author: CORBETT, J.,

text:
    Leonard v. Timlin

      C.P. of Lackawanna County,
    no. 94-Civil-1523.

      Todd J. O’Malley, for plaintiffs.

      James E. O’Brien and John T Clary, for defendants.
    February 3, 1998-
   CORBETT, J.,

BACKGROUND

This case comes before the court on motions for summary judgment by both defendants in this matter. When considering a motion for summary judgment we must view the evidence in the light most favorable to the non-moving party. Therefore, we will accept the facts as averred in the briefs submitted by the plaintiffs.

On June 5, 1987, Lisa Marie Leonard gave birth to a stillborn baby girl named Angel. Lisa’s mother Dorothy Smith made arrangements by telephone for the burial of Angel with Catherine Klimatis of the Klimatis Funeral Home. Catherine Klimatis advised Mrs. Smith that there was a basic casket and gown that are used for burial and that she (Mrs. Klimatis) would handle everything. Catherine Klimatis assured Mrs. Smith that Angel would be buried in a normal casket that they use for stillborn babies.

Arrangements were made for Angel to be buried in Cathedral Cemetery at the gravesite of Dorothy Smith’s father, Philip Gaul. The baby’s burial container was to be placed on top of the casket of Philip Gaul. Burial took place sometime in June 1987. In April or May of 1992, Helen Gaul, Dorothy Smith’s mother and wife of Philip Gaul, passed away. Helen was to be buried next to the gravesite of her husband. While Joseph Gubanics of the Cathedral Cemetery excavated the site to bury Mrs. Gaul, the earth on top of Philip Gaul’s casket caved in so that a portion of the side and the top of his casket were exposed. Mr. Gubanics excavated the excess dirt out of the hole and it was deposited on a tract of land in the cemetery. Within the dirt deposited were the remains of Angel Leonard.

Some 28 to 35 days later, two boys flying a kite in the cemetery discovered the remains on the dirt pile in a type of cardboard box. The police were contacted and later discovered the circumstances of how the baby’s body was unearthed. Gerard and Lisa Leonard were later notified of the unearthing of their baby, and subsequent thereto, filed this action for negligent infliction of emotional distress. Plaintiffs alleged in their complaint that both defendants breached duties they owed to plaintiffs. Originally, both defendants filed for summary judgment on the basis that plaintiffs did not state a cause of action for negligent infliction of emotional distress under the bystander rule. In response, plaintiffs stated that if their case didn’t fall under the bystander theory, then in the alternative, defendants breached either a contractual or a fiduciary duty owed to them.

After oral arguments, this court gave all parties an opportunity to file supplemental briefs on the issue of contractual or fiduciary liability. Each party has filed their supplemental briefs, and in consideration thereof and the earlier oral arguments, these motions are ripe for decision.

DISCUSSION

A motion for summary judgment places the burden upon the moving party. The moving party must show that there exists no genuine issue of any material fact. Pa.R.C.P. Rule 1035.2. The moving party must be entitled to judgment as a matter of law, and the moving party has the burden of proving that no genuine issue of material fact exists. Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. An entry of summary judgment is granted only in cases where the right is clear and free of doubt. Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994).

Initially, both defendants filed for summary judgment on the basis that plaintiffs could not maintain an action for negligent infliction of emotional distress. “Pennsylvania [law] allows recovery for negligent infliction of emotional distress [in] two circumstances.” Armstong v. Paoli Hospital, 430 Pa. Super. 36, 55, 633 A.2d 605, 615 (1993). “First, and most commonly, in cases in which there is liability to a bystander, . . . .” Id. (citation omitted) To state a cause of action under the bystander theory, plaintiff must show the infliction of emotional distress is reasonably foreseeable when the plaintiff was located near the scene of the accident, when the shock resulted from a direct emotional impact upon the plaintiff from the sensory and contemporaneous observance of the accident, and when the plaintiff and victim were closely related. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). Clearly, the plaintiffs in the case at bar do not fall under the bystander theory.

However, Pennsylvania also recognizes recovery in situations in which there is a contractual or fiduciary duty. Armstrong, supra. “A Pennsylvania plaintiff may be able to recover when the infliction of emotional distress is intentional, ... or sufficiently reckless to amount to intent.” Id. at 55-56, 633 A.2d at 615. (citation omitted) Since plaintiffs’ allegations do not fall under the bystander case, the question presented is whether plaintiffs’ complaint demonstrates that defendants owed plaintiffs a pre-existing duty of care as a result of a contractual or fiduciary duty and whether plaintiffs have presented enough evidence to withstand a motion for summary judgment.

In their supplemental briefs, both defendants argue that if this court were to allow plaintiffs to recover under negligent infliction under either a contractual or fiduciary duty theory, then the floodgates of litigation would open. To avoid opening the floodgates of litigation under the negligent infliction theory, this court will first examine the record to see whether genuine issues of material fact exist as to the existence of a contractual or fiduciary duty. See Corbett v. Morganstern, 934 F. Supp. 680, 683 (E.D. Pa. 1996).

First, as to the defendant Catherine Klimatis and the Edward T. Klimatis Funeral Home. Dorothy Smith testified in her deposition that Catherine Klimatis of the Klimatis Funeral Home said the baby would be placed in a standard gown and casket and that she (Mrs. Klimatis) would handle everything. (N.T. Dorothy Smith p. 6.) Mrs. Smith testified that Catherine Klimatis assured her that Angel would be buried in “a normal casket that they use for babies — stillborn babies.” (Id., p. 13.) As to the existence of either a fiduciary or contractual relationship, a fiduciary is defined as “a person having a duty, created by his undertaking, to act primarily for another’s undertaking, and when used as an adjective, defines fiduciary as relating to or founded upon a trust or confidence.” Corbett, supra. Clearly, the reliance of the Leonards on the representation made by Catherine Klimatis to Dorothy Smith created a fiduciary duty between the parties. In the alternative, the testimony of Dorothy Smith creates genuine issues of material fact whether such a relationship can be established through the evidence. Thus, summary judgment is not appropriate in this matter.

As to the defendant James C. Timlin, Most Reverend Bishop for the Diocese of Scranton, Trustee for the Cathedral Cemetery. In their supplemental brief, this defendant admitted that plaintiffs “certainly have properly pled a breach of contract claim” (defendant’s supplemental brief p. 2), but argue that damages which flow from infliction of emotional distress should be denied. As the court in Armstrong, supra, pointed out, recovery for negligent infliction of emotional distress may be had where a contractual or fiduciary duty exists. Since this defendant admits a proper contract action has been pled, there are genuine issues of material fact for trial. Therefore summary judgment is not appropriate in this matter.

ORDER

And now February 3, 1998, it is hereby ordered and decreed that defendants’ motions for summary judgment are denied.


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Davisair Inc. v. Butler Air Inc.

      C.P. of Allegheny County,
    no. GD97-18920.

      Frederick M. Davis, for plaintiff.

      Vincent P. Szeligo, for defendant.
    November 18, 1998
   WETTICK, J.,

Defendant’s motion to disqualify plaintiff’s counsel is the subject of this opinion and order of court.

This is a breach of contract action based on a breach of an alleged oral agreement under which defendant agreed to sell various assets to plaintiff. The complaint alleges that the oral agreement was formed during an October 21, 1997 meeting attended by Gary Davis (plaintiff’s president) and Frederick M. Davis (the son of Gary Davis/plaintiff’s counsel) on behalf of plaintiff, and Frank Calandra (defendant’s president) and Robert Williams (defendant’s general manager) on behalf of defendant.

Defendant denies that an oral contract was formed at the October 21, 1997 meeting. According to defendant’s motion to disqualify, Mr. Calandra and Mr. Williams will be presenting testimony that the parties did not agree upon the sale of any assets, as set forth in plaintiff’s complaint, and that Gary Davis is unable to recall the exact oral statements which constituted an offer of sale or an acceptance of the alleged offer. Consequently, plaintiff cannot prevail without the testimony of its counsel, Frederick M. Davis.

Defendant intends to schedule the deposition of Attorney Davis in the near future. Defendant contends that Mr. Davis should be disqualified from representing plaintiff throughout the remainder of these proceedings.

Defendant bases its motion to disqualify on Rule 3.7 of the Pennsylvania Rules of Professional Conduct which reads as follows:

“(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness except where:
“(1) the testimony relates to an uncontested issue;
“(2) the testimony relates to the nature and value of legal services rendered in the case; or
“(3) disqualification of the lawyer would work substantial hardship on the client.
■ “(b) A lawyer may act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness unless precluded from doing so by Rule 1.7 [Conflict of Interest: General Rule] or Rule 1.9 [Conflict of Interest: Former Client].”

The rule, as written, does not bar Mr. Davis from representing plaintiff at any time prior to trial. It states only that a lawyer “shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness.” Consequently, unless this rule should be read in a broader manner than the manner in which it is drafted, defendant is not entitled to a court order barring plaintiff’s counsel from representing plaintiff prior to the trial of these proceedings. Nothing within the comment to Rule 3.7 suggests that the rule is intended to reach situations not explicitly covered by the language of the rule.

Rule 3.7 was a departure from the prior rules (Disciplinary Rules 5-101(B) and 5-102 of the Code of Professional Responsibility) which prohibited a lawyer from undertaking employment in contemplated or pending litigation if the lawyer knew or it was obvious that the lawyer or any other lawyer in the lawyer’s law firm ought to be called as a witness on disputed factual issues (with limited exceptions similar to those within Rule 3.7) and which required the lawyer to withdraw when the lawyer learned or it became obvious that the lawyer or any other lawyer in the law firm ought to be called as a witness on behalf of the client. See General Mills Supply Co. v. SCA Services Inc., 697 F.2d 704 (6th Cir. 1982). But see Moyer v. 1330 Nineteenth Street Corp., 597 F. Supp. 14, 17 (D.D.C. 1984). Current Rule 3.7 disqualifies only the lawyer who will offer testimony on contested issues; other lawyers within the law firm may continue to represent the client at trial. Also, as I previously stated, it bars the lawyer who will testify only from acting as an “advocate at trial.” There is no prohibition against providing representation prior to the trial.

The comment to Rule 3.7 states that the purpose of the disqualification is to prevent the combining of the roles of advocate and witness in order to prevent prejudice to the opposing party:

“A witness is required to testify on the basis of personal knowledge, while an advocate is expected to explain and comment on evidence given by others. It may not be clear whether a statement by an advocate-witness should be taken as proof or as an analysis of the proof.”

Defendant contends that Rule 3.7 should bar Mr. Davis from acting as counsel at any depositions or at other pretrial proceedings because at any trial at which he testifies, depositions are likely to be offered. Consequently, the jury will know that Mr. Davis had been acting as counsel for plaintiff prior to the trial of the case. This argument has been accepted by the United States District Court for the Eastern District of Pennsylvania in Massachusetts School of Law at Andover Inc. v. American Bar Association, 872 F. Supp. 1346, 1380-81 (E.D. Pa. 1994), aff’d, 107 F.3d 1026 (3d Cir. 1997) (“In framing questions during depositions, it is all but impossible for the questioner not to inject his or her own knowledge and assumptions into the questions. Where the questioner personally knows many details and facts about the case, . . . there is the danger that the deposition questions will become testimony. Similarly, in arguing pretrial motions, oral advocacy may impermissibly become testimony. Therefore, the ABA’s motion to disqualify the five MSL counsel from not only acting as trial counsel, but also from taking depositions and arguing pretrial matters in court, must be granted.”), and by the United States District Court for the District of Colorado in World Youth Day Inc. v. Famous Artists Merchandising Exchange Inc., 866 F. Supp. 1297, 1304 (D. Colo. 1994) (“Realistically, the testimony from oral depositions in this case cannot easily be taken and read into evidence without revealing Zalon’s identity as the deposing attorney. Indeed, Zalon himself probably will be deposed. Moreover, it is naive to believe that depositions are divorced from trial advocacy. Depositions are routinely utilized at trial for impeachment, and to present testimony in lieu of live testimony where the witness is unavailable. The skill of deposing counsel on direct and cross-examination is necessarily woven into the fabric of the trial itself.”).

I do not find this argument to be persuasive. During depositions, counsel asks questions. In pretrial proceedings, counsel makes legal arguments. Counsel does not offer testimony in either instance.

Both opinions recognize the obvious — that the jury will know that a lawyer who is offering testimony at trial was also assisting the client in the preparation of the case. But this is what the jury would expect. Furthermore, if the jury did not otherwise know of this relationship, opposing counsel would bring it to the jury’s attention for the purpose of impeaching counsel’s testimony by showing bias. Rule 3.7 is not intended to prevent a jury from knowing that the lawyer who is a witness, previously represented the party calling the lawyer as a witness. The purpose of Rule 3.7 is to eliminate the situation in which the lawyer who testified is commenting on the testimony that he or she gave.

The ABA model rules from which Pennsylvania’s Rules of Professional Conduct are derived were carefully and thoughtfully drafted by highly competent practitioners and law professors. In arriving at the decision to prohibit the lawyer who will be a necessary witness only from acting as an “advocate at trial,” the drafters would have addressed the issue of whether an opposing party is sufficiently protected from the prejudice that can occur through the combination of roles of advocate and witness by limiting disqualification to trial proceedings. Since the issues that concerned the courts in the two opinions cited above would have been considered, these courts are rewriting rather than interpreting Rule 3.7.

In the present case, defendants intend to schedule the deposition of plaintiff’s counsel. ABAinformal opinion 89-1529 recommends that other counsel represent a party at a deposition of a party’s attorney:

“[AJlthough Rule 3.7 does not specifically prohibit a lawyer from representing the client at the lawyer’s own pretrial deposition, better practice is that another lawyer serve as counsel to the client at that deposition.”

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

ORDER

On November 18, 1998, it is hereby ordered that the motion to disqualify Frederick M. Davis, Esquire as counsel for plaintiff is denied without prejudice to seek disqualification at the trial of these proceedings at an appropriate time.

      . In ABA informal opinion 89-1529, the Committee on Ethics and Professional Responsibility of the American Bar Association concluded that Model Rule 3.7 does not prevent a lawyer who is likely to be a necessary witness on a contested matter at trial from representing a party in discovery, preliminary motions, or other pretrial proceedings. Also see the opinion of the United States Court of Appeals for the First Circuit in Culebras Enterprises Corp. v. Rivera-Rios, 846 F.2d 94, 99-101 (1st Cir. 1988), which held that the “advocate at a trial” provision of Rule 3.7 should not be read as prohibiting the rendition of case-related out-of-court services prior to trial. This opinion referred to the ABA background materials to Model Rule 3.7, the various advocate-witness prohibitions codified by the American Bar Association, and prior case law.


author: REIBMAN, J.,

text:
    Beckett v. Kamaratos

      C.P. of Lehigh County,
    no. 93-C-1548.

      Lisa G. Miller and Patricia Powers, for plaintiffs.

      Charles Bruno, for defendant.
    October 30, 1998
   REIBMAN, J.,

Before the court is defendant Andrew Kamaratos’ motion for post-trial relief in the nature of a motion for judgment n.o.v. and plaintiffs’ opposition thereto.

Richard Beckett, a minor, by his mother and natural guardian, Carol Cichello, and Carol Cichello in her own right, plaintiffs, instituted the within action following injuries Richard suffered while trespassing on the business premises of defendants Andrew Kamaratos and Emmanuel Gerapetritis known as the Allentown Diner. During July 1991, defendant Imperial Excavating Company was performing substantial renovations on the vacant diner which included removing the existing kitchen and exposing the entire rear portion of the diner. On July 16,1991, Richard, along with two of his friends, entered the exposed rear portion of the diner to explore its contents. Upon entering the building, Richard proceeded to the basement where he found a bottle of duplicating fluid marked “flammable” and took it to a grassy area directly behind the diner where he subsequently placed a lighter to the fluid which resulted in an explosion causing him serious bums.

Following trial from January 28 through February 6, 1998, a jury found Imperial not to be negligent, Kamaratos 26 percent negligent, Gerapetritis 24 percent negligent, and Richard 50 percent comparatively negligent for plaintiffs’ injuries. The jury awarded Richard $10,000 and Carol Cichello $35,000 before any reduction for Richard’s comparative negligence.

Based upon these findings, the court entered a molded verdict and subsequently granted plaintiffs’ motion for delay damages pursuant to Pa.R.C.P. 238. On February 18, 1998, Kamaratos filed a timely motion for post-trial relief in the nature of a motion for judgment n.o.v.

Judgment n.o.v. may be entered “only if the movant is entitled to judgment as a matter of law and if the evidence presented at trial was such that no two reasonable minds could disagree that the verdict would be in favor of the movant.” Degenhardt v. Dillon Co., 543 Pa. 146, 153, 669 A.2d 946, 950 (1996). (citations omitted) In considering such a motion, the court must grant the verdict winner the benefit of every inference which reasonably may be drawn from the evidence and must reject all unfavorable testimony and inferences. Ludmer v. Nernberg, 433 Pa. Super. 316, 322, 640 A.2d 939, 942 (1994), appeal denied, 541 Pa. 652, 664 A.2d 542 (1995), cert denied, 116 S.Ct. 1849 (1996). Judgment n.o.v. may not be used to invade the province of the jury. Id. Thus, questions of fact must be resolved by the jury. Id. To prevail on a motion for judgment n.o.v., movant must demonstrate that the verdict winner, here the plaintiffs, failed to satisfy any of the elements of their cause of action. Ludmer, 433 Pa. Super. at 323-24, 640 A.2d at 943.

Plaintiffs rest their right to recover upon section 339 of the Restatement (Second) of Torts, commonly referred to as the attractive nuisance or child trespasser doctrine. This doctrine provides:

“A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
“(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass; and
“(b) the condition is one which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children; and
“(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it; and
“(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved; and
“(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.” Restatement (Second) of Torts §339 (1965); see Carter by Carter v. United States Steel Corp., 390 Pa. Super. 265, 276-77, 568 A.2d 646, 651 (1990), affirmed in part, reversed in part on other grounds, 529 Pa. 409, 604 A.2d 1010 (1992), cert denied sub nom., U.S. Steel v. Carter, 506 U.S. 864, 113 S.Ct. 186, 121 L.Ed.2d 130 (1992) (noting that the Pennsylvania Supreme Court adopted section 339 in Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 64 A.2d 846 (1949)). All five requirements of section 339 must be met before a possessor of land can be held liable. Goll v. Muscara, 211 Pa. Super. 93, 97, 235 A.2d 443, 445 (1967).

Kamaratos contends the evidence adduced at trial failed to fulfill the foregoing requirements and, thus, plaintiffs have not established each element of their cause of action. Specifically, Kamaratos asserts plaintiffs failed to establish the existence of an artificial condition, his prior knowledge of child trespassers, that the accident occurred on his property, and that Richard did not appreciate the risk involved.

First, Kamaratos contends there was insufficient evidence to establish Richard’s injuries were due to some artificial condition which he created or maintained on the land. He claims that because he did not maintain sporadic fires on his premises he cannot be held accountable under the attractive nuisance doctrine.

In support of his argument, Kamaratos relies upon Gallagher v. Frederick, 366 Pa. 450, 77 A.2d 427 (1951), where a minor plaintiff sought recovery for injuries sustained when he was burned by flames from a bonfire which was started by neighborhood children who were playing on defendants’ vacant lot. The Supreme Court found, as a matter of law, that plaintiffs had not established the existence of an artificial condition due to the fact that the material kept on defendants’ land, which was eventually used to build the bonfire, was not inherently dangerous. However, the artificial condition maintained by Kamaratos was the unsecured diner and its contents. Plaintiffs’ engineer and liability expert, Kevin Begley, testified that the diner was not properly secured, and, as such, the diner and its contents were considered dangerous and unsafe by industry customs and standards because kids are attracted to construction sites and construction sites have many hazards associated with them. N.T. vol. III, pp. 452-71. It is the existence of those dangerous conditions which satisfy that aspect of section 339, not the fact that Richard was injured by fire.

Second, Kamaratos contends there was insufficient evidence presented to establish that he knew or had reason to know that children were likely to trespass on his property prior to the accident. He asserts that because he never personally witnessed any children riding bicycles on his property the jury could not have found him to have had notice that children were likely to trespass.

However, other witnesses testified children were seen frequently riding bicycles on his parking lot which was directly adjacent to the diner. See Bartleson v. Glen Alden Coal Co., 361 Pa. 519, 525, 64 A.2d at 850-51 (1949) (in light of history of children playing games and using pathways within feet of dangerous condition, defendant knew or should have known that children were likely to trespass upon defendant’s land); compare, Whigham v. Pyle, 224 Pa. Super. 6, 11, 302 A.2d 498, 501 (1973) (undisputed evidence that area of artificial condition was some 150 yards from the area of usual child trespass). Richard testified he and his friends frequently rode their bicycles in the diner lot and he witnessed other neighborhood kids doing so as well. N.T. vol. I, pp. 25-27. Richard’s friend, Mike Diehl, also testified he and his friends often rode their bicycles on the diner property. N.T. vol. Ill, pp. 309-310. Further, Allentown Police Officers Marakovits and Marino testified that at the time of the alleged incident they were familiar with the diner and recall having seen children riding bicycles around the diner. N.T. vol. II, pp. 257, 271. Viewing the testimony in the light most favorable to plaintiffs, it is likely the jury concluded Kamaratos knew or should have known that children were likely to trespass on his property. Ludmer, 433 Pa. Super. at 326, 640 A.2d at 944 (it is not the court’s role to pass on the credibility of witnesses, to act as the trier of fact or to substitute its judgment for that of the fact-finding jury).

Third, Kamaratos contends there was insufficient evidence presented to establish that the accident occurred “on” his property. Specifically, he argues plaintiffs failed to establish that the area where Richard ignited the liquid was located on his property. Accordingly, he asserts he should not be held liable for accidents which occur off his property even though the initial trespass onto his property is what led to Richard discovering the flammable substance. Brief of defendant, Andrew Kamaratos, in support of his motion for post-trial relief, p. 17.

Kamaratos has neither cited, nor has the court found, any case law to support his theory that the resulting accident must occur “on” defendant’s property. Section 339 and its commentary are silent as to whether the resulting accident must occur “on” defendant’s property. Rather, section 339 imposes liability if the accident is caused by an artificial condition upon the land. Thus, the inquiry is not where the injury eventually occurred, but whether the injury was caused “by an artificial condition upon the land.” See also, Bartleson, 361 Pa. at 525, 64 A.2d at 851 (section 339 poses the question of whether or not a defendant shall be held to reasonably anticipate that a child will bring himself within the orbit of the danger).

Next, Kamaratos contends plaintiffs failed to establish that Richard did not realize or appreciate the risk involved in meddling with fire and flammable materials. Kamaratos argues the jury could not reasonably have concluded that Richard did not appreciate the risk involved because there was testimony that Richard received training in fire safety while enrolled in Boy Scouts, was aware the fluid was marked “flammable,” was known to play with fire, and his young companions were aware of the risks associated with playing with fire and warned Richard of risks before he lit the flammable liquid.

On the other hand, plaintiffs assert there was substantial evidence for the jury to conclude that Richard did not fully appreciate his actions, in combination with the flammable material, would lead to his injuries. Richard testified that as a Boy Scout he was never taught how to set fires of this magnitude, but only how to start fires with flint, rocks and sticks. He further testified that he had never seen anything set on fire explode and that he did not read the warnings on the container. Also, the fact that Richard played with fire on prior occasions but was never injured is a factor which a jury may weigh in deciding whether the risk was fully appreciated. See Bethay v. Philadelphia Housing Authority, 271 Pa. Super. 366, 375, 413 A.2d 710, 714 (1979) (tide fact that children have repeatedly engaged in conduct similar to that which caused the accident without having sustained injury is a factor which a jury may weigh in deciding whether the risk was fully appreciated by the child). Finally, any appreciation by Richard’s companions of the risks involved or warnings given to Richard were properly for the jury to weigh as a factor in determining whether Richard fully appreciated the risks involved with his conduct.

The care and caution required of a child is measured by his capacity to see and appreciate danger, and he is held to such measure of discretion as is usual in those of his age and experience. This being necessarily a varying standard, the question is ordinarily one for the jury and not for the court. Bethay, 271 Pa. Super. at 375-76, 413 A.2d at 714 (citing Patterson v. Palley Manufacturing Co., 360 Pa. 259, 267, 61 A.2d 861, 865 (1948)). The jury was free to weigh the credibility of each witness and determine whether Richard fully appreciated the risks involved. Ludmer, 433 Pa. Super. at 326, 640 A.2d at 944 (where a jury returns a verdict based on substantial, albeit conflicting evidence, it is conclusive and will not be disturbed).

Finally, Kamaratos contends there was insufficient evidence to establish that his alleged negligence was a substantial factor in bringing about Richard’s injuries. His argument is simply that plaintiffs’ engineer and liability expert, Kevin Begley, testified that the container of duplicating fluid was not dangerous absent some affirmative action on someone’s part such as swallowing, spilling, rubbing or igniting the fluid. Because Richard took the affirmative step of igniting the fluid, Kamaratos contends the jury could not reasonably have concluded that he, Kamaratos, was a substantial factor in bringing about Richard’s harm. Accordingly, Kamaratos argues Richard has no one to blame but himself for the injuries he sustained.

At the close of evidence, the court instructed the jury on the applicable law which included a charge on substantial factor. The charge read as follows:

“In order for plaintiffs to recover in this case, the negligent conduct of one or more of the defendants must have been a substantial factor in bringing about the accident, and that is what the law recognizes as legal cause. A substantial factor is an actual real factor, although the result may be unusual or unexpected, but is not an imaginary or fanciful factor, or a factor having no connection, or only an insignificant connection with the accident.” N.T. vol. VI, p. 821.

The court further instructed, “[i]f you find that the defendant was negligent and that the defendant’s conduct was a substantial factor in bringing about harm to the plaintiff, your verdict must be in favor of the plaintiffs and against the defendants.” N.T. vol. VI, p. 828.

Plaintiffs’ engineer and liability expert, Kevin Begley, testified that the duplicating fluid, when left unsecured, was dangerous, that the diner and its contents were left unsecured when there was an inexpensive alternative to securing them, and that defendant had breached industry customs and standards in leaving the diner unsecured. Thus, evidence existed for the jury to conclude that defendant’s negligence was a real, and not merely insignificant, factor in bringing about Richard’s harm. Ludmer, 433 Pa. Super. at 322, 640 A.2d at 942 (judgment n.o.v. may be granted only in clear cases, where the facts are such that no two reasonable minds could fail to agree that the verdict was improper). Furthermore, to find Kamaratos’ conduct was not a substantial factor because Richard played a role in his accident would obviate the duty imposed under the attractive nuisance doctrine.

“The duty which the rule stated in this section imposes upon the possessor of land is based upon the well-known tendency of children to trespass upon the land of others and the necessity of protecting them, even though trespassers, from their childish lack of attention and judgment. The duty of the possessor, therefore, is only to exercise reasonable care to keep the part of the land upon which he should recognize the likelihood of children’s trespassing free from those conditions which, though observable by adults, are likely not to be observed by children, or which contain the risks the full extent of which an adult would realize but which are beyond the imperfect realization of children.” Restatement (Second) of Torts §339, comment (i) (1965).

Resolving all doubts in favor of plaintiffs as verdict winners and taking care not to invade the province of the jury, Kamaratos has failed to demonstrate plaintiffs did not establish the required elements under the attractive nuisance doctrine or that his conduct was not a substantial factor in bringing about Richard’s injuries. See State Farm Fire and Casualty Co. v. Levine, 389 Pa. Super. 1, 566 A.2d 318 (1989) (judgment n.o.v. is a drastic act; such a judgment should only be entered where reasonable people could not fail to agree that the verdict was improper). Accordingly, Kamaratos’ motion for judgment notwithstanding the verdict is denied.

ORDER

And now, October 30, 1998, upon consideration of defendant Andrew Kamaratos’ motion for post-trial relief in the nature of a motion for judgment n.o.v., plaintiffs’ opposition thereto, after oral argument thereon, and for the reasons set forth in the accompanying opinion, it is ordered that said motion is denied.

      . Kamaratos also argues that the jury’s finding of contributory negligence was inconsistent with their finding Richard did not realize or appreciate the risk involved. His argument attacks the very language contained in the mutually agreed upon verdict slip. Further, his argument is properly preserved in a motion for a molded verdict or new trial not in a motion, as was made here, for judgment n.o.v. Berman v. Radnor Rolls Inc., 374 Pa. Super. 118, 124, 542 A.2d 525, 527 (1988). Moreover, it is not unreasonable that the jury found Richard’s failure to read the container’s warning label a contributing factor to his injuries and at the same time found he did not fully appreciate the consequences of his actions.

      . Kamaratos also argues he is entitled to a new trial because the court abused its discretion when it denied his request to submit special interrogatories to the jury on the five attractive nuisance elements. However, Kamaratos failed to preserve this issue with amotion for a new trial. Berman, 374 Pa. Super. at 124, 542 A.2d at 527.
      Even assuming arguendo that Kamaratos could attack the sufficiency of the court’s charge as failing to submit special interrogatories, his attack is without merit. “Generally, a trial judge may grant or refuse a request for special [interrogatories] on the basis of whether such would add to the logical and reasonable understanding of the issue.” Fisch’s Parking Inc. v. Independence Hall Parking Inc., 432 Pa. Super. 263, 274, 638 A.2d 217, 223 (1994). (citations omitted) This decision will not be disturbed absent an abuse of discretion. Id. An abuse of discretion exists where there are two possible theories on which the jury may have decided the case, one of which was erroneous. Century 21 Heritage Realty Inc. v. Bair, 386 Pa. Super. 373, 378, 563 A.2d 114, 116 (1989).

        Here, Kamaratos requested special interrogatories during the second day of deliberations. The request was refused on the basis that the interrogatories would not aid the jury in the logical and reasonable understanding of the issues. Prior to Kamaratos’ request, and without objection, the jury had already been re-charged on the elements of the attractive nuisance doctrine and there was no indication that the jury needed any further guidance from the court. N.T. vol. VI, pp. 873-75.


author: WALKER, RJ.,

text:
    Ramsey v. Maurer

      C.P. of Fulton County,
    no. 128 of 1996-C.

      Travis L. Kendall, for plaintiff.

      Tamela Mellott Bard, for defendant Maurer. Marianne E. Rudebusch, for defendant Watkins.
    April 13, 1998
   WALKER, RJ.,

This case involves a petition filed by Erica Watkins to obtain custody over her daughter Evelyn Watkins, who was bom on May 12,1996. The relevant facts are as follows. Erica Watkins was 16 at the time of Evelyn’s birth. She had been a student at the Milton Hershey School, but was required to leave there once she got pregnant. Evelyn’s father, Robert Maurer, had also attended Milton Hershey School. During her pregnancy, Erica Watkins lived at Lourdes House, a Catholic home for pregnant teenagers. After Evelyn’s birth, she lived at Evergreen, a homeless shelter for women and children. Robert Maurer lived with his adoptive father, Ernest Maurer, and his new wife, Louise Maurer, since October 1995.

On July 11, 1996, Erica also moved to the Maurers’ residence, with Evelyn. On that day, an incident took place which resulted in Erica’s loss of custody over Evelyn. Several witnesses testified that Erica was holding Evelyn, and then threw the baby to Robert’s new girlfriend, Brandy Johnson, from a distance of four feet. Erica herself testified that she was distraught, but that she did not throw Evelyn. Erica then attempted to commit suicide by taking some pills. She was later found unconscious. Erica was taken to the Hershey Medical Center, and subsequently spent seven days at Phil Haven, a psychiatric hospital, where she received medication and counseling. During Erica’s first night at Phil Haven, Ernest and Louise Maurer presented her with a custody agreement, which Robert Maurer had drawn up, giving custody to Diane Ramsey, Robert Maurer’s mother and Evelyn’s paternal grandmother. Erica was told that it would give Diane temporary custody, “in case something would happen” to Evelyn. Erica signed the custody agreement without reading it. On July 18, 1996, the Honorable William H. Kaye signed an order, based on the custody agreement signed by Erica, awarding custody to Diane Ramsey. Evelyn has been in Diane Ramsey’s custody since then. Erica testified that six days after signing the papers and one day before her release from Phil Haven, she requested Evelyn’s return, but Diane Ramsey refused to relinquish custody. Erica then did not see Evelyn for six months, after which she was permitted to see her for two hours at Diane’s house each weekend.

On February 25, 1997, Erica Watkins filed a petition to modify custody, seeking primary custody of Evelyn. A conciliation hearing was scheduled for March 18, 1997. Upon the report of the conciliating officer, psychological evaluations of the parties were ordered. The parties also agreed on supervised visits by Erica every other weekend. A hearing was held on December 22, 1997. At that time, this court entered an order modifying the visitation of Erica with her daughter to Thursdays and Fridays of every other week, because those are the days Erica is off work. The hearing had not been completed on December 22, 1997, and was continued on February 19, 1998.

At the hearing, Dr. Nutter, a psychologist, testified that he met with Erica and Evelyn three times in June and July 1997 in compliance with the court order directing the evaluation of Erica’s capability to have primary custody of Evelyn. He testified that Erica was attentive to Evelyn’s needs and gave her appropriate care. Dr. Nutter concluded in his report that there is no evidence of emotional disturbance, and recommended that primary custody be given to Erica, with supervision by the domestic relations office for several months.

The current situation of the parties is as follows. Diane Ramsey owns and operates a restaurant, the Jolly Farmer in Hustontown, Fulton County, Pennsylvania. She is married to Reuben Ramsey. Whenever she works, Robert Maurer takes care of Evelyn. When Evelyn is sick, Diane takes her to the doctor. It is also Diane who picks up Evelyn after a visit with Erica Watkins.

Robert Maurer and Erica had ended their relationship during the pregnancy. During Erica’s pregnancy, he did not accompany Erica to her prenatal classes, nor did he provide support for Evelyn directly after her birth. He is now contributing to her support by buying Evelyn clothes and diapers. After the July 1996 incident, Robert Maurer lived with his mother for approximately one year. He then moved in with a co-worker, Peggy Vogel, for six months, and currently he lives with a girlfriend in her trailer on Walnut Street in McConnellsburg, Fulton County. Robert works at his mother’s restaurant. He testified that he has Evelyn for overnight visits two or three times a week and on days that he is off from work. He also testified that he currently always has weekends off, and that he takes care of Evelyn two weekends out of the month. He further testified that he moved out of his mother’s house because “it was time to move out.” He told Dr. Nutter that Evelyn stayed with his mother when he moved out because he is establishing a life for himself, which would be more difficult to do with a child.

Erica Watkins has made several suicide attempts and/or threats in the past. However, at the time of the hearing, she testified that she had been off medication for six to eight months, and that she is currently living in Harrisburg with her mother, Patricia Watkins. She worked for A-Plus for approximately one year, and is currently employed as a kennel worker for the East Shore Humane Society. She has been granted visitation of Evelyn on the weekends, which were supervised by Patricia Watkins.

This court heard testimony regarding Evelyn’s care. Erica Watkins testified that when she receives Evelyn for her visitation, she is sticky and often has diaper rash. She also testified that Diane Ramsey does not regularly inform her of Evelyn’s illnesses and doctors’ visits. Diane Ramsey testified that when Evelyn returns from a visit with her mother, she has bad diaper rash, and is often sneezing and has crusty eyes. Diane Ramsey contributes the latter to Evelyn’s allergy to Erica’s cats. However, Clifford Steinig D.O., the physician who treated Evelyn for this, based his opinion that Evelyn has an allergy for cats solely on the information provided by Robert Maurer and Diane Ramsey that Evelyn had been returned in that condition from her mother’s house, where she was exposed to cats. (Deposition of Clifford N. Steinig D.O., plaintiff’s exhibit 1, at 7-8, 12-13.) He further testified at his deposition that he did not test Evelyn for cat allergies. (Plaintiff’s exhibit 1, at 14.) There was also testimony about a pool party, which was held on June 1, 1996, at the house of Louise and Ernest Maurer. According to several witnesses, Erica allowed Evelyn to get a sunburn, and took her into the pool with her when the water was very cold.

DISCUSSION

A grandparent may seek custody of a child when three requirements are met: (1) the grandparent has genuine care and concern for the child; (2) the grandparent’s relationship with the child began with the consent of a parent or pursuant to an order of court; and (3) the grandparent has assumed the role of parent for a period of 12 months. 23 Pa.C.S. §5313(b). Diane Ramsey, the paternal grandparent of Evelyn, has taken care of Evelyn for more than 12 months pursuant to a court order. Therefore, the requirements of the statute have been met, and this court must consider whether custody should remain with Diane Ramsey, or whether it must be awarded to Robert Maurer or Erica Watkins.

The Pennsylvania Supreme Court has recently addressed the standard to be applied in determining whether custody should be granted to a third party rather than a parent. Rowles v. Rowles, 542 Pa. 443, 668 A.2d 126 (1995). The Supreme Court did not apply the existing rule that “parents have a ‘prima facie right to custody,’ which could be forfeited only if ‘convincing reasons’ appear that the child’s best interest will be served by an award to the third party.” Id. at 446, 668 A.2d at 127, citing Ellerbe v. Hooks, 490 Pa. 363, 416 A.2d 512 (1980). Rather, the court abandoned the presumption that custody should be awarded to a parent over a third party, and adopted the rule that a custody award should be made based on the child’s best interests, including that child’s “physical, emotional, intellectual, moral, and spiritual well-being.” Rowles, supra at 447, 668 A.2d at 128. One of the factors the court should consider in making this determination is parenthood, which is not a determinative factor, but will be given significant weight. Id. at 448, 668 A.2d at 128. Because the Rowles decision was a plurality opinion and did not have the support of a majority of the court, some panels of the Superior Court judges have followed the Supreme Court in applying this new standard (see Campbell v. Campbell, 448 Pa. Super. 640, 672 A.2d 835 (1996)), while other panels keep following the old rule of applying the presumption that custody should be awarded to a parent (see J.A.L. v. E.P.H., 453 Pa. Super. 78, 682 A.2d 1314 (1996)).

Rather than presuming that custody should be awarded to a parent, this court will make its determination to whom to award custody on the basis of the best interests of the child. This court has considered every factor relevant to the physical, emotional, intellectual, moral, and spiritual well-being of Evelyn. As pointed out by our Supreme Court, parenthood is a factor of significant weight in this determination. Having considered ail the factors, this court finds that it is in Evelyn’s best interests to award custody to her mother, Erica Watkins.

Based on the testimony presented at both hearings, this court finds that Robert Maurer does not have a genuine interest in having custody of Evelyn. The mere fact that he has moved out of his mother’s house without taking Evelyn with him, and his own statement that it will be difficult to “establish his life” with Evelyn in his custody is a strong indication that Robert Maurer is unwilling to take full responsibility for her. It appears to this court that he is too busy with his own life and his new girlfriend to be able to adequately care for Evelyn. Thus, this court does not find it in Evelyn’s best interests to award custody to Robert Maurer. It is, of course, important for the child to have regular contact with her father, and this court will therefore provide for visitation with Evelyn.

This court also did not find it in Evelyn’s best interests to remain in the custody of Diane Ramsey. In determining an award of custody, a court shall consider which party is more likely to encourage, permit, and allow frequent contact with the noncustodial parent. 23 Pa.C.S. §5303(a). This court finds that Diane has not facilitated and encouraged the contact between Evelyn Watkins and her mother, Erica. This appears from the fact that she refused to let Erica see Evelyn in the first six months after obtaining custody and then only allowed Erica to see her for two hours each week. Only after a conciliation hearing did she agree to more extended visits. Furthermore, Diane has not taken much effort to inform Erica of such important things as Evelyn’s health and doctors’ visits. Additionally, it is this court’s view that Diane Ramsey’s demeanor at the hearing indicated a strong animosity towards Erica. Thus, this court finds that frequent contact and a good relationship between Evelyn and her natural mother would not be encouraged if custody would be awarded to Diane Ramsey. The Pennsylvania Superior Court has found it to be an important factor that the grandmother’s attitude would undermine the relationship between the child and his mother if custody would be awarded to the grandmother. Walkenstein v. Walkenstein, 443 Pa. Super. 683, 692, 663 A.2d 178, 183 (1995). However, in that case, the court nevertheless granted custody to the grandmother because the child had special needs and the mother experienced outbursts of rage. In the underlying case, Erica, as set forth below, appears to be capable of taking good care of her daughter.

This court considered the testimony given at the hearings regarding Erica Watkins’ history of several suicide attempts, the fact that she did not live at home most of her life and during her pregnancy, and about her care of Evelyn. This court acknowledges that Erica has had some problems in her life which resulted in her inability to take good care of Evelyn at that time. To be frank, this court is not very impressed with the behavior of any of the parties to this action. However, this court also found that Erica has matured to a large degree since her last stay at Phil Haven. She has completed her counseling, is no longer on medication, has obtained her G.E.D., and has held a steady job since her release. She has taken appropriate care of Evelyn during her visits, and she has obtained the support of her own mother, Patricia Watkins. This court did not find the testimony that Erica threw her child to Brandy Johnson for a distance of four feet to be very credible. However, even if true, Erica has since matured and shown that she knows how to take care of Evelyn. Similarly, this court did not find credible the testimony of both sides that Evelyn has diaper rash only when the other has taken care of her. If there was a diaper rash problem, this court feels that Erica will be able to handle it appropriately. Furthermore, the incident at the pool party involving Evelyn’s sunburn and swim in cold water occurred when Erica was younger and insecure. This court finds that Erica has matured and is now a stable individual who loves her child. This court believes that Erica will provide a good home for Evelyn and that Evelyn will benefit from being in the care of her natural mother. This court also believes that Erica will encourage Evelyn’s frequent contact with her father and her grandparents, including Diane Ramsey. Giving significant weight to take the fact that Erica is Evelyn’s mother, this court finds that it is in Evelyn’s best interests to award custody to Erica Watkins.

Because of the fact that Evelyn has spent a substantial period of her young life with Diane Ramsey, she must be awarded visitation. This court will award Diane Ramsey and Robert Maurer visitation of Evelyn every other weekend, to be exercised jointly. Diane Ramsey and Robert Maurer shall be responsible for picking up Evelyn and returning Evelyn after visitation. Furthermore, Diane Ramsey and Robert Maurer will have visitation of Evelyn for three weeks each summer. Additionally, this court orders all parties not to smoke around Evelyn. Furthermore, if it appears at some later time that Evelyn is indeed allergic to cats, Erica is ordered to find another home for her cats.

ORDER

April 13, 1998, after consideration of the evidence presented at the hearings and the letters and memoranda provided by counsel, this court enters the following order:

(1) Primary physical custody is awarded to Erica Watkins. Custody will be transferred from Diane Ramsey to Erica Watkins within 15 days of the date of this order.

(2) Erica Watkins and Robert Maurer will have joint legal custody of Evelyn.

(3) Visitation is awarded to Robert Maurer and Diane Ramsey, to be exercised jointly, as follows:

(a) every other weekend from Friday at 7 p.m. to Sunday at 7 p.m.

(b) three consecutive weeks each summer; Robert Maurer and Diane Ramsey will notify Erica Watkins of their intent to exercise their three weeks’ visitation at least 30 days in advance.

(c) on the following holidays:

(i) Christmas in 1998, Erica Watkins shall have Evelyn on Christmas Eve and Christmas Day until noon; Robert Maurer and Diane Ramsey shall have Evelyn from Christmas Day at noon in 1998 until January 1, 1999, at 7 p.m. This schedule will alternate every year. When Evelyn goes to school, the party entitled to have Evelyn on Christmas Day until noon, will also have her from the time school ends for Christmas break until Christmas Day at noon. This schedule takes precedence over the regular weekend visitation schedule.

(ii) in 1998, Erica Watkins will have Evelyn for the following holidays: Memorial Day, Labor Day, and Thanksgiving; Robert Maurer and Diane Ramsey shall have Evelyn on Easter and July 4th. This schedule will alternate every year.

(iii) on Mother’s Day, Erica Watkins shall have Evelyn. If Robert Maurer and Diane Ramsey have custody that weekend, they shall return Evelyn to Erica on Mother’s Day by 9 a.m.

(iv) on Father’s Day, Robert Maurer shall have custody of Evelyn from 9 a.m. until 7 p.m.

(d) Diane Ramsey and Robert Maurer shall be responsible for picking up Evelyn and returning Evelyn after visitation.

(3) Erica Watkins, Robert Maurer, and Diane Ramsey will not smoke in the presence of Evelyn during the periods they have custody of her.

(4) If Evelyn is diagnosed with allergy to cats, Erica Watkins is directed to find another home for her cats.

(5) Erica Watkins, Robert Maurer, and Diane Ramsey shall notify each other promptly of the occurrence of doctors’ visits and medical emergencies.

(6) This court has requested Children and Youth Services in Dauphin County to assist Erica Watkins in the care of Evelyn and to provide any help needed in regard to Erica Watkins’ parenting skills for at least several months. The total period of support is to be decided by Children and Youth. Erica Watkins is ordered to cooperate with Dauphin County Children and Youth Services.


author: TERESHKO, J.,

text:
    Brown v. Rosenberger

      Dale E. Anstine, for plaintiff.

      Richard J. Margolis, for defendants.
    March 6, 1998
   TERESHKO, J.,

This matter comes before this court on plaintiff’s, Elise Brown, motion for partial summary judgement, and defendants’ Craig Rosenberger and Philadelphia Coca-Cola Bottling Company, answer to plaintiff’s motion.

Briefly, the underlying facts and procedural history are as follows:

On September 12, 1995, plaintiff was a trooper with the Pennsylvania State Police, who was involved in a motor vehicle accident during the course of her employment, with the defendant, Craig Rosenberger, an employee of defendant, Philadelphia Coca-Cola Bottling Company. During plaintiff’s incapacity, the Pennsylvania State Police paid the plaintiff’s salary and medical bills through the provisions of the Heart and Lung Act. As a result of her accident, plaintiff was also entitled to receive workers’ compensation and the insurance carrier paid the earning benefits available for the plaintiff to the Pennsylvania State Police. The benefits paid were 66 2/3 of the full salary of plaintiff. Since the PSP only received 2/3 of the trooper’s salary, it arguably has a claim against an alleged tort-feasor for the remaining 1/3 of the salary paid. PSP also paid all medical benefits for which it may arguably be repaid.

Plaintiff argues that the Act 44 amendments in 1993 restored the right of subrogation to a workers’ compensation insurance carrier for benefits paid to employees injured in motor vehicle-related accidents while in die course and scope of their employments and also repealed the preclusion against recovering those benefits in any third-party action. Plaintiff further argues that for the purposes of the Motor Vehicle Financial Responsibility Law, the Pennsylvania State Police should be treated no differently than a workers’ compensation carrier regarding its fight to be subrogated to any claim plaintiff may have against a third-party tort-feasor.

On the other hand, defendants contend that the Act 44 amendments repealed only the bar of subrogation for Workers ’ Compensation Act benefits paid to plaintiff. Therefore, since the insurance carrier paid workers’ compensation benefits to Pennsylvania State Police and not the plaintiff, the PSP have no right of subrogation for salary and medical benefits paid to plaintiff via the Heart and Lung Act. Defendants further argue that since Act 44 failed to amend or revise the Heart and Lung Act which presently contains no specific provision permitting a right of subrogation, then plaintiff is not entitled to plead, prove or recover any medical bills or wages paid by the Pennsylvania State Police pursuant to the Heart and Lung Act.

On January 27,1998, this court entered the following order.

“And now, to wit, January 27, 1998, upon consideration of plaintiff’s motion for partial summary judgement, it is hereby ordered and decreed that the motion is granted upon a finding that as a matter of law, the plaintiff may plead, prove and recover those amounts paid to her through the Heart and Lung Act, as well as those amounts paid by the workers’ compensation carrier. The Heart and Lung Act benefit provider and the workers’ compensation carrier shall have the right of subrogation to any third-party tort-feasor.” (See attached: exhibit “A”.)

The initial issue this court shall address, which is of first impression in this jurisdiction, is as follows:

“Whether the repeal of sections 1720 and 1722 of the Pennsylvania Motor Vehicle Financial Responsibility Law which reinstated the right of subrogation by a workers’ compensation carrier against a third-party tort-feasor and reinstated the right of plaintiff to introduce evidence at trial of medical bills and lost wages, failed to accord the same rights to a benefit provider under the Heart and Lung Act and to a plaintiff who received benefits under the same Act.”

To fully comprehend the arguments presented by the parties and the rationale behind this court’s decision in granting plaintiff’s motion for partial summary judgment, it is imperative to examine the statutory evolution of sections 1720 and 1722 of the MVFRL in relation to the existing case law and the Workers’ Compensation and Heart and Lung Acts.

Historically, “[wjhere the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee . . . against such third party . . . .” Workers’ Compensation Act of June 2, 1915, P.L. 736, article 111 §319, 77 P.S. §671; Heckendorn v. Consolidated Rail Corp., 502 Pa. 101, 108, 465 A.2d 609, 612 (1983). However, when the legislature enacted the MVFRL, in 1984, it took away the employer’s right to be subrogated from tort recoveries in actions arising out of motor vehicle accident cases. 75 Pa.C.S. §1720 (1984).

Additionally, when the MVFRL was enacted in 1984, it contained a provision at 75 Pa.C.S. §1722 as follows:

“Section 1722. Preclusion of pleading, proving and recovering required benefits. In any action for damages against a tort-feasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in section 1711 (relating to required benefits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under section 1711. This preclusion applies only to the amount of benefits set forth in section 1711.”

Effective August 31, 1993, revisions to the Workers’ Compensation Act repealed sections 1720 and 1722 to the extent that they relate to workers’ compensation payments or other benefits under the Act. The legislature passed what is commonly referred to as the Act 44 amendments to the Workers’ Compensation Act. Section 25(b) of the Act of July 2, 1993 P.L. 190, no. 44. The passage of Act 44 which concurrently repealed 75 Pa.C.S. §§1720 and 1722 restored the right of subrogation to a workers’ compensation insurance carrier for benefits paid to employees injured in motor vehicle related accidents while in the course of their employment and the right for plaintiff to recover those amounts at trial.

Thus, before the 1993 Act, a claimant could not introduce at trial benefits received under the Workers’ Compensation Act and the benefit provider could not assert its right of subrogation. After the 1993 Act, the prohibition of these formerly enjoyed rights was removed.

Restated another way, the rights that were enjoyed by benefit providers and plaintiffs prior to the 1984 MVFRL were now restored.

With this historical framework in place, we must now look to how the benefit provider under the Heart and Lung Act has been viewed in any statutory scheme or in case law construing same.

In Fulmer v. Commonwealth, Pennsylvania State Police, 167 Pa. Commw. 60, 647 A. 2d 616 (1994), the Commonwealth Court identified the fact that “the Heart and Lung Act contains no specific provision concerning an employer’s right to subrogation.” Therefore, it is to the case law we must look for guidance.

Prior to the enactment of the 1984 MVFRL, it was commonly understood that an employer had a right of subrogation and a plaintiff had a right to plead loss of wages and medical bills in any action against a third-party tort-feasor in a motor vehicle accident. Philadelphia v. PRT Co., 337 Pa. 1, 10 A.2d 434 (1940); Topelski v. Universal South Side Autos Inc., 407 Pa. 339, 180 A.2d 414 (1962).

With the enactment of the MVFRL in 1984, specifically sections 1720 and 1722, such rights were precluded by the legislature in its attempt to implement a new scheme of recovery in auto accident cases (author’s comment). Because the legislature was silent as to whether a benefit provider under the Heart and Lung Act was subject to the same preclusionary effect of the statute, the Commonwealth Court took up the issue in Fulmer, at 65, 607 A.2d at 619. There, the Commonwealth Court held that “[bjenefits received under the Heart and Lung Act effectively replace workmen’s compensation benefits for those employees covered by its provisions.” The clear effect of this holding was to treat Heart and Lung Act benefits the same as workers’ compensation benefits for purposes of the prohibitions to subrogation and pleading as found in sections 1720 and 1722 of the MVFRL.

Given the virtual common identity accorded to the above benefits (and by necessary inference the benefit providers) can defendants now claim that the common identity be severed and disparate treatment be accorded to injured employees who have different employers.

It is undisputed that Act 44 repealed the prohibitions of sections 1720 and 1722 and reinstated the right of an employer or benefit provider and plaintiff to seek subrogation and to plead lost wages and medical benefits in any action against a third-party tort-feasor in a motor vehicle case. It is clear that by virtue of this repeal, the pre-1984 principle of equity and unjust enrichment must again operate to allow recovery against a third-party tort-feasor for all losses sustained, and must also allow a benefit provider to be subrogated to any recovery of benefits. The distinction between an employer under the Heart and Lung Act and an employer under other benefit provider schemes is irrelevant for these purposes.

Finally, we examine the standard for a grant of summary judgement. Under governing principles, a motion for summary judgement is properly granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Summary judgement may be entered only in those cases where the right is clear and free from doubt. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992). This court found that the Pennsylvania State Police and the workers’ compensation carrier had a right of subrogation to recover benefits paid to plaintiff pursuant to the Heart and Lung Act and that plaintiff was entitled to plead, prove and recover the salary and medical benefits at trial.

Procedurally, on February 12,1998, this court granted reconsideration and stayed its order of January 27,1998, pending oral argument. Counsel agreed to waive oral argument.

This court now reenters it original order and includes the above opinion in support thereof.

Further, pursuant to 42 Pa.C.S. §702(b), it is ordered that this motion for partial summary judgement involves a controlling question of law as to which there is a substantial ground for difference of opinion, and that an immediate appeal from this order may materially advance the ultimate determination of this matter.

ORDER

And now, to wit, March 6, 1998, upon consideration of plaintiff’s motion for partial summary judgement, it is hereby ordered and decreed that the motion is granted upon a finding that, as a matter of law, the plaintiff may plead, prove and recover those amounts paid to her through the Heart and Lung Act, as well as those amounts paid by the workers’ compensation carrier. The Heart and Lung Act provider and the workers’ compensation carrier shall have the right of subrogation to any third-party tort-feasor. (See attached: exhibit “A.”)

EXHIBIT “A”

In The Court Of Common Pleas Of Philadelphia County

Trial Division

August Term 1997, No. 3538

Elise Brown v. Craig A. Rosenberger And Philadelphia Coca Cola Bottling Co.

ORDER

And now, to wit, January 27,1998, upon consideration of plaintiff’s motion for partial summary judgement, it is hereby ordered and decreed that the motion is granted upon a finding that, as a matter of law, the plaintiff may plead, prove and recover those amounts paid to her through the Heart and Lung Act, as well as those amounts paid by the workers’ compensation carrier. The Heart and Lung Act benefit provider and the workers’ compensation carrier shall have the right of subrogation to any third-party tort-feasor.

By The Court:

/s/Allan L. Tereshko, J.

      . Act of June 28, 1935, P.L. 477, as amended section 53 P.S. §637 states:
      “Section 637. State Police..., Injuries and diseases; Compensation and expenses.
      “(a) Any member of the State Police force, — who is injured in the performance of his duties..., and by reason thereof is temporarily incapacitated from performing his duties shall be paid by the Commonwealth of Pennsylvania if a member of the State Police force, by which he is employed, his full rate of salary, ..., until the disability arising therefrom has ceased. All medical and hospital bills, incurred in connection with any such injury, shall be paid by the Commonwealth of Pennsylvania ... During the time salary for temporary incapacity shall be paid by the Commonwealth of Pennsylvania .. ., any workmen’s compensation received or collected by any such employee for such period shall be turned over to the Commonwealth of Pennsylvania . . ., and paid into the treasury thereof, and if such payment shall not be so made by the employee the amount so due the Commonwealth of Pennsylvania, . . . shall be deducted from any salary then or thereafter becoming due and owing . . . .”

      . Act of July 2, 1993, P.L. 190, no. 44, concurrently repealed section 1720 (relating to subrogation) and section 1722 (relating to preclusion of benefits) of the Motor Vehicle Financial Responsibility Law insofar as they relate to benefits under the Workers’ Compensation Act.

      . 75 Pa.C.S. §1720 (1984): Subrogation provision provides: “In actions arising out of the maintenance or use of a motor vehicle there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits ..benefits available under sections 1711 (relating to required benefits), 1712 (relating to availability of adequate limits) or benefits paid or payable by a program, group contract or other arrangement whether primary or excess under section 1719 (relating to coordination of benefits).”


author: BAYLEY, J.,

text:
    Connolly v. Geistwhite Landscaping

      C.P. of Cumberland County,
    no. 96-5225 Civil Term.

      W Scott Henning, for plaintiff.

      Kent Price, for defendant.
    October 19, 1998
   BAYLEY, J.,

Plaintiff, Dorothy M. Connolly, instituted this suit against defendant, Geistwhite Landscaping Inc., seeking damages for personal injuries caused by a fall on October 18, 1994. A jury returned a verdict in favor of plaintiff in the amount of $200,000, and found plaintiff 30 percent comparatively negligent. The verdict was molded to $140,000. Defendant filed a motion for post-trial relief which is ready for disposition. The evidence in a light most favorable to plaintiff, the verdict winner, is as follows.

Plaintiff, a retired teacher, had lived alone since 1987, in a unit of the Forest Meadow Condominiums in the Borough of Carlisle. In October 1994, she was 73. She wore a prosthesis on her right leg which was partially amputated when she was a child. She did not use any type of device to assist her in walking.

Defendant, Geistwhite Landscaping Inc., had a lawn maintenance contract with the Forest Meadow Condominiums. On October 18, 1994, Donald Geistwhite Jr., the owner of defendant acting in its capacity as an independent contractor, performed core aeration on the lawns throughout Forest Meadow Condominiums. Geistwhite used a tractor that pulled an aerator. The aerator removed small plugs of ground and distributed them over the lawns. During the day, plaintiff was picked up by her friend, Ruth Corbin, to go to a seminar. Corbin walked on a sidewalk leading from the street to plaintiff’s front door. The weather was clear. Plaintiff came out and saw some dirt plugs on her sidewalk. She had not seen them earlier. Plaintiff and Corbin held each other and walked around the plugs to Corbin’s car. They then went to the seminar.

As Donald Geistwhite was aerating the lawns, it started to rain. He stopped working and removed his equipment. He used a hand blower to blow off plugs of dirt that had been deposited onto the sidewalks of the condominium units. However, he failed to blow off plugs of dirt that had scattered onto the sidewalk of plaintiff. Plaintiff and Corbin returned from their seminar after about two hours. It was misting. Plaintiff got out of the car and Corbin drove away. Plaintiff saw many dirt plugs scattered on her front walk. She was surprised that dirt plugs were still there. The landscaper was not present. Plaintiff had her car in her garage at the rear of her condominium. The garage had an automatic door that could only be operated with an opener that was inside her car. There was a door inside the garage leading to her home that could be accessed only if plaintiff was inside the garage. The only other entrance to her home was her front door. Plaintiff mentally noted that she had to watch where she stepped. She knew she might fall if she stepped on a dirt plug. Plaintiff was looking down as she walked seven to 10 feet onto the sidewalk. She was walking between the plugs toward her front door. She felt that she could step over the plugs without stepping on any of them. However, plaintiff has “big feet,” and as she stepped around the plugs, the back of her right shoe hit one of the plugs and she fell, suffering severe, permanent injuries.

In its post-trial motion, defendant maintains that the court erred in refusing to grant its motion for a directed verdict, and that it is now entitled to a judgment n.o.v. Because defendant controlled the manner in which it performed its contract with the Forest Meadow Condominium while it was working as an independent contractor, it was as a temporary possessor of the land subject to the standards imposed on a possessor of land. Brletich v. United States Steel Corporation, 445 Pa. 525, 285 A.2d 133 (1971). The standards are set forth in the Restatement (Second) of Torts §343, which provides:

“Dangerous condition known to or discoverable by possessor
“A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
“(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and
“(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and
“(c) fails to exercise reasonable care to protect them against the danger.” (emphasis added)

Section 343A of the Restatement provides:

“Known or obvious dangers
“(1) A possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness, (emphasis added)

Defendant argues in its brief:

“[Djefendant Geistwhite submits that it owed no duty to the plaintiff either to give her warning of the condition or to remedy the condition because there was no reason on the defendant’s part to expect that the plaintiff would not discover or realize the danger, nor was there reason to expect that the plaintiff would fail to protect herself against the danger. In fact, the plaintiff testified that she discovered and realized the danger and, in addition, she consciously took action to protect herself against the danger. Consequently, the plaintiff’s evidence failed to prove the second prong of the test to establish a duty under section 323 of the Restatement (Second) of Torts. In addition, this same evidence supports the application of the exception to section 343 liability created by section 343A of the Restatement (Second) of Torts. For these reasons, the court erred in denying defendant Geistwhite’s motion for directed verdict and justifies the grant of judgment n.o.v. in favor of defendant Geistwhite.
“Moreover, for the reasons discussed above, the plaintiff knowingly and consciously assumed the risk of the harm sustained as a matter of law such that the court erred by refusing to grant a directed verdict and defendant Geistwhite is entitled to judgment n.o.v. on that basis as well.”

Defendant’s argument is misplaced because in defining its duty it refers to only a part of section 343 of the Restatement. Plaintiff did acknowledge that she saw the dirt plugs on the sidewalk, and that she knew she could fall if she stepped on them. Obviously, her conduct was negligent. However, as to defendant’s conduct, it was for the jury to determine if it should have expected that plaintiff would fail to protect herself against the danger it created on the land. After defining negligence, ordinary care, and legal causation, we charged the jury under sections 343 and 343A of the Restatement:

“Geistwhite Landscaping Inc. is required to use reasonable care in the maintenance of the property of the Forest Meadow Condominium Association where it was working as an independent contractor and to protect the people who use that property from foreseeable harm.
“Geistwhite is required to inspect the premises upon which it works and to discover any dangerous conditions it created and use care not to injure a person using the property by negligent activity.
“Whether there was a dangerous condition on the premises caused by defendant, as plaintiff claims, involves the condition of the entire walk that plaintiff maintains she was traversing and fell as she was going from a car to her front door. You must determine what the condition of that walk was and did Geistwhite cause that condition.
“Geistwhite would be liable for any harm caused to plaintiff who used the property Geistwhite was maintaining if it, one, knew or by the exercise of reasonable care would have discovered the condition and should have realized that it involved an unreasonable risk of harm; and, two, should have expected that plaintiff would either not have discovered or realized the danger or would have failed to protect herself against it; and, three, failed to exercise reasonable care to protect plaintiff against the danger.
“Geistwhite would not be liable to persons using the property for physical harm caused by it by any activity or condition on the land whose danger is known or obvious to that person unless Geistwhite should anticipate the harm despite such knowledge or obviousness; or stated another way, Geistwhite would be liable to a person using the land for any harm it should have anticipated, regardless of whether the danger is known or obvious.
“The word known denotes not only knowledge of the existence of the condition itself but also appreciation of the danger it involves. The word obvious means that both the condition and the risk were apparent to and would be recognized by a reasonable person using the land exercising ordinary perception, intelligence, and judgment.” (emphasis added)

There was sufficient evidence for the jury to conclude that defendant should have anticipated harm to plaintiff from the dangerous condition it created on the land despite the obvious nature of the danger and plaintiff’s knowledge of that danger. Plaintiff was elderly and had no other way to enter her home other than through her front door. Defendant had left the area. Plaintiff’s conduct did not negate the duty defendant owed to her for a dangerous condition that it should have expected that plaintiff would fail to protect herself against. The doctrine of assumption of risk, which has been severely limited in Pennsylvania, is not applicable to this type of a situation. Sections 343 and 343A of the Restatement create a duty on a possessor of land for liability for physical harm caused by a condition of the land if the possessor should have expected that the person would fail to protect herself against such harm despite knowledge and obviousness. Therefore, the case was properly submitted to the jury under the doctrines of negligence and comparative negligence. Hardy v. Southland Corporation, 435 Pa. Super. 237, 645 A.2d 839 (1994). Defendant was neither entitled to a directed verdict nor is he now entitled to a judgment n.o.v.

ORDER

And now, October 19,1998, the motion of defendant, Geistwhite Landscaping Inc., for post-trial relief, is denied.

      . Geistwhite testified that he cleaned all of the sidewalks.

      . Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 664 A.2d 139 (1995).

      . Other issues raised in the post-trial motion but not briefed are abandoned. Cumberland County Rule of Court 210-7.

      . See Pa. SSJI (CIV) §7.00B on Restatement (Second) of Torts §§343, 343A.


author: SALUS, J.,

text:
    Gohel v. Montgomery Hospital

      C.P. of Montgomery County,
    no. 90-21756.

      James F. McBride and Thomas J. Ruggieri, for plaintiffs.

      John R. Warner, for defendant Montgomery Hospital.

      William H. Pugh TV, for defendant Bender MD.

      Michael E. McGilvery, for defendant Perera MD.
    February 17, 1999
   SALUS, J.,

This appeal stems from this court’s order of November 30, 1998, which affirmed its non pros order of April 21,1996 dismissing the medical malpractice cause of action brought by Chiman and Vina Gohel, appellants. Appellants contend that this court abused its discretion in finding that the appellants’ failure to diligently pursue their case caused actual prejudice to Montgomery Hospital, Joseph Bender M.D. and L. Wilma Perera M.D., defendants. Appellants argue that this court also abused its discretion in failing to consider the substantial non-docket activity which occurred during the appellants’ preparation of this case, and that the appellants’ entry and withdrawal of two attorneys within a 26-month time period provided a reasonable explanation for their delay. Appellants also argue that this court erred when it concluded that the relevant period of delay was 10 years, thus including in its calculations the time period from when the defendants filed their motions for non pros in March 1996 to the present. These contentions will be addressed below.

FACTUAL AND PROCEDURAL HISTORY

On December 11, 1990, appellants instituted a medical malpractice action against the defendants by filing a writ of summons in the Montgomery County Court of Common Pleas. On January 15, 1991, appellants filed a civil complaint against the defendants, alleging negligence in the performance of brain surgery and care for Chiman Gohel during the period of December 21, 1988 to March 1990. The docket, however, showed no substantive activity for the period of May 15, 1993 to March 1, 1996, a time span of almost three years.

Consequently, each of the defendants filed a motion for entry of judgment of non pros in early March 1996. On April 21, 1996, this court granted defendants’ motions. On June 17, 1996, appellants filed a petition to open judgment of non pros; this court denied this petition, however, by its order of November 16, 1996. By its memorandum opinion and order dated August 6, 1997, the Superior Court of Pennsylvania affirmed this court’s order of November 16, 1996.

As a result, appellants filed a petition for allowance of appeal to the Supreme Court of Pennsylvania on September 3, 1997. On June 10, 1998, the Supreme Court of Pennsylvania granted the appellants’ petition, reversed the Superior Court’s order of August 6, 1997 and remanded this case to this court for further proceedings consistent with the Supreme Court’s recent decisions in Jacobs v. Halloran, 551 Pa. 350, 710 A.2d 1098 (1998) and Marino v. Hackman, 551 Pa. 369, 710 A.2d 1108 (1998).

Consequently, this court conducted a hearing on August 6, 1998 to determine the propriety of its April 21, 1996 order in light of the new case law under Jacobs and Marino. By order of November 30, 1998, this court affirmed its April 21, 1996 non pros order. As a result, the appellants filed a timely appeal of this court’s November 30, 1998 order to the Superior Court of Pennsylvania on December 17, 1998.

DISCUSSION

The trial court’s decision to grant a non pros due to the plaintiff’s failure to prosecute his action within a reasonable time will not be disturbed absent an abuse of discretion. Gallagher v. Jewish Hospital Association, 425 Pa. 112, 113, 228 A.2d 732, 733 (1967). Abuse of discretion is not merely an error in judgment. Supplee v. PennDOT, 105 Pa. Commw. 488, 524 A.2d 1002 (1987). Rather, discretion is abused only “if in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or the result of partiality, prejudice bias, or ill will, as shown by the evidence of record.” Id. at 490-91, 524 A.2d at 1003. This court will now evaluate appellants’ points of appeal against this limited standard of review.

On remand from the Supreme Court of Pennsylvania for further proceedings consistent with its recent decisions in Jacobs and Marino, this court reexamined two issues with more scrutiny. First, this court had to determine whether the appellants’ delay in prosecuting this case caused actual prejudice to the defendants. Second, this court had to decide whether appellants’ non-docket activity provided a compelling reason for their delay in pushing this case forward.

This court correctly affirmed its non pros order of April 21, 1996 because appellants failed to provide a compelling reason for their delay and because the defendants suffered actual prejudice as a result of appellants’ lack of diligence in prosecuting this case. Appellants did not engage in substantial non-docket activity sufficient to provide a compelling reason for their delay in moving forward with their claim. Appellants argue that “significant discovery activity” took place during the time period which constituted the delay. According to Marino, the combination of activities and circumstances may justify a delay in docket inactivity, though an activity or circumstance alone would be insufficient to salvage a case from dismissal for non pros. In Marino, there was significant non-docket activity: the death of the appellants’ first attorney; substitution of his partner; deposition of all the parties; replacement of the second attorney; delay in the release of the file; various letters soliciting and communicating a settlement demand; and a telephone discussion of certifying the case ready for trial. 551 Pa. at 375, 710 A.2d at 1110.

Here, by contrast, appellants support their assertion by citing the withdrawal of their attorneys on two separate occasions and Dr. Bender’s request for production of x-rays on September 9, 1994. The examples cited by appellants are not persuasive. For example, the assigning and withdrawing of new counsel in no way serves to advance the case. See Neshaminy Constructors Inc. v. Plymouth Township, 132 Pa. Commw. 229, 572 A.2d 814 (1990). Also, the occurrence of non-docket activity initiated by the defendants does not provide appellants with a compelling reason for their delay. Further, appellants also refer to activities which occurred before the time period of delay — this period, however, is not relevant since it is not the focus of the non pros motions. Appellants wrongly argue that this court failed to consider the instances of non-docket activity cited by appellants in their brief. This court did consider these instances; however, they simply did not measure up to the amount of non-docket activity required under Marino to provide appellants with a compelling reason for their delay.

This court also correctly found that defendants suffered actual prejudice as a result of appellants’ delay in proceeding with this case. Under Jacobs, prejudice can arise when there has been “any substantial diminution of a party’s ability to properly present its case at trial.” 551 Pa. at 359, 710 A.2d at 1103. (citations omitted) For example, this can be established by the death or absence of a material witness. Id. The court in Jacobs recognized that defendants could also be prejudiced by the loss of memories, the disappearance of witnesses, and the loss or destruction of documents. Id., 551 Pa. at 357, 710 A.2d at 1102.

Here, the appellants’ 10-year delay in pushing this case forward has contravened the defendants’ ability to prepare a defense since it has made it virtually impossible for the defendants to retrieve information and locate witnesses who are relevant to this case. First, the defendants’ memory of events has significantly diminished in the 10 years which have transpired since the date of the alleged medical malpractice. For example, occurrences and interpersonal contacts which were not routinely and specifically recorded in hospital records have been lost since they have not been memorialized. Second, the defendants are unable to refresh their recollection of the treatment administered to Mr. Gohel because key witnesses and important information is not available to them 10 years later. For example, numerous hospital employees, personnel, nurses and doctors who treated or may have treated Mr. Gohel 10 years ago longer work for the hospital today. One student nurse has even passed away since 1989. Further, the policies and procedures which governed the treatment of patients in 1988 and 1989 are no longer retained or used by the hospital and its employees at present. The appellants’ 10-year delay has precluded the defendants from reconstructing the nature of the treatment offered to Mr. Gohel, notwithstanding whether the defendants were in the best position to preserve this evidence. Consequently, the defendants have relied on more than just evidence of memory loss to demonstrate their prejudice. For these reasons, the defendants are unable to present a viable defense. See Mullins v. Montgomery Hospital, no. 91-11129. (Mo. Co. Ct. C.P. July 1, 1998, aff’d, by Superior Court, February 16, 1999) (holding that loss of memory, nine-year lapse in time, and unavailability of witnesses constitutes actual prejudice).

Appellants also argue that this court abused its discretion in calculating the period of delay to include from the time following the defendants’ motions for non pros to the present, roughly 10 years. This court did not abuse its discretion in making this calculation; rather, it emphasizes that the appellants’ actions are the root cause of this delay. Appellants are clearly responsible for the delay caused by the docket inactivity from May 15,1993 to March 1,1996; the docket reflects that appellants did not engage in any substantial docket activity during this time. The appellants are also responsible for the time delay which followed the defendants’ motions for non pros. Specifically, their appeal of this court’s order of November 16, 1996 and the subsequent procedural events it set in motion, caused the defendants to remain involved in this litigation for over two more years. Thus, this court correctly attributed this period of delay — March 1996 to the present — to the appellants, not the defendants.

In addition to the foregoing, this court also correctly affirmed its non pros order of April 21, 1996 because the appellants failed to take any affirmative actions to push this case to trial at any time after the defendants filed their non pros motions. Almost 10 years have transpired since the appellants’ initiation of this lawsuit in late 1990; not even the complex nature of medical malpractice cases justifies such a lapse in time. The docket has remained exactly as it was when the original motions for non pros were filed by defendants in March 1996. Not even non-docket activity was taken in the time which has transpired since the date of these motions. Without further indicia of this case proceeding slowly towards disposition, this court correctly affirmed its non pros order of April 21, 1996.

CONCLUSION

Based on the foregoing, the Superior Court of Pennsylvania should affirm this court’s order of November 30, 1998.

      . Unlike in Marino, this court notes that the appellants here failed to secure the depositions of all the parties. Co-defendant L. Wilma Perera M.D. has not been deposed. Consequently, Dr. Perera could not testify in any meaningful way about this case since this physician’s memory has dimmed over the last 10 years. Notes of Testimony, August 6, 1998, pp. 21-23, 29.

      . N.T., Dr. Bender, pp. 6-7.

      . N.T., pp. 34-36, 41-43, 51-53.

      . N.T., p. 45.