author: MINORA, J.,

text:
    Barnes v. Delaware and Hudson Railway Inc.

      Jerry Martilotti, for plaintiff.

      J. Lawson Johnston, for defendant.
    October 10, 2012
   MINORA, J.,

The issue before the court is the defendant’s Delaware and Hudson Railway Inc. d/b/a Canadian Railway a/k/a Rail System (herein after defendant) motion for summary judgment.

HISTORY OF THE CASE

This case arises from plaintiff’s allegations that he was injured on the job while working as an engineer for defendant. Plaintiff alleges that as a result of these injuries he suffered repetitive stress damage to his cervical, thoracic and lumbar spine. These stress disorders were caused by plaintiff’s need to repeatedly walk on uneven ground on the rail yard, on ballasts, on rail cars, being exposed to the constant vibrations of rail equipment, being provided with inadequate seating, and ascending and descending ladders on rail cars. According to plaintiff, since plaintiff’s work, and defendant’s industry are in furtherance of interstate commerce, his cause of action arises under the federal employers’ liability act, 45 U.S.C. §51 et seq.

On March 5, 2012, defendants filed a motion for summary j udgment and brief in support of their motion. On March 28, 2012, plaintiff filed a response to defendant’s motion for summary judgment and a memorandum in opposition.

Defendant’s Delaware and Hudson Railway Inc. d/b/a Canadian Railway a/k/aRail System’s motion for summary judgment is now ripe for disposition.

DISCUSSION

Defendant has raised three (3) issues in their motion for summary judgment. These issues are: 1) Whether the plaintiff has filed his claim within the applicable three year statute of limitations; 2) Whether the plaintiff can offer evidence in support of his future wage loss claim; and 3) Whether plaintiff will be able to offer evidence that his claim of walking on uneven ballast or exposure to excessive vibrations constitute negligence on the part of defendant or that they caused his alleged injuries?

Plaintiff has withdrawn any claims of wage loss or loss of earning capacity. Therefore summary judgment is no longer necessary as to that issue. The only remaining issues to be decided are: whether the plaintiff has filed his claim within the three year statute of limitations, and whether plaintiff can sustain a cause of action for negligence based upon exposure to excessive vibrations and walking on uneven ballast during his employment?

SUMMARY JUDGMENT STANDARD

A motion for summary judgment is governed by Pa. R.C.P. 1035.2 which states, in pertinent part:

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 juiy.

When deciding a motion for summary judgment, the rules require that there be no genuine issues of material fact and that the moving party be entitled to judgment as a matter of law. Summers v. Certainteed Corp., 997 A.2d 1152, 1159 (Pa. 2010). A material fact is one that directly affects the outcome of the case. Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000). Aproper grant of summary judgment depends upon an evidentiary record that either: 1) shows that the material facts are undisputed; or 2) contains insufficient facts to make out a prima facie cause of action or defense and therefore, there is no issue to submit to jury. Gateway Towers Condominium Ass’n v. Krohn, 845 A.2d 855, 858 (Pa.Super., 2004); See also Pa.R.C.P. 1035.2. For purposes of a summary judgment motion, a nonmoving party may not rely merely upon allegations in pleadings, but must set forth specific facts by way of affidavit or in some other way to demonstrate that genuine issue of material fact exists. Banks v. Trustees of University of Pennsylvania, 666 A.2d 329 (Pa. Superior 1995); See also Pa.R.C.P. 1035.2.

However, “summary judgment is to be entered only in the clearest of cases where there is not the slightest doubt as to the absence of a triable issue of material fact.” Northern Tier Solid Waste Authority v. Com., Dept. of Revenue, 860 A.2d 1173, 1182 (Pa. Cmwlth. 2004). When considering the facts at issue, said facts must be interpreted in the light most favorable to the non-moving party, and any doubt as to whether a genuine issue of material fact exists is required to be resolved against the party seeking summary judgment. Summers v. Certainteed Corp., supra at 1159. “Finally, the court may grant summary judgment only where the right to such a judgment is clear and free from doubt.” Id.

However, the standards relating to the grant or denial of summary judgment under FELA are more liberal than the traditional common law analysis. The plaintiff’s burden of proof in a FELA case is less than in a negligence case. Lisek v. Norfolk and W. Ry. Co., 80 F.3d 823, 832 (7th Cir.1994). The railroad is liable if “the proofs justify with reason the conclusion that employer negligence played any part, even the slightest in producing the injury ...” Id. Accordingly, a plaintiff can survive a summary judgment motion “when there is even slight evidence of negligence.” Id. However, “a FELA plaintiff is not impervious to summary judgment,” and the court may properly grant the railroad’s summary judgment motion where “the plaintiff presents no evidence whatsoever to support the inference of negligence.” Id. “To establish that a railroad breached its duty to provide a safe workplace, the plaintiff must show circumstances which a reasonable person would foresee as creating a potential for harm.” McGinn v. Burlington N.R.R. Co., 102 F.3d 295, 300 (7th Cir.1996). To establish such foreseeability, a plaintiff must show that the employer had actual or constructive notice of those harmful circumstances.” Holbrook v. Norfolk S. Ry. Co., 414 F.3d 739, 742 (7th Cir.2005).

LEGAL ANALYSIS

Whether Richard Barnes’ claim is barred by the applicable statute of limitations?

In its motion for summary judgment, defendant alleges that plaintiff has failed to bring his claim within the statute of limitations under the Federal Employees Liability Act (FELA). Pursuant to FELA, the plaintiff has three years from the day the cause of action accrued to maintain an action. 45 U.S.C.A. §56. Compliance with 45 U.S.C. §56 is a condition precedent to an injured employee’s recovery in a FELA action. Pfahler v. Consolidated Rail Corp., Pa. Super. 36, 537 A.2d 36, 369 (1988). Typically, for a traumatic injury the cause of action accrues on the day the injury is sustained, even though the full extent or seriousness of the injury is not ascertained until a later date. Snyder v. Penn Cent. Transp. Co., Pa. Super. 69, 442 A.2d 300 (1982). Flowever, the United States Supreme Court declared in Reading Co. v. Koons, 271 U.S. 58 (1926), that the word “accrued,” as used in the statute, does not have any definite technical meaning and must be interpreted in the light of the statute’s general purposes and its other provisions, and with due regard for the practical ends to be served by any statue of limitations. A number of cases have held that an employee’s cause of action under FELA for an injury or disability which is not manifest at the time of its inception does not accrue, within the meaning of §56, until the injury or disability manifests itself. In Urie v. Thompson, 337 U.S. 163 (1949), it was held that the cause of action accrued, within the meaning of §56, when the accumulated effects of the deleterious substance manifested themselves. Therefore, where an injury results from continual exposure to a harmful condition over a period of time, a plaintiff’s cause of action accrues when the injury becomes apparent. McCain v. CSX Transp., Inc., 708 F.Supp.2d 494, 498 (E.D. Pa. 2010).

In Fowkes v. Pennsylvania R. Co., 264 F.2d 397 (1959), where a railroad boilermaker’s injuries could not be attributed to a single instance, the court expressly permitted the question whether, under the doctrine of the Urie case, the cause of action did not accrue until the boilermaker knew or should have known that the injurious condition had developed. As seen in Fowkes, the most difficult cases in which to determine when the cause of action accrues, for purposes of the FELA’s three-year limitation period, are when the employee is injured over a period of time as the result of exposure to chronic unsafe workplace conditions. However, because of the various facts that must be taken into account, accrual of a cause of action in occupational disease cases almost always is a question for the jury. Dubois v. Kansas City Southern Ry. Co., 729 F.2d 1026 (5th Cir. 1984). Because compliance with the limitation is regarded as an element of a FELA cause of action, it is generally recognized that the plaintiff has the initial burden of proving institution of the suit within three years. But if reasonable persons can differ regarding when a plaintiff knew, or should have known, that an injury was caused by railroad working conditions, the question of accrual is uniquely for the jury. Gay v. Norfolk and Western Ry. Co., 438 S.E.2d 216 (1997). Finally, de minimus aches and pains generally will not trigger statute of limitation accrual. Green v. CSX Transp., Inc., 414 F.3d 758 (7th Cir. 2005).

Since plaintiff’s complaint was filed on December 5, 2005, and plaintiff must therefore demonstrate that he was not aware of the existence of his claim or work-related injuries until, on, or after December 5, 2002. Defendant alleges that plaintiff’s deposition testimony medical records as well as his wife’s deposition testimony demonstrate that he was aware or should have been aware of the onset of his injuries before December 5,2002, more than three years before filing his complaint. In contrast, Plaintiff refers to his depositions in claiming that although he occasionally felt pain in his back, which occurred after certain activities pertaining to his employment, he did not believe that there was a long term problem manifesting as a result. Plaintiff’s awareness of his injuries and their cause is a factual question at issue. Plaintiff is entitled to have a jury decide whether and when a reasonable person in his circumstances should have realized that he had suffered more than de minimis injuries, but rather cumulative injuries to his back, and that the injury was work related. Accordingly, defendant’s motion for summary judgment as to the statute of limitations under FELA is denied.

Whether plaintiff’s claims of uneven ballast and excessive vibration are unsupported by the evidence?

In its motion for summary judgment, defendant alleges that plaintiff has failed to provide support for his claims of uneven walking surface or excessive vibrations constituting evidence of negligence and/or the cause of his alleged injuries. Defendant avers that plaintiff cannot satisfy his burden with respect to the element of causation in order to support a claim of negligence in regards to the alleged vibrations and uneven walking surfaces. In the typical negligence case, whether the plaintiff has shown by a preponderance of the evidence that the standard has been met with respect to the element of causation is normally a question of fact for the jury. Vernon v. Stash, 532 A.2d 441, 446, 367 Pa.Super. 36, 46 (1987); quoting Hamil v. Bashline, 481 Pa. 256, 265 - 266, 392 A.2d 1280, 1284-85 (Pa. 1978). In establishing aprima facie case, the plaintiff need not exclude every possible explanation, it is enough that reasonable minds are able to conclude that the preponderance of the evidence shows defendant’s conduct to have been a substantial cause of the harm to plaintiff. Id. However, in a FELA case, a trial judge must submit the case to the jury when there is even slight evidence of negligence. Wilson v. Chicago. Milw., St. Paul, and Pacific R. Co., 841 F.2d 1347 (1988). This more lenient standard for avoiding summary judgment under FELA merely mirrors the plaintiff oriented slant of the substantive law. The right to a jury determination is part and parcel of the liberal remedy afforded the working person under FELA. Johnson v. Fankell, 117 S.Ct. 1800, 1806, 520 U.S. 911, 921 (1997).

Here the plaintiff did submit evidence through his expert, Ms. Smith, who performed a site inspection and found the above conditions in the work place, and Dr. Bednarz who found these work exposures to be a cause of plaintiff’s repetitive stress injury. Considering this evidence in the light most favorable to the non-moving party together with both parties’ arguments and other submissions, a question of fact suitable for jury determination that has been properly raised. The issue remains whether excessive vibrations and uneven walking surface were a sufficient cause of plaintiff’s injuries and, in turn, whether defendant’s negligence in allowing such conditions to exist thus warrants liability. Since plaintiff has presented enough evidence for there to remain a factual question on liability appropriate for a jury’s determination, defendant’s motion for summary judgment is hereby denied.

An appropriate order follows.

ORDER

And now, October 10, 2012, it is hereby ordered that defendant’s Delaware and Hudson Railway Inc. d/b/a Canadian Railway a/k/aRail System’s motion for summary judgment is denied and dismissed.


source: Caselaw Access Project

author: AMMERMAN, J.,

license: Public Domain

text:
    Matatall v. Bouch.

      David R. Johnson, for plaintiff.

      David King, Christopher Mohney, Robert Hanak, Matthew Lautman, and David Hopkins, for defendant.
    September 18, 2012
   AMMERMAN, J.,

I. Statement of the Facts

The plaintiffs, Robert and Janice Matatall (Matatalls), purchased a home located at 7073 Main Street, Burnside, PA from defendant Kathy Bouch (Bouch). Bouch is a realtor employed by Powell & Associates Real Estate, LLC (Powell) who is joined as a codefendant in this case, Bouch acted as the realtor/owner/seller, and Powell acted as the listing agency for the home. Codefendant Fred Day (Day) was the building contractor who built the home. Construction was inspected by codefendant Guardian Inspection Services (guardian) to determine whether construction was within applicable construction codes. Codefendant Lawrence J. Spritz (Spritz) was the sole employee and, together with his wife, the owner of named codefendant ACI Services, Inc. (ACI). ACI/Spritz performed an appraisal on the home in question.

Bouch had an existing house on the lot located at 7073 Main Street torn down and replaced with a new house. The new house was constructed by day. Guardian conducted inspections of the construction and issued permits and certifications on behalf of the borough of Burnside to Day. Guardian also inspected the house at various stages of construction to confirm compliance with various codes and ordinances. Construction was completed in 2009 and the home was listed for sale on May 18, 2010 by Ouch through Powell as the listing agency. Ouch signed a seller disclosure statement on the property on May 18, 2010. The Matatalls made an offer on the new house on June 24, 2010. Bouch made a counter offer on the same day which the Matatalls accepted by their signature on June 26, 2010. ACI/Spritz performed an appraisal on the property with an effective date of July 21, 2010.

The plaintiffs assert that immediately after moving into the home they experienced problems with the house. These problems include leaking pipes in the bathroom and kitchen, improper electrical work, wetness and leaking in the basement which caused black mold and ice buildup. They also allege that the insulation was improperly installed around the windows and that there were openings in the outside walls. Plaintiffs say that cracks developed in the basement floor through which water seeped. The Plaintiffs further claim numerous plumbing problems with the home causing damage necessitating repairs.

The Plaintiffs claim that aspects of the house were not incompliance with applicable building codes regulating the various requirements for stairs and the required dimensions of support posts. They also claim that the fill around the basement wall consisted of dirt, broken glass and plastic. They claim that this is substandard fill and was in part responsible for settling and sinking of the house causing the drywall to crack.

In their amended complaint the plaintiffs indicate that the property was constructed on a flood hazard area as determined by the Federal Emergency Management Agency (FEMA). Theplaintiffs claim that FEMA contacted Burnside Borough regarding the house being within a flood hazard area and that consequently the borough advised the Matatalls to fill in the basement leaving only a crawl space beneath the first floor to be compliant with FEMA’s recommendation and the borough’s flood plain ordinance. The plaintiffs contend that filling in the basement will significantly reduce the value of the house and contend that the absence of a usable basement substantially alters the character of the house they agreed to purchase in the above referenced sales agreement.

In their original and amended complaint the plaintiffs contend that after purchasing the home they learned that Bouch was aware water leaking into the basement. The plaintiffs assert that water had been running through the basement walls, and that this had occurred during an open house while the property was being offered for sale. They claim that though Bouch was aware of this, it was disclosed by neither Bouch, nor Powell, nor Day.

The Matatalls complain that the Real Estate Sellers’ Disclosure Law (RESDL) 68 P.S. §7301, et seq, imposed a statutoiy duty on defendants Bouch and Powell to disclose any known material defect in the property to the buyers in a disclosure statement. The Matatalls claim that the defects in the complaint were known to Bouch and Powell and their failure to disclose them was willful, wanton intentional and thus outrageous conduct in violation of the RESDL. For this they seek damages compensating them for their loss as well as punitive damages.

The Matatalls also claim that they were the victims of fraudulent misrepresentation by Bouch and Powell. The plaintiffs seek damages to compensate them for their loss including rescission of the sales contract, consequential damages, and punitive damages. They also claim that Bouch and Powell made negligent misrepresentations in the seller disclosure statement upon which the plaintiffs placed reasonable reliance when entering into the agreement purchase the property. For this they seek compensatory damages and any relief that the court finds appropriate. The Matatalls also claim that Bouch and Powell violated the Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq (UTPCPL). For violating this act the plaintiffs are seeking three times their actual damages plus attorney’s fees as provided for in the UTPCPL.

The plaintiffs claim negligence against guardian. Guardian was responsible for issuing the building permit authorizing Bouch to build the house, and responsible for inspecting the house through various stages of construction to insure compliance with applicable codes and regulations. The Matatalls assert that by approving preliminary stages of construction and approving final construction of the house despite the alleged code and regulation violations, Guardian breached its duty to the plaintiffs as the final purchasers of the house. The plaintiffs claim that this was a direct and proximate cause of their damages and they seek compensatory relief and any damages that the court deems appropriate.

The plaintiffs claim negligence against ACI/Spritz for failing to indicate that the house was located in a FEMA designated flood hazard zone in the appraisal. The plaintiffs claim a breach of the implied warranty of habitability against Bouch and Day because the plaintiffs claim that the defects in the construction made the home uninhabitable.

The following opinion and order are limited to the preliminary objections raised by Bouch.

II. Preliminary Objections by Bouch

Defendant, Kathy Bouch has filed preliminary objections to the plaintiffs’ amended complaint based on rule 1028(a)(3) and 1028(a)(5) claiming that the plaintiffs’ complaint lacked sufficient specificity and the that plaintiff failed to join a necessary party. However, the defendant’s preliminary objection should be dismissed because the plaintiffs’ compliant is not deficient in either respect.

A. Failure to Join a Necessary Party

The first issue raised in the defendant’s preliminary objection is that the plaintiffs failed to join their seller agent, Richard Ellenberger (Ellenberger) and Howard Hanna Realty (Howard Hanna) as defendants in this suit. In her preliminary objection the defendant argues that Ellenberger and Howard Hanna are necessary parties and as such must be joined by the plaintiff. The defendant claims that because this was not specifically denied, that it is thus admitted. This is true of facts not of record, but it does not extend to conclusions of law. Therefore, it is admitted that Ellenberger and Howard Hanna were the buyer agent and real estate agency of the plaintiffs, but the defendant’s characterization of them as necessary parties is a legal conclusion beyond that which requires a response.

To resolve whether Ellenberger and Howard Hanna are necessary parties it is important to determine the nature of their relationship to the litigants and to the action before the court. While not synonymous, the terms indispensible and necessary are conceptually similar with respect to joinder. “A party is indispensable when his rights are so connected with the claims of the litigants that no order can be made without impairing such rights. Necessary parties are those whose presence, while not indispensable, is essential if the court is to completely resolve the controversy before it and render complete relief. York-Adams County Constables Ass’n by Sponseller v. Ct, of Com. Pleas of York County, 474 A.2d 79, 81 (Pa. Cmmw. 1984) citing The County of Allegheny v. Department of Public Welfare of the Commonwealth of Pennsylvania, 376 A.2d 290 (1977). These terms are so similar that the Commonwealth Court of Pennsylvania has defined a necessary party almost identically to that of an indispensible party referenced above. “A necessary party is one whose rights are so connected with the claims of the litigants that no relief can be granted without infringing upon those rights.” Pennsylvania Fish Commn. v. Pleasant Tp., 388 A.2d 756, 759 (Pa. Cmmw, 1978) citing: Department of Transportation v. Pennsylvania Power & Light Company. 34 Pa. Commw. 594, 383 A.2d 1314 (1978). Should an absent party be necessary or indispensible that party must be joined for the court to have jurisdiction. Polydyne, Inc. v. City of Philadelphia, 795 A.2d 495, 496 (Pa. Cmmw. 2002).

“A corollary of this principle is that a party against whom no redress is sought need not be joined.” Sprague v. Casey, 520 Pa. 38, 49, 550 A.2d 184, 189 (1988) citing Kern v. Duquesne Brewing Co., 396 Pa. 279, 152 A.2d 682 (1959); In re Culbertson’s Estate, 152 A. 540 (1930). “In this connection, if the merits of a case can be determined without prejudice to the rights of an absent party, the court may proceed,” Id. citing Mechanicsburg Area School District v. Kline, 494 Pa. 476, 431 A.2d 953 (1981).

It should be noted that the plaintiffs in the instant case seek no redress from Ellenberger or Howard Hanna. In fact, the plaintiffs’ compliant does not mention them at all. Nor can it be said that Ellenberger’s or Howard Hanna’s rights will be affected by judgment in favor of either the plaintiffs or the defendants.

Because no redress is sought against Ellenberger and Howard Hanna, and the court can grant relief without affecting their rights, Ellenberger and Howard Hanna are neither indispensible nor necessary parties and the plaintiffs’ failure to join them is not ground for sustaining the defendant’s preliminary objection.

B. Insufficient Specificity of the Pleadings

The defendant’s preliminary objection claiming insufficiency in the specificity of the pleading must be dismissed because the plaintiffs’ complaint contains information sufficient for the defendant to ascertain the claim against her and are adequate to permit her to prepare an appropriate defense.

Rule 1028(a)(3) of the Pennsylvania rules of civil procedure provides for the filing of preliminary objections to a pleading if the pleading lacks sufficient specificity. Pa.R.C.P. No. 1028(a)(3). Rule 1019 governs the contents of pleadings. Pa.R.C.P. No. 1019. The pertinent question under rule 1028(a)(3) is “whether the complaint is sufficiently clear to enable the defendant to prepare his defense,” or “whether the plaintiff’s complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense.” Rambo v. Greene, 906 A.2d 1232, 1236 (Pa. Super. 2006) (quoting Ammlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491, 498 n. 36 (1973) (quoting 1 Goodrich-Amram § 1017(b)-9)).

Rule 1019 of Pennsylvania’s rules of civil procedure governs the required nature, be it general or specific, of averments in pleadings. The purpose of this rule is to enable the parties involved in litigation to ascertain claims and defenses against them. See Krajsa v. Keypunch, Inc., 622 A.2d 355 (Pa. Super. 1993). The defendant correctly points out that special damages must be specifically averred under this rule. However, general damages need not be specifically stated in a pleading, Hooker v. State Farm Fire and Cas. Co., 880 A.2d 70, 77 (Pa. Cmmw. 2005). Therefore, to properly resolve the defendant’s preliminary objection based on insufficiency of the pleadings, it must be determined whether the damages alleged by the plaintiffs are special or general.

“Damages are general, those which are the usual and ordinary consequences of the wrong done, or special, those which are not the usual and ordinary consequences of the wrong done, but which depend upon special circumstances. General damages may be proved without being specially pleaded... [sjpecial damages, on the other hand, may not be proved unless the special facts giving rise to them are averred.” Parsons Trading Co. v. Dohan, 167 A. 310, 312 (Pa. 1933).

The determinative issue is then whether the plaintiffs’ alleged damages are a usual and ordinary consequence of the alleged wrong done by the defendant. In pages 3 through 8 of their complaint the plaintiffs set forth the alleged wrongs done by the defendant and the damages resulting from those alleged wrongs. The wrongs alleged by the plaintiff against the defendant can be summarized as a failure to properly construct the property, a failure to disclose that the property was located in a flood hazard area, and a failure to disclose known water leakage on the property. The damages claimed by the plaintiffs can be summarized as water damage and construction defects. The amended complaint further details five separate counts upon which the plaintiffs base their cause of action. The complaint leaves little doubt as to what grounds Bouch must make her defense. Moreover, the damages alleged are usual and ordinaiy damages for the wrongs alleged. Nothing in the complaint suggests special damages. Therefore they need not be specifically plead. For these reasons the defendant’s preliminary objection based on insufficient specificity must be overruled.

III. CONCLUSION

The plaintiffs’ real estate buyer agent, Richard Ellenberger and Howard Hanna Realty, are not necessary nor indispensible parties because the court can fully resolve the case without affecting the rights of the absent party and the Plaintiffs seek no redress against them. The Pennsylvania rules of civil procedure require only that special damages be specifically plead, whereas general damages can be generally plead. Because the damages claimed by the plaintiff are general they need not be specifically plead. The plaintiffs’ compliant is not deficient by either standard offered by the defendant. Therefore the court enters the following:

ORDER

And now, September 14, 2012 upon consideration of defendant Kathy Bouch’s preliminary objections, and upon hearing oral arguments on the same, it is the order of this court that said preliminary objections are hereby dismissed.

      . See Uniform Residential Appraisal Report prepared by ACI/ Spritz. This document is identified as plaintiff’s amended exhibit C.

      . See West Penn Multi-List Inc. Seller Disclosure Statement identified as plaintiff’s exhibit A.

      . See Standard Agreement for the Sale of Real Estate identified as plaintiff’s exhibit B.

      . See Uniform Residential Appraisal Report prepared by ACI/ Spritz. This document is identified as plaintiff’s amended exhibit C.


author: NEW, J.,

text:
    Joe v. Mercy Fitzgerald Hospital.

      John Lorthwaite, for plaintiff.

      Ryan Grossman, for defendant.
    September 7, 2012
   NEW, J.,

For the reasons discussed herein, this court’s order dated June 12, 2012, overruling defendants Manor Care Health Services at Mercy Fitzgerald and HCR Manor Care, Inc. ’s preliminary objections, should be upheld on appeal.

PROCEDURAL AND FACTUAL HISTORY

Plaintiff Loretta M. Joe, administratrix of the estate of Margaret A. McKelvey (hereinafter “plaintiff’), commenced this action on October 21,2011 against Mercy Health System (hereinafter “MHS”); Mercy Philadelphia Hospital (hereinafter “MPH”); Mercy Fitzgerald Hospital (hereinafter “MFH”); HCR Manor Care, Inc. (hereinafter “HCR”) and Manor Care Health Services at Mercy Fitzgerald (hereinafter “Manor Care”) following the death of Margaret A. McKelvey (hereinafter “decedent”).

On December 11,2009, decedent was admitted to MHP for evaluation of an infected left heel with gangrene where it was determined decedent’s left foot was not salvageable, and decedent was evaluated for probable below the knee amputation. The post-operative pathology revealed gangrene of left foot with a deep and large ulcer of the heel, acute and chronic periositis and severe peripheral vascular disease. Additionally, it was noted decedent was suffering from a sacral decupitus ulcer (hereinafter “ulcer”).

On December 23, 2009, decedent was discharged from MHP and returned to Manor Care. Upon readmission, decedent’s alleged husband, Leroy Pennycooke (hereinafter “Pennycooke”), executed the arbitration agreement (hereinafter the “agreement”), in the space designated “patient’s legal representative in his/her representative capacity.” The agreement contains a mandatory arbitration clause, as follows:

This agreement made on 12/23/09 (date) by and between the parties, patient Margaret McKelvey and/ or patient’s legal representative Leroy Pennycooke (collectively referred to as “patient”), and the Center Mercy Fitzgerald is an agreement intended to require that disputes be resolved by arbitration. The patient’s legal representative agrees that he is signing this agreement as a party, both in his representative and individual capacity.

At such time, it is uncontested Pennycooke held no power of attorney and had not been appointed decedent’s legal guardian.

On February 11, 2010, decedent underwent a debridement of the ulcer, at which time sepsis was noted likely due to the infected ulcer, On March 24, 2010, a subsequent sacral debridement was performed on decedent, at which time skin, muscle, fasciaandbone were removed. Another debridement of the sacral wound occurred on April 15, 2010. Post-operative diagnosis was “stage IV, huge sacral decubitus involving the bone of the sacrum.” Decedent passed away on April 24, 2010, cause of death noted as “septic shock due to end stage sacral decubitus ulcer due to peripheral vascular disease.”

Plaintiff then initiated the instant suit. Defendants Manor Care and HCR (collectively “defendants”) filed preliminary objections on March 20, 2012, to which plaintiff filed an amended complaint on April 5, 2012. Thereafter, defendants filed the instant preliminary objections on April 25, 2012, seeking, in part, to enforce an arbitration agreement executed by Pennycooke, as “patient’s legal representative in his/her representative capacity,” on December 23, 2009. Plaintiff responded the arbitration clause was invalid because, inter alia, Pennycooke did not have legal authority to enter into an arbitration agreement that would bind decedent and her heirs as he was neither decedent’s attorney-in-fact nor her personal representative.

On June 12, 2012, this court overruled defendants’ preliminary objections without prejudice. Defendants timely filed an appeal from the June 12, 2012 order and filed their rule 1925(b) statement of errors complained of on appeal on July 20,2012. Defendants raise six (6) issues on appeal:

(1) The trial court erred in overruling defendants’ preliminary objections seeking to enforce an arbitration agreement, signed by the decedent’s husband (or common law husband), Leroy Pennycooke, on behalf of Margaret McKelvey, who had authority to execute the agreement by virtue of implied and/or apparent authority;
(2) The trial court erred by not giving appropriate weight to evidence establishing that Leroy Pennycooke signed many other medical-legal forms on behalf of Margaret McKelvey, before, during, and after her admission to Manor Care Mercy Fitzgerald. The court did not take into account that plaintiff does not contest that Leroy Pennycooke had the authority to execute the other paperwork he signed, authorizing, for example, certain medical procedures, and the release of protected health care information, as two examples;
(3) The trial court did not take into account that under the circumstances at the time of Margaret McKelvey’s admission to Manor Care Mercy Fitzgerald, that she had severe medical problems which interfered with her capacity to read and understand the documents presented. As such, Manor Care had a reasonable and proper basis to rely upon her husband, Mr. Pennycooke, as someone who had authority to act on her behalf, and in her best interests. In effect, Manor Care had no choice but to rely on Mr. Pennycooke’s apparent, if not actual, authority to act on his wife’s behalf.
(4) The trial court failed to take into account that ADR agreements such as the instant agreement are enforceable under Pennsylvania law, including the Pennsylvania Uniform Arbitration Act (PUAA), the Federal Arbitration Act (FAA), and case law interpreting these statutes;
(5) The trial court may have erroneously relied upon the argument advanced by plaintiff’s counsel that Mr. Pennycooke’s failure to sign in two places on the arbitration agreement invalidates the agreement;
(6) The trial court may have erroneously relied upon Stewart v. GGNSC-Canonsburg, 9 A.3d 215 (Pa. Super. 2010) in refusing to enforce the arbitration agreement in this case. The agreement in Stewart is materially different than the agreement in this matter. The continuing validity of the Stewart decision is subject to change.

Preliminarily, defendants’ fourth, fifth and sixth argument may be disposed of as they were not the basis of the court’s decision. Defendants’ remaining arguments center on Leroy Pennycooke’s execution of the subject arbitration agreement. Thus, the issue raised on appeal is whether the court erred in refusing to enforce the arbitration agreement, which Pennycooke signed on the line designated “legal representative.”

LEGAL ANALYSIS

“A written agreement to subj ect any existing controversy to arbitration or a provision in a written agreement to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable save upon such grounds as exist at law or in equity relating to the validity, enforceability or revocation of any contract.” Although Pennsylvania courts have strongly favored arbitration as a means of dispute resolution, “the existence of an arbitration provision and a liberal policy favoring arbitration does not require the rubber stamping of all disputes as subject to arbitration.”

Pennsylvania courts engage in a two-part analysis to determine whether a claim is subject to arbitration: first, whether a valid agreement to arbitrate exists between the parties and second, if so, whether the dispute involved is within the scope of the agreement. Here, the scope of the agreement is not at issue. As to the validity of an arbitration agreement, the contract must be signed by a party with legal authority to take such action. If a third person signs on behalf of another, the arbitration agreement is valid and legally binding only if an agency relationship existed between them. Thus, Pennycooke could act on decedent’s behalf and bind her to arbitration only if an agency relationship existed between them at the subject time.

The burden of establishing an agency relationship rests with the party asserting it. Pennsylvania law recognizes four ways to create an agency relationship: (1) express authority; (2) implied authority; (3) apparent authority; and (4) agency by estoppel. Instantly, defendants contend Pennycooke had the authority to execute the agreement by virtue of implied and/or apparent authority. To the contrary, plaintiff argues Pennycooke lacked legal authority to sign the agreement on decedent’s behalf.

A party seeking to bind the principal under the theory of implied authority must prove the alleged acts of an agent are “necessary, proper and usual” in the exercise of the agent’s express authority. Express authority is that authority “directly granted by the principal to bind the principal to certain matters.” Instantly, it is undisputed Pennycooke was neither decedent’s power of attorney nor her legal guardian at the time the agreement was sighed. Further, there is no evidence of a writing expressly granting Pennycooke actual authority. Since defendants fail to establish he was vested with express authority, Pennycooke’s acts cannot constitute those which are “necessary, proper and usual” in the exercise of such authority. Accordingly, defendants cannot seek to enforce the agreement under the theory of implied authority.

Next, defendants argue decedent is bound by the agreement under the theory of apparent authority. Apparent authority occurs “where a principal, by words or conduct, leads a party with whom the alleged agent deals to believe the principal has granted the agent the authority he purports to exercise.” In determining the apparent authority of an agent, Pennsylvania courts “must look to the actions of the principal, not the agent.” As the Pennsylvania Supreme Court has explained: “an agent cannot simply, by his own words, invest himself with apparent authority. Such authority emanates from the action of the principal and not the agent.” Therefore, a third party may rely on the apparent authority of an agent when such reliance is reasonably based on the principal’s manifestations.

At the threshold, it should be noted “a spouse is not empowered to act as an agent for the other because agency does not arise from the marital relationship alone.” As such, defendants may not compel arbitration on their belief Pennycooke executed the agreement in his capacity as decedent’s husband. Accordingly, to compel the subject controversy to arbitration, defendants must offer evidence of decedent’s words or conduct when the agreement was executed, which lead them to believe decedent had granted Pennycooke with the authority to bind her interests.

The instant facts are similar to those present in Carr v. Immaculate Mary Nursing Home. There, Carr was admitted with symptoms of dementia, and his wife had executed the nursing facility admission agreement on his behalf. The defendants had filed preliminary objections to compel arbitration on the ground Carr’s wife had apparent authority to act on his behalf. The Carr court disagreed, overruling the preliminary objections to compel arbitration because the defendants did not provide sufficient evidence to establish the wife had the requisite authority to bind her husband to arbitration. Specifically, the Carr court noted the defendants had failed to produce evidence of a writing expressly granting actual authority and no apparent authority could be found because the defendants did not offer evidence of the principal’s conduct at the time the agreement was executed.

Here, defendants state decedent had severe medical problems, which interfered with her capacity to read and understand the documents presented. According to defendants, therefore, their reliance on Pennycooke as someone who had authority to act on her behalf was reasonable and proper. This argument overlooks settled authority that Pennsylvania courts must look to the actions of the principal, not the agent, in determining the apparent authority of the agent. Notwithstanding the fact defendants admit they were aware decedent lacked the capacity to execute the agreement, defendants offer no further evidence decedent knew of the arbitration clause or otherwise authorized Pennycooke to sign it on her behalf. In fact, defendants fail to offer any further evidence of decedent’s conduct at the execution of the agreement to support defendants’ argument Pennycooke was vested with the requisite authority to act as her agent.

Thus, the court did consider the circumstances at the time of decedent’s admission, but determined defendants failed to point to any evidence of decedent’s conduct to establish decedent vested Pennycooke with the authority to bind her or her heirs by signing the agreement.

Defendants further contend the court erred in not giving appropriate weightto the evidence establishing Pennycooke signed many other medical-legal forms on decedent’s behalf before, during and after her admission to Manor Care and the fact plaintiff does not contest his authority to execute other paperwork he signed. Contrary to defendants’ assertion, plaintiff has contested Pennycooke’s authority to consent to any procedure performed on decedent at MSH, MPH and MFH (collectively the “hospital defendants”). Further, the validity of any agreement in connection with the hospital defendants was not raised in their preliminary objections. Thus, no analysis was undertaken concerning the other facilities’ arbitration agreements, if any existed between the parties. Moreover, there is no evidence to demonstrate defendants had notice of these documents at the time Pennycooke signed the agreement.

Without a showing of decedent’s conduct and the reasonableness of their reliance thereof, defendants cannot seek to compel arbitration under the theory of apparent authority. Defendants have the burden of establishing an agency relationship. Since defendants failed to provide evidence sufficient that Pennycooke had authority to bind decedent to arbitration, the court properly overruled defendants’ preliminary objections

CONCLUSION

For the foregoing reasons, this court respectfully requests its decision to overrule defendants Manor Care Health Services at Mercy Fitzgerald and HCR Manor Care, Inc.’s preliminary objections seeking to enforce the arbitration agreement be affirmed.

      . The procedural and factual history is drawn from the amended complaint, the preliminary objections and the responses thereto.

      . Pi’s amended complaint (hereinafter “Compl.”), ¶¶7,10.

      . Idat|13.

      . Id. atfl4.

      . Id. at ¶15. The amended complaint indicates decedent was “returned” to defendants’ care. A review of decedent’s admitting record at HCR Manor Care lists decedent’s original admission date as June 3, 2009. See admitting Record of HCR Manor Care, p. 1.

      . Although the parties disagree on whether Pennycooke was decedent’s husband at the relevant time, the resolution of this dispute, as explained in detail below, is not dispositive of the present issue.

      . See arbitration agreement, p. 1.

        .Id.

        . Compl., ¶¶18, 19. The amended complaint does not indicate where the February 11, 2012 debridement occurred.

        . Id. at ¶21.

      . Id. at ¶22.

      . Id. at ¶23.

      . Id.

      . MFH, MPH and MSH filed preliminary objections on April 25, 2012, which this court overruled by order dated June 20, 2012. Unlike the instant objections, MPH, MFH and MSH did not attempt to enforce an arbitration agreement or provision.

      . Pl.’s memorandum of law in opposition of dfts. Manor care and HCR’s preliminary objections, p. 4.

      . 42 Pa. C.S. §7303 (2012).

      . Ross Dev. Co. v. Advanced Bldg., 803 A.2d 194, 196 (Pa. Super. 2002) (citation omitted).

      . McNulty v. H&R Block, Inc., 843 A.2d 1267, 1272 (Pa. Super. 2004).

      . Id. (citing Keystone Technical Group, Inc. v. Kerr Group, Inc., 824 A.2d 1223, 1227 (Pa. Super. 2003)); see also Midomo Co. v. Presbyterian Hous. Dev. Co., 739 A.2d 180, 186 (Pa. Super. 1999) (citation omitted).

      . Basile v. H&R Block, Inc., 563 Pa. 359, 367-68, 761 A.2d 1115, 1120 (2000).

      . Bolus v. United Penn Bank, 363 Pa. Super. 247, 260-61, 525 A.2d 1215, 1221 (1987) (citation omitted).

      . Id.

        . Id.

        . Id.

      . Id at 261, 525 A.2d at 1222.

      . Turnway Corp. v. Soffer, 471 Pa. 477, 458, 336 A.2d 871, 876 (1975) (quoting Jennings v. Pittsburgh Mercantile Co., 414 Pa. 641, 645, 202 A.2d 51, 54 (1964)).

      . Bolus, 363 Pa. Super, at 262, 525 A.2d at 1222 (citing Trident Corp. v. Reliance Insur. Co., 350 Pa. Super. 142, 150, 504 A.2d 285, 289 (1979)).

      . Lapio v. Robbins, 729 A.2d 1229, 1234 (Pa. Super. 1999).

      . Carr, 15 Pa. D. & C. 5th 415 (Pa. Com. Pl. Philadelphia County Aug. 11, 2010) (Moss, J.).

      . Bolus, 363 Pa. Super. at 261, 525 A.2d at 1222.

      . The instant matter, therefore, is distinguishable from Mannion v. Manor Care, Inc., 4 Pa. D. & C. 5th 321 (Pa. Com. Pl. Lehigh County Sept. 26, 2006) (Black, J.), and Smalley v. JHA-Markleysburg Inc., 3 Pa. D. & C. 5th 471 (Pa. Com. Pl. Fayette County Nov. 15, 2007) (Solomon, J.), wherein the respective trial courts found a binding arbitration agreement existed despite the fact the nursing home resident was mentally impaired at the time of admission because the agreement was signed by an individual who held power of attorney authorizing the representative to act on the resident’s behalf. Here, it is uncontested Pennycooke was neither decedent’s power of attorney nor her legally appointed guardian at the subject time.

      . See Compl., ¶¶25, 49, 60; see also PL’s answer to preliminary objections of defendants MFH, MPH and MHS, ¶¶21-22; PL’s memorandum of law in opposition of MFH, MPH and MHS’s preliminary objections, pp. 5-6.

      . Basile, 563 Pa. at 367-68, 761 A.2d at 1120.


author: NEALON, J.,

text:
    Fraynert v. Delaware and Hudson Railway Co., Inc.

      Gerard J. Martillotti & Neil F. MacDonald, for plaintiff.

      J. Lawson Johnston, for defendant.
    October 1, 2012
   NEALON, J.,

Eight retired railroad workers, who have sued their former employer under the Federal Employers’ Liability Act (“FELA”) for pulmonary damage allegedly caused by negligent exposure to coal dust and diesel fumes, have filed a motion seeking to consolidate these actions for a joint trial under Pa.R.C.P. 213(a). Plaintiffs seek to recover noneconomic damages under the same federal statute for pneumoconiosis allegedly attributable to occupational dust exposure and will present, and oppose, expert testimony from the same two medical witnesses. Many of the plaintiffs worked at common locations and performed identical job tasks and will offer comparable testimony concerning their working conditions and exposure at those sites. Therefore, the eight FELA cases involve common questions of law and fact warranting their joinder for trial.

Considerations of judicial economy also militate in favor of consolidation for trial since a joint trial will require one jury and consume eight to ten days of trial while separate trials will necessitate eight juries and twenty-four to thirty-two trial days. Juror note-taking and special verdict interrogatories will enable the jury to digest the evidence presented and to evaluate the merits of each occupational exposure claim. Due to the common issues of law and fact in these actions, the cost savings resulting from a joint trial and the lack of any prejudice from such a consolidation, the plaintiffs’ motion for a joint trial will be granted pursuant to rule 213(a).

I. FACTUAL BACKGROUND

Plaintiffs Edward Fraynert (“Fraynert”), Michael Dennis (“Dennis”), Patrick Conway (“Conway”), Thomas Carachilo (“T. Carachilo”), George Carachilo (“G. Carachilo”), James J. Mullin (“Mullin”), Glen Cronauer (“Cronauer”) and Thomas P. Durkin (“Durkin”) have all filed personal injury actions against their former employer, defendant Delaware and Hudson Railway Company, Inc. d/b/a Canadian Pacific Railway a/k/a CP Rail System (“D & H”), based upon the Federal Employers’ Liability Act (“FELA”), 45 U.S.C. §§51-60. Each named plaintiff claims to have suffered “injury to his lungs and pulmonary functions” as a result of “his exposure to toxic and/or pathogenic dusts, fumes, vapors, mists or gases” during the course of his employment with D & H. (Docket entry nos. 1, ¶¶4, 9, 11 in no. 05 CV 1822, no. 05 CV 1826, no, 05 CV 1828, no. 05 CV 3086, no. 05 CV 3087, no. 05 CV 3088 and no. 05 CV 3090; docket entry no. 1, ¶6,11,13 in no, 06 CV 6461). Durkin has averred more specifically that the toxic or pathogenic material consisted of “unsafe diesel and chemical fumes, coal dust and other industrial byproducts.” (Docket entry no. 1 in no. 06 CV 6461, ¶11).

Fraynert, Conway and G. Carachilo were employed as engineers whereas Dennis and T. Carachilo worked as car men. (Deposition of Edward Fraynert dated 10/17/07, p. 10; deposition of Patrick Conway dated 12/20/06, p. 7; deposition of George Carachilo dated 12/20/06, p. 14; deposition of Michael Dermis dated 10/17/07, p. 10; deposition of Thomas Carachilo dated 1/22/07, p. 27). Mullin, Cronauer and Durkin were employed as conductors. (Docket entry nos. 1, ¶ 2 in no. 05 CV 3088 and no. 06 CV 6461; deposition of Glen Cronauer dated 1/22/07, p. 12). D &. H’s car men inspect and repair train cars in the railroad yard while engineers primarily remain stationed in the engineer’s cabin on the train. (Dennis depo., pp. 20-22; T. Carachilo depo., pp. 28, 33; Fraynert depo., p. 14; Conway depo,, pp. 19, 29-30; G. Carachilo depo., pp. 16, 34). Conductors reportedly spend much of their time on the trains, but are also be required to work in the yard. (Cronauer depo., pp. 31-33).

Plaintiffs were employed by D & H at various locations throughout Northeastern Pennsylvania, Southern New York and Northern New Jersey. In addition to other sites, Dennis, Conway, T. Carachilo, G. Carachilo and Cronauer all worked at the Taylor (Lackawanna County), Hudson (Luzerne County), and Binghamton, New York yards. (Dennis depo., pp. 9-10; Conway depo., pp. 23-25; T. Carachilo depo., pp. 27, 33-34; G. Carachilo depo., pp. 11, 35-36; Cronauer depo., p. 34). Dennis, T. Carachilo and Cronauer also labored at the Wilkes-Barre yard, and T. Carachilo and Cronauer both worked at the Green Ridge site. (Dennis depo., p. 10; T. Carachilo depo., p. 27; Cronauer depo., p. 34).

All of the plaintiffs are retired and are advancing claims for non-economic damages only. At least seven plaintiffs will offer the testimony of Marc D. Laufe, M.D., as their sole expert medical witness. According to his seven expert reports dated June 6, 2011, Dr. Laufe has opined that Fraynert, Dennis, Conway, T. Carachilo, G. Carachilo, Durkin and Cronauer all “had a long occupational history of heavy dust exposure.” (Plaintiffs’ opposition to defendant’s motion for summary, exhibit no. 2 in no, 05 CV 1822, no. 05 CV 1826, no. 05 CV 1828, no. 05 CV 3086, no. 05 CV 3087, no. 05 CV 3090 and no. 06 CV 6461). Dr. Laufe has concluded that those plaintiffs suffer from “pneumoconiosis” and that “[bjased on the american medical association guide to the evaluation of permanent impairment (4th edition), [each plaintiff] has permanent pulmonary impairment due to pneumoconiosis related to his occupational exposure.” (Id.).

D & H has retained Sandor J. Levinson, M.D., to examine each plaintiff pursuant to Pa.R.C.P. 4010 and to testify as an expert witness on behalf of D & H in each cáse. No otherexpert witnesses have been identified by the plaintiffs or D & H. Consequently, the same two expert medical witnesses will testify in each one of these cases.

On May 29, 2012, Fraynert, Dennis, Conway, T. Carachilo, G. Carachilo, Mullin, Cronauer and Durkin filed certificates of readiness under Lacka. Co. R.C.P. 214 seeking to have their cases assigned to a judge for trial. The undersigned conducted status conferences The court record does not include transcripts of the depositions of Mullin or Durkin and it is unclear whether those plaintiffs were ever deposed. The court file does not contain an expert medical report relative to Mullin. in each case on July 10,2012, at the conclusion of which deadlines were set for the filing of any motions to consolidate these cases for trial and these eight suits were assigned to the undersigned’s jury trial term commencing on December 3, 2012, On August 6, 2012, plaintiffs filed motions to consolidate these cases under Pa.R.C.P. 213 and the parties subsequently submitted their supporting and opposing memoranda of law. Following the completion of oral argument on September 25, 2012, the motions to consolidate became ripe for disposition.

Plaintiffs maintain that these FELA suits should be consolidated for purposes of trial since they involve common questions of law and fact. Plaintiffs note that they are each seeking to recover non-economic damages for pulmonary harm caused by exposure to coal dust and diesel fumes, and will be subject to the same burden of proof under the FELA. Plaintiffs posit that in addition to offering testimony from the same medical experts, Dr. Laufe and Dr. Levinson, the parties will present overlapping lay testimony concerning the job responsibilities of engineers, conductors and car men and the negligent work conditions at the Taylor, Green Ridge, Wilkes-Barre, Hudson and Binghamton yards. Plaintiffs allege that it will be exceedingly difficult to coordinate the testimony of these common lay and expert witnesses in eight separate trials, as opposed to a single consolidated trial. (Docket entry no. 16, pp. 2-6).

While acknowledging that “[jjudicial economy is a factor in deciding whether to consolidate actions,” D & H argues that such cost considerations “do not negate the requirement that the several actions contain a common question of law or fact.” (Docket entry no. 21, p. 5) (quoting Lohmiller v. Weidendaugh, 302 Pa. Super. 174, 182-184, 448 A.2d 583, 587 (1982), rev’d, 503 Pa. 329, 469 A.2d 578 (1983)). D & H asserts that consolidation is not proper since “[tjhese cases do not contain common questions of fact” in that “[tjhey involve eight (8) different plaintiffs working at different locations, at different times, and doing different jobs.” (Id.). D & H contends that it will be unduly prejudiced by consolidation of these cases for trial since the jurors will be confused by the voluminous evidence and unable to decipher which plaintiffs performed what tasks at what locations and were allegedly exposed to certain fumes and dust in the process. (Id., pp. 6-7).

II. DISCUSSION

Pennsylvania rule of civil procedure no. 213 governs consolidation of actions and states that “[i]n actions pending in a county which involve a common question of law or fact or which arise from the same transaction or occurrence, the court... on the motion of any party may order a joint hearing or trial of any matter in issue in the actions, may order the actions consolidated, and may make orders that avoid unnecessary cost or delay.” Pa.R.C.P. 213(a). Under rule 213(a), a trial court has the following three options where pending actions involve either a common question of law or fact or arise from the same transaction: (1) ordering a joint trial or hearing on any matter at issue; (2) ordering the actions “consolidated”; and (3) issuing other orders designed to avoid unnecessary costs or delay. Kincy v. Petro, 606 Pa. 524, 529, 2 A.3d 490, 493 (2010). The decision whether to consolidate actions under Rule 213(a) rests within the discretion of the trial court. Corbett v. Weisband, 380 Pa. Super. 292, 316, 551 A.2d 1059, 1071 (1988), app. denied, 524 Pa. 607, 569 A.2d 1367 (1989); Roznowski v. Pennsylvania Nat. Mut. Cas. Ins. Co., 343 Pa. Super. 7, 12, 493 A.2d 775, 777 (1985).

Where there is a “complete consolidation” of separate actions under rule 213(a), the multiple suits lose their separate identity and are combined into a single proceeding in which one judgment is rendered. Kincy, 606 Pa. at 530, 2 A.3d at 494 (quoting Azinger v. Pennsylvania Railroad Co., 262 Pa. 242, 245, 105 A. 87, 88 (1918)). For that reason, complete consolidation is appropriate only in actions involving the same parties, subject matter, issues and defenses. Kincy, 606 Pa. at 532, 2 A.3d at 495; Azinger, 262 Pa. at 246, 105 A. at 88. However, if separate actions are consolidated for trial only, each case retains its separate character, has its own docket entries, and produces its own verdict and judgment. Kincy, 606 Pa. at 529 n. 4, 2 A.3d at 493 n. 4; Roznowski, 343 Pa. Super. at 12, 493 A.2d at 777-78. The eight plaintiffs in the above-captioned matters seek to consolidate these matters solely for purposes of trial. (See, plaintiffs’ motion for a joint trial, ¶¶12-18).

In order for actions to be consolidated for a joint trial, they must involve a common question of law or fact. See, Pa.R.C.P. 213(a). Other relevant factors which warrant the j oinder of separate actions for trial are avoidance of multiple trials, reduction of duplicative expense, and promotion of judicial economy. See, Moore v. Ericsson, Inc., 1 A.3d 820, 828 (Pa. Super. 2010) (“Particularly in asbestos-related actions, which involve common questions of law and fact, consolidation promotes judicial economy.”), app. denied, 21 A.3d 1194 (Pa. 2011); Corbett, 380 Pa. Super. at 316-17, 551 A.2d at 1071. Courts should also consider the prospect of prejudice and jury confusion from a joint trial due to inordinate complexity of the consolidated actions. See, 1 Goodrich Amram 2d §§213(a): 17 and 213(a): 18.

Plaintiffs’ claims clearly involve common questions of law inasmuch as all eight plaintiffs are seeking to recover damages for pulmonary harm negligently caused by their occupational exposure to industrial dust and fumes. Plaintiffs’ cases will be governed by the FELA’s relaxed standard of causation which is less demanding than the common law test and provides for recovery if the employer’s negligence played any part, even the slightest and no matter how small, in bringing about an injury to the plaintiffs. See, CSX Transportation, Inc. v. McBride, 131 S. Ct. 2630, 2640 (U.S. 2011); Labes v. New Jersey Transit Rail Operations, Inc., 863 A.2d 1195, 1198 (Pa. Super. 2004), app. denied, 583 Pa. 673, 876 A.2d 396 (2005). Under this burden of proof, the plaintiffs may recover damages notwithstanding the fact that “the jury may also with reason, on grounds of probability, attribute the result to other causes, including the employee’s contributory negligenc q.” Labes, supra (citing Rogers v. Missouri Pacific Railroad Company, 352 U.S. 500, 506-507 (1957)). At the time of trial, the court will be “justified in withdrawing such issues from the jury’s consideration only in those extremely rare instances where there is a zero probably either of employer negligence or that any such negligence contributed to the injury of an employee.” Id., at 1198-99; Hines v. Consolidated Rail Corp., 926 F.2d 262, 268 (3d Cir. 1991). Thus, the requirement of a common question of law has been satisfied in these FELA suits.

Although the factual questions presented by each case are not completely identical, there is considerable commonality in the proof to be offered by the eight plaintiffs. Each plaintiff alleges occupational exposure to coal dust and diesel fumes which caused “pneumoconiosis” and resulted in “permanent pulmonary impairment.” Fraynert, Conway and G. Carachilo will testify regarding the employment responsibilities of engineers while Dennis and T. Carachilo will offer evidence concerning the job duties of car men. Mullin, Cronauer and Durkin will testify about the occupational tasks of conductors. Dennis, Conway, T. Carachilo, G. Carachilo and Cronauer will describe the work environment at the Taylor, Hudson and Binghamton yards whereas Dennis, T. Carachilo and Cronauer will present similar testimony relative to the Wilkes-Barre site. Additionally, both T. Carachilo and Cronauer will explain the working conditions at the Green Ridge location.

All eight plaintiffs are retired and none of them are seeking to recover economic damages for loss of income or earning capacity, past or future medical expenses or any other financial losses. Rather, each plaintiff is merely seeking to recover non-economic damages. Plaintiffs will introduce the medical opinion testimony of the same expert witness, Dr. Marc D. Laufe, and D & H will likewise present the testimony of a single expert witness, Dr. Sandor J. Levinson.

As for considerations of judicial economy, a joint trial of these cases will yield significant cost savings for the parties and the county of Lackawanna. At the time of oral argument, counsel for the parties estimated that it would take three to four days to try each case to verdict if they were litigated individually. Hence, separate trials will require eight juries and twenty-four (24) to thirty-two (32) trial days. In contrast, counsel projected that a joint trial of all eight cases would require eight to ten trial days. Thus, consolidation for trial will greatly reduce trial costs for the parties and Lackawanna County, and will minimize the inconvenience posed to members of the venire by virtue of their jury service. Consolidation will also spare the expert and lay witnesses the burden of attending and testifying at eight trials instead of a single proceeding.

Last, any concern that D & H may be potentially prejudiced by juror confusion of issues and claims in a joint trial is unfounded. Plaintiffs are advancing virtually identical claims of work-related pneumoconiosis allegedly traceable to negligent exposure to coal dust and diesel fumes. With the benefit of juror note-taking under Pa.R.C.P, 223.2, the jury will be able to catalogue and segregate each plaintiff’s alleged exposure to industrial elements while employed by D & H. See, Argenta v. A. J. Lupas Ins. Agency, Inc., 104 Lacka. Jur. 430, 446-452 (2003) (discussing jury research indicating that note-taking promotes juror attentiveness and enhances juror recollection and comprehension of evidence), aff’d, 881 A.2d 876 (Pa. Super. 2005). Carefully crafted special verdict interrogatories will also enable the jury to properly analyze and weigh the merits of each plaintiff’s FELA claim. See, Henery v. Shadle, 443 Pa. Super. 331, 336 n. 1, 661 A.2d 439, 442 n. 1(1995) (“We are compelled to the observation that, in our view, the jury is far better prepared for its task if its deliberations are aided by the orderly focus effected in special interrogatories.”), app. denied, 542 Pa. 670, 668 A.2d 1133 (1995); Osborne v. Neville, 102 Lacka. Jur. 132, 161 (2000) (same), aff’d, 797 A.2d 381 (Pa. Super. 2002), app. denied, 569 Pa. 694, 803 A.2d 735 (2002). In light of the common issues of law and fact present in all eight cases, the time and cost savings resulting from a joint trial, and the absence of any cognizable prejudice to the defense, the plaintiffs’ motion for a joint trial under rule 213(a) will be granted.

ORDER

And now, October 1, 2012, upon consideration of “plaintiffs’ motion for a Joint Trial,” the exhibits and memoranda of law submitted by the parties, and the oral argument of counsel on September 25, 2012, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

1. Plaintiffs’ motion for a joint trial is granted;

2. Pursuant to Pa.R.C.P. 213(a), the above-captioned matters docketed to no. 05 CV 1822, no. 05 CV 1826, no. 05 CV 1828, no. 05 CV 3086, no. 05 CV 3087, no. 05 CV 3088, no. 05 CV 3090 and no. 06 CV 6461 are consolidated for a joint trial commencing on Monday, December 3, 2012 at 9:30 AM in courtroom no. 1, Lackawanna County courthouse. Eight separate verdicts will be issued by the jury for each individual case.

      . The court record does not include transcripts of the depositions of Mullin or Durkin and it is unclear whether those plaintiffs were ever deposed.

      . The court file does not contain an expert medical report relative to Mullin.

      . Although many of the plaintiffs are married, their spouses are not asserting claims for loss of consortium since there is no right to recover for loss of consortium under the FELA. Sindoni v. Consolidated Rail Corp., 4 F.Supp.2d 358, 362 (M.D. Pa. 1996); Quitmeyer v. SEPTA, 740 F.Supp. 363, 370 (E.D. Pa. 1990).