author: CHARLES, J.,

text:
    Commonwealth v. Riggs

      April 19, 2001
    C.P. of Lebanon County,
    no. 2000-11119.

      Mark T. Schappell, for Commonwealth.

      Christopher J. Coyle, for defendant.
    BEFORE: EBY, P.J., TYLWALK, KLINE AND CHARLES, JJ.

   CHARLES, J.,

Before us is a constitutional challenge to Pennsylvania’s Ignition Interlock Law. The above-referenced defendant has filed a motion seeking to modify his sentence to eliminate the requirement that he comply with Act 63 of2000. The defendant’s motion claims that the Ignition Interlock Law violates the equal protection clause of the United States and the Pennsylvania Constitutions. The defendant also claims that the law is unconstitutional because it imposes upon the judiciary functions which traditionally belong to the executive branch of government. For reasons that will follow, we agree with the defendant.

I. IGNITION INTERLOCK LAW

Pennsylvania’s Ignition Interlock Law is found at sections 7002 and 7003 of the Judiciary Code and reads, in pertinent part:

“Section 7002. Ignition Interlock Systems For Driving Under the Influence ...
“(b) second or subsequent offense — In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person’s operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed.
“Section 7003. Additional Driver’s License Restoration Requirements
“In addition to any other requirements established for the restoration of a person’s operating privileges under 75 Pa.C.S. §1548 (relating to requirements for driving under the influence offenders):
“(1) Where a person’s operating privileges are suspended for a second or subsequent violation of 75 Pa.C.S. §3731 (relating to driving under the influence of alcohol or controlled substance), or a similar out-of-state offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system.
“(2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restrictive license under 75 Pa.C.S. §1951(d) (relating to driver’s license and learner’s permit) which will be clearly marked to restrict the person to operating only motor vehicles equipped with an approved ignition interlock system.
“(3) During the year immediately following restoration of the person’s operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system.
“(4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. §1951(d) that does not contain the ignition interlock system restriction.
“(5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa.C.S. §3731 or a similar out-of-state offense who does not apply for an ignition interlock restrictive license shall not be eligible to apply for the restoration of operating privileges for an additional one year after otherwise being eligible for restoration under paragraph (1) . . . .” 42 Pa.C.S. §7002; 42 Pa.C.S. §7003.

A review of the pertinent legislative history reveals that the Ignition Interlock Law was enacted to comply with a federal mandate imposed as a condition of federal money being paid to the state for highway improvements. Legislative-Journal House (June 2000 at page 1410). Both the Senate and the House Journals reveal very little debate in this measure and it was passed overwhelmingly by both the Senate and the House. Although the legislative history does not specifically reveal the goal of the statute, we presume that it was intended to deter recidivist offenders of Pennsylvania’s Driving Under the Influence Law from re-offending.

n. EQUAL PROTECTION

When assessing the constitutionality of a statute, we are reminded that every legislative enactment enjoys a strong presumption of constitutionality. See, e.g., Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995). Nonetheless, one of the most important functions of an independent judiciary is to determine when or whether the legislature oversteps its authority by promulgating a law repugnant to our constitution. See e.g., Commonwealth v. Stern, 549 Pa. 505, 701 A.2d 568 (1997).

In evaluating any constitutional challenge, our first analytical step is to determine the test which should be applied. There are three such tests:

(1) Strict scrutiny — A law must be strictly scrutinized when it affects a fundamental right or applies to a suspect class such as race or religion.

(2) Intermediate scrutiny — This type of evaluation is used whenever a law applies to “important rights” or “sensitive classifications” such as gender.

(3) Rational basis — When none of the above apply, the least restrictive “rational basis” test must be used. Commonwealth v. McMullen, 756 A.2d 58, 61-62 (Pa. Super. 2000).

With respect to driver’s licenses, our legislature has provided a definition of “operating privilege” which defines a person’s right to utilize a motor vehicle on a highway as a “privilege” and not a “property right or civil right.” 75 Pa. C.S. §102. Moreover, our Supreme Court has specifically held that “[s]ince a driver’s license is a privilege and not a fundamental right, legislation affecting it must be evaluated under a ‘rational basis’ analysis.” Plowman v. PennDOT, 535 Pa. 314, 318, 635 A.2d 124, 126 (1993).

In applying the “rational basis” test, we are instructed to utilize a two-prong analysis: “(1) whether there exists any legitimate state interest; and (2) whether the statute is reasonably related to promoting a legitimate state interest.” Paz v. Pennsylvania Housing Finance Agency, 722 A.2d 762, 766 (Pa. Commw. 1999). Stated differently: “In analyzing any statute under the ‘rational basis test,’ we must determine whether the legislation has some relationship to the identified state interest and whether the relationship is objectively reasonable.” Plowman, supra 535 Pa. at 320, 635 A.2d at 127.

With respect to the first prong of the “rational basis test”, we have little difficulty concluding that the Ignition Interlock Law was enacted to promote a “legitimate state interest.” It is beyond question that the state has a right to deter people from operating a vehicle under the influence of alcohol. Where an individual has shown that he or she is a recidivist offender of the DUI statute, we believe that the state has a legitimate interest in requiring ignition interlocks in order to deter future episodes of driving under the influence.

It is the second prong of the “rational basis” test which causes us significant concern. The defendant points out that the Ignition Interlock Law treats different classes of people differently and that this disparate treatment cannot be reasonably related to any legitimate state interest. In an equal protection context, out Supreme Court has noted:

“The essence of the constitutional principal of equal protection under the law is that like persons and like circumstances will be treated similarly____However, it does not require that all persons under all circumstances enjoy identical protection under the law. . . . The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment,... and does not require equal treatment of people having different needs. . . .” Curtis v. Kline, 542 Pa. 249, 254-55, 666 A.2d 265, 267-68 (1995). (citations omitted) So long as a classification is reasonable and based upon some ground of difference having a fair and substantial relation to the object of the classification so that similarly situated individuals are treated alike, it is permissible.

Applying the principals outlined above to the Ignition Interlock Law, we note that the following classes of people are treated differently:

(1) Lease v. ownership — The Ignition Interlock Law clearly applies to vehicles owned by an offender. The Act is silent with respect to what occurs when the offender has leased a vehicle. We believe the Act can be interpreted in two different ways. Under one interpretation, the act could be read not to apply at all in a lease context. Under this interpretation, a DUI offender who leases a vehicle would not be required to install an ignition interlock. Under a different interpretation, a DUI offender who leases a motor vehicle would not be permitted to obtain restoration of his license even if he installs an interlock system inside his vehicle. Under either interpretation, lessees of vehicles are treated much differently than owners of vehicles.

(2) Supervised v. non-supervised — The Ignition Interlock Law requires the court to “certify” that an interlock system has been installed. Although the legislature does not so state, it is presumed that such certification would be made by a county probation officer exercising supervision over the DUI offender. Indeed, the judicial system would have no other method of verifying installation of an interlock or offering a “certificate” other than through a probation office. A problem arises when an individual to whom the Ignition Interlock Law is applicable has already completed his term of supervision. Under these circumstances, the court would have no method by which to “certify” installation of an ignition interlock. Accordingly, a non-supervised offender would not be able to obtain an ignition interlock restricted license.

(3) Ownership v. operation — The Ignition Interlock Law does not limit the obligation to install an interlock device to vehicles that are actually driven by a second time offender. Rather, the Act requires that all vehicles “owned” by the person be subject to an interlock. Therefore, whenever an offender owns a vehicle jointly with a spouse or child, that vehicle will be required to have an interlock device even if the offender never drives that vehicle. On the other hand, an offender who does not own a vehicle but who routinely drives cars owned or leased by family members would be precluded from driving even if the family-owned vehicle possessed an interlock. 42 Pa.C.S. §7003 precludes non-owners of cars from obtaining ignition interlock licenses. Thus, non-owners would not be able to drive for one year even if they are willing to install an interlock on vehicles they routinely operate. Conversely, persons who own cars would be permitted to obtain an ignition interlock license even if they do not routinely operate the vehicle with the interlock device.

We can conceive no rational or reasonable basis to distinguish between the classes of people outlined above. The state’s legitimate desire to deter recidivist DUI offenses should apply equally to leased vehicles and owned vehicles and to drivers who are supervised on probation and those who are not. The goal of this statute is to limit the ability of recidivist DUI offenders to operate vehicles without an ignition interlock. A simple statute preventing DUI recidivists from operating a vehicle without an ignition interlock would be sufficient to accomplish the goal of this legislation. Drawing arbitrary and unreasonable distinctions between the different classes outlined above does not.

We agree with the Cumberland County Court of Common Pleas which stated in Commonwealth v. Mockaitis 50 Cumb. 184 (2001):

“In summary, limiting multiple DUI offenders following a one-year license suspension to a restricted license during the second year that prohibits them from operating a motor vehicle unless it is equipped with an ignition interlock device would be sufficient to accomplish the goal of the legislation. Adding the requirement that the offender actually own a vehicle, and that every vehicle owned by the offender be equipped with the device, is arbitrary, unreasonable and therefore unconstitutional.” 50 Cumb. at 190.

Accordingly, we will grant the defendant’s motion to modify sentence and will eliminate that portion of our sentencing order which requires compliance with the Ignition Interlock Law.

III. SEPARATION OF POWERS

Since the earliest days of our republic, our democracy has been founded upon the axiom that there are three separate and co-equal branches of government.

“Generally speaking, the executive branch has the power to recommend legislation and the power and the duty to see that the laws are faithfully administered and carried out. The legislative branch has the power and duty to pass legislation; and the courts have the power, the duty and the responsibility of interpreting the constitution and all legislation and determining whether legislation and presidential orders and all other questions and issues meet or violate the requirements of the constitution.” Stander v. Kelley, 433 Pa. 406, 422, 250 A.2d 474 (1969).

Where one branch of government seeks to infringe upon the exclusive responsibility of another, that effort should be struck down. See L.J.S. v. State Ethics Commission, 744 A.2d 798 (Pa. Commw. 2000). Stated differently, “no branch should exercise the functions exclusively committed to the other branch.” Sweeney v. Tucker, 473 Pa. 493, 508, 375 A.2d 698, 705 (1977). Even a statute enacted pursuant to the legislature’s police power which furthers a laudable public policy must be struck down if it is found to interfere with another co-equal branch of government. See Commonwealth v. Stern, 549 Pa. 249, 701 A.2d 568 (1977); Heller v. Frankston, 76 Pa. Commw. 294, 302-303,464 A.2d 581, 584 (1983).

Pennsylvania’s Motor Vehicle Code sets forth a statutory scheme which requires the executive branch of government to issue and regulate motor vehicle licenses. The legislature has directed the Pennsylvania Department of Transportation (an executive agency) to issue driver’s licenses (75 Pa.C.S. §1510), maintain records regarding driver’s licenses (75 Pa.C.S. §1516), accept surrender of a license (75 Pa.C.S. § 1540), and complete various other functions relative to driver’s licenses within Pennsylvania. In fact, section 1531 of the Vehicle Code specifically states: “The department shall administer an integrated system limited to the authority granted to the department in this title for revocation and suspension of operating privileges and for driver education, testing and control....” 75 Pa.C.S. §1531.

Within this statutory scheme, the courts play a relatively minor role. Of course, the judiciary of this Commonwealth determines whether an individual commits one of the offenses which may have subsequent license implications. However, the courts’ role is limited to determining guilt. Thereafter, “license suspensions are collateral civil consequences rather than criminal penalties.” Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994). Under our statutory scheme, actual imposition of a license suspension “has been vested in an administrative agency over which the criminal judge has no control and for which he has no responsibility.” PennDOT v. McCafferty, 563 Pa. 145, 158-59, 758 A.2d 1155, 1162 (2000) citing Duffey, supra at 442, 639 A.2d at 1177.

In the face of this statutory scheme, the legislature enacted the Ignition Interlock Law which requires the judiciary to “certify” when a motorist has properly installed an interlock device. No money was allocated by the legislature to allow the hiring of people to perform this function nor is there a mechanism for a defendant to challenge entitlement to a certificate. Essentially, the Ignition Interlock Law requires the judiciary to perform functions which the Vehicle Code has otherwise assigned to the executive branch of government. Moreover, there is no practical way that the judiciary can accomplish the task assigned to it once a defendant is no longer under the supervision of a court.

Our Supreme Court has recognized that the separation of powers doctrine has historically protected the judiciary against incursions into areas other than its conduct of adversary litigation. In re 42 Pa.C.S. §1703, 482 Pa. 522, 532-33, 394 A.2d 444, 449 (1978). With respect to the Ignition Interlock Law, we believe that the legislature has attempted to impose executive regulatory responsibilities on the judicial branch of government in violation of the doctrine of separation of powers. For this reason also, we believe the Ignition Interlock Law as drafted is unconstitutional.

IV. CONCLUSION

We have no doubt that the legislature can enact a law which requires repeat DUI offenders to utilize ignition interlocks. However, the existing statute as drawn is fatally flawed in that it creates arbitrary and unreasonable classes of individuals which are treated differently for no rational reason. Likewise, it imposes regulatory responsibilities upon the judiciary without providing funding or a mechanism for the judiciary to always perform those functions. As currently drafted, we do not believe that the Ignition Interlock Law passes constitutional muster. Accordingly, we will decline to enforce it within Lebanon County. In light of our opinion as outlined above, we deem it unnecessary to address the remaining issues in defendant’s brief.

ORDER

And now, April 19, 2001, upon consideration of the request by the defendant to modify sentence, such request is granted and the defendant is relieved of any obligation to comply with the Pennsylvania Ignition Interlock Law (42 Pa.CS. §7002 and 42 Pa.C.S. §7003). In light of our ruling that the Ignition Interlock Law is unconstitutional, we direct that a copy of this opinion and order be mailed to the Pennsylvania Attorney General.

      . We note that at least one appellate court has criticized the classification of a driver’s license as a mere privilege by pointing out: “It is hard to accept the continued characterization of a license to drive as a privilege. No one will deny that we have reached a time in our modem way of life when the motor vehicle has clearly become a necessity to many people. The very livelihood of many, such as chauffeurs, trackers, traveling salesmen, men who work in skilled or unskilled labor, depends upon the operation of a motor vehicle. Their drivers’ licenses are just as valuable as a license to engage in an occupation or profession . . . .” PennDOT v. Slater, 75 Pa. Commw. 310, 319, 462 A.2d 870,875 (1983). While we may agree with the Commonwealth Court’s language in Slater, we nonetheless are constrained by the myriad of subsequent decisions which hold that the right to drive a car is a mere privilege.

      . Although we recognize that costs of installing an ignition interlock is an issue best left to the legislature, we are troubled nonetheless by the impact of this Act on households with multiple vehicles. At a cost of approximately $175 per month per vehicle, an offender who owns two or three vehicles could be required to expend significant monthly sums in order to retain a license. Moreover, a self-employed offender who owns multiple vehicles used in a business could face prohibitive expense in order to install an interlock in all of the vehides owned by his business. We can perceive situations where wealthy people would be able to afford to buy an ignition interlock license while poorer persons could not.

      . The courts also exercise judicial review over a license suspension decision of the department. However, the scope of the court’s review is extremely limited. We are not permitted to collaterally vacate an underlying criminal conviction nor are we allowed to act as a “board of clemency.” Rather, we are limited to determining whether an underlying conviction actually exists and whether the department acted within its statutory authority as a result of that conviction. See e.g., Weber v. PennDOT, 675 A.2d 359 (Pa. Commw. 1996).


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Hanyon v. Roth

      March 30, 2001
    C.P. of Lackawanna County,
    no. 96-CV-3327.

      James V. Fareri, for plaintiff.

      Kevin J. Dempsey, for defendant Roth.

      Nathan B. Ploener and James F. Mundy, for defendant Osborne.
   MINORA, J.,

Presently before the court is defendant Michael H. Roth P.C.’s motion for summary judgment. This matter arose out of an action commenced by the plaintiff to recover from the defendants damages equal to 40 percent of any future settlement or verdict recovered by defendant Osborne in a separate medical malpractice action, or in the alternative, damages equivalent to services and costs expended by the plaintiff to defendant Osborne in the malpractice action. Defendant Michael H. Roth P.C. argues that there is no evidence to support a claim that the defendant breached the agreement with the plaintiff, as well as, no claim that the defendant intentionally interfered with the contractual relationship between the plaintiff and the co-defendant. The defendant concludes that no issue of material fact exists and the defendant is entitled to judgment as a matter of law. The plaintiff argues that issues as to material facts exist, and that the court should decline the defendant’s motion for summary judgment. Arguments on this issue were heard before this court on February 1, 2001, and both parties have submitted their respective briefs making this matter ripe for disposition. We find that there are no genuine issues of material facts as to Count III of the plaintiff’s complaint for breach of contract and that there are no genuine issues of material facts regarding Count IV of the plaintiff’s complaint for tortious inference with contractual relations. Therefore, the motion for summary judgment will be granted.

FACTUAL HISTORY

Joseph R Hanyon, plaintiff, undertook the representation of defendant James Osborne, in a medical malpractice case. The plaintiff contacted defendant Michael H. Roth, Esquire of Michael H. Roth P.C. for help and assistance in representing defendant Osborne. The plaintiff and Roth agreed that Roth would not enter his appearance in the matter, but rather would give the plaintiff guidance as needed and requested. The plaintiff and Roth agreed to a fee splitting arrangement whereby Roth would receive 25 percent of any of the fee recovered by the plaintiff in the litigation.

In the underlying medical malpractice action, Hanyon filed two lawsuits on Osborne’s behalf. Hanyon’s deposition, 13. Hanyon filed the second lawsuit after discovering an additional defendant that he overlooked and neglected in his initial summons. Hanyon delivered the first writ of summons to the sheriff’s office himself, and his father delivered the second writ of summons to the sheriff’s office for service. Id.., 18. Hanyon intended for the second writ to be served upon all three defendants, and for the first writ not to be served. Id., 21. When the sheriff’s office effectuated service, one defendant was served with the first writ, one defendant was served with the second writ and the third defendant was not served at all. Id., 25-26. The party that was served with the first writ was eventually served with the second writ via the service of the complaint. Id., 25-26. Hanyon dismissed the first lawsuit without Osborne’s consent or knowledge. Id., 28. The dismissal of the first lawsuit created a statute of limitations issue in the second action, which resulted in Osborne’s claim being subjected to a motion for summary judgment.

In the early stages of the litigation, plaintiff admits, Roth was very attentive to the inquiries of the plaintiff. However, when a motion for summary judgment was filed by the defense on the basis of the failure to toll the statute of limitations, the plaintiff has alleged that Roth ceased any contact with the plaintiff and that Roth refused to return the plaintiff’s phone calls.

On June 22, 1994, defendant Osborne filed a writ of summons, pro se, against the plaintiff. The plaintiff was terminated by defendant Osborne as his counsel in the malpractice action and Osborne engaged new counsel. In October 1999, the malpractice matter went to trial and the bifurcated issue as to whether Hanyon acted in good faith in complying with service of process requirements that would toll the statute of limitations had to be decided by a jury on the Lamp v. Heyman, 469 Pa. 465, 366 A.2d 882 (1976) issue. After a jury trial, a determination was made that Hanyon had acted in good faith when conducting service of process on behalf of Osborne. Thereafter, the matter went to trial on the merits and the verdict in the amount of $730,500 was recovered in favor of Osborne.

The plaintiff commenced this action by filing a writ of summons on July 5, 1996. The plaintiff filed a four-count complaint on November 15, 1996, seeking to recover from the defendants damages equal to 40 percent of any future settlement or verdict recovered by defendant Osborne in the medical malpractice action, or in the alternative, damages equivalent to services and costs expended by the plaintiff to defendant Osborne in the malpractice action. Defendant Michael H. Roth RC. filed preliminary objections to the plaintiff’s complaint. This court ordered the plaintiff to file an amended complaint which he did on March 7,1997. The defendant then filed an answer and new matter to the plaintiff’s amended complaint on April 2,1997, denying all material allegations of the plaintiff’s complaint.

Counts III and IV of the plaintiff’s complaint are entitled “breach of contract, against Roth P.C.” and “against Roth P.C. tortious interference with a contractual relationship” respectively. The parties have engaged in discovery and depositions were taken of the plaintiff, and Michael H. Roth, Esquire and Kevin J. Dempsey, Esquire as representatives of defendant Michael H. Roth P.C. The defendant filed a motion for summary judgment on July 28, 2000.

DISCUSSION

I. Standard of Review

A party may move for summary judgment after pleadings are closed in two situations. First, when there is no genuine issue of material fact that could be established by additional discovery, and second, after discovery, if an adverse party bearing the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Pa.R.C.P. 1035.2; Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998). Further, under the revised rules, a court may grant summary judgment where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc). When maidng this determination, the trial court must consider the evidence in a light most favorable to the non-moving party. Pa.R.C.P. 1035.1-1035.4; Sebelin v. Yamaha Motor Corp. USA, 705 A.2d 904, 907 (Pa. Super. 1998).

Rule 1035.3(a) requires that the adverse party file a response setting forth the facts in dispute within 30 days after the service of the motion for summary judgment. Pa.R.C.P. 1035.3(a); Henninger v. State Farm Insurance Co., 719 A.2d 1074, 1076 (Pa. Super. 1998); Stilp v. Hafer, 701 A.2d 1387, 1390 (Pa. Commw. 1997). Where amotion for summary judgment has been properly supported with corroborating documentation, the adverse party must demonstrate by specific facts contained within their depositions, answers to interrogatories, admissions or affidavits that there is a genuine issue of material fact for trial. Sovich v. Shaughnessy, 705 A.2d 942, 944 (Pa. Commw. 1998), citing Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

II. Defendant Michael Roth RC. ’s Motion for Summary Judgment

A. Count III — Breach of Contract

“When performance of a duty under a contract is due, any nonperformance is a breach.” Lane Enterprises Inc. v. L.B. Foster Co., 700 A.2d 465, 471 (Pa. Super. 1997), reversed on other grounds, 551 Pa. 306, 710 A.2d 54 (1998), quoting Restatement (Second) of Contracts §235(2) (1981). If the breach is an immaterial failure of performance, and the contract was substantially performed, the contract remains effective. Id. citing Cimina v. Bronich, 517 Pa. 378, 537 A.2d 1355 (1988); Borough of Greentree to Use of Castelli Const. Co. v. Tortorete, 205 Pa. Super. 532, 211 A.2d 76 (1965); Schlein v. Gross, 186 Pa. Super. 618, 142 A.2d 329 (1958).

Defendant Michael Roth PC. argues that there is no evidence to support any claim that the defendant breached any agreement with the plaintiff. The defendant submits that it not only materially performed the contract but performed all duties under the contract such that plaintiff cannot demonstrate a non-material breach of the contract.

The defendant further submits that at no time did the plaintiff request any assistance from the defendant which the defendant failed to provide. The plaintiff testified in his deposition that he would produce any documents, which may have existed more than two years ago, to support his allegation that the defendant was contacted to provide assistance. To date, no documents have been produced by the plaintiff subsequent to his deposition to support the plaintiff’s claim that he wrote to Roth requesting his assistance, and that the requested assistance was not forthcoming.

B. Count IV — Tortious Interference With a Contractual Relationship

“In order to successfully advance a cause of action for intentional interference with contractual relations, a plaintiff must demonstrate the following: (1) the existence of a contractual relationship; (2) an intent on the part of the defendant to harm the plaintiff by interfering with that contractual relationship; (3) the absence of a privilege or justification for such interference; and (4) damages resulting from the defendant’s conduct.” Small v. Juniata College, 452 Pa. Super. 410, 417, 682 A.2d 350, 354 (1996), citing Triffin v. Janssen, 426 Pa. Super. 57, 62-64, 626 A.2d 571, 574 (1993), alloc. denied, 536 Pa. 646, 639 A.2d 32 (1994). In analyzing such a claim, Pennsylvanian courts have traditionally applied section 767 of the Restatement (Second) of Torts. Id. Section 767 provides,

“In determining whether an actor’s conduct in intentionally interfering with a contract or a prospective contractual relation of another is improper or not, consideration is given to the following factors:

“(a) the nature of the actor’s conduct,
“(b) the actor’s motive,
“(c) the interests of the other with which the actor’s conduct interferes,
“(d) the interests sought to be advanced by the actor,
“(e) the social interests in protecting the freedom of action of the actor and the contractual interests of the other,
“(f) the proximity or remoteness of the actor’s conduct to the interference and
“(g) the relations between the parties.” Id. at 418, 682 A.2d at 354.

Further, comment (b) to section 767 provides,

“The issue in each case is whether the interference is improper or not under the circumstances; whether, upon a consideration of the relative significance of the factors involved, the conduct should be permitted without liability, despite its effect of harm to another. The decision therefore depends upon a judgment and choice of values in each situation. This section states the important factors to be weighed against each other and balanced in arriving at a judgment; but it does not exhaust the list of possible factors.” Id.

The defendant submits that the termination of the attorney-client relationship between the plaintiff and defendant Osborne has no relationship to any alleged actions and/or inactions of defendant Michael H. Roth RC. The defendant submits that it did not interfere with the contractual relationship between the plaintiff and defendant Osborne. The defendant supports this allegation with the affidavit of defendant Osborne in which he concluded that it was in his (Osborne’s) best interests to terminate his attorney-client relationship with the plaintiff. The defendant also relies on defendant Osborne’s sworn statement that his decision was completely without any influence from defendant Michael H. Roth P.C. The defendant asserts that the plaintiff has failed to set forth a cause of action because plaintiff failed to introduce any evidence to support his allegation. Therefore, defendant Michael H. Roth PC., concludes that no claim for intentional interference with contractual relations has been established.

As an attorney participating in the malpractice action, Roth had a duty to Osborne as he would have toward any client. Pennsylvania Rule of Professional Conduct 1.4 provides that,

“(a) A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.
“(b) A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.” Pa.R.P.C. 1.4 (2000).

III. Plaintiff’s Position in Opposition

The plaintiff argues that the court should decline to enter summary judgment because there are material facts at issue, specifically, that the plaintiff states in his affidavit, that was made in opposition to the motion for summary judgment, that defendant Osborne was advised by Roth to sue the plaintiff, and this statement has been denied by both Roth and Dempsey. Also, the plaintiff maintains that Roth’s refusal to render his promise of advice and counsel, after a motion for summary judgment was filed in defendant Osborne’s malpractice case, is in violation of the agreement of Roth and the plaintiff, and that Roth denies any violation.

The plaintiff submits that Roth’s refusal to consult with the plaintiff or accept his phone calls for the purpose of rendering advice and assistance to the plaintiff in the malpractice action constitutes breach of the agreement between the two attorneys.

With regard to Count IV of the amended complaint, for tortious interference with the contractual relationship, the plaintiff submits that if he could show that Roth advised defendant Osborne to sue the plaintiff, then such an act would constitute tortious interference with the contractual relationship between the plaintiff and defendant Osborne.

The plaintiff attempts to satisfy the elements necessary for a cause of action for tortious interference with a contractual relationship. The plaintiff submits that the first element is met because there is no dispute that a contractual relationship existed between the plaintiff and defendant Osborne as his client. The plaintiff asserts that he can fulfill the second requirement if he can prove that the defendant advised defendant Osborne to sue the plaintiff, and actually assisted Osborne in preparing a writ of summons to be used to sue the plaintiff for malpractice. To support this element, the plaintiff relies on the deposition of Kevin J. Dempsey, Esquire. Dempsey admitted to preparing the writ of summons for defendant Osborne to use to sue the plaintiff. Dempsey’s deposition, 14. For the third element, the plaintiff submits that Roth’s actions were improper. The plaintiff submits that he (Roth) had met with the plaintiff’s client, Osborne, and that the client allegedly had complained about the way the case was being handled. As to the fourth element, the plaintiff submits that he suffered actual harm as a result of interference because defendant Osborne was lost as plaintiff’s client, and the plaintiff was precluded from receiving any fee under his agreement with defendant Osborne.

IV. Conclusion

No issues of material fact exist as to whether or not defendant Michael H. Roth RC., intentionally interfered with the contract between the plaintiff and defendant Osborne. The record does not indicate any intent to interfere on the part of defendant Michael H. Roth RC., but it is clear that defendant Osborne, as the client, exercised his own independent judgment to fire the plaintiff and retain new counsel in the underlying malpractice case. This was due to defendant Osborne’s perception that the plaintiff mishandled the duplicative writs of summons and mistakenly discontinued the first writ of summons without consulting defendant Osborne whatsoever nor confirming proper service of process. The written record of the court and sheriff is clear. Additional discovery would not reveal any genuine issues of material fact. Therefore, no genuine issue of material fact exists regarding Count IV of the plaintiff’s complaint for tortious inference with contractual relations.

Assuming arguendo, as the law requires us to do, and accepting the facts in the light most favorable to Hanyon, that there existed an oral contract between Hanyon and Roth for Roth’s assistance in the underlying medical malpractice action that relationship would be dependent upon a continuing attorney-client relationship between the plaintiff Hanyon and defendant Osborne. When the underlying client Osborne terminated his attorney-client relationship unilaterally with Hanyon (a fact which is not materially in dispute), Roth’s contractual duties to Hanyon also terminated.

It is beyond cavil that a client has the absolute right to terminate an attorney-client relationship. Kenis v. Perini Corp., 452 Pa. Super. 634, 682 A.2d 845 (1996).

When Osborne terminated Hanyon as his attorney, any derivative duty Roth had to Hanyon to provide assistance in prosecuting Osborne’s claim would also terminate, and be rendered moot. Therefore, any cause of action that Hanyon may have had against Roth for breach of contract is not only derivatively terminated but rendered moot as well by the actions of defendant Osborne in terminating his underlying attorney-client relationship with plaintiff Hanyon.

Accordingly, defendant Roth’s motion for summary judgment as to Count III (breach of contract) must be granted as well.

An appropriate order follows.

ORDER

And now, to wit, March 30,2001, it is hereby ordered and decreed that the defendant Michael H. Roth P.C.’s motion for summary judgment is granted as to Count III (breach of contract) of plaintiff’s complaint and as to Count IV (tortious interference of contractual relations) of plaintiff’s complaint.

Counts III and IV of plaintiff’s complaint are dismissed with prejudice.


author:
SYLVESTER, J.,
     By: /s/John C. McMeekin II By: /s/ROBERT E. PAUL

text:
    Pierson v. Allied Signal Inc.

      March 29, 2001

      Robert E. Paul, for plaintiffs.

      John C. McMeekin II, for defendant.
   SYLVESTER, J.,

PROCEDURAL HISTORY

This matter involves a lawsuit filed by the plaintiffs and against the defendants for injuries arising out of Howard Pierson’s exposure to asbestos. Trial in this case was held in June of 1998 before this court and a jury on a reverse-bifurcated basis. The jury found in favor of the plaintiffs during the Phase I causation trial.

The matter then proceeded to Phase II, the liability portion of the proceeding. After Mr. Pierson testified, defendant Allied Signal moved for a compulsory non-suit arguing that the plaintiffs had failed to meet their burden of proving product identification and regular, frequent, and proximate exposure to asbestos dust. This court granted the motion following which plaintiffs filed post-verdict motions.

While the motions were pending, this court was advised to hold those motions in abeyance as the parties were attempting to settle the case. However, after the passage of approximately 18 months this court was informed in the winter of 2000 that the parties could not reach a settlement; and, therefore, the court should rule on the plaintiffs’ motions.

Upon being so informed, this court let counsel know at a hearing held in the winter of 2000 that the court reporter who recorded the trial had left her position and that she had not prepared a transcription of either the trial or the nonsuit hearing before she had done so. This court issued a rule to show cause on the stenographer and seized several boxes of her paper tapes. The court advised counsel that without a transcript of the trial and hearing on the motions for nonsuit, it would be unable to rule on the defendant’s post-verdict motions.

In response, counsel requested that it be permitted to obtain the paper tapes prepared by the stenographer who recorded the trial and present them to another stenographer to ascertain whether a viable transcript could be produced from them. The court agreed with this suggestion and the paper tapes were turned over to a stenographer the parties mutually agreed upon. Unfortunately, he was unable to read much of the tapes or provide an accurate transcript of much of the proceedings in question.

When informed of this, this court’s first thought was to grant plaintiffs’ motions for a new trial because the court could not provide them with the meaningful post-verdict review to which it was entitled.

The court advised counsel of its views during a hearing held in the fall of 2000. This court told the parties that it was incapable of addressing plaintiffs’ post-verdict motions because it had no reliable recollection of the testimony presented at trial on account of the passage of time and the absence of the transcripts of the trial. (N.T. 11/28/00, pp. 11-12.) Counsel for both parties then advised this court that they could provide the court with sufficient documentation in lieu of the transcripts to enable the court to rule on plaintiffs’ motions. (N.T. 11/28/00, p. 12.) Both counsel also assured the court that they could agree as to what documents should be presented to the court for purposes of its review of the post-verdict motions filed in the case. (N.T. 11/28/00, p. 12.) The court reluctantly accepted what counsel stated and directed that they compile the documents they believed the court needed to review to rule on the motions in question. Prior to counsel averring that they could agree regarding what documents were to be presented to this court, it was the intention of this court to grant a new trial on account of the missing transcripts and other documentation, its inability to recreate the record, and its belief that the parties would not be able to agree as to what documents should comprise the record. A new trial was not granted at that time, however, based solely on the assurances of both counsel that they would be able to reach an agreement concerning the documents and other evidence that they intended to present to the court.

After the hearing in the fall of 2000, the parties went about the task of compiling the documents they believed could replace the missing and incomplete transcripts. However, as the court feared, a dispute has arisen between the parties regarding whether certain answers to interrogatories were shown to this court during the trial and thus comprise part of the record. See letters dated February 16, 2001 and, dated March 7, 2001, attached here as exhibits “A” and “B.”

Given that the parties cannot agree as to what documents this court should review and this court cannot resolve this dispute, this court is granting plaintiffs a new trial. The court does so not only because of the disagreement between the parties but also because even with the records provided by counsel, it cannot resolve the issues raised in plaintiffs’ post-verdict motions. The records given to this court simply fail to provide this court with sufficient information for it to rule on plaintiffs’ post-trial motions.

The court further notes that the dispute between the parties concerning the interrogatories renders this court incapable of complying with Rules 1923 and 1924 of the Pennsylvania Rules of Appellate Procedure. Rules 1923 and 1924 read as follows:

“Rule 1923. Statement In Absence Of Transcript
“If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, the appellant may prepare a statement of the evidence or proceedings from the best available means, including his recollection. The statement shall be served on the appellee, who may serve objections or propose amendments thereto within 10 days after service. Thereupon the statement and any objections or proposed amendments shall be submitted to the lower court for settlement and approval and as settled and approved shall be included by the clerk of the lower court in the record on appeal.
“Rule 1924. Agreed Statement Of Record
“In lieu of the record on appeal as defined in Rule 1921 (composition of record on appeal), the parties may prepare and sign a statement of the case showing how the issues presented by the appeal arose and were decided in the lower court and setting forth only so many of the facts averred and proved or sought to be proved as are essential to a decision of the issues presented. If the statement conforms to the truth, it, together with such additions as the lower court may consider necessary fully to present the issues raised by the appeal, shall be approved by the lower court and shall then be certified to the appellate court as the record on appeal and transmitted thereto by the clerk of the lower court within the time prescribed by Rule 1931 (transmission of the record). Copies of the agreed statement and the order from which the appeal is taken may be filed as the reproduced record.” (emphasis added)

When trial transcripts or the record are unavailable both of these rules mandate that the trial court approve a statement of facts that is to be submitted to the Superior Court in lieu thereof. This court avers that it will not be able to do this in this case. This anticipated inability of this court to meet the requirements of the rules cited above also supports its decision to grant a new trial insofar as the trial court’s role under the two rules is mandatory. See In re D.D., 409 Pa. Super. 35, 45, 597 A.2d 648, 652-53 (1991) wherein we find:

“This case presents a classic example of why each of the rules here under review mandates the participation of, and highlight the responsibility of, the trial court. Rule 1923 requires that any statement ‘be submitted to the lower court for settlement and approval’ and thereafter is included in the record ‘by the clerk of the lower court.’ Where an agreed statement of the case is prepared and signed by the parties pursuant to Rule 1924, there again it must be ‘approved by the lower court’ and thereafter certified and transmitted ‘by the clerk of the lower court.’ It is equally clear under Rule 1926 that corrections or modifications of the record ‘shall be submitted to and settled by [the lower] court.’ ”

It is noted that a trial court has the right to grant a new trial when the interests of justice require it. See Commonwealth v. Powell, 527 Pa. 288, 590 A.2d 1240 (1991) wherein the court wrote:

“This concept of ‘interest of justice’ has also been historically recognized as a viable ground for granting a new trial in this Commonwealth. A trial court has an ‘immemorial right to giant a new trial, whenever, in its opinion, the justice of the particular case so requires.’ March v. Philadelphia & West Chester Traction Co., 285 Pa. 413, 416, 132 A. 355 (1926). See also, Streilein v. Vogel, 363 Pa. 379, 69 A.2d 97 (1949); Frank v. W.S. Loiser & Co. Inc., 361 Pa. 272, 64 A.2d 829 (1949); Frank v. Bayuk, 322 Pa. 282, 185 A. 705 (1936). Indeed, as occurred in the instant matter, this court has expressly approved of a trial court’s granting a new trial, sua sponte, for the promotion of justice, if sufficient cause exists. Commonwealth v. Dennison, 441 Pa. 334, 338, 272 A.2d 180, 182 (1971); Getz v. Balliet, 431 Pa. 441, 446, 246 A.2d 108 (1968); see also, Bergen v. Lit Bros., 354 Pa. 535, 47 A.2d 671 (1946); Trerotola v. Philadelphia, 346 Pa. 222, 29 A.2d 788 (1943). Where it will result in the attainment of justice, a trial court may grant a new trial without the initiation of the defendant. Fisher v. Brick, 358 Pa. 260, 56 A.2d 213 (1948); Commonwealth v. Jones, 303 Pa. 551, 154 A. 480 (1931).” Powell, 527 Pa. at 293-94, 590 A.2d at 1242-43.

The absence of a complete transcript, the inability of the parties to agree about what the record should be comprised of and this court’s inability to resolve the dispute between the parties, all require, in the interests of justice, the grant of a new trial. The plaintiffs are entitled to full and fair post-verdict review and this court, for the reason stated, cannot provide such a review.

In conclusion, in view of the parties’ inability to compile a record that both sides can agree accurately reflects what this court considered when granting the defendant’s motion for a nonsuit, this court’s inability to resolve the conflict, and this court’s anticipated inability to comply with Rules 1923 and 1924 of the Rules of Appellate Procedure, it is clear that this court cannot supply the plaintiffs with meaningful post-verdict review, something to which it is entitled. Accordingly, for the reasons stated, the plaintiffs are granted a new trial.

ORDER

And now, March 29, 2001, it is hereby ordered and decreed that the plaintiffs are granted a new trial for the reasons stated in the attached opinion.

Judgment is entered accordingly.

EXHIBIT “A”

February 16, 2001

Via Hand Delivery

Honorable Esther R. Sylvester

c/o John Belli, Esq.

Philadelphia Court of Common Pleas

1801 Vine Street

Room 314

Philadelphia, PA 19107

Re: Howard W. and Nancy Pierson, Sr., h/w v. Allied Signal Inc. PCCP, November Term 1997, no. 1353

Our file no.: 515449

Dear Judge Sylvester:

I am writing on behalf of Allied Signal in response to Mr. Paul’s February 6,2001 correspondence to the court attaching portions of Bendix Corporation’s answers to interrogatories in the London matter as well as their inclusion in plaintiffs’ memorandum of law in support of the motion to remove nonsuit. Counsel have not agreed that these interrogatories are properly included in the agreed upon record. For the reasons set forth below, Allied Signal objects to the use or consideration of this document in support of plaintiffs’ motion to remove non-suit.

In speaking with Robert Paul, Esq., he advises that Richard Myers, Esq. recalls reference to them during oral argument. There is no independent record maintained by the court or the stenographer available to the parties which would confirm their admission into evidence. Trial counsel for Allied Signal have no record of the London interrogatories having been admitted into evidence, let alone for what purpose. The interrogatories were not included in plaintiffs’ June 3, 1998 trial exhibit list. They were not cited in plaintiffs’ motion to remove nonsuit which was filed with the court on June 23, 1998. Plaintiffs’ counsel did not propose to include them in the agreed upon statement of record which has been submitted to the court. Plaintiffs did not include them in a disputed statement of record, nor were they submitted to the court for settlement and approval pursuant to Pa.R.A.P. 1923. Allied’s counsel was only made aware of plaintiffs’ reliance on these interrogatories upon receipt of plaintiffs’ memorandum of law.

In light of the lengthy two-day oral argument and the significance which plaintiffs now ascribe to the responses, plaintiffs’ failure to even reference the London interrogatories in support of their motion to remove the nonsuit gives rise to the strong presumption that they were not admitted into evidence. Any reliance upon statements which are not evidence of record is improper. The proffered statements should be disregarded in their entirety by this court.

If the court has a record or independent recollection of having received these into evidence, Allied Signal will defer to the court. However, in the absence of independent verification, Allied Signal objects to plaintiffs’ unilateral inclusion in and reliance on the London interrogatories in support of their motion to remove the nonsuit.

If the court has any further questions or comments or wishes to address this issue in further detail, please do not hesitate to contact me.

Very truly yours,

Rawle & Henderson LLP

By: /s/John C. McMeekin II

JCM/pam

cc: Robert E. Paul, Esquire — via hand delivery

EXHIBIT “B”

March 7, 2001

Honorable Esther R. Sylvester

Court of Common Pleas

1801 Vine Street

Room 314

Philadelphia, PA 19107

Re: Pierson

Dear Judge Sylvester:

I have received Mr. McMeekin’s letter of Februaryló in this matter. I would note that by agreement he will provide those portions of the record for review which we did not send you except those portions he and I have subsequently agreed will be supplied by me.

This brings me to the issues in his letter. We believe that we showed you the answers to interrogatories at issue during the argument concerning the admissibility of the Rogers deposition to show that Bendix/Allied had previously conceded the point that Rogers was authorized and designated to discuss sales of Bendix brake linings. Since Mr. McMeekin disagrees that we did so you will have to resolve that issue.

However, I would note that even if he is correct that we did not introduce them at the time, I would note the following:

(1) The answers constitute a judicial admission and they should be considered pursuant to Pa.R.C.R 1019(g) and by judicial notice.

(2) Allied proposes to rely on evidence and on the answers of Ford in London. These should not be considered as they are hearsay against us. Further, at this stage of the case, i.e., motion for nonsuit, defendant’s evidence is irrelevant. We have agreed that the Ford answers in London are authentic.

(3) The London answers on which we rely are on rebuttal to Allied’s evidence and can be considered as casting doubts on Allied’s assertions. Since you never reached Allied’s case they were irrelevant in our case.

(4) Allied asks that you disregard its own admissions in another case, London, yet seeks to rely on Ford’s answers to discovery in that same case. This sharp practice should not be permitted.

(5) You would not have seen these answers to interrogatories in our case. They only became relevant when Allied sought to disavow its own admissions and deny Rogers’ ability and competence to testify on the issues in question. When Allied offered the evidence of the Ford answers to interrogatories from London in its own case then its own answers to interrogatories in the case became relevant. Since you granted a nonsuit we never reached Allied’s case or our rebuttal. These answers rebut Allied’s claim that the Ford answers show Allied was not the sole source supplies of OEM & OES asbestos brake lining equipment to Ford. For, they show that Allied concedes that Rogers would be able to resolve this factual dispute. He resolved this dispute in our favor at least enough to require a jury determination.

Very truly yours,

Paul, Reich & Myers, PC.

By: /s/ROBERT E. PAUL

REP/ar

cc: John McMeekin

      . Allied Signal is the lone remaining defendant as the other defendants named in the complaint either settled with the plaintiffs or were dismissed from the case.


author: CONWAY, J.,

text:
    Lobolito Inc. v. North Pocono School District

      January 11, 2001
    C.P. of Wayne County,
    no. 325-1996-civil.

      Guy Beneventano, for plaintiff.

      William Rinaldi, for defendant.
   CONWAY, J.,

Presently before this court is defendant’s motion for protective and/or motion to quash notice of depositions as well as the plaintiff’s motion to compel deposition testimony of Michael J. McGowan. Oral argument was held on December 15, 2000; however, neither party chose to file a brief in support of their position.

The relevant undisputed facts are as follows:

(1) On May 15, 1991, the parties entered into a joint development agreement to create a sewage treatment plant to service the school district’s proposed new school and Lobolito’s proposed development.

(2) Lobolito then petitioned for Department of Environmental Protection approval.

(3) On December 7, 1994, the parties entered into a memorandum agreement, after the election of a new majority to the school board.

(4) The memorandum agreed to change the location of the sewage treatment plant, altered the financing arrangements of the JDA and revised the terms to the new school.

(5) The memorandum agreement terminated and replaced the JDA. (See Lobolito Inc. v. North Pocono School District, 722 A.2d 249, 250 n.1 (Pa. Commw. 1998) [not published here].)

(6) Approximately one year after execution of the memorandum agreement, the school district adopted a resolution promulgated by the successor school board which provided that the school would not be built and even if it were, the sewage treatment plant would not be used.

(7) The Supreme Court affirmed the granting of preliminary objections regarding the plaintiff’s counts for breach of a contract and seeking lost profits, but ruled that Lobolito could proceed under an equitable theory of relief, promissory estoppel.

(8) Lobolito now seeks to depose the school board’s past solicitors, Paul Walker, Esq., Richard S. Bishop, Esq. and Robert Mariani, Esq.

Pennsylvania Rule of Civil Procedure 4012 provides that “Upon motion by a party or by the person from whom discovery or deposition is sought, and for good cause shown, the court may make any order which justice requires to protect a party or person from unreasonable annoyance, embarrassment, oppression, burden or expense

Defendant alleges that the protective orders should be granted because the witnesses’ information is protected by attorney-client privilege.

“The attorney-client privilege, however, does not bar all testimony by counsel concerning communications with a client or former client. Panko v. Alessi, 362 Pa. Super. 384, 524 A.2d 930, 932 (1987). It only bars discovery or testimony regarding confidential communications made by the client during the course of representation. Id. See also, Garvey v. National Grange Mutual Insurance Co., 167 F.R.D. 391 (E.D. Pa. 1996) (holding that attorney-client privilege does not apply where documents at issue did not contain confidential communications from client).” Birth Center v. St. Paul Companies Inc., 727 A.2d 1144, 1164 (Pa. Super. 1999).

Plaintiff also alleges that even if the attorney-client privilege is applicable, it should not apply to Mr. Mariani because he attended one of the subject meetings prior to being officially hired as the solicitor for the board. This court does not agree. The attorney-client privilege exists when an attorney acts in his professional capacity. Sedat Inc. v. Department of Environmental Resources, 163 Pa. Commw. 29, 641 A.2d 1243 (1994). A person who consults an attorney with a view to obtaining legal services is considered to be a client even if the employment is not accepted or the client chooses not to proceed. Surface v. Bentz, 228 Pa. 610, 77 A. 922 (1910). Presumably, Mr. Mariani attended this meeting in anticipation of being officially retained as solicitor and not for personal or civic minded reasons. Therefore, this court believes that the attorney-client privilege does apply to Mr. Mariani as much as it does to the other solicitors.

As plaintiff claims that he seeks factual testimony from the witnesses and no evidence was presented regarding the questions to be asked nor to what extent the board’s solicitors participated in the negotiations with Lobolito, this court does not believe that a motion to quash is appropriate.

“It is well settled that legal advice given by an attorney in his professional capacity in response to a client inquiry is immune from discovery on the basis of the attorney-client privilege pursuant to Rule 4003.1. In re Gartley, 344 Pa. Super. 350, 491 A.2d 851 (1985), affirmed sub nom, In re Search Warrant B-21778, 513 Pa. 429, 521 A.2d 422 (1987). Contrary to petitioners’ assertion, there is no exception to the attorney-client privilege for advice given by an attorney as part of the adjudicatory decision-making process. While it is true that when an attorney is the decision-maker, as opposed to legal counsel giving advice to the decision-maker, the attorney-client privilege does not apply.” Okum v. Commonwealth, Unemployment Compensation Board of Review, 77 Pa. Commw. 386, 465 A.2d 1324 (1983).

Defendant also argues that the Supreme Court’s opinion makes the plaintiff’s deposition irrelevant, however, what the opinion stated was that, “In the present case, the underlying facts set forth in the complaint provide for the possible recovery of damages based upon promissory estoppel.... In essence, Lobolito averred that, given its dealing with the school district since the 1991 joint development agreement, it relied on the board’s promises and, to the detriment, expended substantial money after the execution of the memorandum of agreement in proceeding with the STP [sewage treatment plant] project.” Therefore, this court believes that the meetings surrounding the negotiations for both the joint development agreement and the memorandum agreement are relevant to the claim of promissory estoppel.

Next plaintiff asks this court for an order to compel further depositions of Michael J. McGowan. Mr. McGowan is a former board member who refused to answer questions at a deposition because they were “privileged.” No one appeared on Mr. McGowan’s behalf, nor was any answer received. This court sees no privilege applicable and agrees that the witness must answer.

Accordingly, this court makes the following:

ORDER

And now, to wit, January 11, 2001, it is the order of this court that:

(1) Defendant’s motion for protective order and for motion to quash notice of deposition is hereby denied.

(2) The discovery shall not include disclosure of the mental impressions, opinions, memoranda, notes or summaries, legal research or legal theories of the attorney. Any objections should be made at the time of deposition for this court’s subsequent ruling.

(3) The plaintiff’s motion to compel deposition testimony of Michael J. McGowan is granted. Mr. McGowan is directed to answer plaintiff’s relevant deposition questions with respect to the formulation and adoption of the resolution and the subject matter of any private meetings held at his insurance office regarding same.


author: ESHELMAN, J.,

text:
    Hower v. Rogers

      September 17, 2001
    C.P. of Berks County,
    no. 98-6007.

      Kenneth Millman, for appellant.

      Edwin L. Stock, for appellees Ganas and The Reading Hospital and Medical Center.

      John R. Sparks Jr. and Karen E. Minehan for appellees Rogers and Women’s Clinic Ltd.
   ESHELMAN, J.,

In this medical malpractice action, plaintiff Mary Ann Hower has appealed our order of June 26, 2001, denying her motion to remove nonsuit. This opinion is filed pursuant to Pa.R.A.P. 1925(a).

On or about July 31, 1996, Hower reported to The Reading Hospital and Medical Center for the induction of labor of her sixth child. (N.T. p. 57.) During labor, defendant Robert M. Rogers M.D., the attending obstetrician, informed Hower that her baby was in distress and a C-section was necessary. (N.T. pp. 141-42.) Rogers, assisted by third-year resident defendant Christine L. Ganas M.D. performed the C-section and delivered a healthy baby boy. (N.T. pp. 67-68, 237.) While closing the fascia layer of Hower’s abdomen a portion of the tip of the suturing needle broke off. (N.T. p. 238.) Rogers and Ganas with the aid of nurses searched the operative site with their fingers as well as the table, drapes and floor. (N.T. pp. 226-27.) The needle tip was not found. Ganas recommended that a portable x-ray machine be used in the operating room to attempt to locate the needle tip in Hower’s tissue but Rogers refused to authorize its use. (N.T. p. 224.) Both surgeons thought they had seen the needle tip fly off the table. (N.T. p. 226.) Rogers and Ganas then completed suturing Hower’s abdominal incision.

On April 7, 1997, Hower visited her family doctor complaining of bladder and kidney infections. (N.T. p. 76.) Consequently, her physician ordered an intravenous pyelogram (IVP), an x-ray which revealed that the broken needle tip from Hower’s C-section remained in her abdomen. (N.T. pp. 81-82.) Hower then consulted Dr. Peter Issac, a general surgeon, and requested that he remove the needle tip which he did on May 18,1997. (N.T. 2/2/00 pp. 32, 34, 40.) Prior to the C-section, Rogers never told Hower that it was possible that a needle would break during the procedure. (N.T. p. 236.) Rogers admitted that the needle tip that broke during the C-section was the same one discovered during the IVP. (N.T. pp. 239-40.)

On May 28, 1998, Hower filed the within cause of action. Trial commenced on March 5,2001. At the close of Hower’s case on March 8, 2001, defendants moved for a compulsory nonsuit which the court granted. Hower filed a motion to remove nonsuit on March 15, 2001. After all briefs were submitted, the court denied Hower’s motion. This appeal followed.

A compulsory nonsuit may be entered only when the plaintiff cannot recover under any view of the evidence, resolving every doubt against its entry and drawing all inferences most favorably to the plaintiff. In the consideration of a nonsuit, all conflicts in the evidence are to be resolved in favor of the plaintiff. Bowser v. Lee Hospital, 399 Pa. Super. 332, 582 A.2d 369 (1990).

Hower’s first issue on appeal is that the court erred in granting Rogers’ motion for nonsuit where she established at trial a prima facie case of medical negligence even though she produced no expert testimony.

To state a cause of action for medical malpractice, a plaintiff must establish that the physician owed a duty to the plaintiff, that the physician breached that duty, that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the plaintiff, and that the damages suffered by the plaintiff were a direct result of that harm. Moreover, the patient must offer an expert witness who will testify to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Wolloch v. Aiken, 756 A.2d 5 (Pa. Super. 2000).

Hower contends that Rogers’ specific acts of negligence were that he left a needle inside her and refused to authorize an x-ray to find it and that he failed to inform her that a needle had broken during the surgical procedure. (Supplemental brief of plaintiff Mary Ann Hower in support of her motion to remove nonsuit pp. 6-7.) She advances three arguments in support of this contention.

First, she cites the exception to the requirement of expert testimony in medical malpractice cases. No such testimony is needed “where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons ....” Lambert v. Soltis, 422 Pa. 304, 308, 221 A.2d 173, 175 (1966). (emphasis in original)

Hower analogizes her case to “sponge cases,” i.e., cases where surgeons negligently leave a surgical sponge inside a patient, a situation of such obvious negligence that no expert testimony is required. In Gregorio v. Zeluck, 451 Pa. Super. 154, 678 A.2d 810 (1996), the court concluded that the defendant surgeon was negligent in failing to remove a sponge after surgery and this departure from medically accepted standards was “presumably” within the comprehension of ordinary lay jurors. Id. at 159, 678 A.2d at 813. Unlike the instant case, the plaintiffs in Gregorio presented a medical expert witness at trial; like the instant case they were nonsuited by the trial court whose decision was affirmed on appeal because the plaintiffs failed to prove a cognizable injury resulting from medical negligence nor could they prove a claim for negligent infliction of emotional distress. Id. at 161, 678 A.2d at 814-15. Why are “sponge cases” examples of medical malpractice so obvious that experts are not needed? Because a sponge is a foreign substance that cannot be tolerated by the body. See Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 761-62, 691 A.2d 950, 956 (1997). Can the same be said for a surgical steel needle tip?

No.

Dr. Pete Issac, the general surgeon who removed the needle tip, testified that surgeons often leave metal chips in a patient’s fat tissue without adverse consequences. (N.T. 2/2/00 pp. 32-33.) In fact, Dr. Issac performed a cholecystomy on Hower and during the operation he used eight stainless steel or titanium hemoclips which remained permanently in Hower’s body with no adverse effect or complaints from Hower. (N.T. 2/2/00 p. 53.) Therefore, even though a surgeon may leave a foreign object in a patient during surgery this is not ipso facto proof of the surgeon’s negligence. Some foreign objects may be tolerated by the body, others may not. Therefore, we must take leave of the analogy to the sponge cases and take a closer look at Rogers’ alleged negligent act to determine if an expert was needed at this trial.

Rogers’ alleged negligence consisted of three discrete decisions. First, he had to decide whether to continue searching for the needle tip after examining the operating field, the surgical drapes and operating room floor or close the incision. Second, he had to decide whether or not to use a portable x-ray in the operating room to locate the needle tip. Finally, he had to decide whether or not leaving the tip inside the patient would cause a health problem. (N.T. p. 241.) These decisions pose questions to the jurors who are being asked to determine if Rogers was negligent. For example, should Rogers have taken additional time to search for the needle tip before closing Hower’s incision although this might increase the risk of infection? Despite its limitation, should he have used the portable x-ray in the operating room or sent Hower to the hospital’s radiology department as soon as possible for a more accurate x-ray? Would a needle tip left embedded in Hower’s fascia prove harmless and have no long-term effects on her health? We think that the answers to these questions are beyond the knowledge and experience of the ordinary layperson. The jurors’ ability to answer these questions is crucial in a malpractice case because even in a case without an expert, the jury must still decide whether or not the defendant was negligent. Here, where they are asked to pass upon the professional judgments made by a medical specialist, jurors need guidance from an expert witness to determine if Rogers breached his duty to Hower and committed medical malpractice. Therefore, because she failed to produce a necessary expert witness Hower did not prove a prima facie case of medical negligence against Rogers.

Our conclusion is supported by cases from other jurisdictions presented to us by Rogers, all of which hold that a plaintiff must present an expert witness to prove negligence where a surgeon exercises medical judgment and leaves a needle or scalpel tip in a patient’s body. Cebula v. Benoit, 652 S.W.2d 304 (Mo. Ct. App. 1983); Wayne v. Deborah Heart & Lung Center, 588 A.2d 860 (N.J. Super. 1991); Williams v. Dameron, 246 S.E.2d 586 (N.C. App. 1978); John Hopkins Hospital v. Gendo, 258 A.2d 595 (Md. 1969).

Hower next maintains that her case should have gone to the jury under the theory of res ipsa loquitur. Under this theory of liability, a jury may imply that the harm suffered by the plaintiff is caused by the defendant’s negligence when:

“(a) the event is of the kind which ordinarily does not occur in the absence of negligence;
“(b) other responsible causes, including conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
“(c) the indicated negligence is within the scope of defendant’s duty to the plaintiff.” Restatement (Second) of Torts §328(D) (1965); Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52 (1997); Kelly v. St. Mary Hospital, 2001 Pa. Super. 175 (Pa. Super. 2001). All three of the above elements must be satisfied before an inference of negligence can be drawn from an injurious event. Leone v. Thomas, 428 Pa. Super. 217, 630 A.2d 900 (1993).

The theory of res ipsa loquitur was first applied to medical malpractice cases in Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981). Regarding the nature of the evidence to be produced in a medical malpractice case based upon res ipsa loquitur the Supreme Court said:

“We are satisfied that expert testimony should no longer be a per se requirement in proof of negligence in all cases of alleged medical malpractice. Expert medical testimony only becomes necessary when there is no fund of common knowledge from which laymen can reasonably draw the inference or conclusion of negligence. Even where there is no fund of common knowledge, the inference of negligence should be permitted where it can be established from expert medical testimony that such an event would not ordinarily occur absent negligence. Restated, section 328D provides two avenues to avoid the production of direct medical evidence of the facts establishing liability: one being the reliance upon common lay knowledge that the event would not have .occurred without negligence, and the second, the reliance upon medical knowledge that the event would not have occurred without negligence.” Jones at 472-73, 437 A.2d at 1138. (footnote omitted)

Here, Hower has failed to prove the first element of res ipsa loquitur. As described above, the facts of this case are not such that a jury could rely upon common lay knowledge and conclude that Hower’s alleged injury would not have occurred without Rogers’ negligence. We have decided that the issues here involve knowledge beyond the education and experience of the ordinary layperson. Hower could have proven the first element by presenting a medical expert who would testify that Hower’s injuries more likely than not were caused by Rogers’ negligence. Leone, supra. However, Hower failed to do so and the first element of res ipsa loquitur was not shown. Because one of the elements is missing, an inference of negligence cannot be drawn from Rogers’ actions. Smith v. City of Chester, 357 Pa. Super. 24, 515 A.2d 303 (1986).

In a final attempt to present a case without an expert, Hower argues that Rogers violated hospital policy concerning broken needles. At the time of Hower’s operation, The Reading Hospital and Medical Center had a policy that prohibited a patient from being closed if a needle had broken during a surgical procedure and not been found. The procedure called for an x-ray to be taken of the patient under these circumstances. Rogers’ refusal to order an x-ray was a violation of hospital protocol, says Hower, and proves that a deviation from accepted standards of medical care occurred. Hower likens this theory to negligence per se. (Supplemental brief of plaintiff Mary Ann Hower in support of her motion to remove nonsuit p. 8 n.4.)

Hower presents no Pennsylvania law in support of her proposition that a surgeon’s violation of internal hospital procedures constitutes a breach of care a doctor owes to a patient. The violation of a statute may serve as the basis for a finding of negligence per se; this concept establishes both duty and breach of duty where an individual violates an applicable statute, ordinance or regulation designed to prevent a public harm. J.E.J. v. Tri-County Big Brothers/Big Sisters, 692 A.2d 582, 585 (Pa. Super. 1997); Campo v. St. Luke’s Hospital, 755 A.2d 20 (Pa. Super. 2000). However, regulations promulgated by a hospital are not legislative enactments and therefore cannot be the basis for a finding of negligence per se. Although there are no Pennsylvania cases on point, this conclusion is supported by cases from other jurisdictions. Law v. Camp, 116 F. Supp.2d 295 (U.S. Dist. Conn. 2000); Van Steensburg v. Lawrence & Memorial Hosp., 481 A.2d 750 (Conn. 1984); Leal v. Hobbs, 538 S.E.2d 89 (Ga. App. 2000); Darling v. Charleston Community Memorial Hospital, 211 N.E.2d 253 (Ill. 1965); Williams v. St. Claire Medical Center, 657 S.W.2d 590 (Ky. App. 1983). Because Hower has not made out a case of negligence per se against Rogers, her third and final reason for not providing any expert must be rejected.

Hower also maintains that Rogers deviated from the standard of care in failing to inform her after the C-section that the needle tip remained inside her body. Although Rogers was convinced in his own mind that the needle tip flew off the operating table and was not in his patient, the needle tip remained unaccounted for until Hower’s IVP x-ray some time later. The question then becomes, should Rogers have told Hower after the surgery that there was a possibility that the needle remained in her abdomen? Again, the answer to this question requires the assistance of an expert to establish the relevant standard of care or breach thereof. A surgeon’s appropriate course of action in this situation is beyond the knowledge of the average layperson especially where, as here, there is no testimony that the delay in detecting and removing the needle tip caused or exacerbated Hower’s injuries.

We conclude that Hower needed a medical expert to prove her case against Rogers. She did not produce one. Therefore she did not prove a prima facie case of medical negligence against Rogers and the nonsuit was correctly entered.

In a final attempt to save her case against Rogers from nonsuit, Hower argues that Rogers waived his right to seek a nonsuit because his counsel cross-examined Hower beyond the scope of direct examination and injected a defense into the case. A nonsuit may not be granted if the defendant had offered evidence during or after the plaintiff’s case. The rule permits nonsuit before any evidence on behalf of the defendant has been introduced. Harnish v. School District of Philadelphia, 557 Pa. 160, 732 A.2d 596 (1999); Pa.R.C.P. 230.1.

Hower specifically refers the court to Rogers’ counsel’s cross-examination of Hower concerning her signing two consent forms marked as defense exhibits nos. 15 and 16. (N.T. pp. 134-37.) Counsel then used defense exhibits nos. 9 and 11 to refresh Hower’s recollection. (N.T. pp. 137-39,141-42.) Finally, counsel questioned Hower about a note allegedly generated as a result of a conversation between Hower and a representative of the Women’s Clinic in September 1996 indicating Hower may have been aware of the presence of the needle tip in her body before April 14, 1997. Hower denied knowledge of the note. (N.T. pp. 149-50.) These exhibits were not admitted into evidence nor shown to the jury.

The cross-examination and exhibits in question were presented to refresh Hower’s recollection and rebut her direct testimony and did not exceed the scope of direct examination. No defense was interposed by Rogers. It must be kept in mind in this context that “ ‘ [“][t]he rule that the scope of cross-examination may not properly exceed the scope of the direct is not applicable where a party to the action offers himself as a witness. He may be cross-examined freely as to any matter relevant and material to the issues. [”] Jess v. McMurray, [394 Pa. 526, 527, 147 A.2d 420, 421 (1959)].[’] Geelen v. Pennsylvania Railroad Company, 400 Pa. 240, 246, 161 A.2d 595, 599 (1960).” Hollidaysburg Tax Collectors v. Hollidaysburg Area School District, 660 A.2d 245, 247 (Pa. Commw. 1995). See Pa.R.E. 611(b). Therefore, Rogers did not waive his right to move for a nonsuit.

Hower also maintains that The Reading Hospital and Medical Center should remain in the case because Rogers was the ostensible agent of the hospital. The theory of ostensible agency was first applied to hospitals in Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). The court relied on Restatement (Second) of Torts §429 (1965) to provide an exception to the general rule that an employer is not liable for the torts committed by an independent contractor in his employ. As applied to hospital liability for the negligence of independent contractor physicians the court concluded that the doctor may be an agent of the hospital with respect to the patient based upon two factors. First, the changing role of the hospital in society creates a likelihood that patients will look to the institution rather than the individual physician for care. Second, the hospital may “hold out” the physician as its employee. This occurs when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees. Capan at 368, 430 A.2d at 648-49.

Hower’s sole reference to ostensible agency is found at a footnote in her brief. (Supplemental brief of plaintiff Mary Ann Hower in support of her motion to remove nonsuit p. 3 n. 1.) The references to trial testimony found there do not support Hower’s position. She testified that her HMO told her to go to “Reading Hospital at Women’s Clinic” and she treated at the clinic throughout her pregnancy having seen three or four of their doctors. (N.T. p. 52.) She was also informed that Rogers would substitute for Dr. Fehnel in the delivery of her child, because Dr. Fehnel was unavailable. (N.T. pp. 58-59.) She also testified to meeting Rogers one time before delivery. (N.T. pp. 59-60.) Hower also testified that she knew the Women’s Clinic was “affiliated” with the hospital that they “worked together” and “guessed” that the clinic was part of the hospital but didn’t know. (N.T. pp. 83-84.) The proffered testimony fails the Capon test. Hower’s testimony shows that she looked to individuals — Rogers, Fehnel — not the hospital for care. Not knowing the exact nature of the “affiliation” between the clinic and the hospital she has not shown that she had a reasonable belief that she was treated by the hospital or one of its employees. Because ostensible agency had not been shown, we granted the hospital’s motion for nonsuit.

Therefore, for the reasons set forth above, we denied Hower’s motion to remove nonsuit.

      . In her “statement of matters complained of on appeal” Hower raises 11 issues. However, the court’s opinion deals with only those issues discussed in Hower’s brief and supplemental brief filed in support of her motion to remove nonsuit. Only issues specifically raised in post-trial motions are preserved for review and, even though an issue is contained in a post-trial motion, the issue is waived for purposes of appellate review unless it is briefed or argued during the post-trial proceedings. Cucchi v. Rollins Protective Services, 377 Pa. Super. 9, 546 A.2d 1131 (1988); Allegheny Housing Authority v. Hibbler, 748 A.2d 786 (Pa. Commw. 2000).

      . Hower’s three arguments focus on the first two alleged negligent acts; leaving a needle inside a patient and failure to order an x-ray. Our analysis follows the same focus. The “failure to inform” issue will be dealt with separately below.

      . Although Hower identified the “needle count policy” at trial (N.T. pp. 221-22 exhibit no. 13) and moved it into evidence (N.T. p. 244) the policy does not appear in the official set of exhibits prepared by the court reporter.

      . Hower’s claim against the Women’s Clinic was based upon vicarious liability only and a failure to prove a prima facie case against Rogers likewise is a failure to prove a prima facie case against the Women’s Clinic. See Mamalis v. Atlas Van Lines Inc., 364 Pa. Super. 360, 528 A.2d 198 (1987).

      . The court granted a nonsuit as to defendant Ganas. (N.T. p. 337.) Hower cites no error in the granting of this nonsuit in either her motion to remove nonsuit or in her brief or supplemental brief in support of said motion. Hence this issue is waived. Cucchi, supra.


author: WARMAN, J.,

text:
    Commonwealth v. Geary

      September 19, 2001
    C.P. of Fayette County,
    no. 1756 of 2000.

      Douglas Sepic, for Commonwealth.

      Edward Bilik, for defendant.
   WARMAN, J.,

This case is presently before the court on an omnibus pretrial motion filed by the defendant in the form of a motion to suppress defendant’s medical records seized from University of Pittsburgh Medical Center, Pittsburgh, Pennsylvania.

FACTS

At the time of the omnibus hearing it was agreed that the matter would be submitted to the court based upon the testimony introduced at the preliminary hearing. The court was provided with a transcript of the proceedings from the preliminary hearing and the facts set forth herein are based solely upon the preliminary hearing transcript in accordance with the agreement of the parties.

On August 20, 2000, at or about 4:30 p.m. the defendant was operating a 1991 Hyundai automobile on Quail Hill Road, a two-lane roadway, located in Bullskin Township, Fayette County, Pennsylvania. The weather was clear and sunny and no obstructions were located in the roadway. Winfield Charles Hissem, the only passenger, occupied the front passenger seat of the vehicle. Upon rounding a right-hand turn in the roadway, the defendant operated his vehicle onto the south berm causing him to lose control of the vehicle. The passenger side of the vehicle struck a large tree causing the vehicle to rotate clockwise ejecting the defendant from the vehicle onto the roadway. The passenger, Winfield Charles Hissem, sustained injuries which resulted in his death at the scene.

John Conyette, a neighbor, heard the crash, exited his home and observed the defendant sitting in the middle of the roadway approximately 30 feet from the vehicle. Mr. Conyette observed that the defendant appeared dazed and had to be helped off of the roadway. When Walter Rechenberg, a paramedic, arrived at the accident scene, the defendant was walking around. Rechenberg examined the defendant and applied a cervical collar to immobilize his head and neck. The defendant was placed on a spine board immobilizing him from head to foot. Defendant was administered oxygen, I.V.s and prepared for transport by helicopter to the UPMC. The defendant admitted to being the operator of the vehicle and the paramedic observed an odor of alcohol on his breath. He noted that the defendant was conscious, concerned about the accident and very upset.

The prosecuting officer, Pennsylvania State Trooper James Aughinbaugh, arrived at the scene while the defendant was being treated in the ambulance. Trooper Aughinbaugh stepped into the ambulance and questioned the defendant. The defendant said he knew he should not have been driving and asked about the status of his friend. An examination of the interior of the vehicle revealed numerous cans of Budweiser beer, some empty and some unopened and still cold. Knowing that the defendant was to be transported to UPMC, Trooper Aughinbaugh made arrangements for Trooper Curt Reuter of the Finley Barracks to appear at UPMC. Neither officer advised the defendant regarding the implied consent law, 75 Pa.C.S. §1547, and neither requested that the defendant submit to a blood test to determine his blood alcohol content. Criminal charges including homicide by vehicle were filed by Trooper Aughinbaugh on August 20, 2000, prior to the defendant’s release from UPMC and the defendant was taken into custody by Trooper Reuter.

While at UMPC, the only blood sample drawn from defendant was taken by hospital personnel for treatment purposes. No blood was drawn by the hospital pursuant to section 3755 of the Motor Vehicle Code.

Trooper Aughinbaugh called the Fayette County District Attorney’s Office for assistance in an effort to obtain the UPMC laboratory blood results. In response thereto, an employee of the district attorney’s office typed up a subpoena directed to UPMC. No hearing date had been set nor did the subpoena require that the test results be produced at a hearing. The subpoena merely required that the test results be released to Trooper Aughinbaugh. No search warrant or court order was obtained to require the release of the medical records and no probable cause to justify the production of records was established before an independent judicial officer.

As a result of the issuance of the subpoena by the district attorney’s office, the laboratory results from UPMC were released to the Pennsylvania State Police. The UPMC laboratory results were then transmitted to Dr. Winnick of PC Lab in Pittsburgh for the purpose of converting the serum alcohol results to whole blood alcohol. The conversion to whole blood by Dr. Winnick indicated that the defendant had a blood alcohol content of .120 percent.

Upon receipt of the PC lab report, Trooper Aughinbaugh withdrew the original charges and on August 23, 2000, refiled the criminal complaint adding additional charges of driving while under the influence of alcohol, 75 Pa.C.S. §3.731 (a)(4)(i) and homicide by vehicle while driving under influence, 75 Pa.C.S. §3735(a).

DISCUSSION

The defendant contends in his omnibus pretrial motion that under Article I, Section 8 of the Pennsylvania Constitution, the police officer may not obtain the results of a blood alcohol test pursuant to 75 Pa.C.S. §3755(a) without a search warrant and without having requested that the blood alcohol test be performed.

It is undisputed that defendant’s BAC test was conducted for independent medical purposes. Neither Trooper Aughinbaugh nor Trooper Reuter requested that the defendant consent to have blood drawn for the purpose of a blood alcohol test and neither officer requested that UPMC hospital personnel draw a sample of the defendant’s blood for testing. Similarly, no blood was drawn by UPMC emergency room personnel pursuant to 75 Pa.C.S. §3755(a) as a result of any perceived duty arising out of the abstract probable cause requirement of said statute.

Section 3755(a) reads as follows:

“Section 3755. Reports by emergency room personnel.
“(a) General rule. — If, as a result of a motor vehicle accident, the person who drove, operated or was in actual physical control of the movement of any involved motor vehicle requires medical treatment in an emergency room of a hospital and if probable cause exists to believe that a violation of section 3731 (relating to driving under the influence of alcohol or a controlled substance) was involved, the emergency room physician or his designee shall promptly take blood samples from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health and specifically designated for this purpose. This section shall be applicable to all injured occupants who were capable of motor vehicle operation if the operator or person in actual physical control of the movement of the motor vehicle cannot be determined. Test results shall be released upon the request of the person tested, his attorney, his physician or governmental officials or agencies.”

In accordance with the provisions of 75 Pa.C.S. §3755(a), a police officer may request that emergency room personnel take blood samples for testing from a person who requires medical treatment when probable cause exists to believe that the person has been operating a vehicle under the influence of alcohol. When such a request is made, the hospital personnel have an affirmative duty to obtain the blood samples and to transmit them for blood alcohol testing. The test results may then be released upon request of the officer.

The officers in the present case did not follow the statutory procedure to obtain blood samples from the defendant to determine the blood alcohol content of the samples. Instead, Trooper Aughinbaugh obtained the subpoena from the district attorney’s office requiring that UPMC personnel release the medical records to the police. The “subpoena” did not require a witness to appear for a court proceeding but was used as an investigatory tool to obtain the defendant’s medical records. Pa.R.Crim.P. 9016 (now 107) provides that “A subpoena in a criminal case shall order the witness named to appear before the court at the date, time and place specified and to bring any items identified or described.” Thus, the proper use of a subpoena duces tecum is to direct a witness to appear with the records at a court proceeding. In this case, no court proceeding was scheduled, no witness was directed to appear with the records, the subpoena merely directed the hospital personnel to release the records to the police. We find that the subpoena was utilized as an investigatory tool to accomplish the purpose of a search warrant without the necessity of judicial review and was, therefore, improper. We find the legal effect of the method utilized to obtain the defendant’s medical records to be no different from that utilized by the officer in Commonwealth v. Riedel, 539 Pa. 172, 651 A.2d 135 (1994). In Riedel, the officer obtained the results of the appellant’s BAC test merely by directing a written request to the hospital.

The Supreme Court noted in Riedel that an individual has a substantial privacy interest in his medical records which is subject only to reasonable searches and seizures. Generally, a search and seizure is not reasonable unless conducted pursuant to a valid search warrant upon a showing of probable cause. Id. The court also noted that exceptions to the warrant requirement do exist. For example, actual consent, implied consent, search incident to lawful arrest and exigent circumstances may negate the necessity of obtaining a warrant before conducting a search. The court determined that where probable cause to request a blood test under section 3755 or section 1547, (the implied consent law), exists, the fact that the officer chose to wait and obtain the appellant’s test results by mailing a request to the hospital did not make the search less reasonable. The court found that the litmus test under section 3755 is the existence of probable cause to request a blood test, not the request itself and noted that the search of appellant’s medical records involved only a minimal intrusion into appellant’s privacy. Therefore, the search of appellant’s medical records and the seizure of his blood test results was reasonable under the Fourth Amendment of the United States Constitution.

Justice Zappala in a concurring opinion in Riedel, joined in by Justice Flaherty and Justice Cappy, determined that a different result would follow had the suppression issue been raised under our state constitution. Justice Zappala noted that Article I, Section 8 has an identity and vitality that is separate and distinct from that of the Fourth Amendment and that the decisions of the U.S. Supreme Court are not dispositive of questions regarding the rights guaranteed to citizens of the Commonwealth under our state Constitution. The concurring justices found that the protection provided by Article I, Section 8 extends to areas where an individual has a reasonable expectation of privacy. Since an individual has a reasonable expectation of privacy in his medical records, the protection provided by Article I, Section 8, encompasses this privacy interest. The concurring justices opined that under the Pennsylvania Constitution the warrantless search of Riedel’s medical records was unreasonable and in violation of Article I, Section 8. Id. at 187, 651 A.2d at 143.

The concurring opinion in Riedel was adopted by the majority of the Supreme Court in Commonwealth v. Shaw, 564 Pa. 616, 770 A.2d 295 (2001). In Shaw, Trooper Todd Hershey, while investigating a two-vehicle accident, determined that defendant Shaw was the responsible driver. When the officer arrived at the scene, the defendant had already been taken by ambulance to the Gettysburg Hospital. At the hospital, Trooper Hershey informed the defendant of his Miranda rights and the implied consent law and advised the defendant that the hospital would be drawing a sample of blood for treatment purposes. A few minutes later, hospital personnel drew a blood sample from the defendant for independent medical purposes. Trooper Hershey called the hospital laboratory a short time later and obtained the results which indicated a BAC of .267 percent. Following defendant’s arrest for driving while under the influence of alcohol and related offenses, the investigating officer obtained the formal written results of defendant’s BAC test through the issuance of a subpoena. The court found that since defendant’s BAC test was not conducted pursuant to section 3755(a), the release of the results of the BAC test at the request of Trooper Hershey was not authorized by section 3755(a), nor was there any other statutory basis for releasing the result. The court held that the release of the result of defendant’s BAC test, taken for independent medical purposes and not pursuant to section 3755(a), without a warrant and in the absence of exigent circumstances, violated Article I, Section 8 of the Pennsylvania Constitution. Accordingly, the BAC test results were suppressed.

In the case sub judice, the defendant’s BAC tests not having been conducted pursuant to section 3755(a), the release of the results of the BAC test was not authorized by section 3755(a) nor could the same be released in the absence of a search warrant or other court order issued upon a finding of probable cause by an independent judicial officer. The release of these records to the police pursuant to subpoena improperly issued by personnel of the district attorney’s office without independent judicial review constitutes a warrantless search of the defendant’s medical records which is not permitted under the Pennsylvania Constitution. Id.

The results of the BAC testing having been obtained by the police in violation of Article I, Section 8, of the Pennsylvania Constitution must, therefore, be suppressed.

ORDER

And now, September 19, 2001, upon consideration of the omnibus pretrial motion filed by the defendant and following hearing thereon, it is hereby ordered and decreed that the request to suppress the defendant’s UPMC medical records and the BAC test results of the defendant is granted.