. 1035.3(b) and (c), but did not do so.

      . The issue in Terminato was whether an insured is required to seek reconsideration of an adverse peer review decision before bringing an action in common pleas court to recover benefits under an automobile insurance policy. The court held in the negative because the legislature did not intend for the doctrine of exhaustion of administrative remedies to apply to the peer review process.
      “The peer review process [under section 1797(b)] is a mechanism through which an insurer may seek a professional assessment of the reasonableness and necessity of medical treatment in order to independently determine whether a claim should be paid or denied. It assists insurers in making an informed decision regarding a medical claim by mandating review by a medical professional when the claim is challenged by the insurer.” Id. at 71, 645 A.2d at 1292.

        Terminato does not stand for the proposition that using peer review process in itself constitutes bad faith.

      . This approach is consistent with the opinion and order entered by the Honorable John R. Walker on June 14, 1999 in Backstrom v. State Farm, A.D. 1997-21, granting partial summary judgment in the defendant’s favor because the plaintiff failed to adduce specific evidence showing an issue of material fact as to whether the defendant had acted in bad faith by using the peer review process.

      . Exhibit A attached to the plaintiff’s answer to the motion for summary judgment.

      . Because we have granted the motion for summary judgment, there is no need for us to rale on the defendant’s motions in limine which were filed concurrently.