author: SURRICK, J.,

text:
    Tenaglia v. Procter & Gamble Inc.

      C.P. of Delaware County,
    no. 95-10260.

      Ronald David Ashby, for plaintiff.

      Francis McGill Hadden, for defendant.
    December 28, 1998
   SURRICK, J.,

On August 21, 1995, plaintiff, Valerie R. Tenaglia, filed á complaint against defendant, Procter and Gamble Inc., alleging personal injuries sustained as a result of a defectively manufactured product. The defective product was a cardboard box containing Pampers diapers manufactured by defendant. Plaintiff alleged that she sustained serious and permanent injury to her arm when she attempted to open the cardboard box. The defect alleged was excessive glue. Plaintiff’s complaint sounded in negligence, strict liability and breach of implied warranty.

After the pleadings had been closed and after plaintiff and a representative of Procter and Gamble had been deposed, defendant filed a motion for summary judgment. The motion was based upon plaintiff’s spoliation of evidence. After review of briefs submitted by counsel and oral argument an order was entered granting defendant’s motion and judgment was entered in favor of defendant and against plaintiff. Plaintiff filed an appeal from that order thus necessitating this opinion.

FACTS

The undisputed facts in this matter are as follows. Plaintiff has been an employee of Rite Aid Corporation since 1979. On August 25, 1993, plaintiff was a pharmacist at the Rite Aid pharmacy located in Media, Delaware County. Part of plaintiff’s job at Rite Aid included opening boxes of merchandise and stocking shelves. Rite Aid sold Pampers diapers manufactured by defendant, Procter and Gamble. August 25 was a delivery day at Rite Aid. This is a day when boxes of merchandise are delivered to the store by truck. The trucks are unloaded and the boxes of merchandise are taken into the store. Once in the store the boxes are put on the floor in the aisles. When the Rite Aid employees get a chance the boxes are opened and the shelves are stocked.

Sometime on the morning of August 25, a customer who was carrying a baby approached plaintiff and asked plaintiff if she would open one of the large boxes which contained packages of Pampers. As plaintiff was attempting to pull open the flaps on the top of this cardboard box she felt her arm “pop” and she felt pain. Realizing that she had sustained an injury to her arm plaintiff asked a co-employee to finish waiting on the customer and plaintiff went back to the pharmacy and put ice on her arm.

The cardboard box, which plaintiff was attempting to open when she was injured, remained in the aisle of the store for the rest of the day. Later in the day, plaintiff went back to the box to see what was wrong with it and why it was so difficult to open. She determined that the box was defective because there was excessive glue on the box. She characterized the glue as being “globs of glue on it . . . glue all over the thing ... it had ooze on all sides. It came out of the upper top between the two flaps and it came out on the side, running over the side.” In addition to the co-employee who had finished waiting on the customer, plaintiff also told her store manager about the incident. However, plaintiff did not tell anyone to save or preserve the box. Nor did plaintiff consider saving the cardboard box herself. She knew that the cardboard box would ultimately be sent to the crusher in the basement and would be disposed of in the trash. This in fact happened.

DISCUSSION

Almost 100 years ago, the doctrine of spoliation was discussed by our Supreme Court when, in the case of McHugh v. McHugh, 186 Pa. 197, 201, 40 A. 410 (1898), that court stated:

“The spoliation of papers and the destruction or withholding of evidence which a party ought to produce gives rise to a presumption unfavorable to him, as his conduct may properly be attributed to his supposed knowledge that the truth would operate against him. This principle has been applied in a great variety of cases, and it is now so well established that it is unnecessary to do more than state it.”

More recently, our Superior Court in the case of DeWeese v. Anchor Hocking, 427 Pa. Super. 47, 50-51, 628 A.2d 421, 423 (1993) discussed the application of the doctrine of spoliation and the policy behind it in the context of a product liability case, as follows:

“This court has [always] held that where a plaintiff brings an action claiming that he suffered injury as a result of a defective product, his failure to produce the product for inspection by the defense will render summary judgment against him [proper]. . . . We held that allowing a cause of action to continue without the allegedly defective product is contrary to public policy:
“To permit claims of defective products where a purchaser of the product has simply thrown it away after an accident, would both encourage false claims and make legitimate defense of valid claims more difficult. It would put a plaintiff (or plaintiff’s attorney) in the position of deciding whether the availability of the item would help or hurt his or her case. Where producing the product for defense inspection would weaken rather than strengthen a case, we unfortunately are obliged to conclude that some plaintiffs and attorneys would be unable to resist the temptation to have the product disappear.” (citations omitted)

Most recently our Supreme Court in the case of Schroeder v. PennDOT, 551 Pa. 243, 250-51, 710 A.2d 23, 27 (1998) reviewed the application of the spoliation doctrine and followed the lead of the Third Circuit in adopting a three-prong test for determining whether the doctrine requires the imposition of some sanction. The Schroeder court stated:

“In deciding the proper penalty for the spoliation of evidence the Third Circuit found relevant (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party, and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct. . . .
“Having considered this authority, we adopt the Third Circuit’s approach to the spoliation of evidence in Schmid. Fashioning a sanction for the spoliation of evidence based upon fault, prejudice and other available sanctions will discourage intentional destruction. The plaintiff’s burden of proof at trial to establish that a defective product caused his injury will protect defendants in cases where it is determined that summary judgment is not warranted based upon spoliation.”

Although the Supreme Court in Schroeder and the Third Circuit in Schmid, infra, were dealing with products liability cases involving design defects, we can see no reason why the test adopted by those courts should not equally apply in a matter such as this involving a manufacturing defect.

Applying Schroeder to the instant case there is no question but that plaintiff is entirely at fault in the destruction of the subject evidence. Notwithstanding plaintiff’s assertion that she did not control the allegedly defective box, the box remained in the store for the entire day after the incident giving rise to this lawsuit. In fact, plaintiff inspected the box later in the day after the incident on at least one occasion. She knew that this box was defective, she knew that this defect had caused her injury, she knew that this box would be crushed and put in the trash at the end of the day if nothing was done to preserve it, and she did nothing. Plaintiff’s suggestion that the box belonged to her employer and that her employer had control over it is silly. The only value that this cardboard box had was as evidence. And plaintiff did not even ask her employer if she could keep it.

With regard to the prejudice suffered by defendant as a result of the destruction of the evidence, this case involves an alleged manufacturing defect. Clearly, the prejudice in this matter is greater than in Schroeder which dealt with a design defect. In Schroeder, as in all design defect cases, the expert witnesses could inspect any of the like products sold by defendant to examine the alleged defect. In this case, although the record contains evidence that sometimes boxes manufactured by defendant may contain excess glue, it is impossible for defendant to determine whether the subject box was one of these. It is also impossible for defendant to determine how much glue is too much glue as it relates to this box. Plaintiff’s suggestion that there is no prejudice because defendant can simply look at another Pampers cardboard box misperceives the kind of defect here involved.

Finally, we fail to see how some lesser sanction would effectively remedy the prejudice which plaintiff has created by her failure to preserve this evidence.

Plaintiff relies on the case of Dansak v. Cameron Coca-Cola Bottling Company Inc., 703 A.2d 489 (Pa. Super. 1997) in support of her position. We agree with plaintiff that in many respects Dansak is similar to the instant case. In both, plaintiffs are employees of retail stores. In both, plaintiffs are stocking shelves with defendants’ products. In Dansak, plaintiff suffered a severe laceration when she removed defendant’s product from the container in which it was shipped. In the instant case, plaintiff was injured while opening a container in which defendant’s product was shipped. However, the similarity stops there. In Dansak, plaintiff was not at fault at all in the destruction of the evidence. Her employer destroyed the evidence while she was at the hospital. In the instant case, the fault is entirely the plaintiff’s. She could have preserved this evidence if she had wished. She did not.

It is of particular significance that the Superior Court in Dansak in reversing the granting of a motion for summary judgment, discussed the three-prong test adopted by the Third Circuit in Schmid v. Milwaukee Electrical Tool Corporation, 13 F.3d 76 (1994) and stated:

“Schmid plainly instructs that the plaintiff’s degree of fault is indeed a major component of whether severe sanctions such as dismissal are appropriate in a given case.” Dansak, 703 A.2d at 494. (emphasis added)

We are satisfied that our application of Schmid and Schroeder to the facts of this case was proper. We are also satisfied that the result reached by this court in applying Schmid and Schroeder was proper. The severe sanction of dismissal was appropriate under these circumstances.

      . Defendant also filed a motion for summary judgment contending that plaintiff had failed to answer expert interrogatories and therefore had no evidence to establish medical causation. Plaintiff responded to this motion requesting additional time to answer the expert interrogatories. Plaintiff indicated that she wanted the court to rule on the spoliation issue before she incurred the expense of obtaining reports from expert witnesses.

      . Interestingly, on November 10, 1995, almost three months after the accident, plaintiff filled out an accident form for her employer concerning this incident. The form contained a question as to whether the box that caused the injury was defective. To this question plaintiff answered “No.” In addition, in a narrative on how the accident happened plaintiff wrote:

        “I opened a box of diapers (Pampers — they glue them shut) for a customer. The truck had just come in and they weren’t put out yet. She asked for my help. I pulled open the flap and pulled the tendons in my wrist.” Excessive glue on the box was not mentioned. (N.T. deposition 8/6/97 at 109, 110.)

      . A design defect by definition exists where there is a defect in the design of the product. With a design defect every product produced contains the same defect. On the other hand, a manufacturing defect occurs when the product is defectively made. Thus, every product with the same design does not automatically contain the same defect.

      ._See footnote 3, supra.


source: Caselaw Access Project

author: McGOVERN, J.,

license: Public Domain

text:
    Fultz v. Fine

      C.P. of Delaware County,
    no. 95-51044.

      Ronald David Ashby; for plaintiffs.

      Amy L. Currier, for defendant.

      October 28, 1998
   McGOVERN, J.,

Defendant Andrew K. Fine has appealed from the denial of his post-trial motion in the above-captioned legal malpractice action.

This cause of action arose from defendant’s representation of plaintiffs in two underlying legal matters. Defendant was retained by plaintiffs in May 1993 to execute upon a $1,500 judgment that had been obtained in the District Court of Chester, Pennsylvania, resulting from an action for improper engine repair work by Mike’s Garage. (7/7/97 N.T. 13-15, 88.) Mike’s. Garage was granted leave to appeal from the district court’s judgment nunc pro tunc by a judge of this court. Fultz v. Mike’s Garage, no. 93-7523, in the Court of Common Pleas of Delaware County, Pennsylvania. (Exhibit P-5.) That court order required plaintiffs to file a complaint within 20 days from August 16, 1993 or suffer a judgment of “non pros.” Defendant here, independently, filed a praecipe for writ of summons under case caption no. 93-50729 on August 16, 1993, but did not file a complaint in the appeal from the district justice decision until November 15,1993. (Exhibit P-6.) Mike’s Garage, on November 19) 1993, filed a “complaint” captioned at no. 93-7523. This constituted, in effect, a counterclaim alleging that the matter of Fultz v. Mike’s Garage had been frivolously filed. (Exhibit P-7.) Defendant here has never explained why he filed the writ on behalf of plaintiffs on August 16, 1993, under an entirely different case file and then later a complaint under the original file no. 93-7523. Defendant in the case sub judice claims that he never received a copy of the pleading and that this explains his failure to ascertain its existence or to respond. (N.T. 99.)

When Mike’s Garage received no answer to its “complaint,” its attorney sent notice in December of 1993 of intention to obtain default judgment against plaintiffs. (N.T. 99-100; exhibit P-8.) Defendant in the case at bar took no action. Notice was sent January 4, 1994, of the entry of default judgment against plaintiffs and in favor of Mike’s Garage, but again defendant here took no action. (Exhibit P-9.) Damages in the amount of $4,113.50 were assessed against the plaintiffs on February 15, 1994, and still the defendant proffered neither response nor any action to protect his clients, the plaintiffs here. (Exhibit P-10.) The writ filed by defendant Fine under the caption of Fultz v. Mike’s Garage, no. 93-50729, was stricken on May 12, 1994, for failure to file a complaint.

Defendant Fine claims that he never received notices of default, suggesting that this occurred because he moved from his office in the first week of December 1993, before any such notices were sent, leaving no forwarding address. (N.T. 101-102,123-24.) Defendant Fine, however, did admit that he used the office address to which all the notices were sent on a letter that he sent in August 1994, some eight months after he allegedly moved from that office. His excuse was that he failed to delete the address from his computer. (N.T. 36-40; exhibit P-3.) However, defendant Fine asserted in paragraph 3 of his answer to plaintiffs’ complaint that the office was not actually closed until November 1994. Further, defendant testified that plaintiff James Fultz had been to his home “over 50 times” after December 1993, and lived but a block away, raising a very serious doubt that defendant was never informed by plaintiffs of the complaint and default notices filed against them in this regard. (N.T. 65.)

The second underlying matter involved a claim for the improper termination of electricity against the Philadelphia Electric Company in September 1993. (Exhibit P-12.) Defendant Fine had filed a complaint on behalf of plaintiffs Fultz but failed to appear at the scheduled hearing on October 22, 1993. Instead, the defendant sent his secretary-paralegal to request a continuance. (N.T. 50-51; exhibit P-2.) Judgment was entered in favor of PECO. (Exhibit P-13.) Plaintiffs Fultz appealed therefrom, and the matter, under the caption of Fultz v. PECO, no. 93-51613, was scheduled for compulsory arbitration on August 14, 1994. Defendant Fine notified plaintiffs immediately before the hearing that he had withdrawn the case pursuant to an agreement with PECO’s attorney that jurisdiction of the matter properly was vested in the Public Utilities Commission. Defendant filed a praecipe to dismiss the case without prejudice, and thereafter ceased all involvement with this matter, providing no assistance to the plaintiffs in the furtherance of this claim. (Exhibit P-3.) Here, plaintiffs seek to recover in the above-captioned matter the costs and fees advanced to defendant in light of defendant’s abandonment of plaintiffs.

This court, sitting without a jury, found in favor of plaintiffs, awarding compensatory damages in the amount of $5,279.74, and punitive damages in the amount of $8,000 against the defendant. Defendant’s timely filed post-trial motion was denied and this appeal followed.

Defendant has filed an appeal contending basically that the verdict was against the weight of the evidence because there was neither factual nor legal basis supporting the award of compensatory damages or the award of punitive damages and also because there was no expert testimony to support the claim for compensatory or punitive damages.

WEIGHT OF THE EVIDENCE AND PROOF OF DAMAGES

Defendant Fine argues that the award of compensatory and punitive damages had no support in the evidence or in the law and, therefore, claims that he is entitled to a new trial. It is the trial court’s responsibility to assess credibility, weigh testimony, and review all of the competent evidence in determining whether a verdict rendered in a bench trial was against the clear weight thereof. Weir v. Gasper, 521 Pa. 491, 556 A.2d 819 (1989); Allegheny County v. Monzo, 509 Pa. 26, 500 A.2d 1096 (1985); Tyus v. Resta, 328 Pa. Super. 11, 476 A.2d 427 (1984). The trial court’s determination thereof will be set aside only where there is clear abuse of discretion or error of law. Frowen v. Blank, 493 Pa. 137, 425 A.2d 412 (1981). Credibility and the weight of evidence are left to the trier of fact. Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); In the Interest of McElrath v. Commonwealth, 405 Pa. Super. 431, 592 A.2d 740 (1991). The fact-finder is free to accept all, part, or none of a witness’s testimony. Weir v. Gasper, supra. If the record adequately supports the trial court’s verdict, then that court will be found to have acted within the limits of proper judicial discretion. Exner v. Gangewere, 397 Pa. 58, 152 A.2d 458 (1959).

Defendant, in the case at bar, presented no trial witnesses other than himself, and presented but a minimum of trial exhibits. Although defendant, in his answer to plaintiffs’ complaint, denied knowing anything about the complaint against Mike’s Garage in the action no. 93-7523, he testified at trial to the filing of that complaint. (N.T. 19, 91.)

Defendant contended that he terminated the lawyer-client relationship with plaintiffs when plaintiff James Fultz took possession of a motor vehicle which had been retained by Mike’s Garage against payment of the debt claimed by that garage arising from the alleged repairs. However, defendant drew up a complaint, affirmatively pleading in the Mike’s Garage action that plaintiffs initiated the action after discovering that Mike’s Garage employees routinely used plaintiffs’ car for errands and after receiving threats of violence and a potential sale of the car if the lawsuit was not ended. Defendant contended he never received a copy of the responsive pleading filed by Mike’s Garage in that action or any other documents in that case. (N.T. 33, 35-40; exhibits P-8, P-9, P-10.) The then attorney for Mike’s Garage indicated that the pleading filed by him was sent by certified mail to the defendant and returned unopened to the sender. (N.T. 159-60, 166). Counsel for Mike’s Garage also stated that service of the notice of default and notice of assessment of damages was accomplished upon the defendant by regular mail and that was not returned. (N.T. 160-61.) That lawyer also testified that the defendant here had said in July or August of 1993 that he no longer represented the plaintiffs Fultz. No petition to withdraw as counsel was ever filed. Such is true in each of the matters involved in this case.

Defendant Fine contended that he terminated his representation of plaintiffs because on the night of August 16, 1993 and against his advice, plaintiff James Fultz took his car from Mike’s Garage. He does not explain how that justifies his failure to comply with a court order to timely file a complaint in Fultz v. Mike’s Garage (N.T. 16) or to file a petition to withdraw. Defendant denies any knowledge of the automobile’s retrieval; however, plaintiff James Fultz testified that he had been driven to the garage by an employee of defendant and at the defendant’s own direction. He also testified that he returned with the car to defendant’s office, and that defendant had advised him to park the car at the home of one of defendant’s relatives. (N.T. 18,92-93,182-84.) Plaintiff’s testimony in this regard is supported by the averments in the complaint prepared and filed by defendant Fine in this underlying matter on November 15, 1993 which were designed to provide some justification for plaintiff’s action.

Defendant suggests he gave plaintiff three or four months to find a new attorney and when plaintiff did not, defendant was “forced to file a complaint just to protect his interest.” (N.T. 19, 91.) This, although defendant averred in paragraph 19 of his answer to plaintiffs’ malpractice complaint that he never filed a complaint in the matter of Fultz v. Mike’s Garage. (N.T. 22-23.) Defendant testified that the car repossession took place on August 25, 1993, and the complaint was prepared August 17, 1993. He suggested that that was a “typo.” (N.T. 26.) Defendant has always retained his file in this regard although he did not bring it to trial. (N.T. 26-27.)

Defendant’s testimony was also inconsistent as to whether or not he served a copy of the complaint against Mike’s Garage upon Mike’s Garage. (N.T. 27, 132.) Defendant’s evidence was simply not credible.

Defendant has never explained why he filed a writ of summons against Mike’s Garage in the same matter but under a different number (93-50729). (N.T. 43-44; exhibit P-3.)

Defendant indicated he failed to pursue the PECO litigation after December 10, 1993 when he filed a complaint on appeal from the district court’s dismissal October 22, 1993 because plaintiff James Fultz’s physician indicated he would not certify a medical emergency so as to have plaintiff’s electricity reactivated. Defendant contends that plaintiff Fultz’s representation that the electrical reactivation was necessary because of illness, was a lie. (N.T. 45-46, 52.) Plaintiffs’ electricity had been terminated for nonpayment of their bill. Defendant, during the three-month interim between filing a complaint in the district court and filing a complaint with this court, never verified any payment arrangements made on plaintffs’ bill, nor did he solicit or receive any documentation concerning the various representations allegedly made in that matter. (N.T. 46, 106, 111-17.) Defendant never explained why he proceeded to compulsory arbitration while purportedly believing that his client would proffer perjured testimony or while being convinced that proper jurisdiction rested in the PUC. (N.T. 66-68.)

Although defendant suggested he had filed a praecipe to dismiss the PECO case without prejudice on August 16, 1994 for jurisdictional reasons, defendant in effect abandoned his client at that point. Defendant contends that he gave the plaintiff lengthy written instructions on how to deal with a claim before the PUC. There is no evidence of such. Further, as defendant knew, plaintiff James Fultz could not read. There is no evidence that defendant ever dealt with plaintiff Gloria Fultz regarding the facts in issue in this matter.

Plaintiffs presented the testimony of the attorney for Mike’s Garage in the 1993 matter and this generally supported the plaintiff’s testimony. That attorney testified that from the time of the complaint, November 19, 1993, until the judgment, February 1994, he was not contacted by either the defendant Fine or the plaintiffs Fultz. That judgment remains unpaid. (N.T. 170-71.)

Plaintiff James Fultz testified that it was defendant’s law secretary who had driven him to the garage so that he could repossess his car. Plaintiff, having accomplished the repossession, drove back to defendant’s office and was directed by defendant where to park the car. (N.T. 182-85.) Plaintiff’s testimony rather clearly suggests that defendant led him on, indicating that the matters were in progress without any termination of the lawyer-client relationship. Plaintiff confirmed that he was unable to read. (N.T. 193,215.) Plaintiff testified that if he had received any legal papers, he would have delivered them to defendant.

Plaintiff testified that he has, and had, been treated for asthma and that it was a medical necessity to have the electricity turned on so that the air in his house could be properly conditioned. Plaintiff also testified that defendant never said that his doctor claimed plaintiff was lying. (N.T. 194.) Plaintiff said that he had given defendant a prescription form stating that he had asthma and that it was necessary to have electricity. (N.T. 210.) Defendant advised plaintiffs for the first time in August of 1994, that his case would be better placed before the PUC. (N.T. 196-97.) Plaintiff contends that defendant said he would take care of “everything.” (N.T. 196-97.) Plaintiff never filed a case with the PUC because he did not know how, and, indeed, did not know what the PUC is. (N.T. 197-98.) Again, the defendant led the plaintiff to believe that all was in order. (N.T. 197,203.) Indeed, through all of this, plaintiff continued to do part-time work for the defendant until just before defendant closed his office in 1994. (N.T. 204-205.)

Plaintiff’s position in this matter, that defendant did not terminate the lawyer-client relationship, is supported by the record which reflects that following the repossession of his automobile by plaintiff, defendant went on to file a complaint in the district court for the PECO case, and, as well, complaints on appeal in both the PECO and Mike’s Garage actions, and to handle, in some way, the PECO matter up to its arbitration date.

The law requires that plaintiff establish, in a legal malpractice action, the existence of a lawyer-client relationship; that the attorney failed to exercise ordinary skill and knowledge; and that the attorney’s failure to exercise that skill and knowledge was a proximate cause of harm to the plaintiff. Kituskie v. Scott K. Corbman, Esquire, and Garfinkle, Corbman, Greenberg and Jurikson P.C., 552 Pa. 275, 714 A.2d 1027 (1998); Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989); Fiorentino v. Rapoport, Gordon and Saul, Ewing, Remick & Saul, 693 A.2d 208 (Pa. Super. 1997). The standard of care requires that an attorney possess and exercise that degree of knowledge, skill and care which would normally be exercised by members of the profession under the same or similar circumstances. Rizzo v. Haines, supra. The burden of proof is, of course, by a preponderance of the evidence. McPeake v. William T. Cannon, Esquire, 381 Pa. Super. 227, 553 A.2d 439 (1989).

The plaintiffs must also prove an actual loss resulting from that causal negligence. Mariscotti v. Tinari P.C., 335 Pa. Super. 599, 485 A.2d 56 (1984). R. Mallen & V. Levitt, Legal Malpractice, section 303 (2d Ed. 1981). Obviously, damages may not be awarded based on speculation or conjecture. Delahanty v. First Pennsylvania Bank. N.A., 318 Pa. Super. 90, 464 A.2d 1243 (1983); Trice v. Mozenter, 356 Pa. Super. 510, 515 A.2d 10 (1986). The breach of a professional duty causing only nominal damages, speculative harm, or the threat of future harm not yet realized, does not suffice to establish a cause for negligence. Ammon v. McCloskey, 440 Pa. Super. 251, 655 A.2d 549, (1995); Kituskie v. Scott K. Corbman, Esquire, and Garfinkle, Corbman, Greenberg and Jurikson, supra; Duke & Co. v. Anderson, 275 Pa. Super. 65, 418 A.2d 613 (1980); Gans v. Gray, 612 F. Supp. 608 (E.D. Pa. 1985). The law in this Commonwealth simply requires, in a legal malpractice action, that the entry of a default judgment against a lawyer’s client with the result of causal negligence is sufficient to award damages. Ammon v. McCloskey, 440 Pa. Super. 251, 260, 655 A.2d 549, 553 (1995), relying upon Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 506, 223 A.2d 8, 10 (1966). Such is the case, even though that judgment remains unpaid.

Punitive damages are appropriate where the wrongful conduct is outrageous. Outrageous conduct, in an attorney malpractice action, occurs when it is “malicious, wanton, reckless, willful or oppressive.” Rizzo v. Haines, 520 Pa. 484, 506, 555 A.2d 58, 69 (1989). Offending conduct must evince evil motive or reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984); Hess v. Hess, 397 Pa. Super. 395, 580 A.2d 357 (1990).

Defendant’s negligence in failing to represent the plaintiffs’ interests and in abandoning their claim in both of these underlying actions can hardly be characterized as other than wanton, outrageous and recklessly indifferent to plaintiffs’ rights. Rizzo v. Haines, supra. Defendant’s own pleadings and testimony in this action are uncorroborated, inconsistent, and in large part incredible. There is no evidence that plaintiff’s repossession of his car resulted in defendant’s refusal of further representation, and, indeed, the record suggests otherwise. There has been no effort at any point in the underlying matter on the part of defendant to properly terminate his representation. The neglect in filing a complaint pursuant to court order in the Mike’s Garage matter, followed by complete inaction, was all presented without justification or legal excuse. The suggestion that notices were not received because of change of address, when that address change was accomplished a year after the notice and after counsel was aware of the actions and when counsel used stationery nine months after the notices setting forth that address, leaves incredible defendant’s weak excuses as to why he did nothing. Any client would expect that his lawyer is monitoring the record so as to confirm his understanding of the pleadings filed.

Defendant’s failure to discern proper jurisdiction in the PECO matter, his failure to appear at the initial hearing before the district justice, is not only negligent but wanton and reckless indifference. Defendant’s suggestion that plaintiff lied in the PECO matter concerning his medical disability is unsupported by testimony or other evidence in this matter. Indeed, it is contradicted by plaintiff. Defendant’s taking of an appeal from the district justice to the wrong court, together with the attendant costs, and the over one year delay, aggravated by continuing misrepresentations that the matter was being “taken care” of, was certainly wantonly reckless and outrageous conduct. The suggestion that defendant afforded detailed instructions to his client who was unable to read so that he could' handle his own case in the PUC is also incredible.

The record, the evidence and the law clearly support that plaintiffs established by a preponderance of the evidence that defendant was causally negligent entitling plaintiffs to compensatory damages, and further, that defendant’s actions were outrageous, entitling plaintiffs to punitive damages. It is respectfully suggested the record and the law of this Commonwealth support this court’s conclusions and establish that the denial of defendant’s post-trial motion was not an abuse of discretion.

EXPERT TESTIMONY

Defendant here argues that the court’s verdict is in error because plaintiffs presented no expert testimony to establish their claims to compensatory and punitive damages.

The trial court has the authority and the responsibility to control the admission of expert testimony. Klyman v. SEPTA, 331 Pa. Super. 172, 480 A.2d 299 (1984). The admission of such is a matter for the discretion of the trial court necessitating a new trial only where there is a clear abuse of discretion. Laubach v. Haigh, 433 Pa. 487, 491, 252 A.2d 682, 683 (1969); Kubit v. Russ, 287 Pa. Super. 28, 429 A.2d 703 (1981).

It is clear that the determination of legal malpractice necessitates an evaluation of professional skill and judgment, as well as a determination of whether a standard of care related to common professional practice has been violated. Lentino v. Fringe Employee Plans Inc., 611 F.2d 474 (3d Cir. 1979). Thus, expert testimony is necessary when the matter involved is not within the range or scope of ordinary knowledge and understanding. Gans v. Mundy, infra; Lentino v. Fringe Employee Plans Inc., supra.

Expert testimony in any action becomes necessary when the subject matter under inquiry involves special skills or training not common to the ordinary layperson. Sprague v. Walter, 441 Pa. Super. 1, 656 A.2d 890 (1995); Storm v. Golden, 371 Pa. Super. 368, 538 A.2d 61 (1988), appeal denied, 524 Pa. 630, 574 A.2d 71 (1989). Expert testimony is not required in a legal malpractice action where the issues are not “beyond the knowledge of the average person.” Bannar v. Miller, 701 A.2d 242 (Pa. Super. 1997); Rizzo v. Haines, 520 Pa. 484, 555 A.2d 58 (1989). The issues in the case at bar are clearly within the scope of knowledge and understanding of ordinary lay men and women, and defendant’s deviation from the obvious standard of care for attorneys is not complex as a matter of law or fact. The skills necessary to deal with the lawyer-client relationship in the case at bar are founded in every persons understanding of fairness, common sense and loyalty. Defendant in the underlying actions here simply failed to represent his clients in any other than a cursory manner and then abandoned them. There was neither careful nor diligent prosecution of the claims placed in defendant’s hands by plaintiffs, and, indeed, defendant continued to accept the services of plaintiff James Fultz well beyond time of the malpractice, and plaintiffs remained uninformed until after defendant closed his office. There is no need for expert testimony to establish that defendant’s conduct failed to adhere to any ordinary standard of care, that defendant failed to exercise even ordinary skill and knowledge, and further, that such was the proximate cause of harm to the plaintiffs. Fiorentino v. Rapoport, Gordon and Saul, Ewing, Remide & Saul, supra.

Defendant has never presented evidence or argument to suggest why the resolutions of the issues in this case were beyond the scope of knowledge and understanding of ordinary lay men and women. Lentino v. Fringe Employee Plans Inc., 611 F.2d 474 (3d Cir. 1979); Gans v. Mundy, 762 F.2d 338 (3d Cir. 1985); Storm v. Golden, supra. Further, it must be observed that defendant did not seek a jury trial and, therefore, this fact-finder indeed had and could have exercised sufficient knowledge and experience to determine the standard of care and any violation thereof, should such have been necessary. It is respectfully submitted that expert testimony was not necessary and, indeed, would have been inappropriate in a case such as this one where the issues are uncommonly, simply and clearly within the scope of knowledge and understanding of ordinary fact-finders.

CONCLUSION

The law, in reviewing the denial of a motion for new trial, focuses on whether the verdict was against the clear weight of the evidence or whether there was a clear error of law or a palpable abuse of discretion on the part of the trial court. Klyman v. SEPTA, supra; Tyus v. Resta, supra. Abuse of discretion by a trial court must rest upon a showing of clear and convincing evidence. Dalton v. Dalton, 409 Pa. Super. 258, 597 A.2d 1192 (1991); Stevenson v. General Motors Corp., 513 Pa. 411, 521 A.2d 413 (1987); Solomon v. Baum, 126 Pa. Commw. 646, 560 A.2d 878 (1989). An abuse of discretion is not merely an error of judgment, but where the law is overridden or misapplied, or the judgment manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will, as demonstrated from the evidence. Then is discretion abused. Spitzer v. Tucker, 404 Pa. Super. 539, 591 A.2d 723 (1991); Ludmer v. Nernberg, 433 Pa. Super. 316, 640 A.2d 939 (1994). A new trial will be awarded only where the verdict is so contrary to the evidence as to shock one’s sense of justice. Palange v. City of Philadelphia, Law Department, 433 Pa. Super. 373, 640 A.2d 1305 (1994); Giovanetti v. Johns-Manville Corp., 372 Pa. Super. 431, 539 A.2d 871 (1988).

It is respectfully suggested that, in light of all of the foregoing reasons, the denial of defendant’s post-trial motion was well-founded in this record, the law, and justice.

      . This was done in spite of a joint petition to continue the hearing scheduled under no. 93-7523 to mid-August 1993 so as to allow the parties time to attempt settlement. (N.T. 91; exhibit P-11.)

      . The court awarded $4,113.50 in the Mike’s Garage action, and the balance of the compensatory damages consisted of the costs and fees advanced to defendant in his prosecution of plaintiffs’ action against PECO. This matter came to this court on defendant’s appeal from an arbitration award in favor of plaintiffs in the amount of $38,195.95.

      . See defendant-appellant’s concise statement of matters complained of on appeal.

      . Concise statement, paragraphs 1(a) and (b), and 2(a) and (b).

      . Complaint, November 15, 1993, paragraphs 20-25.

      . N.T. 160-61, 174; defendant’s answer and new matter to plaintiffs’ complaint, paragraphs 22-39.

      . It must be noted that the plaintiff’s repossession of his car from Mike’s Garage either happened on August 19, 1993 or August 16, 1993 or August 25, 1993 according to defendant’s testimony. (N.T. 16, 92-94, 123-24.)

      . Defendant here has never raised, pled, or argued any claim of uncollectibility from the underlying actions and, therefore, that issue need not be considered in this opinion. Kituskie v. Scott K. Corbman, Esquire, and Garfinkle, Corbman, Greenberg and Jurikson P.C., supra, 714 A.2d at 1031-33.

      . Concise statement, paragraphs 1(c) and 2(c).


author: TURGEON, J,

text:
    Shaner v. State System of Higher Education

      C.P. of Dauphin County,
    no. 1541 S 1989.

      Andrew Spirt, for plaintiff.

      Jay Stark, for defendants.
    October 28, 1998
   TURGEON, J,

Plaintiff Susan Shaner has filed a motion for post-trial relief from a court order entered September 15, 1998 in which I granted the Commonwealth defendants’ motion for non-suit/directed verdict. The relevant factual background and legal issues were addressed in an opinion accompanying the September 15, 1998 order. Plaintiff has raised two new issues in her motion which were not previously addressed and which are the subject of this opinion: (1) The court improperly enforced the release/exculpatory clause against the minor plaintiff; and (2) the court improperly allowed defendants to amend their new matter on the eve of trial to add the affirmative defense of release/exculpatory clause. Because we agree the release was improperly enforced against plaintiff, we grant plaintiff’s post-trial motion and address the merits of the action.

The facts relevant to these two issues are as follows: plaintiff’s mother, Shirley Shaner, initiated this action in her own right and on her daughter Susan Shaner’s behalf in Philadelphia County on July’17, 1987. Plaintiffs sought recovery for a broken leg Susan Shaner suffered during a softball game at the 1985 Bloomsburg University summer softball camp. At the time of the injury, Susan was 14 years old. Defendants responded by filing preliminary objections. Prior to disposition of the objections, the parties entered a 1989 stipulation agreeing to a venue change to Dauphin County and withdrawal of the preliminary objections. Defendants filed their answer with new matter July 21, 1992 which did not include the affirmative defense of liability release. Plaintiffs answered defendants’ new matter July 30, 1992.

In November 1994, plaintiff was notified by this court that her action was listed for termination due to inactivity. Plaintiffs objected to the proposed termination in February 1995. On March 29, 1995, I ordered that the parties complete all discovery and list the matter for trial by June 30, 1995, or face termination. In April 1995, new counsel entered his appearance on plaintiffs’ behalf. Counsel proceeded to place the action on the trial list and initiated discovery for the first time. In addition, in July 1995, plaintiffs answered discovery requests which defendants had propounded in April 1993. Defendants, meanwhile, filed a non pros motion. The non pros issue was decided in plaintiffs’ favor by December 1, 1995 order. Judge Lipsitt, writing for a panel of this court, stated “[t]his case involves a situation where there was a long delay by the plaintiff in pursuing the action. However, it is noted the plaintiff, a minor when injured, has moved forward with reasonable diligence since the appointment of present counsel.” The case was again placed on the trial list in the fall of 1997. However, because plaintiff had earlier waived a right to jury trial, a non-jury trial was scheduled for April 24, 1998.

On April 22, 1998, defendants filed a petition to amend their new matter to add the affirmative defense of release. The release was contained on the camp’s registration form submitted by plaintiff and her father for camp enrollment. It stated as follows:

“I desire to enroll in the 1985 Bloomsburg University softball camp. Bloomsburg University, the director, and anyone connected with the clinic do not assume liability for any injuries incurred while at camp or on the way to and from camp. Parents should contact their own insurance company to get additional insurance for their daughter if necessary.
“Campers will be required to attend all sessions and must comply to all camp rules. Failure to do so may result in dismissal from camp. After an application is accepted there will be no refund of the $50 deposit.
“Parent’s signature /s/Mahlon R. Shaner
“Student’s signature /s/Suzy Shaner”

In their petition, defendants did not provide an explanation for the delay in seeking to add this new defense; however, they did note a copy of the release had been provided to plaintiff’s counsel during discovery. I granted plaintiff’s petition to amend on April 23, 1998 and the order was entered on the docket the next day. This was done prior to my receipt of plaintiff’s answer, received and reviewed the next day. On April 24, 1998, just prior to trial, I agreed to bifurcate the hearing to allow plaintiff to examine her witnesses regarding the signing of the release since it had been added on the eve of trial. (N.T. 4-10.) Thereafter, Susan Shaner and her father were examined on the circumstances surrounding their signing of the release, following which the non-jury trial proceeded.

I. POST-TRIAL MOTION

Whether Plaintiff Can Be Bound by a Release Signed As a Minor

Plaintiff argues “her father cannot legally bind her to the clause and she did not understand or agree to it . . . .” In support, she cites the tolling statute which applies in cases where minors are entitled to bring civil actions and acts to toll the statutory limitations period until the minor reaches age 18.42 Pa.C.S. §5533. Plaintiff argues that by analogy to this statute, minors cannot sign away any rights until they reach majority. Although the tolling statute has no relevance here, plaintiff has stumbled upon the law in Pennsylvania.

Except for contracts of necessity, a minor is not competent to enter into a valid contract. Contracts with minors, while not void, are voidable upon the minor’s disaffirmance after reaching the age of majority, rendering the contract a nullity. On the other hand, a minor can ratify or affirm such a contract after reaching majority, rendering the contract enforceable. See Pankas v. Bell, 413 Pa. 494, 498, 198 A.2d 312, 313 (1964); Aetna Casualty & Surety Co. v. Duncan, 972 F.2d 523, 526 (3d Cir. 1992) and Simmons v. Parkette National Gymnastic Training Center, 670 F. Supp. 140, 142 (E.D. Pa. 1987). A release is merely a certain type of contract and “a valid release is an absolute bar to recovery for everything included in the release, and it can only be set aside as any contract... in the presence of clear, precise and indubitable evidence of fraud, accidental means or incompetence of the party who is alleged to have signed it.” Simmons (quoting Mannke v. Benjamin Moore & Co., 375 F.2d 281, 285 (3d Cir. 1967) (emphasis from Simmons)). Thus, when plaintiff executed the release, she was incompetent and the release was voidable once she became an adult, upon her disaffirmance.

Furthermore, our independent research reveals that “ ‘[ujnder Pennsylvania law, parents do not possess the authority to release the claims or potential claims of a minor child merely because of the parental relationship.’ ” Simmons at 143 (quoting Apicella v. Valley Forge Military Academy, 630 F. Supp. 20 (E.D. Pa. 1985)). See also, Schmucker v. Naugle, 426 Pa. 203, 204-205, 231 A.2d 121 (1967); Campbell v. Sears, Roebuck & Co., 307 Pa. 365, 370-71, 161 A. 310 (1932); Langdon v. Strawhecker, 46 D.&C.2d 764, 766 (Mercer C.P. 1969) and Swoyer v. Fenon, 39 Northampton 166 (1969) (citing 24 P.L.E. Minors, §53). Thus, Mahlon Shaner’s signature did not exculpate defendants from Susan Shaner’s potential claims.

To void the contract, the minor must disaffirm it within a reasonable time after reaching majority. Aetna Surety, supra; State Farm v. Skivington, 28 D.&C.4th 358, 365 (Cumb. C.P. 1996). Plaintiff clearly disaffirmed the release at the time she attained majority in 1988 or 1989. At that time, she was pursuing her legal action in which she sought to hold defendants liable for the injury she incurred while at the softball camp, which is precisely the type of action from which the defendants sought to exculpate themselves (i.e., under the release, the defendants “do not assume liability for any injuries incurred while at camp”). We can think of no clearer act of disaffirmance than to bring a legal action seeking the remedy from which the defendants had been purportedly released. Haines v. Fitzgerald, 108 Pa. Super. 290, 296-97, 165 A. 52 (1933) (act of minor in bringing suit after reaching majority was a disaffirmance of a release). Furthermore, plaintiff did not ratify or affirm the contract since ratification requires that she receive some benefit therefrom after attaining majority. Clearly, she received no benefit from the release. See Pankas at 498, 198 A.2d at 313; Simmons at 143-44.

Amendment of New Matter

Plaintiff argues I improperly granted the petition to amend on the eve of trial. Upon further review, I agree. Rule of Civil Procedure 1033 permits amendments to pleadings “at any time.” Pa.R.C.P. 1033. This rule has been interpreted to permit amendments “after pleadings are closed, while a motion for judgment on the pleadings is pending, at trial, after judgment, or after an award has been made and an appeal taken therefrom.” Capobianchi v. BIC Corp., 446 Pa. Super. 130, 134, 666 A.2d 344, 346 (1995), appeal denied, 544 Pa. 599, 674 A.2d 1065 (1996) (quoting Biglan v. Biglan, 330 Pa. Super. 512, 521, 479 A.2d 1021, 1025-26 (1984)). However, amendments are not permitted where they cause unfair surprise, prejudice or where the amendment is against positive rule of law. Burger v. Borough of Ingram, 697 A.2d 1037 (Pa. Commw. 1997).

I originally granted the petition to amend even though defendants had waited almost six years since filing their original answer (July 21, 1992 to April 22, 1998). Furthermore, defendants proffered no reason for the delay. In so ordering, it did not appear delay alone had caused plaintiff any prejudice, and in any event, much of the delay in moving this case along had been attributable to plaintiff, as discussed supra. More importantly, the issue of whether the release would apply in this case was purely a legal one, requiring a limited inquiry only as to whether plaintiff and her father had actually signed the release. Thus, the fact the amendment was offered after discovery had been completed was not an important consideration in allowing late amendment because only legal issues remained. The issue of plaintiff’s minority, at the time she executed the release, did not occur to this court and obviously to the plaintiff as well, since she did not raise it until the present post-trial motion. It is precisely this example which warrants a different result; that indeed, late amendment would prejudice and unfairly surprise plaintiff since she was not given sufficient time to articulate her objection raising minority. In discussing the concept of prejudice resulting from amendment, the Supreme Court has stated as follows:

“All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed . . . .” Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108 (1973). (emphasis in original) (footnote omitted)

Upon reconsideration, it appears the time the amendment was offered, two days prior to trial, plaintiff would be and in fact was prejudiced wherein she did not have adequate time to research and raise her valid objection that the release did not apply because she executed it as a minor.

Accordingly, we must address the merits of the case, which I did not reach in the previous decision having ruled plaintiff had released defendants from liability.

II. VERDICT

Liability

In the previous opinion, I set forth plaintiff’s version of the facts as follows: In 1985, plaintiff, an aspiring high school softball catcher, enrolled in the Bloomsburg University summer softball camp. The camp was under the direction of the Bloomsburg University’s head softball coach Jan Hutchinson and staffed with Bloomsburg University employees, all Commonwealth agents of the State System of Higher Education. The one-week long camp was offered for experienced players who wished to sharpen their skills and earn college scholarships.

Fourteen-year-old plaintiff, between her 9th and 10th grade years, testified that on the last day of camp, July 19,1985, she was scheduled to play in a final scrimmage. She stated the players carried the equipment to the field every day, including the bases. (N.T. 26.) Normally, the bases would be strapped to spikes placed in the ground each day; however, on this occasion, the coaches informed the players not to attach the bases to the field. Plaintiff testified this was probably done to save time because it took a couple of minutes per base. (N.T. 26-27, 30.) Plaintiff also testified the infield dirt was quite hard since it had not rained all week.

Plaintiff batted in the first inning and bunted toward the first base line. The first baseman fielded the ball and flipped it toward the second baseman who was covering the bag. As the second baseman placed her foot on the inside of the first base bag, the bag slipped out about one foot toward foul territory and her leg went directly into plaintiff’s path, colliding with plaintiff’s shin. (N.T. 33-35,53.) Plaintiff suffered a fractured distal left tibia and fibula and was immediately transported to the hospital.

Defendants’ version of the facts was as follows: Jan Hutchinson, Bloomsburg University’s head softball coach, was the director of the 1985 summer softball camp which she has run since 1978. One of the camp’s instructors was Denise Henderson, a 1984 Bloomsburg graduate and former softball player for Coach Hutchinson. Ms. Henderson was coaching the team playing against plaintiff’s on the day of the incident. (N.T. 68.) She testified the bases were spiked into the ground prior to the start of play on that day since they were always spiked down prior to the start of play. The collision occurred because the second baseman straddled the first base bag and not because the bag moved. (N.T. 68-69.) She testified that normally the coaches or the equipment manager spiked the bases in and never the players; however, she herself had not spiked in the bases that day and did not recall who did. (N.T. 69, 72.)

Camp director Hutchinson testified that she arrived on the field shortly after learning of plaintiff’s injury and attended to her. She testified that she noticed the first base bag was not dislodged. (N.T. 87.) She stated that during the 1985 camp, the equipment manager brought the equipment to the field, including the bases, and spiked them in and that the participants were not responsible for setting up any equipment. (N.T. 88, 100-101.). Furthermore, she stated it was her policy that the bases were always in place prior to the start of play. (N.T. 88.) Ms. Hutchinson admitted, however, she did not know for a fact the equipment manager had spiked the bases in that day and that she had not personally done it. (N.T. 91.) She did not learn that plaintiff alleged the accident was caused by a dislodged base until November 1985, when she learned of the Shaners’ lawsuit. (N.T. 90.)

In December 1995, at her former coach’s request, Ms. Henderson issued a short letter to the university in which she stated the bases were spiked into the ground prior to the start of play. In her letter, she volunteered that the collision occurred because the second baseman’s leg was stretched across the first base bag and that the bag did not come out. (Def’s exhibit 1.)

In order to recover damages, plaintiff must prove defendants’ liability by a preponderance of evidence. We believe she has met this burden. All three witnesses appeared credible to this court; however, for a number of reasons, I find the testimony of plaintiff to have been the most credible — that on July 19, 1985, the first base bag did not get spiked into the ground and that when the second baseman placed her foot upon it, it slid towards the first base bag, causing the second basemen to slip into plaintiff’s path, breaking her leg.

First, plaintiff had a fairly clear recollection of the events surrounding this incident since it was a life-altering event. She specifically remembered that the bases were not attached to their spikes on July 19, 1985, because the coaches chose not to attach them, probably to save time. In addition, plaintiff also specifically recalled that as she was running out her first inning bunt, she saw the first base bag slide out in front of her path, causing the collision.

On the other hand, the defendants, who were certain the bases had been spiked in, failed to present any witness who could identity the person who allegedly performed this duty. Neither Hutchinson nor Henderson had personal knowledge of this person and only Henderson was an eyewitness to the collision. Furthermore, we call into question Henderson’s certainty that the bases were all attached and that first base did not move during plaintiff’s collision. She first articulated this certainty in the December 1985 letter she volunteered to write at Hutchinson’s behest. (Def’s exhibit 1.) She denied having been informed prior to writing her letter that the Shaners were alleging the base had not been attached to its spike. (N.T. 81.) Since the issue of an unspiked bag had not previously been raised to her and since she believed the bases were always spiked, it seemed noteworthy to this court that she would volunteer in her letter that the base was spiked and did not move during the collision.

Furthermore, there was a slight but important inconsistency between Hutchinson and Henderson as to who was responsible for attaching the bases. Camp director Hutchinson stated that at the 1985 summer camp, the equipment manager was responsible for attaching the bases. (N.T. 101.) Instructor Henderson stated that it was either the coaches or equipment manager who attached the bases. (N.T. 69.) Thus, according to Hutchinson, the coaches were often delegated this responsibility. This bolsters plaintiff’s testimony that the coaches could make the decision whether or not to attach the bases and weakens Hutchinson’s testimony that the bases were always spiked in prior to the players taking the field.

While we do not doubt that defendants’ witnesses truly believed the first base bag was securely attached to its spike on July 19,1985, we find plaintiff’s specific recollection that it was not more compelling.

Damages

Following her injury, plaintiff was taken by ambulance to Bloomsburg Hospital and placed in a fiberglass hip cast. (N.T. 40.) Later that day, plaintiff’s father drove her to a hospital near her home where her leg was reset in a plaster cast. She was confined to bed for five weeks and was in considerable pain. After five weeks, she was able to use crutches. (N.T. 41.). Her fibula healed by October 1985 and her tibia by February 1986. (N.T. 56.) She was in hard casts for a total of 16 weeks and later wore a fracture brace for 15-16 weeks, whereafter, she finally began weight-bearing activities. (N.T. 41, 43.) She claimed to have been embarrassed during her sophomore year because she had to use a chair lift and was unable to spend time with her friends. (N.T. 50.)

In early 1986, plaintiff’s treating physician informed her she could resume physical activities but nothing strenuous, including being a softball catcher. (N.T. 44.) She was unable to play softball in spring 1986 (her sophomore year) and continued to experience weakness in her leg, ankle stiffness and fatigue. (N.T. 45.) She attempted but failed to make the softball team as a junior. She attended physical therapy in summer 1987 and the problems mostly resolved. She was finally able to play her senior year as the second-string catcher but described herself as not nearly as good. (N.T. 48-49.) Plaintiff claimed to have lost a lot of agility as well as love for the sport. (N.T. 49.) She attempted to play catcher in college but had to quit because of ankle problems. (N.T. 49-50.) At the time of trial, she still had some residual problems with her ankle, numbness in her toes, lack of balance and pain during inclement weather. (N.T. 46-47.) Her treating physician opined in 1995 that plaintiff had “made a very good recovery . . . has some mild residuals which will be permanent, but fortunately these residuals will not interfere with the vast majority of normal activities.” (Pit’s exhibit 1.) Her total medical expenses were $6,859.50.

Under the circumstances, I find plaintiff should be awarded damages in the amount of $80,000. Of particular importance in so deciding is the fact plaintiff was bedridden and in considerable pain for about five weeks and had to wear a cast and/or a brace for almost eight months. Furthermore, she was severely limited in her ability to get around during her sophomore year in high school and was unable to resume her softball career until her senior year, and then as the second-string catcher.

Accordingly, we enter the following:

ORDER

And now, October 28, 1998, it is directed that:

(1) Plaintiff’s motion for post-trial relief is hereby granted. The order of September 15, 1998, granting defendants’ nonsuit/directed verdict motion is accordingly vacated.

(2) A verdict on the merits of the action is hereby entered in favor of plaintiff Susan Shaner and against the Commonwealth defendants in the amount of $80,000.

      . The third issue raised in plaintiff’s post-trial motion, that the court improperly ruled the release/exculpatory clause was legally valid and enforceable, was thoroughly addressed in the earlier opinion.

      . By this time, plaintiff Shirley Shaner had been dropped from the action and Susan Shaner was the sole plaintiff.

      . “Any individual 18 years of age or older shall have the right to enter into binding and legally enforceable contracts and the defense of minority shall not be available to such individuals.” 23 Pa.C.S. §5101(a).

      . Defendants may have simply overlooked the release language even though they had possession of the registration form early in the litigation. However, it is not improbable defendants made a strategic decision in seeking to amend on the eve of trial since the longer they waited to seek amendment — asserting exculpation pursuant to a release executed with a minor — the greater the chance the court might not find the minor disaffirmed the release, since disaffirmance requires the minor act within a reasonable time after reaching majority.

      . Plaintiff did not seriously pursue this action until early 1995 when prompted by a case termination notice. It was only at that point plaintiff undertook discovery for the first time. It is unclear from the record when discovery was completed, nevertheless, the actual delay attributable to defendants in failing to seek an amendment was considerably less than six years.

      . Although trial occurred almost 13 years following the incident, defendants were aware in November 1995, four months after the accident, that Susan Shaner was alleging the base had not been attached to its spike.

      . Hutchinson did testify that as a last resort, she or the coaches would attach the bags if the equipment manager had not; however, her testimony indicates it was clearly the primary responsibility of the equipment manager. (N.T. 101.)


author: FRIEDMAN, J.,

text:
    Mitchell v. Beroes

      C.P. of Allegheny County,
    no. GD 96-6274.

      Victoria Mitchell, pro se.

      Pamela G. Cochenour, for defendant.
    January 20, 1999-
   FRIEDMAN, J.,

INTRODUCTION

Plaintiff, acting pro se, has appealed from this court’s order dated October 13, 1998, in which we entered summary judgment in favor of defendant Beroes and against plaintiff.

Defendant Beroes’ motion for summary judgment was filed relatively late in the case, by leave of the Honorable Bernard J. McGowan, also of this court, in an order dated August 12, 1998. Judge McGowan, in that same order, placed the motion for summary judgment on the October 13, 1998 argument list of the undersigned, and continued the case to the November trial list.

PROCEDURAL HISTORY

This case was commenced by praecipe on April 24, 1996. In the complaint which she subsequently filed, plaintiff alleged that she and defendant Beroes had entered into an agreement by which Beroes was to provide plaintiff with legal representation in a matter in federal court. Plaintiff alleged that Beroes engaged in wrongdoing regarding plaintiff’s federal case. The original complaint did not make any allegations against defendant Colburn.

Both of the defendants filed preliminary objections to plaintiff’s original complaint. Plaintiff then, on July 8, 1996, filed an amended complaint which contained substantially similar allegations against defendant Beroes, and which identified defendant Colburn as malpractice carrier for Beroes but otherwise made no allegations against Colburn. Once again, both defendant Beroes and defendant Colburn filed preliminary objections.

This court sustained defendant Colburn’s preliminary objections and dismissed the amended complaint as to it, with prejudice, by order dated September 16, 1998. We also, on that same date, overruled Beroes’ preliminary objections, in an order quoted in full below:

“And now, September 16, 1996, upon consideration of the preliminary objections filed by and on behalf of Elizabeth A. Beroes, the same are hereby overruled, the amended complaint sounding in fraud only and not legal malpractice. Defendant Beroes to file her answer within 40 days.”

On October 28, 1996, defendant Beroes filed an answer, new matter and counterclaim. On November 19, 1996, plaintiff filed a reply to new matter and counterclaim. Defendant Beroes filed preliminary objections to plaintiff’s reply to new matter and counterclaim, which contained the argument that the notice to plead in plaintiff’s reply to new matter and counterclaim should be stricken, because the reply to new matter and counterclaim did not contain any new factual allegations which required a responsive pleading by defendant Beroes. That preliminary objection was sustained by the Honorable Joseph M. James of this court on February 19, 1997.

The case was placed at issue on March 3, 1997. It was then placed on the trial list for September 17, 1998. The plaintiff filed her pretrial statement on July 23, 1998. In her pretrial statement, plaintiff named the following witnesses to be called:

“Plaintiff intends to call all employees of the Beroes law firm. Thomas Halloran, senior deputy attorney general, office of the attorney general, Elizabeth A. Beroes, of Beroes law firm, and the associates of Elizabeth Beroes. Plaintiff Reserves The Right To Supplement This List To Prove Her Claim.”

On August 12,1998, defendant Beroes filed a motion for leave of court to file motion for summary judgment. As previously indicated, the basis for the motion was that the pretrial statement did not contain copies of any expert witness reports, did not identify any expert witnesses, and identified only two witnesses of any sort by name, and Judge McGowan granted defendant Beroes leave to file a motion for summary judgment, to be heard on the October 13, 1998 argument list. He also continued the trial date for the case to the November trial list.

Defendant Beroes’ motion for summary judgment was argued before the undersigned on October 13,1998. We then entered the order appealed from, granting defendant Beroes’ motion for summary judgment and entering judgment in favor of defendant Beroes and against plaintiff.

FACTS GIVING RISE TO PLAINTIFF’S CLAIM

The allegations against defendant Beroes in plaintiff’s amended complaint are quoted below:

“(5) On or about August 1993, plaintiff and defendant entered into an agreement to [sic] which defendant agreed to provide full legal services from start through federal court. (See attachment.)
“(6) By order of court dated April 26, 1994 the [federal] court granted the summary judgment, the defendant did not inform plaintiff of the facts that the court had dismissed her case.
“(7) Throughout the time spring of 1994 through the end of December defendant continually advised plaintiff that her case was still pending and that she would have a court date.
“(8) The defendant Beroes did not inform plaintiff of October 1993 motion that was granted.
“(9) Throughout the time spring of 1994 through March 1995, defendant Beroes continu[ed] to request and receive payments for .legal services not rendered.
“(10) Plaintiff Victoria Mitchell discovered included within her file documents relating to another client. (See attachment.)
“(11) The defendant Beroes did give a false statement of an offer of $10,000 for a settlement.
“(12) On or about April 1995, the defendant Beroes did in fact attempt to blackmail plaintiff, threatening to tell authority that she threatened the defendant and her children’s life, also to tell about the plaintiff’s tax returns, if the plaintiff tries to prosecute the defendant Beroes in any way.
“(13) The defendant Beroes did not advise plaintiff of her legal rights to consult with independent counsel prior to executing the agreement that contain a provision to waive her rights. (See attachment.)
“(14) Defendant Beroes did in fact deceive plaintiff from start to finish.
“(15) The defendant Beroes intentionally, knowingly, engaged in wrongdoing or in wrongful conduct or has otherwise acted improperly in violation of the law or regulation.”

ISSUE

The basis of defendant Beroes’ motion for summary judgment was that the plaintiff was precluded from adducing at trial the expert evidence necessary to prove her claim because her pretrial statement did not identify any expert witnesses or provide copies of any expert reports and identified only two witnesses of any sort by name. The court agreed and granted defendant Beroes’ motion for summary judgment.

Because of her noncompliance with the rules of court, plaintiff will be unable to prove that she suffered harm as a result of the conduct complained of. As to the most significant portion of alleged harm, the loss of her underlying case, plaintiff has produced no admissible expert testimony on the merits of that case. Expert testimony (of an attorney) is necessary to explain to the jury (1) why a timely appeal of the federal summary judgment would have been successful, (2) why a trial in the underlying federal case would have resulted in a verdict in favor of plaintiff, and (3) the probable amount of such a verdict. As to the other items of alleged harm, there is also no evidence. Plaintiff cannot therefore make out all the elements of fraud, the only cause of action remaining in her amended complaint.

DISCUSSION

Plaintiff claims that defendant Beroes acted fraudulently in four ways, first by not advising her of the entry of summary judgment against plaintiff in federal court; second, by demanding payment of a fee even though she lost plaintiff’s case; third, by failing to advise plaintiff of a $10,000 offer of settlement; and fourth, by “blackmailing” plaintiff by making certain statements when plaintiff discharged her. It is well-settled that one of the elements of fraud is that the plaintiff has suffered damages as a result. It is also well-settled that expert testimony is necessary when a subject is beyond the knowledge or experience of an ordinary layperson. We therefore concluded that expert testimony was necessary here to show causation of the damages that occurred as a result of defendant’s alleged fraudulent failure to advise plaintiff of entry of summary judgment against her. An expert would be needed to show that the Third Circuit Court of Appeals would have reversed Judge Diamond and to show that plaintiff would have prevailed on trial of the underlying federal court action.

At argument on the instant motion for summary judgment, plaintiff stated that she had an expert psychiatrist on damages. This is inadequate as well as untimely. She needs an expert on the law, which, plaintiff conceded at argument, she does not have.

With regard to the plaintiff’s claim that defendant Beroes made a fraudulent demand for payment even though summary judgment was granted in the underlying case, the evidence submitted in support of defendant Beroes’ motion shows that plaintiff admitted in her deposition that defendant’s arrangement with her was for a flat fee of $2,000 and that she could not recall whether it was “win or lose.” That testimony implies there was no promise of success and no promise not to charge if there was not a successful outcome. The fraudulent conduct complained of was a demand for payment made with knowledge that plaintiff had lost her case. Since there is no evidence that payment of defendant’s fee was waived if plaintiff lost, there is no evidence of improper conduct, much less of harm caused by such conduct.

With regard to defendant’s alleged failure to advise plaintiff of the $10,000 settlement offer, plaintiff admitted in her deposition that she would not have accepted such an offer, and that she wanted $300,000 to $500,000. There is therefore no evidence of harm to plaintiff resulting from this allegedly negligent act.

Lastly, regarding the allegations of blackmail by defendant, these are irrelevant as, if true, the evidence indicates they occurred while plaintiff was discharging defendant. Plaintiff has not even attempted to plead harm resulting from this supposed conduct. There is certainly no evidence to prove harm.

CONCLUSION

Defendant Beroes’ motion for summary judgment was properly granted.

      . The other defendant, Colbum-Bertholon-Rowland, had previously been dismissed from the case. Its preliminary objections were sustained and plaintiff’s amended complaint was dismissed with respect to Colbum-Bertholon-Rowland, with prejudice, by order of the undersigned dated September 16, 1996. Although that 1996 order became appealable when the instant order was entered, no appeal was filed.


author: HERMAN, J.,

text:
    Bacstrom v. State Farm Insurance Cos.

      C.P. of Franklin County,
    no. A.D. 1997-219.

      W. Scott Henning, for plaintiffs.

      Rolf E. Kroll and Michele J. Thorp, for defendants.
    January 26, 1998
   HERMAN, J.,

This case is before the court on preliminary objections of defendants State Farm Insurance Companies and State Farm Mutual Automobile Insurance Company to the complaint of plaintiffs Shirley M. Bacstrom and Douglas J. Bacstrom.

A. FACTUAL BACKGROUND

On May 18, 1993, plaintiff Shirley Bacstrom was injured when an automobile driven by Kathleen Ham-man struck Mrs. Bacstrom’s vehicle from behind. At the time of the accident, Mrs. Bacstrom was covered by an automobile insurance policy issued by State Farm which provided for $10,000 in first-party medical benefits. As a result of her injuries, Mrs. Bacstrom sought treatment from several physicians, and the bills for the services rendered by these providers were submitted to State Farm for payment. Sometime in early 1995, State Farm contracted with Laurel Rehabilitation Services, a peer review organization located in Blackwood, NJ, to review Mrs. Bacstrom’s medical records and to offer an opinion as to whether the treatments received by Mrs. Bacstrom were medically reasonable and necessary. Four doctors associated with Laurel submitted reports stating that at least some of the treatments received by Mrs. Bacstrom were not medically reasonable and necessary. Based on these reports, State Farm decided to discontinue payments for medical treatment to Mrs. Bacstrom.

Following State Farm’s decision to deny coverage, the plaintiffs sued to compel State Farm to continue to pay for Mrs. Bacstrom’s ongoing medical care. In their two-count complaint, the Bacstroms set forth a claim for breach of contract and a second claim for bad faith under 42 Pa.C.S. §8371. They claim State Farm reneged on its contractual obligation, under the policy of automobile insurance issued by the company, to pay for medical treatment in connection with the May 1993 car accident. Additionally, they assert that State Farm acted in bad faith when it submitted Mrs. Bacstrom’s medical records to Laurel for a reassessment of the medical necessity of the treatments being rendered to Mrs. Bacstrom. The complaint alleges that Laurel is a “sham” PRO and a “captive reviewer” providing findings favorable to State Farm in order to secure a steady stream of business. (Complaint, ¶¶34 and 36.) The Bacstroms seek to recover the amount of the medical benefits they have not received from State Farm and additional awards of interest, court costs, attorney fees, treble damages pursuant to 75 Pa.C.S. § 1797(b)(4) and punitive damages under 42 Pa.C.S. §8371.

State Farm filed preliminary objections in the nature of a demurrer to the bad faith claim under section 8371. The insurer claims that under the circumstances of this case, the Bacstroms have failed to state a claim upon which relief can be granted. In the alternative, State Farm asks this court to strike Count II, the bad faith count, from the complaint for failure to conform to law. Briefs were submitted by both sides, oral argument was held on January 8, 1998, and the matter is now ripe for disposition.

B. DISCUSSION

The issue to be decided by this court has produced a deep division among courts throughout this Commonwealth. We are asked to determine whether an insured who has been denied first-party medical benefits under an automobile insurance policy following peer review can seek punitive damages against her insurer under both the Motor Vehicle Financial Responsibility Law and the bad faith provisions of the Judicial Code. State Farm, in its brief, presents the question thus: “Do the specific procedures and remedies set forth in the Pennsylvania Motor Vehicle Financial Responsibility Law preclude a claim for damages under 42 Pa.C.S. §8371 in the context of an action for first-party medical benefits?” For the reasons set forth below, we answer State Farm’s query in the negative and overrule its preliminary objections.

Initially, we note that the test for preliminary objections which would result in the dismissal of a claim is whether it is clear and free from doubt from all the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Bower v. Bower, 531 Pa. 54, 611 A.2d 181 (1992). In the review of preliminary objections, facts that are well pleaded, material and relevant will be considered as true, together with such reasonable inferences as may be drawn from such facts. Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). Any doubt as to the sufficiency of the pleading must be resolved in the plaintiff’s favor. MacGregor v. Mediq Inc., 395 Pa. Super. 221, 576 A.2d 1123 (1990).

State Farm argues that the bad faith claim in the Bacstroms’ complaint should be dismissed or stricken because section 1797 of the MVFRL provides an exclusive remedy to insureds aggrieved by an insurer’s denial of payments after a PRO has determined that the treatment received by the insured is not medically reasonable or necessary. The relevant provisions of section 1797 of the MVFRL provide as follows:

“(b) Peer review plan for challenges to reasonableness and necessity of treatment.
“(1) Peer review plan. Insurers shall contract jointly or separately with any peer review organization established for the purpose of evaluating treatment, health care services, products or accommodations provided to any injured person. Such evaluation shall be for the purpose of confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary. An insurer’s challenge must be made to a PRO within 90 days of the insurer’s receipt of the provider’s bill for treatment or services or may be made at any time for continuing treatment or services. . . .
“(4) Appeal to court. A provider of medical treatment or rehabilitative services or merchandise or an insured may challenge before a court an insurer’s refusal to pay for past or future medical treatment or rehabilitative services or merchandise, the reasonableness or necessity of which the insurer has not challenged before a PRO. Conduct considered to be wanton shall be subject to a payment of treble damages to the injured party.” 75 Pa.C.S. § 1797(b).

State Farm contends that the procedures for challenging the propriety of medical bills under the above-quoted section constitute an exclusive remedy, and once the insurer has availed itself of the peer review process, the insured has no grounds on which to claim that the insurance company acted in bad faith. According to State Farm, the Bacstroms cannot assert a bad faith claim under section 8371 of the Judicial Code because the remedies provided by section 1797 of the MVFRL are the only avenue of vindication for State Farm’s failure to pay the Bacstroms’ medical bills. Section 8371 reads as follows:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:
“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.
“(2) Award punitive damages against the insurer.
“(3) Assess court costs and attorney fees against the insurer.” 42 Pa.C.S. §8371.

In determining the merits of State Farm’s arguments, we must engage in an exercise of statutory interpretation and construction. State Farm appears to premise its argument on the assumption that there is a conflict between sections 1797 and 8371, and that this conflict precludes the Bacstroms’ bad faith claim as stated in the complaint. Because of the perceived conflict between two separate statutory provisions, we must rely on the rules of statutory construction found at 1 Pa.C.S. § 1933 to resolve the issue. The provisions of this section of the Statutory Construction Act are as follows:

“Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.” 1 Pa.C.S. §1933.

It is clear from a reading of both statutory provisions at issue in this case that section 8371 is a more general provision and, as such, it should be subservient to the more specific provisions of section 1797 of the MVFRL. Section 8371 deals with all actions under insurance policies, while section 1797 deals with the more specific area of first-party insurance benefit claims under the MVFRL. However, the specific prevails over the general only if the court finds that effect cannot be given to both provisions because the two are irreconcilable. We find that it is possible to give effect to both statutory provisions and that they are, therefore, reconcilable. Consequently, we do not reach the determination that the more specific statutory provision should prevail over the more general one.

The two statutory provisions at issue are reconcilable because they address different types of grievances by an insured. Section 1797(b)(4) sets forth a procedure by which an insured can appeal the insurer’s denial of first-party benefits to a court where the insurer has not challenged the reasonableness or necessity of medical treatment before a PRO. Where the conduct by the insurer is found to be “wanton,” the insured may recover treble damages. In our view, this section of the MVFRL does not address the situation found in the instant case, namely, the instance where the insurer has allegedly submitted the insured’s claims to a PRO of its choice for review and has acted in bad faith in the process. This is where the provisions of section 8371 come into play to protect persons such as the Bacstroms from bad faith conduct on the part of an insurance company. Section 8371 acts as a complementary or supplementary remedy for an insured aggrieved by the behavior of an insensitive insurer. Eliminating the Bacstroms’ claim for bad faith under section 8371 would serve to insulate State Farm from sanctions for bad faith conduct simply because they submitted the Bacstroms’ case to a PRO for review. This would be an abrogation of the court’s responsibility to provide a forum for bad faith claims where the PRO system is invoked. See Pierce v. State Farm Insurance Co., 27 D.&C.4th 464 (C.P. Lackawanna Cty., October 20, 1994).

State Farm relies on the case of Barnum v. State Farm Mutual Automobile Insurance Co., 430 Pa. Super. 488, 635 A.2d 155 (1993), granted, reversed and remanded, 539 Pa. 673, 652 A.2d 1319 (1994) and other common pleas court decisions in sister counties for the proposition that the remedies provided by the MYFRL are exclusive and preclude a bad faith claim under section 8371 of the Judicial Code. We find the authorities relied on by counsel for State Farm unpersuasive. First, Bamum was reversed by the Supreme Court without comment on the Superior Court’s holding concerning the exclusivity of remedies in this kind of case. Second, the trial court decisions cited by State Farm are merely examples of the split in authority that now exists with regard to the issue we are seeking to resolve. See e.g., Conway-West v. State Farm Insurance Co., 19 D.&C.4th 84 (C.P. Monroe Cty., July 2, 1993) (section 1797 is the exclusive remedy for insurer’s denial of first-party medical benefits); Mitrick v. State Farm Mutual Automobile Insurance Co., 13 D.&C.4th 540 (C.P. York Cty., December 24, 1991) (availment by insurer of PRO procedure under section 1797 does not bar claim under section 8371). Third, this court has spoken on this issue and decided that “the mere act of submitting the claims to a PRO does not negate the possibility of bad faith on the part of the insurer.” M.S. Hershey Medical Center v. State Farm Insurance Co., 21 D.&C.4th 62, 71 (C.P. Franklin Cty., December 8, 1992) (Walker, P.J.).

In Hershey, an accident victim and providers of medical services sued State Farm to recover amounts payable under an automobile insurance policy for treatment rendered to the insured. The Honorable John R. Walker decided to overrule State Farm’s preliminary objections in the nature of a demurrer and opined that the plaintiffs should be allowed to proceed with their section 8371 claim and their cause of action under section 1797 of the MVFRL. Because we are persuaded by Judge Walker’s reasoning in the Hershey case, we will overrule State Farm’s preliminary objections in accordance with that holding.

It is important to note that our decision does not mean that plaintiffs can always proceed with their claims under both statutory provisions in all circumstances. We decline to follow the suggestion by plaintiffs’ counsel at oral argument that the mere submission of a claim to a PRO constitutes bad faith. However, we are convinced that the complaint, as drafted, has alleged sufficient facts to overcome the defendants’ demurrer. For purposes of deciding these preliminary objections, we assume the veracity of the allegations that Laurel is a sham PRO and State Farm used them because they are a captive reviewer with a financial interest in providing State Farm with biased reviews. If proven at trial, these averments would expose State Farm to liability for bad faith conduct under section 8371. We may need to revisit this issue at a later stage of the proceeding in order to determine whether there is enough evidence to submit the bad faith claim to the jury. For now, the Bacstroms may proceed with both their claims.

Based on the foregoing, the preliminary objections of defendants State Farm Insurance Companies and State Farm Mutual Automobile Insurance Company are overruled. An appropriate order follows.

ORDER

Now January 26, 1998, upon consideration of the preliminary objections of defendants State Farm Insurance Companies and State Farm Mutual Automobile Insurance Company, of the briefs submitted by the parties, and oral argument presented before the court, it is hereby ordered and decreed that the preliminary objections of defendants are overruled.