author:
DiNUBILE, J.,
     BERNSTEIN, J.,
     SWOPE, JR., J.,

text:
    Baker v. Myers

      Jeffrey S. Kahn, for plaintiff.

      Daniel E Ryan III, for defendants.
    February 9, 1999
   DiNUBILE, J.,

The issue presented in post-trial motions in this case is whether or not the plaintiff can obtain recovery from the defendant himself, who was insured and defended by the Pennsylvania Property and Casualty Insurance Guaranty Association (PIGA), where the sums paid to the plaintiff by other insurance companies arising from the claim in question exceeded the amount of the verdict and delay damages. Although plaintiff seems to concede that PIGA would not be liable under these circumstances, his counsel asserts, however, that satisfaction can be obtained directly from the insured defendant. After a review of the Pennsylvania Property and Casualty Insurance Guaranty Act and the relevant case law, this court reaches the conclusion that since PIGA is not obligated to pay, due to certain setoffs as provided for under the statute, then the plaintiff also is precluded from obtaining recovery directly from the insured defendant himself. As a result of this ruling, the verdict and judgment were molded to reflect a zero award.

The facts can be stated briefly as follows. The plaintiff, Robert Baker, sued the defendants, Donald L. Myers M.D. (neurosurgeon), and Sanford Davne M.D. (orthopedic surgeon), under the theories of negligence and lack of informed consent arising from a spinal fusion surgery in which pedicle screws and plates were used in the performance of the operation. This matter was one of a number of mass tort bone screw cases administered and tried at the Complex Litigation Center in Philadelphia by the court. The jury absolved both physicians of malpractice but found liability on the part of defendant, Dr. Myers, as to lack of informed consent. A verdict was returned in plaintiff’s favor against Dr. Myers in the amount of $47,500.

Defendant, Dr. Myers, was insured originally by the Physicians’ Insurance Company (PIC). This company went insolvent and was placed in liquidation by court order on January 21, 1998. As a result of this event, PIGA assumed the defense of Dr. Myers. Trial commenced on November 13, 1998. The jury rendered its verdict on November 18, 1998. A petition for delay damages subsequently was filed and this court awarded an additional $18,162.91, resulting in the total judgment entered against the defendant to be raised to $65,662.91. It is without question that the insurance recoveries by the plaintiff in this case, which involved workers’ compensation benefits as well as medical costs for several subsequent surgeries, far exceeded the amount of the judgment which was entered by this court. PIGA exists under the Pennsylvania Property and Casualty Insurance Guaranty Act (the PIGA statute), 40 P.S. §991.1801 ,et seq. The statute clearly provides under 40 P.S. §991.1817(a) that PIGA is entitled to a reduction on any amount it is obligated to pay the plaintiff (in this case from the judgment in question) by the amount of “any kind of insurance” which the plaintiff recovered under the claim. Since it is without dispute that plaintiff received insurance benefits both under workers’ compensation and for certain surgeries which far exceeded the amount of the judgment entered in this case, PIGA is absolved from any obligation to pay the judgment sum of $65,662.91.

Plaintiff seems not to dispute this fact but asserts that the Act does not bar his right to recover directly from the defendant. Such a broad interpretation of the Act would operate to defeat the purpose of the PIGA statute. It was enacted to protect good faith policyholders of insolvent companies who, without PIGA, could suffer financial loss defending and paying claims against them which otherwise would have been covered had their insurer not become bankrupt. While it is true that the legislature also created PIGA to protect claimants of insolvent insurers who would have had no other source of insurance from which to recover their losses, this aspect of the purpose of the Act does not form the basis to support plaintiff’s assertion for recovery directly against the defendant insured. The statute strikes a reasonable balance of affording insurance protection for policyholders of insolvent insurers while allowing an opportunity for claimants of these insureds to obtain some recovery. The Act clearly limits recovery in instances where the plaintiff claimant had been compensated by “any kind of insurance.” It would defeat the purpose of the Act to permit PIGA a setoff, but at the same time open up its insured to liability for this amount. Therefore, if PIGA is absolved from payment, clearly the insurer is as well. Consequently, the judgment of verdict was molded to reflect a zero award. In arriving at this decision, the court has followed the well-reasoned opinion of its colleague, the Honorable Mark I. Bernstein, who, in Panea v. Isdaner, Court of Common Pleas Civil Trial Division, November term 1995, no. 1564 (1/9/99), held, after an in-depth analysis of the Act, that PIGA was entitled to offsets for sums of money from insurance paid to the plaintiff arising from the claim. Thus, a $75,000 settlement was reduced by $25,000 which represented the amount of the setoff. This court also adopts the opinion of the Honorable Thomas A. Swope Jr. of the Court of Common Pleas of Cambria County, in Gallaher v. Wetzel, civil action — law, no. 1996-2143 (12/4/98), who also held that any offsets entitled to PIGA could not be recovered directly from the defendant insured. Copies of these opinions are attached and made a part hereof.

Plaintiff finally asserts that the defendant has waived its right to any setoffs since this issue was not raised until a motion to mold the verdict was presented to the court at post-trial. The order of October 29, 1998, issued by the Honorable Albert W. Sheppard Jr. of this court, pertaining to all orthopedic bone screw litigation cases (there are similar orders involving all other civil cases involving the PIC insolvency as well), specifically provides that this issue is to be raised in post-trial after verdict. Consequently, the defendant did not waive the right to any setoffs.

January 6, 1999

EXHIBIT

PANEA v. ISDANER

BERNSTEIN, J.,

Plaintiffs Doina and John Panea filed this medical malpractice action against defendants Neil Isdaner M.D. and Neil Isdaner M.D. PC. in November 1995. On December 11, 1997, the parties agreed to settle this case for $75,000. Plaintiffs’ counsel sent an executed release and an order to settle, discontinue and end to defense counsel on December 31, 1997. At the time of settlement, both defendants were insured by Physicians Insurance Company (PIC). On January 21, 1998, the Commonwealth Court ordered PIC into liquidation.

Plaintiffs’ counsel sent a letter to the Pennsylvania Insurance Guaranty Association (PIGA) requesting payment of $75,000. PIGA tendered the sum of $50,000 to plaintiffs, claiming that it is entitled to a $25,000 credit pursuant to the Pennsylvania Property and Casualty Insurance Guaranty Act. Plaintiffs assert that they are entitled to recover an additional $25,000 from either PIGA or defendants personally. Defendants assert that neither PIGA nor the named defendants are liable for the full $75,000.

On September 24, 1998, plaintiffs filed a petition to enforce settlement against defendants, seeking an order of judgment against defendants in the amount of $25,000 plus accrued interest. This court denied plaintiffs’ petition on November 3, 1998. From this order, plaintiffs timely appealed.

The sole issue on appeal is whether plaintiffs’ health insurance payment of $25,000 bars them from further recovery against either PIGA or defendants personally. For the following reasons, this court’s denial of plaintiffs’ petition was proper and should be affirmed.

PIGA exists under the Pennsylvania Property and Casualty Insurance Guaranty Act (the PIGA statute). The legislature’s enactment of the PIGA statute on December 12, 1994 repealed former 40 P.S. §1701.101 et seq. The purpose of the PIGA statute is “[t]o provide a means for the payment of covered claims under certain ... casualty insurance policies ... and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.” The legislature created PIGA to protect the claimants of insolvent insurers who have no other source of insurance from which to recover their losses.

When it enacted the new PIGA statute, the legislature made significant changes in the former statute’s non-duplication of recovery provision. Both statutes require a claimant to first exhaust his rights under any other insurance policy before requesting payment from PIGA. Under both statutes, PIGA is entitled to a credit equal to the amount that the claimant recovers under any other insurance. The specific change in the PIGA statute which is at issue in this case is the type of other recovery that entitles PIGA to an offset. The former statute provided:

“Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such a policy. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under such insurance policy.”

The Superior Court limited the application of this provision to the recovery of insurance benefits from a “covered claim.” In Sands v. Pennsylvania Insurance Guaranty Association, the Superior Court held that payments by an insurance carrier which did not result from the insolvency of an insurer were not subject to an offset. The Superior Court stated:

“A ‘claim against an insurer’ would ‘also be a covered claim’ only if that claim was for an ‘unpaid claim’ arising under an insurance policy of an ‘insolvent insurer.’ Any claim Sands might have had against Hawk-eye under a liability policy could not have also been a covered claim because it would not be a claim for an unpaid claim resulting from the insolvency of an insurer but from the negligence of Davis.”

In 1983, the Superior Court in Bullock v. Pariser explained its prior interpretation of section 1701.503(a) by stating that “the second sentence of section 503(a) . . . refers back to any recovery on a claim of the sort referred to in the first sentence of section 503(a), i.e., any ‘covered claim.’ ” In both Sands and Bullock, PIGA was not entitled to an offset because the claimant’s other insurance recovery was not a “covered claim.”

In response, the legislature abandoned this interpretation of the PIGA statute by repealing 40 P.S. §1701.-503(a) and replacing it with 40 P.S. §991.1817(a). The legislature remedied the ambiguity in the former statute by clearly defining the types of other insurance that would entitle PIGA to a credit. The new PIGA statute provides:

“Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first-party or third-party claim and shall include, without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under other insurance.”

The new PIGA statute specifically includes health insurance in its definition of “a claim under an insurance policy.” Thus, the unambiguous language of the new PIGA statute precluded plaintiffs from recovering against PIGA the sum paid by their health insurance.

Plaintiffs argue, however, that the new PIGA statute cannot be applied to a cause of action that accrued prior to its effective date because the statute relates to substantive rights. The new PIGA statute clearly applies to an unpaid claim against an insurer that is declared insolvent “after the effective date of this article by a court of competent jurisdiction.” PIC was declared insolvent by the Commonwealth Court on January 21,1998, nearly three years after the new PIGA statute’s effective date of February 10, 1995. Since defendants’ insurance carrier was declared insolvent after that effective date, the new PIGA statute is applicable.

In Blackwell v. Pennsylvania Insurance Guaranty Association, a remarkably similar case, the Superior Court held that all sums paid to the claimant by her own underinsured motorist carrier must be deducted from any sums paid by PIGA. Interpreting the nonduplication of recovery provision in light of the policies and intent of the statute, the court stated:

“[T]he legislature did not intend, in enacting the Insurance Guaranty Act, that in all cases a claimant would be placed in the same position he would have been in had the insurance company remained solvent. Even with the existence of PIGA, it was anticipated by the legislature that some claimants would suffer some amount of financial loss due to the insolvency of an insurer . . . .”

As the Superior Court recognized in Blackwell, the PIGA statute does not guarantee that plaintiffs in this case will be placed in the same position they would have been in had PIC remained solvent. Since the new PIGA statute applies and plaintiffs have received the sum of $25,000 from their health insurance carrier, they may not also recover that sum from PIGA.

Alternatively, plaintiffs claim that if PIGA is not liable for the full amount of the settlement, then defendants are personally liable in the amount of $25,000. In Burke v. Valley Lines Inc., the Superior Court recognized that to impose such financial loss directly on the insured tort-feasor “would violate the very purpose of PIGA ....” In Burke, the plaintiff brought a personal injury action against the tort-feasor and his employer after he had settled his uninsured motorist claim for less than the policy limits. Following trial, the plaintiff sought to recover the difference between the jury award and the payment from his insured motorist carrier from the defendants personally. In holding that the plaintiff was barred from recovering against either PIGA or the defendants, the Superior Court stated:

“Given PIGA’s release from all financial responsibility as a direct result of appellant’s failure to exhaust his uninsured policy rights, we hold that appellant is likewise barred from recovering from appellees. Any other holding would render the ‘exhaustion’ provision of the Insurance Guaranty Act meaningless. . . .
“If appellees were now personally responsible for appellant’s damages award, they would be without any source of insurance protection to bridge the gap between appellant’s uninsured motorist settlement of $85,000 and the $200,000 award.”

Therefore, since plaintiffs herein are barred from recovering against PIGA, they are likewise barred from recovering against the insured tort-feasors.

Accordingly, based on the PIGA statute’s unambiguous language and controlling precedent, neither PIGA nor the named defendants are liable to plaintiffs for the sum paid by plaintiffs’ health insurance. For the foregoing reasons, this court properly denied plaintiffs’ petition to enforce settlement against defendants, and its ruling should be affirmed.

December 4, 1998

EXHIBIT

GALLAHER v. WETZEL

SWOPE, JR., J.,

This matter is before the court on defendants’ petition to satisfy the judgment filed October 23, 1998. On November 12, 1998, a hearing was held at which time arguments of counsel were heard.

On August 14, 1998, the jury reached a verdict for each of the three plaintiffs in this medical malpractice case concerning the premature birth and death of Nicholas Gallaher. The unanimous jury verdict awarded $76,622.35 to Tisha Gallaher, $25,000 to Carl Gallaher, and $25,248 to the estate of Nicholas Gallaher. On September 8,1998, this court entered an order awarding delay damages in the amount of $2,501.37 with respect to the verdict for Carl Gallaher, $7,666.43 with respect to the verdict for Tisha Gallaher, and $2,526.18 with respect to the verdict for the estate of Nicholas Gallaher.

On October 5, 1998, judgments were entered for Carl Gallaher in the amount of $27,501.37 and for Tisha Gallaher in the amount of $84,288.78. The court did not enter judgment with respect to the estate of Nicholas Gallaher because there was then pending a motion by the plaintiffs requesting a new trial as to damages on the estate of Nicholas Gallaher. The combined total of the judgments for Carl and Tisha Gallaher is $111,790.15. The defendants paid $99,947.50 and brought the instant petition asking that the judgment be marked satisfied.

The issue currently before the court concerns only the claim of Tisha Gallaher. Her claim included medical expenses in the amount of $11,842.65. These medical bills were paid by the plaintiffs’ hospitalization insuranee. At the time of the incident giving rise to the claim, the defendant, Dr. Wetzel, was insured by Physicians Insurance Company (PIC) under a standard policy of primary insurance with a policy limit of $200,000. On January 21, 1998, PIC was declared insolvent by the Commonwealth Court and its insureds and claimants against its insureds became subject to the Pennsylvania Property and Casualty Insurance Guaranty Association (PPCIGA) Act by reason of PPCIGA’s assumption of the position as primary insurer, subject to the limitations of the Pennsylvania Property and Casualty Insurance Guaranty Association Act.

Subsequent to the entry of judgment, and in accordance with the statute, PPCIGA paid to the plaintiffs the sum of $99,947.50 representing payment of the verdicts in the claim of Tisha and Carl Gallaher, together with delay damages thereon, minus the statutory credit or offset of $ 11,842.65 provided in 40 PS. §991.1817(a). After receiving $99,947.50, the plaintiffs made demand upon the insured, Dr. Wetzel, for the payment of the $11,842.65 which was not paid by PPCIGA. The defendants now seek to satisfy the judgment and the plaintiffs contend that they have a right to execute on the judgment against Dr. Wetzel. The plaintiffs have set forth four separate grounds for relief in their argument against the defendants’ petition to satisfy the verdict. They assert that: (1) the Act does not permit the court to set off the verdicts against the defendants, (2) the defendants do not have standing to assert a setoff because that right is held solely by PPCIGA, (3) the satisfaction of the judgment would violate the collateral source rule, and (4) the defendants waived any right to reduce the amount of the verdict by failing to file a motion to mold the verdict within 10 days of the verdict.

In support of their petition, defendants have argued that the verdict was satisfied by the payment of other insurance (the plaintiff, Tisha Gallaher’s, Blue Cross hospitalization insurance) and that this sum may not be recovered from Dr. Wetzel personally.

The sole issue before the court is whether the $99,947.50 paid by PPCIGA, along with the payment by Tisha Gallaher’s hospitalization insurance, amounts to a full satisfaction of the judgment and bars any recovery of the offset sum from the insured, Dr. Wetzel. The plaintiffs have argued that the Act does not allow the court to set off the verdict in favor of the defendants. As will be explained, the court finds that the offset of $11,842.65 may not be recovered from Dr. Wetzel personally, and, as such, the court will satisfy the judgment.

The resolution of the unique issue presented turns on the application of the section in question, 40 P.S. §991.1801, entitled “Non-duplication of recovery.” This section provides in pertinent part:

“Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is a first-party or third-party claim, and shall include, without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under other insurance.” 40 P.S. §991.1817(a). (emphasis added)

In essence, before calling on PPCIGA to pay any claim under a policy issued by an insolvent insurer, a claimant, in this case the plaintiff, Tisha Gallaher, first must exhaust her rights under all other insurance policies which cover any part of her claim. This “exhaustion” provision entitles PPCIGA to reduce its payment to the claimant, Tisha Gallaher, by the amount she recovered from other insurance, in this case the $11,842.65 of medical bills previously covered by her hospitalization insurance. The language of the section very plainly indicates that health insurance is one type of other insurance that will offset the amount of recovery from PPCIGA. Thus, the Act prohibits PPCIGA from making payments that would constitute a double recovery, as would payment to the plaintiffs of the $11,842.65 at issue.

Certainly, it is clear that PPCIGA cannot be required to pay any more than the $99,947.50 that it has already paid out to the plaintiffs. The court also holds that Dr. Wetzel herself cannot be required to pay out the $11,842.65 that was not paid by PPCIGA. We rely on the stated policy purposes of the Act and recent case law interpreting the Act in reaching this decision.

By way of statutory background, in November of 1970, Pennsylvania enacted the Pennsylvania Insurance Guaranty Association Act to provide insurance policyholders with a means to recover payment of claims against insolvent insurers. See H.K. Porter Co. Inc. v. Pennsylvania Insurance Guaranty Association, 75 F.3d 137, 140 (3d Cir. 1996). The Act and the statutory creation of the Pennsylvania Insurance Guaranty Association were modeled on a bill created by the National Association of Insurance Commissioners in order to address the social harm that occurs when insurance companies declare insolvency. See id. (citing Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa. Super. 217, 219, 423 A.2d 1224, 1225-26 (1980)).

The PIGA Act was repealed on December 12, 1994, and replaced by the Pennsylvania Property and Casualty Insurance Guaranty Association Act, 40 P.S. §991.1801 et seq., which amended the prior law. See 1994, Dec. 12, P.L. 1005, no. 137. In reaching its decision, the court notes that one of the stated purposes of the PPCIGA Act, set forth in 40 P.S. §991.1801, is “[t]o provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claim and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.” (emphasis added) There is no question that Dr. Wetzel was covered by a policy of liability insurance, that her insurer, Physicians Insurance Company, is insolvent, and that die claim in issue was a covered claim To expose Dr. Wetzel to financial harm in this case would defeat the stated policy goals of the legislation. If Dr. Wetzel was now subject to liability for the $11,842.65 at issue, she would be left without a source of insurance protection, and subject to financial loss due to the unfortunate insolvency of her insurer and contrary to the purpose of the Act.

Although there is a split of authority among panels of the Pennsylvania Superior Court on this issue, the court finds the reasoning in Burke v. Valley Lines Inc., 421 Pa. Super. 362, 617 A.2d 1335 (1992) to be compelling, as well as more closely on point. At the outset, the court would note that all three Superior Court cases cited were decided prior to the 1994 amendments to PPCIGA. In Burke, a three-judge panel addressed whether an injured motorist was required to obtain the full policy limit under his own uninsured motorist coverage before he could collect a judgment from a tortfeasor covered by the Pennsylvania Insurance Guaranty Association Act. Burke v. Valley Lines Inc., 421 Pa. Super. 362, 363, 617 A.2d 1335, 1336 (1992). The court held that an injured person may not settle with his uninsured motorist carrier for less than the policy limits and then expect to recover any monies from PIGA or its insured. Id. The court specifically held that the injured person could not recover from PIGA or from the tort-feasor/policyholder. The court reasoned as follows:

“Since appellant settled his uninsured motorist claims for less than his policy limits of $200,000, appellant has not exhausted his rights under the policy and therefore, may not recover from PIGA. 40 Pa. S.A. §1701.-503(a) [former section]. Having determined that appellant may not recover against PIGA, we must next face the question of whether appellant is barred from recovering his $200,000 damage award from appellees. Given PIGA’s release from all financial responsibility as a direct result of appellant’s failure to exhaust his uninsured policy rights, we hold that appellant is likewise barred from recovering from appellees. Any other holding would render the ‘exhaustion’ provision of the Insurance Guaranty Act meaningless.” Id. at 369, 617 A.2d at 1335 (citing White v. Accardo, 15 D.&C.3d 609, 617 (1980)).

The court further noted that “PIGA was designed to provide claimants with a recovery equal to the insolvent insurer’s policy limits (or PIGA’s liability cap) less whatever amount the claimant may have recovered by exhausting his rights under any other policy of insurance.” Id. at 368-69, 617 A.2d at 1338.

Although Burke dealt with a reduction in the amount recoverable from an uninsured motorist carrier, the principle involved can be applied to the instant case. In Burke, the setoff amount was determined to be the sum that the plaintiff was entitled to recover from other insurance. In the case at bar, the plaintiffs did actually recover from other insurance the $11,842.65 in controversy. In both cases, the setoffs or reductions that PPCIGA claims are also not recoverable against the insured party. The judgment has been satisfied by the plaintiffs’ receipt of PPCIGA’s payment of $99,947.50 and her health insurance company’s coverage of the $11,842.65 worth of medical expenses, and cannot be recovered from Dr. Wetzel.

In contrast to Burke, the plaintiffs have cited the cases of Bullock v. Pariser, 311 Pa. Super. 487, 457 A.2d 1287 (1983) and Sands v. Pennsylvania Insurance Guaranty Association, 283 Pa. Super. 217, 423 A.2d 1224 (1980), as support for their argument that the verdict in this case should not be reduced by the setoff amount of $11,842.65. At the outset, the court would note that both cases were decided in the early 1980s, well before the 1994 amendments to 40 P.S. §991.1817(a). The cases cited by the plaintiff rest their decisions on the determination that the second sentence of former section 503(a), which provided for the reduction of any amount payable under the Act “by the amount of any recovery under such insurance policy,” referred back to any recovery on a claim of the sort referred to in the first sentence of former section 503(a), i.e., any “covered claim.” Due to this interpretation, Bullock and Sands created a distinction by which payments a claimant would have received regardless of the insurance carrier’s insolvency were not covered by the Act and thus the claimant’s recovery could not be reduced by those amounts. However, this distinction is no longer viable as a result of the 1994 amendment.

The 1994 amendments to 40 P.S. §991.1817(a) establish that a claim under an insurance policy for purposes of the Act includes any kind of insurance and, in particular, state that accident and health insurance, workers’ compensation, Blue Cross and Blue Shield are encompassed by the section. The court understands this section to mean that any and all claims that a claimant may have under any policy of insurance must be exhausted, and recovery under a covered claim shall be reduced by the amount of other insurance proceeds previously received. As such, it is irrelevant whether that claim arose and payment was made due to the insolvency of the tort-feasor’s insurance carrier or if it would have been due to the claimant regardless of the insolvency.

In sum, we hold that the plaintiffs’ recovery of other insurance (hospitalization coverage), within the meaning of 40 P.S. §991.1817(a), bars any subsequent recovery of that amount from either PPCIGA or the tortfeasor. So holding, we note that our interpretation both upholds the purpose of the statute in question, and is fair to both parties.

Accordingly the following order is entered:

ORDER

And now, December 4, 1998, upon consideration of the arguments of counsel and briefs submitted, it is hereby ordered and decreed that the defendants’ petition to satisfy the judgment is granted and the judgment shall be deemed satisfied.

      . The court had ruled that Dr. Myers was the only physician who was involved in obtaining the informed consent and not Dr. Davne. Therefore, the verdict based on informed consent was entered solely against Dr. Myers.

      . Plaintiff, in his argument, asserts that any offset must be limited to those medical bills which were submitted to the jury. A reading of the Act indicates the contrary.

      . 40 P.S. §991.1801 et seq.

      . 40 P.S. §991.1803.

      . The new PIGA statute became effective on February 10, 1995, 60 days after its enactment. See 40 P.S. §991.1801.

      . 40 P.S. §991.1801(1).

      . Burke v. Valley Lines Inc., 421 Pa. Super. 362, 368, 617 A.2d 1335, 1338 (1992).

      . 40 P.S. §1701.503(a) (repealed December 12, 1994).

      . In the former statute, a “covered claim” was defined as “an unpaid claim, including a claim for unearned premiums, which arises under a property and casualty insurance policy of an insolvent insurer . . . .” 40 P.S. §1701.103(5)(a) (repealed December 12, 1994).

      . 283 Pa. Super. 217, 224, 423 A.2d 1224, 1227 (1980).

      . Id. at 224, 423 A.2d at 1227.

      . 311 Pa. Super. 487, 494, 457 A.2d 1287, 1290 (1983).

      . 40 P.S. §991.1817(a). (emphasis added)

      . Plaintiffs admit that “[t]he present version of the statute clearly applies to health insurance benefits received by the plaintiff even if the receipt of such benefits did not result from the insolvency of any insurer.” Memorandum of law in support of plaintiffs’ petition to enforce settlement against defendants, Neil Isdaner M.D. and Neil Isdaner P.C., p. 6.

      . Memorandum of law in support of plaintiffs’ petition to enforce settlement against defendants, Neil Isdaner M.D. and Neil Isdaner P.C., pp. 6-7.

      . 40 P.S. §991.1802.

      . 390 Pa. Super. 31, 38, 567 A.2d 1103, 1107 (1989).

      . Id. at 37, 567 A.2d at 1106. (emphasis in original) Although Blackwell was decided when the former statute was in effect, its holding still applies in this case. Despite the substantive differences between the two PIGA statutes, the stated purpose of each statute is the same — “to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.” See 40 P.S. §991.1801(1); 40 P.S. §1701.102(1) (repealed December 12, 1994).

      . 421 Pa. Super. 362, 370, 617 A.2d 1335, 1339 (1992) (citing 40 P.S. §1701.102(1)).

      . Id. at 369, 617 A.2d at 1338-39. See also, White v. Accardo, 15 D.&C.3d 609, 617 (C.P. Phila. County 1980) (holding plaintiff barred from recovering against named defendants where PIGA was released from all financial responsibility due to plaintiff’s failure to exhaust policy rights).

      . Clearly, the understanding of the parties in reaching the settlement agreed upon before PIC’s insolvency no longer exists. At that time, the parties contemplated payment in the amount of $75,000 without reduction for collateral source benefits. Defendants agreed to this settlement with the understanding that all sums would be paid by their insurance carrier. These understandings have been obliterated by the insolvency. Obviously, the settlement can be ruled null and void and the underlying matter restored to the trial list. No such request is before the court. In ruling on the instant petition, the court notes that plaintiffs have not requested any declaration that the settlement is null and void nor that the case be ordered for trial.

      . The court finds this argument not worthy of discussion, as Burke v. Valley Lines Inc., 421 Pa. Super. 362, 617 A.2d 1335 (1992), clearly stands for the proposition that the right of setoff provided by former section 503(a) (now section 991.1817(a)) belongs to both the tort-feasor as well as PPCIGA.

      . The court declines to address this argument, finding that it has no merit whatsoever, as there is no authority for the proposition that the collateral source rule is applicable to the non-duplication of recovery provision of PPCIGA.

      . The court also finds this argument to be without merit, determining that the defendants have not waived their right to the setoff provided by 40 P.S. §991.1817(a). Plaintiffs have argued that Sands v. Pa. Ins. Guar. Assoc., 283 Pa. Super. 217, 423 A.2d 1224 (1980) supports their assertion that the defendants have waived their right to a setoff. However, Bullock is inapplicable to the instant case, because the Bullock court held that PIGA had waived its right to a setoff, primarily because the court was unable to determine what portion of the award, if any, PIGA was entitled to have set off. In the case at bar, unlike the situation presented in Bullock, there is no question that the amount of the setoff is $11,842.65.

      . Prior to the 1994 amendments, the section in issue, section 503(a) of the Act, provided as follows:
      “Any person having a claim against an insurer under any provision in an insurance policy other than a policy of an insolvent insurer which is also a covered claim, shall first be required to exhaust his right under such a policy. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under such insurance policy.”

      . The current text of 40 P.S. §991.1817(a) provides:
      “Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind-of insurance, whether it is a first-party or third-party claim, and shall include, without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverages except for policies of an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under other insurance.”


source: Caselaw Access Project

author: PRATT, J.,

license: Public Domain

text:
    In re Appeal of Flannery

      C.P. of Lawrence County,
    no. 70009 of 1998, M.D.

      Phillip L. Clark Jr., for appellant.

      Chester J. Karas Jr., for Commonwealth.
    August 7, 1998
   PRATT, J.,

This is an appeal from the suspension of the driver’s license of appellant, Jennifer R. Flannery. The basis of this case can be traced back to a traffic stop occurring in Ohio on September 26, 1997, when the appellant was charged by the state of Ohio as a first-time offender under its driving under the influence of alcohol laws. At that time, appellant’s Pennsylvania driver’s license was physically seized. As a result of her plea of no contest to the DUI charge in the Ohio court, appellant’s operating privileges in Ohio were placed under an administrative suspension in accordance with the Ohio Revised Code §4511.191 for a period of 15 days, effective the date of her arrest on September 26, 1997, and, thereafter, for a period of six months.

Based on the Ohio DUI offense, the Pennsylvania Department of Transportation, on December 15, 1997, suspended the appellant’s driver’s license for a period of one year pursuant to the Driver’s License Compact, 75 Pa.C.S. §1581, effective January 19, 1998. The appellant then timely appealed her one-year license suspension to this court. After a full hearing of the appellant’s “appeal from driver’s license suspension,” this court dismissed the appeal and reinstated PennDOT’s administrative order suspending the appellant’s driver’s license in Pennsylvania. The appellant timely filed a notice of appeal to the Commonwealth Court on July 9, 1998 and, pursuant to this court’s order, a statement of matters complained of on appeal. This opinion is issued in satisfaction of Pa.R.A.P. 1925(a).

DISCUSSION

In her statement of matters complained of on appeal, the appellant contends that this court erred in failing to find that the suspension of the appellant’s driver’s license in Pennsylvania was a violation of her constitutional rights to equal protection and procedural due process under the constitutions of the United States and Pennsylvania.

A.

Equal Protection

Appellant’s equal protection argument is premised on the contention that a Pennsylvania motor vehicle operator is treated differently for violating the DUI statutes of a sister state as opposed to violating the DUI statutes of Pennsylvania. This disparity, appellant asserts, arises due to the reporting procedures between the member states of the Driver’s License Compact. To illustrate, appellant argues that her one-year suspension of her Pennsylvania driving privileges began on January 19, 1998, but her driver’s license was previously confiscated in Ohio on September 26, 1997 due to her arrest there for DUI. As a result, the suspension of her operating privilege was for a longer period because the motor vehicle violation occurred in Ohio as opposed to Pennsylvania where her operating privileges would have been suspended much sooner than January 19, 1998. Additionally, appellant argues that the suspension of her license in Pennsylvania denied her equal protection because, if she had been arrested for DUI in Pennsylvania, she would have been eligible for the Accelerated Rehabilitative Disposition program, whereas the violation occurring in a sister state subject to the Driver’s License Compact disqualified her for ARD in Pennsylvania.

Under our federal and state constitutions, if the right challenged under equal protection does not involve a suspect class or a fundamental right, then it is considered using the rational basis test. See Sullivan v. Stroop, 496 U.S. 478, 110 S.Ct. 2499 (1990); Lyng v. Automobile Workers, 485 U.S. 360, 108 S.Ct. 1184 (1988); Curtis v. Kline, 542 Pa. 249, 666 A.2d 265 (1995); Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1357 (1986). The operation of a motor vehicle upon a highway in Pennsylvania is not a fundamental right, but rather a privilege, and the statutes concerning this privilege must, therefore, be examined under the rational basis standard. Maurer v. Boardman, 336 Pa. 17, 25, 7 A.2d 466, 472 (1939). In Pennsylvania, a two-step analysis is employed in considering any equal protection challenge under the rational basis test, which is: (1) whether the challenged statute seeks to promote any legitimate state interest or public value? (2) if so, whether the classification adopted in the legislation is reasonably related to accomplishing that state interest. Plowman v. PennDOT, 535 Pa. 314, 319, 635 A.2d 124, 127 (1993). A classification is not in violation of the equal protection clause if any state of facts reasonably can be conceived to sustain that classification, and the reviewing court is free to hypothesize reasons the legislature might have had for the classification. Federal Communications Commission v. Beach Communications Inc., 508 U.S. 307, 311, 113 S.Ct. 2096, 2099 (1993).

The purpose of the Driver’s License Compact, which can be readily gleaned from the statute itself, is the reciprocal recognition of each member state’s driving laws and to promote compliance with those laws in attempting to ensure safe highways in all member states for the use and enjoyment of their citizens. 75 Pa.C.S. §1581. Thus, the first prong of the equal protection test in this case is satisfied, as the safety and welfare of the citizenry on Pennsylvania highways is a legitimate state interest.

The substance of appellant’s equal protection argument must, therefore, rest on the second prong of the rational basis test analysis, that is, whether the classification adopted in the legislation is reasonably related to accomplishing that state interest. The classification within the Driver’s License Compact would be the difference in treatment of Pennsylvania residents charged with DUI violations within the Commonwealth of Pennsylvania and the treatment of Pennsylvania residents charged with DUI violations outside Pennsylvania and, subsequently, punished in Pennsylvania, as well as the sister state, in accordance with the Driver’s License Compact.

Certainly, this classification is necessary to fulfill the purpose of the Driver’s License Compact in ensuring safety on the highways through reciprocal recognition of driving laws. Naturally, this may result in a disparity in sentencing because of the time necessary to report a driving violation to a sister state, notify the offender, and implement a sentence in Pennsylvania. The reporting procedures are merely incidental to fulfilling the purpose of the Driver’s License Compact and are rationally related to accomplishing the articulated state interest of protecting the safety and welfare of the citizens of Pennsylvania on the highways, both within and outside of the Commonwealth.

The appellant further complains that she was not provided with an opportunity to utilize Pennsylvania’s ARD program because she was charged in Ohio and, thereafter, her driver’s license was reciprocally suspended in Pennsylvania. Because Pennsylvania’s ARD program is available to those residents charged with DUI in Pennsylvania, this argument fails. The appellant was charged in Ohio, and the goal of the Driver’s License Compact is to recognize the sister state’s laws by reciprocally suspending an offender’s license in recognition of the violation in the sister state. It does not mandate that every state offer the identical programs developed and offered by every other state. In the instant case, the purpose of suspending the appellant’s license in Pennsylvania was to give credence and recognition of the DUI charges made against her in Ohio. This is the purpose of the Driver’s License Compact, and it is not a violation of equal protection that the appellant was not offered ARD in Pennsylvania when the offense and conviction therefore occurred in the state of Ohio.

B.

Procedural Due Process

The appellant also contends that the suspension of her license in Pennsylvania under the Driver’s License Compact for one year, on January 19, 1998, was a denial of her constitutional right to procedural due process, because her license was confiscated in Ohio on September 26, 1997, thus prolonging or extending the suspension of her license. Procedural due process is a flexible concept, which requires individual protections to be determined on a case-by-case basis; the essential requisites are notice and a meaningful opportunity to be heard. See PennDOT v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996); Fiore v. Commonwealth, Board of Finance and Revenue, 534 Pa. 511, 633 A.2d 1111 (1993); Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982). The appellant does not identify in her statement of matters complained of on appeal how her constitutional right to procedural due process has been violated, except that the suspension of her license was prolonged due to the reporting procedures under the Driver’s License Compact, thereby delaying the implementation of the license suspension in Pennsylvania. The appellant was notified by PennDOT on December 15, 1997, that her driver’s license would be suspended in Pennsylvania for one year, effective January 19,1998. The appellant appealed the suspension and was granted a supersedeas until her appeal hearing on March 19,1998. The hearing of her appeal provided the appellant with a meaningful opportunity to be heard concerning all facets of her case. As such, by providing appellant adequate notice of the suspension of her driver’s license and a full hearing in order to be heard on all matters pertinent to the issues, the requirements of procedural due process have been met.

Accordingly, this court’s June 10, 1998 order dismissing appellant’s driver’s license suspension appeal was proper, and the Commonwealth Court should so affirm.

ORDER

The court directs that the attached opinion shall be filed of record, and the prothonotary shall immediately transmit the record of this case to the Commonwealth Court.


author: CORBETT, J.,

text:
    Long v. City of Scranton

      C.P. of Lackawanna County,
    no. 91-CIV-2281.

      Thomas J. Foley III, for plaintiff.

      David E. Heisler, for defendant.
    August 7, 1998
   CORBETT, J.,

Before the court is plaintiff’s motion for new trial. Plaintiff is Thomas Long Sr. Defendant is the City of Scranton. Oral argument was heard before this court on July 21, 1998. Briefs have been submitted and the matter is now ripe for disposition.

Plaintiff brought suit on April 18, 1991, for injuries he received when he was struck by one of defendant’s police cruisers driven by Police Officer Kenneth Morgan. On May 10,1989, plaintiff was struck while crossing the street near the intersection of Luzerne Street and 9th Avenue in the City of Scranton. Plaintiff suffered numerous injuries as a result of the accident, including a severely broken leg. Plaintiff received emergency care treatment from Community Medical Center Hospital where he came under the care of orthopedic surgeon Edwin S. Malloy M.D. Dr. Malloy performed a series of surgeries on plaintiff’s right leg.

The case was tried before a jury between October 7 and October 9, 1996, the Honorable Judge Eagen presiding. Following the trial, the jury returned a verdict in plaintiff’s favor awarding him damages of $34,282.35. The special interrogatory verdict form reflects that the jury awarded $24,282.35 for past and present medical expenses and $10,000 for past, present and future lost earnings and lost earning capacity. The jury found defendant 51 percent negligent and plaintiff 49 percent contributorily negligent. Accordingly, on October 25, 1996, the court entered an order molding the verdict to $14,348.35.

DISCUSSION

Plaintiff seeks a new trial, limited to damages only, on the grounds that the jury verdict is against the great weight of the evidence such that it should shock the conscience of this court. Plaintiff argues that the jury award of solely economic damages reflects an inadequate verdict in light of uncontroverted evidence that plaintiff suffered a broken leg and underwent several surgeries. Also, plaintiff contends that the evidence of the pain he experienced was uncontradicted and corroborated by defendant’s expert witness. Moreover, plaintiff contends that the jury’s failure to award noneconomic damages defies common sense in light of the fact that the jury awarded damages for plaintiff’s past and present medical expenses and past and present lost wages. Finally, plaintiff posits that the issue of liability was fairly determined, and a new trial should be granted on the issue of damages only.

On the other hand, defendant claims that the jury award reflects a permissible compromise verdict and should not be disturbed. Defendant argues the jury obviously disbelieved plaintiff’s evidence regarding his pain and suffering and the verdict reflects the jury’s attempt to compensate plaintiff for at least some of his injuries. Accordingly, defendant asserts that the verdict must stand.

Alternatively, defendant argues that should this court determine a new trial is warranted, then it must be as to all issues because both liability and damages were hotly contested at trial.

DISCUSSION

It is well settled in Pennsylvania that the granting of a new trial on the grounds of inadequacy of damages is a matter within the sound discretion of the trial court. Dougherty v. McLaughlin, 432 Pa. Super. 129, 133, 637 A.2d 1017, 1019 (1994). “A trial court may only grant a new trial when the jury’s verdict is so contrary to the evidence that it ‘shocks one’s sense of justice.’” Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995); see also, Kiser v. Schulte, 538 Pa. 219, 226, 648 A.2d 1, 4 (1994).

A verdict may be set aside “when, and only when, it is so inadequate as to indicate passion, prejudice, partiality, or corruption ... or where it clearly appears from [the] uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff . . . .” Dougherty, supra at 133-34, 637 A.2d at 1019. (emphasis added) Moreover, victims must be compensated for all that they lose and all that they suffer from the tort of another. Neison, at 523, 653 A.2d at 638; Boggavarapu v. Ponist, 518 Pa. 162, 167, 542 A.2d 516, 518 (1988).

In Dougherty, the plaintiff sought recovery for injuries he received from an accident while riding as a passenger in defendant’s car. At trial, plaintiff introduced uncontradicted medical evidence with respect to his hospitalization and subsequent surgeries to treat his wounds and correct the resulting scar tissue. The jury returned a verdict in favor of plaintiff and awarded damages solely for unreimbursed medical expenses and zero damages for pain and suffering. The trial court granted plaintiff’s post-trial motion for additur, thereby increasing the jury’s damage award to include compensation for pain and suffering. Both parties appealed.

On appeal, the Superior Court held that the trial court committed error in granting additur to adjust the jury’s damage award where it determined the verdict was inadequate. Dougherty at 134, 637 A.2d at 1020. In reversing the trial court, the Superior Court held that the proper remedy is to grant a new trial where it determines that the jury’s damage award is inadequate. Id. at 135, 637 A.2d at 1020. In determining whether a jury award is inadequate, the court reasoned, “[wjhere a jury awards a plaintiff his medical expenses, they make a finding that the expenses were related to defendant’s actions in injuring plaintiff. Catalano v. Bujak, 148 Pa. Commw. 269, 611 A.2d 314 (1992), alloc. granted, 534 Pa. 642, 626 A.2d 1159 (1993). However, by not awarding any pain and suffering, the jury also makes a finding that the plaintiff did not suffer as a result of his injuries and subsequent surgery. Id. Such findings are inherently inconsistent.” Id. at 134, 637 A.2d at 1020.

There, the Superior Court held that the trial court properly instructed the jurors that if they found the defendant liable to plaintiff, then they must compensate plaintiff for all injuries sustained as a result of the accident. Id. The fact that the jury awarded damages for medical expenses and not for pain and suffering was clearly inconsistent and therefore inadequate. Id. Accordingly, a new trial was ordered.

Similarly, in the present case, the trial court properly instructed the jury on the nature and type of compensable damages. The fact that the jury awarded plaintiff damages for his past and present medical expenses and past, present and future lost wages and lost earning capacity, while awarding zero damages for pain and suffering, is inherently inconsistent and inadequate.

Moreover, our Supreme Court has held that there are certain injuries which human experience teaches there is accompanying pain. Boggavarapu at 167, 542 A.2d at 519, citing Todd v. Bercini, 371 Pa. 605, 92 A.2d 538 (1952). “Those injuries are obvious in the most ordinary sense: the broken bone, the stretched muscle, twist of the skeletal system, injury to a nerve, organ or their function, and all the consequences of any injury traceable by medical science and common experience as sources of pain and suffering.” Id.

In Boggavarapu, the plaintiff was injured when a neighbor’s dog bit him. While being treated in the emergency room for the bite, plaintiff was administered two tetanus shots, which plaintiff claimed punctured his sciatic nerve. Plaintiff sued the owners of the dog, the hospital and the treating physicians. The jury returned a verdict exculpating the hospital and treating physicians and finding the dog owners solely responsible for plaintiff’s injuries. The jury awarded plaintiff damages for the cost of the emergency room treatment only. The trial court awarded a new trial because the damage award did not include compensation for pain and suffering.

The Superior Court affirmed the lower court’s grant of a new trial. However, on appeal, the Supreme Court reversed, noting that “[pjain may be subjective, and if believed, is compensable.” Id. The court went on to say that the jury is free to believe or not believe that subjective pain exists and whether that pain is compensable. Id. However, the jury may not disregard obvious injury. Id. The court concluded that Boggavarapu’s pain was subjective and not “obvious injury.” Thus, the jury’s award was not inadequate and a new trial was not warranted.

This case is distinguishable. Here, plaintiff’s injuries are obvious as defined by our Supreme Court. The evidence shows that plaintiff suffered a severely broken leg that required several surgical procedures and physical therapy to treat. In fact, defendant’s own expert witness acknowledged that plaintiff would have experienced pain associated with his injuries, despite the fact that plaintiff had largely recovered when he examined plaintiff. Thus, the plaintiff’s injuries were of such a nature that human experience and common sense teaches there is accompanying pain. Therefore, we find that the jury’s award of damages for medical expenses and lost wages and zero damages for pain and suffering is inherently inconsistent and inadequate. Accordingly, a new trial is warranted.

Having determined a new trial is warranted, the next issue we must address is the scope of the new trial. A new trial may be awarded solely on the issue of damages if the issue of liability has been fairly determined, and the question of damages is readily separable from the issue of liability. Kiser v. Schulte, 538 Pa. 219, 234, 648 A.2d 1, 8 (1994).

The Superior Court has held that “new trials may be limited to specific issues only when this procedure will be fair to both parties. . . . [A] lower court may grant a new trial, limited to the question of damages, only where (1) the question of liability is not intertwined with the question of damages, and (2) the issue of liability is either (a) not contested or (b) has been fairly determined so that no substantial complaint can be made with respect thereto.” Chiaverini v. Sewickley Valley Hospital, 409 Pa. Super. 630, 636, 598 A.2d 1021, 1024 (1991), quoting Gagliano v. Ditzler, 437 Pa. 230, 232-33, 263 A.2d 319, 320 (1970). (emphasis in original)

In Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 764, 691 A.2d 950, 957-58 (1997), the appellant sought a new trial limited to the issue of liability only. There, the court relied on Chiaverini and Gagliano in holding that a new trial could be granted as to a single issue as long as the issues of damages and liability are separable or one of the issues is uncontested. Nogowski at 765, 691 A.2d at 958.

In the case at bar, we find that the issue of liability was hotly contested at trial and that the extent of damages suffered by plaintiff is inseparably intertwined with liability. This conclusion is supported by the fact that the jury found plaintiff contributorily negligent for his own injuries. Thus, a new trial cannot be granted on damages only because it is clear that the issue of damages was inextricably intertwined with liability and we do not know which jury finding should be given effect. Accordingly, a new trial will be granted as to all issues. An appropriate order follows.

ORDER

Now, August 7,1998, it is hereby ordered and decreed that plaintiff’s motion for new trial is granted as to both liability and damages.


author: TURGEON, J.,

text:
    Boyd v. Milton S. Hershey Medical Center

      C.P. of Dauphin County,
    no. 2386 S 1993.

      Francis E. Marshall Jr., for plaintiffs.

      William A. Atlee Jr., for defendants.
    September 29, 1998
   TURGEON, J.,

The issue before the court is whether defendants in a medical malpractice action may issue interrogatories to plaintiffs’ medical experts in contemplation of a Frye hearing. We hold they may and compel plaintiffs to answer defendants’ expert interrogatories.

BACKGROUND

Plaintiffs allege that defendants negligently allowed Terri Boyd’s second stage labor to extend too long without performing a cesarean section. As a result, her daughter, Stevie Baum, allegedly suffered perinatal asphyxia (oxygen deprivation) causing hypoxic ischemic brain damage which allegedly resulted in Stevie Baum’s cerebral palsy. Earlier this year defendants filed a summary judgment motion arguing that plaintiffs’ expert opinions as to causation — that perinatal asphyxia is a cause of cerebral palsy — was not an opinion generally accepted within the medical community and thus failed to meet the Frye test for admissibility. Frye v. United States, 293 F. 1013 (D.C. 1923) (adopted by Pennsylvania in Commonwealth v. Topa, 471 Pa. 223, 369 A.2d 1211 (1977)).

On July 27, 1998, I denied defendants’ summary judgment motion, without prejudice. As plaintiffs correctly noted in opposing that motion, the record was devoid of information as to whether the underlying scientific basis for plaintiffs’ expert opinions were generally accepted in the medical community. On September 14,1998, defendants propounded interrogatories specifically tailored to discover the foundation upon which plaintiffs’ experts were relying to demonstrate general acceptance of their opinions. Plaintiffs objected to the interrogatories and defendants filed a motion to compel.

LEGAL DISCUSSION

Plaintiffs argue defendants’ requests are beyond the scope of permissible discovery of nonparty experts, set forth under Pa.R.C.P. 4003.5, which provides in relevant part as follows:

“(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
“(1) A party may through interrogatories require
“(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
“(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.
“(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.” Pa.R.C.R 4003.5, 42 Pa.C.S. (emphasis added)

Plaintiffs argue expert interrogatories under Rule 4003.5(a)(1)(a) and (b) may only be issued if addressed to a party and may only require a party to have the expert state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. Plaintiffs argue defendants’ requests are flawed because they are addressed directly to the experts and also that the information sought goes beyond the experts’ expected testimony and beyond a summary of the grounds for their opinions. Furthermore, plaintiffs argue they have already provided the required information under Rule 4003.5(a).

Defendants argue Rule 4003.5(a)(2) provides the court with authority to require plaintiffs to answer these interrogatories. We agree. That rule allows the court to order further discovery “upon cause shown.” Defendants have certainly shown cause by seeking information in contemplation of a Frye hearing. Plaintiffs concede as well that at the “appropriate time and pursuant to the appropriate vehicle” it must meet the Frye test. See footnote 2. As trial is imminent, now is the “appropriate time” for resolution of the Frye issue. Thus, defendants are entitled to appropriate discovery in preparation for a Frye hearing, whether the device used be by interrogatory, deposition or otherwise. See e.g., Checchio v. Frankford Hospital-Torresdale Division, slip op. at 2, no. 3652 Phila. 1997 (Pa. Super. Sept. 22, 1998) (pursuant to trial court’s order directing defendants to depose plaintiffs’ experts regarding the “substance and foundation” of their proposed testimony, court ruled on defendants’ summary judgment motion under Frye); Wimberly v. Wyeth Laboratories Inc., 48 Lehigh LJ. 47 (1998) (as cited in 21 PLW 872) (on the basis of plaintiff’s expert’s deposition, court ruled on defendants’ summary judgment motion under Frye).

Accordingly, we enter the following:

ORDER

And now, September 29, 1998, defendants’ motion to compel responses to interrogatories propounded upon plaintiffs’ experts Zimmerman, Berman, Hunt and Murphy is hereby granted. Full and complete responses are due to defendants’ counsel no later than October 13, 1998.

Upon appropriate motion by defendants, a Frye hearing will be held on Thursday, October 29, 1998 at 2:30 p.m.

      . “The Frye test represents an attempt to measure the quality of scientific evidence prior to admission, so that jurors are not misled by unreliable evidence. Our courts have considered this to be necessary whenever science enters the courtroom, because ‘there is the danger that the trial judge or jury will ascribe a degree of certainty to the testimony of the expert . . . which may not be deserved.’ Topa, [471 Pa. at 230,] 369 A.2d at 1281. Therefore, because scientific testimony should aid jurors rather than mislead them, admissibility of scientific evidence depends upon ‘the general acceptance of its validity by those scientists active in the field to which the evidence belongs.’ Id. at 1281.” Blum v. Merrell Dow Pharmaceuticals, 705 A.2d 1314, 1317 (Pa. Super. 1997). A two-pronged analysis is applied in determining whether experts’ opinions are admissible: whether there is general acceptance in the medical/scientific community of the causal relationship as well as of the underlying methodology. Blum at 1322. See also, Pa.R.E. 702.

      . Plaintiffs responded that “defendants are entitled to an offer of proof, at the appropriate time and pursuant to the appropriate vehicle, to challenge plaintiffs’ expert witnesses to provide a Frye basis. The time and the vehicle is not today and not the instant motion for summary judgment.” Plaintiffs also stated that “[i]n the absence of any challenge to the scientific sufficiency of the basis from which plaintiffs’ experts draw their conclusions on the issue of causation, plaintiffs’ experts are not required to set forth in their reports citations to literature which demonstrate the scientific basis of their opinion.”


author: KUHN, J.,

text:
    Cook v. Gettysburg Borough

      C.P. of Adams County,
    no. 96-S-626.
    for plaintiffs,
    for defendants.
    October 28, 1997
   KUHN, J.,

On November 25, 1996, plaintiffs, Debra Cook and her son Robert J. Cook, filed a complaint against defendants, Borough of Gettysburg, Gettysburg Fire Company, and Fireworks Production Inc. Defendants, Borough of Gettysburg and Gettysburg Fire, objecting defendants, filed preliminary objections. This court heard oral argument on February 7, 1997.

STATEMENT OF THE FACTS

It is alleged that on approximately July 3, 1996, the Borough of Gettysburg allowed a carnival, sponsored by the Gettysburg Fire Company, to take place at borough property known as Rec Park. Fireworks Production Inc., as set forth in a contract with the Gettysburg Fire Company, conducted a fireworks display. The contract required the Gettysburg Fire Company to conduct a “search for post display debris” and to police the area “at first light following the exhibition.” (Exhibit A, answer of def. Fireworks Production Inc.)

It is further alleged that on July 6, 1996, plaintiffs were in the park when Robert picked up some debris left from the fireworks display. Robert took the debris home, which later proved to be unexploded fireworks charges. The fireworks charges exploded while Robert was playing with them outside and caused serious injuries, including the permanent loss of his left hand. Debra Cook felt the explosion from inside her home and rushed to Robert’s aid.

LEGAL DISCUSSION

Objecting defendants have raised preliminary objections in the nature of a demurrer. Therefore, it is important to set out the standard by which a demurrer is to be decided. In deciding on an objection in the nature of a demurrer, the Pennsylvania Supreme Court has stated that “[a] demurrer admits every well-pleaded material fact set forth in the pleadings to which it is addressed as well as all inferences reasonably deducible therefrom, but not conclusions of law.” Gekas v. Shapp, 469 Pa. 1, 5, 364 A.2d 691, 693 (1976). A demurrer is properly sustained where the complaint indicates on its face that the plaintiff’s claim “cannot be sustained, and the law will not permit recovery.” Lobdell v. Leichtenberger, 442 Pa. Super. 21, 24, 658 A.2d 399, 401 (1995). If there is any doubt as to the propriety of a judgment in favor of a demurring party, it should not be entered. Creeger Brick and Building Supply Inc. v. Mid-State Bank and Trust Co., 385 Pa. Super. 30, 32-33, 560 A.2d 151, 152 (1989).

I. Political Subdivision Tort Claims Act

We will first address the objecting defendants’ claim that they are immune from suit under the Political Subdivision Tort Claims Act. 42 Pa.C.S. §§8541-8564. Section 8541 states:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

There are exceptions to this general rule with the applicable exception in the case at hand being the real estate exception. This exception reads as follows:

“(b) The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(3) Real property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.” 42 Pa.C.S. §8542(b)(3).

In applying the PSTCA, we must first determine whether the objecting defendants fall within the definition of local agency. Local agency is defined as a “government unit other than the Commonwealth government.” 42 Pa.C.S. §8501. A “government unit” is defined as any political subdivision, or any other officer or agency of any such political subdivision. 42 Pa.C.S. §102.

The parties do not dispute that the Borough of Gettysburg falls into the definition of local agency; however, the Gettysburg Fire Company presents more of an issue. A volunteer fire company must show that it has been created pursuant to relevant law and is legally recognized as the official fire company for a political subdivision in order to come within the definition of a local agency. Kniaz v. Benton Borough, 164 Pa. Commw. 109, 115, 642 A.2d 551, 554 (1994). A volunteer fire company is entitled to governmental immunity pursuant to 42 Pa.C.S. §8541, even when they are not involved in firefighting activities. Guinn v. Alburtis Fire Company, 531 Pa. 500, 503, 614 A.2d 218, 220 (1992).

Plaintiff has correctly argued that because the articles of incorporation of the Gettysburg Fire Company are outside the record, as having only been attached to defendant Gettysburg Fire Company’s preliminary objections, they may not be considered in determining whether the company was legally recognized. See Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 568, 650 A.2d 895, 899 (1994) (holding that exhibits outside the record may not be considered in ruling on preliminary objections). Because this court may not consider the articles of incorporation, Gettysburg Fire Company’s claim of immunity under the PSTCA is rejected.

However, even assuming that the Gettysburg Fire Company falls within the definition of local agency as set forth in 42 Pa.C.S. §8541, the real estate exception applies to the case at hand and neither objecting defendant is immune from suit.

Historically, Pennsylvania courts have interpreted the real estate exception narrowly permitting its application only in cases where the real estate itself was defective. As recently as February of 1997, the Pennsylvania Commonwealth Court narrowly construed the real estate exception when it held that “[liability may not be imposed upon a governmental entity for injuries caused by its negligent failure to remove foreign substances from its real estate.” Wolfe v. Stroudsburg Area School Dist., 688 A.2d 1245, 1248 (Pa. Commw. 1997). However, a recent Pennsylvania Supreme Court decision has broadened this application of the real estate exception. Grieff v. Reisinger, 693 A.2d 195 (Pa. 1997).

In Grieff, a visitor at the local volunteer fire association was burned when Grieff, the fire association chief, poured paint thinner onto the floor resulting in a fire. The trial court held that the real property exception applied; however, the Commonwealth Court reversed that decision holding that plaintiffs “did not assert that the real property itself was defective.” Id. at 196. On appeal to the Pennsylvania Supreme Court, the Commonwealth Court was reversed. Our Supreme Court held that Grieff was caring for the real property and his activity therefore fell directly under the plain language of the real estate exception. Id. at 197. The court went on to distinguish cases in which government property merely facilitated unlawful actions by third parties, stating that “the government is not liable for harm caused by third parties.” Id.

In the case at hand, it was the alleged “negligent care of the property” by objecting defendants that caused Robert’s injuries. The Gettysburg Fire Company had a duty, as set forth in its contract with Fireworks Production Inc., to police the site after the display to make sure all debris had been removed. Additionally, the Borough of Gettysburg, as owner of Rec Park, had a duty to ensure the property was safe for public use after the carnival. Failure of both objecting defendants to properly care for the real estate would fall under the expanded notion of the real estate exception as set forth by our Supreme Court.

II. Recreational Use of Land and Water Act

The Borough of Gettysburg has claimed immunity under the Recreational Use of Land and Water Act. 68 RS. §§477-1 to 477-8. Generally, this Act holds that an owner of land has no duty to keep the premises safe for recreational use by others. 68 P.S. §477-3. Our Supreme Court has held that the Act applies only to lands that are largely unimproved and where no admission fee is charged. Lory v. City of Philadelphia, 544 Pa. 38, 41, 674 A.2d 673, 674 (1996) (citations omitted), cert. denied, 117 S.Ct. 184, 136 L.Ed.2d 123.

For purposes of a demurrer, there is no indication in plaintiffs’ complaint that the real estate in question was largely unimproved. Therefore, it is not clear at this stage of the pleadings that the Recreational Land Use and Water Act would be applicable.

III. Impermissible Claim for Negligent Infliction of Emotional Distress

Both objecting defendants contend that Debra Cook’s claim for negligent infliction of emotional distress is impermissible under the limitation of damages provision of the PSTCA. 42 Pa.C.S. §8553(c). This subsection recognizes only certain listed claims. Objecting defendants argue that negligent infliction of emotional distress is not recoverable because it is not included in the list.

Section 8553 is applicable to the case at hand because local governmental agencies are involved. However, case law analyzing section 8528 (limitations on damages for actions against Commonwealth parties) is helpful in determining permissibility of bringing a negligent infliction of emotional distress claim against a governmental party. Section 8528 is very similar to section 8553, and is in fact identical in allowing claims for “pain and suffering,” the relevant permissible claim in the case at hand.

In Francart v. Smith, 2 D.&C.4th 585 (1989), the Chester County Court addressed a similar issue. In that case, the mother heard an accident and immediately thereafter saw her daughter on the road after being struck and killed by a car. The mother raised a claim for negligent infliction of emotional distress. Defendants argued that section 8528(c)(2) did not permit such a claim. The court held that “giving the words of the statute their plain and ordinary meaning, we find that such damages are, in fact provided for, under 42 Pa.C.S. § 8528(c)(2) which permits damages for pain and suffering to be recovered.” Id. at 615. (footnote omitted)

Additionally, our Commonwealth Court has included emotional injuries within the permissible recovery for pain and suffering. The court held that a victim involved in an accident who suffered physical injuries was also able to bring a claim for emotional injuries under the concept of pain and suffering. Tomikel v. PennDOT, 658 A.2d 861 (Pa. Commw. 1995).

Therefore, taking this case law into consideration, it is this court’s determination that Debra Cook’s cause of action for negligent infliction of emotional distress is permissible as falling within the recovery for “pain and suffering.”

IV. Violations of Pa.R.C.P. 1028(a)(2) and (3)

Objecting defendants both argue that plaintiffs’ complaint is in violation of Pa.R.C.P. 1028(a)(2) and (3). This portion of the rule is as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:
“(2) failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter,
“(3) insufficient specificity in a pleading;” Pa.R.C.P. 1028(a)(2)-(3), 42 Pa.C.S.

The Borough of Gettysburg claims that paragraph 32(e) is an impermissible boilerplate averment of negligence. Gettysburg Fire Company claims that paragraph 45(f) is insufficient for the same reasons. The paragraphs are identical and state that the objecting defendants were negligent for “being otherwise negligent, reckless and careless under the circumstances.” (Pit. complaint, 1132(e), 45(f).)

The Superior Court in Baker v. Rangos, 229 Pa. Super. 333, 324 A.2d 498 (1974) set forth the standard for pleading material facts. It stated,

“Rule 1019(a) requires fact pleading... ‘The purpose of [1019(a)] is to require the pleader to disclose the “material facts” sufficient to enable the adverse party to prepare his case.’ ... A complaint therefore must do more than ‘give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.’ ... It should formulate the issues by fully summarizing the material facts. ‘Material facts’ are ‘ultimate facts,’ i.e., those facts essential to support the claim. Evidence from which such facts may be inferred not only need not but should not be alleged . . . Allegations will withstand challenge under 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover . . . and (2) they are ‘sufficiently specific so as to enable defendant to prepare his defense,’Id. at 349-50, 324 A.2d at 505-506. (citations omitted)

A defendant must move to strike or seek a more specific pleading when the plaintiff avers a general allegation of negligence, otherwise it is assumed that the defendant understood the allegation well enough to respond. Connor v. Allegheny General Hospital, 501 Pa. 306, 311 n.3, 461 A.2d 600, 602 n.3 (1983). Additionally, one should not be permitted to discover their way through the lawsuit. Starr v. Myers, 109 Dauphin 147, 154 (1988); see also, Collins v. Gettysburg Hospital, 39 Ad.Co.L.J. 55, 58-59 (1996). Therefore, the averments in paragraphs 32(e) and 45(f) of the complaint are stricken as being impermissible general averments of negligence.

V. Failure To State a Cause of Action for Strict Liability

Gettysburg Fire Company argues that plaintiffs’ complaint does not state a cause of action for strict liability pursuant to the Restatement (Second) of Torts §519. This section reads as follows:

“(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
“(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.”

The Gettysburg Fire Company argues that section 519 does not apply to them because they did not “carry on” the activity of displaying the fireworks. Furthermore, they argue that a fireworks display is not an “abnormally dangerous” activity. However, at this stage, we need not decide whether the Gettysburg Fire Company was carrying on the activity or whether the activity was abnormally dangerous because the fireworks display is not what caused the injuries. On the contrary, it was the failure to clean up the fireworks debris that caused the resultant injuries to Robert.

This failure to police the grounds cannot be viewed as an ultra hazardous activity. An ultra hazardous activity is defined as one that “(1) necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of the utmost care, and (2) is not a matter of common usage.” Albig v. Municipal Authority of Westmoreland County, 348 Pa. Super. 505, 512, 502 A.2d 658, 662 (1985). Clearly, if the Gettysburg Fire Company exercised the utmost care in cleaning up the leftover debris, the harm would not have occurred. Thus, Counts V, VII and IX that make claims for strict liability are dismissed.

Accordingly, the attached order is entered.

ORDER

And now, October 28, 1997, it is hereby ordered as follows:

(1) Counts V, VII and IX of plaintiffs’ complaint are dismissed;
(2) Paragraphs 32(e) and 45(f) of plaintiffs’ complaint are stricken;
(3) All remaining preliminary objections of the Borough of Gettysburg and the Gettysburg Fire Company are denied.

      . Plaintiffs correctly argue that the Rules of Civil Procedure require that affirmative defenses, including immunity from suit, be raised in new matter. Pa.R.C.P. 1030,42 Pa.C.S. However, “[w]here a party improperly raises ‘immunity from suit’ in preliminary objections and the opposing party does not object to this defect, then the question of immunity from suit may be decided by the court.” Fewell v. Besner, 444 Pa. Super. 559, 570, 664 A.2d 577, 582 (1995). Plaintiffs have argued this issue in their brief but have not formally objected by filing preliminary objections to defendants’ preliminary objections. Therefore, we will consider that plaintiffs have waived this pleading defect.

      . We recognize that our Supreme Court, in discussing ultra hazardous activities, has held that “a public fireworks display, handled by a competent operator in a reasonably safe area and properly supervised ... is not so dangerous an activity.” Haddon v. Lotito, 399 Pa. 521, 523, 161 A.2d 160, 162 (1960). However, we need not make this determination today as the harm was not caused by the fireworks display.


author: WETTICK, J.,

text:
    Smokowicz v. Carpenter

      C.P of Allegheny County,
    no. GD97-3067.

      David J. Foster, for the plaintiffs.

      Eric P. Reif, for the defendants.
    March 9, 1999
   WETTICK, J.,

Defendants’ motion to compel is the subject of this opinion and order of court.

Defendants served on plaintiffs a request for production of documents, containing 21 categories of documents. Plaintiffs produced a stack of documents approximately six inches thick with a response that these are all the documents responsive to the request for production within plaintiffs’ possession, custody, or control.

Through their motion to compel, defendants request that I enter a court order that compels plaintiffs to file an amended response to the request for production which (i) includes a fully executed privilege log setting forth a description of each document that has been withheld together with the type of and basis for the privilege claim and (ii) identifies the specific documents which plaintiffs produced that correspond to each specific category.

Responses to requests for production of documents are governed by Pa.R.C.P. 4009.12. Rule 4009.12(a) requires the party on whom a request is served to (1) serve an answer, including objections, to each numbered paragraph in the request and (2) to produce those documents described in the request to which there is no objection. Rule 4009.12(b) describes the answer that the responding party must serve:

“(b) The answer shall be in the form of a paragraph-by-paragraph response which shall
“(1) identify all documents or things produced or made available;
“(2) identify all documents or things not produced or made available because of the objection that they are not within the scope of permissible discovery under Rule 4003.2 through Rule 4003.6 inclusive and Rule 4011(c). Documents or things not produced shall be identified with reasonable particularity together with the basis for nonproduction;
“(3) specify a larger group of documents or things from which the documents or things to be produced or made available may be identified as provided by subdivision (a)(2)(i);
“(4) object to the request on the grounds set forth in Rule 4011(a), (b), and (e) or on the ground that the request does not meet the requirements of Rule 4009.11;
“(5) state that after reasonable investigation, it has been determined that there are no documents responsive to the request.”

In his brief in opposition to defendants’ motion to compel, plaintiffs’ counsel states that plaintiffs have provided defendants with affidavits stating that no redactions were made in the materials produced. I assume that this also means that no documents were withheld. Consequently, I deny defendants’ request that I direct plaintiffs to identify those documents which plaintiffs withheld.

I next address defendants’ contention that they are entitled to a response which identifies each document responsive to each of the 21 categories of documents described in defendants’ request for production of documents. Defendants rely on Rule 4009.12(b)(1).

The requirement of Rule 4009.12(a)(1) that a responding party serve an answer that complies with Rule 4009.12(b) serves two purposes. Under Rule 4009.12(b)(2), (4) and (5), a responding party is required to identify those documents or things that are being withheld; a responding party is required to identify those requests for which its reasonable investigation is not completed; and a responding party is required to object to a request to which it has not fully responded. Through these provisions of Rule 4009.12(b), the responding party advises the requesting party in writing that it has received all of the documents that it has requested with respect to each document request except as otherwise described in the answer.

The requirement of Rule 4009.12(b)(1) that the answer identify all documents or things produced or made available serves a different purpose. In discovery proceedings and at trial, frequently one party disputes the other party’s contention that it previously produced documents pursuant to a discovery request. Courts have not been in a position to decide who is correct because the rules did not provide for parties to make a record of what has been produced in response to a request for the production of documents. The purpose of Rule 4009.12(b)(1) is to permit either party to utilize this rule in order to establish a record of what has been produced.

A responding party may meet the requirements of Rule 4009.12(b)(1) by describing at the beginning of its answer the entire set of documents that it is producing in response to the entire request for production. It then must, on a category-by-category basis, describe what it is not producing to meet the requirements of Rule 4009.12(b)(2), (4) and (5).

The responding party describes what it is producing by describing each document that it is producing or by numbering the documents that it is producing and describing the production by referring to these numbers. For example, the responding party may state in its answer:

“In response to plaintiff’s January 11, 1999 request for the production of documents, I have enclosed or made available the following documents: Documents nos. 27-791.”

The receiving party' is expected to review the documents that it has received in order to verify that the answer accurately describes the documents that were produced. See note to Rule 4009.12(b) which states:

“The party who is requested to produce documents or things is encouraged to identify the documents or things produced and the documents or things withheld through a system of numbering. The party producing the documents and things and the party receiving them are encouraged to keep a current list of the documents and things produced and withheld based on the numbering system. This procedure will assist the court in resolving disputes arising out of production of documents.
“Ordinarily, each page of a document should receive a separate number. However, a document may be assigned a number as a whole if it is bound or if it contains pages which are sequentially numbered.”

The rules of discovery do not permit discovery which would cause unreasonable annoyance, embarrassment, oppression, burden, or expense. Pa.R.C.P. 4011(b). If a responding party is always required to identify those documents and things produced or made available that may be applicable to each category of documents, requests for the production of documents would frequently impose an unreasonable burden on the responding party.

The discovery rules are intended to make evidence that may be relevant available to the other side. However, the discovery rules do not require the responding party to describe the manner in which it will use the evidence.

Requiring counsel to identify each document that he or she has provided that may be relevant to a category of documents would in many instances involve disclosure of mental impressions and legal theories of a party’s attorney. For example, a discovery request asking the plaintiff to identify those documents which support the plaintiff’s allegation that the driver of the automobile was acting within the scope of his employment with the defendant would require the plaintiff’s counsel to identify the specific evidence in the case upon which he or she is relying.

A reading of Rule 4009.12 in the manner which defendants propose would also cause unreasonable annoyance and expense and would prolong the process through which documents are produced. Because a party wants to obtain every document that may be relevant to any aspect of the litigation, most parties include in a request for the production of documents large numbers of overlapping discovery categories. A responding party is likely to respond to a large number of overlapping discovery categories by producing every document involving the transaction or incident that the responding party has in its possession, custody, or control. Acquirement that the responding party attempt to match each document that it is willing to produce with one or several of the categories would involve considerable additional time and thought.

Consider the situation in which the responding party furnishes to its counsel all documents relating to the transaction (800 separate documents). Its counsel intends to number and furnish each of these documents in response to a broad request for the production of documents that includes 31 overlapping categories of documents. Under defendants’ reading of Rule 4009.12, counsel, instead, would be required to consider the relationship of each document to each of the 31 discovery requests. This would require counsel to fully familiarize himself or herself with the contents of 800 documents and to then review each of the 31 categories with respect to each of the 800 documents.

A reading of Rule 4009.12 that permits a responding party to produce a set of documents with an answer in which the responding party describes the set of documents that it is producing and states that it has produced everything and withheld nothing does not necessarily preclude the receiving party from obtaining more information concerning the document production. Consider a motion for production of documents containing numerous categories including a category seeking written statements of witnesses who observed the traffic accident. The responding party responds to the entire request by producing several dozen documents and filing an answer stating that it has produced all documents within its possession, custody, and control for each of the categories. The documents that were produced do not appear to include any written statements of witnesses. The party making the discovery request wants to be sure that there are no statements.

In this situation, this party may submit an interrogatory concerning the request which directs the responding party to state either that there are no documents or to identify which of the documents that it produced constitutes a written statement. This is an appropriate discovery request because the requesting party has a substantial need for this discovery, a response does not impose any significant burden on the responding party, and attorney work product is not involved.

Contrast the above discovery request with request no. 9 in the present case in which defendants seek any and all documents which support or tend to support plaintiffs’ allegation that the work and representation of defendants was improper, inadequate, or negligent. Plaintiffs’ response that it has produced all documents in its possession, custody, or control concerning the discovery request is sufficient. A request that plaintiffs identify each of the specific documents that may be applicable to this category is unreasonably burdensome and involves disclosure of counsel’s mental impressions and legal theories.

While both parties referred to Rule 4009.12(b)(3) which permits a responding party in certain instances to respond to a discovery request by specifying a larger group of documents or things from which the documents or things to be produced may be identified as provided by Rule 4009.12(a) (2) (i), this discovery dispute has nothing to do with this rule. This is not a case in which plaintiffs furnished large numbers of documents, many of which may have nothing to do with any discovery requests, and stated to defendants that anything that it is seeking will be contained within these documents. Instead, plaintiffs have produced only documents that may be responsive to one or more of the categories in defendants’ discovery request.

A construction of Rule 4009.12 in this fashion is not inconsistent with previous decisions (see e.g., Nebel v. Jones-Kapp & Joyce Inc., 132 P.L.J. 262 (1983)) in which I compelled a party to answer interrogatories which seek information known to that party that may support or refute particular allegations in the pleadings (i.e., a request to the plaintiff to furnish information that may support or refute her allegation that the manufacturer failed to sterilize the contact lenses). These rulings do not require a party to match information to particular allegations in the complaint. A party may respond by stating that it has no information other than that contained in pleadings, the documents that have been produced through discovery, answers to interrogatories provided by the plaintiff and other parties, and the depositions taken in the case. In Nebel, I stated that this is appropriate discovery because whenever a party has any relevant information, it should be made available immediately to any other party who seeks this information to fulfill the purpose of the discovery rules of placing parties on equal footings.

For these reasons, I enter the following order of court:

ORDER

On March 9', 1999, it is hereby ordered that defendants’ motion to compel is denied.

      . If this assumption is incorrect, plaintiffs’ counsel has a duty to so advise defendants’ counsel.

      . A responding party is required to produce all documents that may be within the scope of an overly broad discovery request unless it either objects to the request pursuant to Rule 4009.12(b)(4) or identifies with reasonable particularity the documents that it is not producing with the basis for nonproduction pursuant to Rule 4009.12(d).

      . Pa.R.C.P. 4009.12(c) provides for an answer to be signed and verified by the party making it and signed also by the attorney making an objection if one is set forth.

      . In tbeir request for production of documents, defendants’ first category of document requests seeks “[a]ny and all documents which support or tend to support each affirmative allegation in plaintiffs’ complaint” and its third category seeks “any and all documents . . . concerning all claims, demands, causes of action, or litigation in any way arising from or concerning the accident.” Virtually all of the other 19 categories of document requests are encompassed within these first and third categories.