author: MINORA, J.,

text:
    Gurecki v. Northeast Medical Associates P.C.

      C.P. of Lackawanna County
    no. 96 CV 4940.

      Jill H. Miller, for plaintiff.

      Sheldon Rosenberg, for defendants.
    January 4, 1999
   MINORA, J.,

This action comes before the court by way of preliminary objections filed by both the defendants and the plaintiff. Plaintiff asserts that because of her age, she was discriminated against and eventually terminated from her position with defendants medical association. In addition to this allegation, plaintiff asserts that defendants defamed her character and reputation by using false and unjustified accusations in which plaintiff maintains caused her great physical and psychological detriment.

The preliminary objections filed by the defendants in this action sound in the nature of a demurrer against various counts in the plaintiff’s complaint.

Plaintiff has also filed preliminary objections in the nature of a motion to strike the defendants’ preliminary objections. An argument was held before this court on August 11, 1998, and the parties have briefed their respective positions. This memorandum and order follow.

FACTS

Helen Gurecki began working for Phillip Boccagno M.D. and Dominic Ruggerio D.O. in 1986 when they assumed control of the medical practice of Dr. Velio Beradis. Previously, plaintiff had been employed by Dr. Beradis until his death in 1985. Sometime in 1987, Drs. Boccagno and Ruggerio formed a medical practice known as Northeast Medical Associates PC.

Plaintiff contends that in approximately 1991, defendants engaged in a course of prohibited discriminatory conduct, which resulted in plaintiff’s termination on October 27, 1994. At the time of plaintiff’s termination, she was 57 years old and was replaced by individuals not in the protected age class.

On April 20, 1995, plaintiff filed a complaint against defendants alleging age discrimination with the Pennsylvania Human Relations Commission, with a simultaneous filing by the PHRC with the Equal Employment Opportunity Commission.

On October 19, 1995, plaintiff, informed that defendants rejected plaintiff’s offer to settle the matter, was not willing to attend the fact-finding conference.

On June 10, 1996, plaintiff filed a complaint in the U.S. District Court for the Middle District of Pennsylvania, claiming that defendants violated the Federal Age Discrimination in Employment Act, 29 U.S.C. §621 et seq.

On October 11, 1996, plaintiff initiated this action by filing a praecipe and writ of summons. On October 1,1997, the PHRC administratively dismissed plaintiff’s complaint.

On January 26, 1998, plaintiff filed a complaint to the within action. On February 12, 1998, defendants filed preliminary objections sounding in the nature of a demurrer. In response, plaintiff, on March 4, 1998, filed preliminary objections to defendants’ preliminary objections.

On April 13, 1998, the U.S. District Court granted defendants’ motion to dismiss the complaint. Plaintiff filed a motion for reconsideration on April 23, 1998. On June 11,1998, plaintiff’s motion for reconsideration was denied.

On May 13, 1998, plaintiff filed a notice of appeal to the U.S. Court of Appeals for the Third Circuit. Therefore, this matter is now ripe for decision.

DISCUSSION

Preliminary Objections Sounding in Demurrers

In considering a demurrer, all material facts set forth in the complaint, as well as all inferences reasonably deducible therefrom, are admitted as true. The court cannot accept as true conclusions of law. “The question presented by a demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. ... A demurrer should be sustained only in cases where the plaintiff has clearly failed to state a claim on which any relief may be granted. ... A demurrer should not be sustained if there is any doubt as to whether the complaint adequately states a claim for relief under any theory.” Pittsburgh National Bank v. Perr, 431 Pa. Super. 580, 584, 637 A.2d 334, 336 (1994). (citations omitted) Since the sustaining of a demurrer results in a denial of the pleader’s claim or dismissal of his suit, a preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim for which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 372, 490 A.2d 402, 408 (1985).

Doubt should be resolved in favor of overruling the demurrer. National Recovery System v. Frebraro, 287 Pa. Super. 442, 444, 430 A.2d 686, 687 (1981). In pleading its case, “the complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense.” PennDOT v. Bethlehem Steel Corp., 33 Pa. Commw. 1, 11, 380 A.2d 1308, 1313 (1977). A preliminary objection in the nature of a demurrer cannot be used to raise substantive defenses against a plaintiff’s right to recover. Goodrich-Amram 2d, vol. 2 §1017(b):25 (1991).

The test a corut employs in ruling on a demurrer in the form of a preliminary objection is whether upon the facts averred it is clear and free from doubt that the pleader will be unable to prove facts legally sufficient to establish his right to relief. Sharon Paving & Constr. Co. v. Sharon, 19 Mercer Co. L.J. 155 (1982).

Based on the above standard for a demurrer, this court “cannot aver the existence of facts not apparent from the face of the challenged pleading.” Martin v. PennDOT, 124 Pa. Commw. 625, 629, 556 A.2d 969, 971 (1989). Despite this general rule, Pennsylvania recognizes a limited exception, which provides that “where a plaintiff avers the existence of a written agreement and relies upon it to establish his cause of action. In such a case, a defendant may properly annex that agreement without creating an impermissible speaking demurrer since the agreement is a factual matter arising out of the complaint itself.” Id. at 629, 556 A.2d at 971.

In the instant case, plaintiff does not allege the existence of written documents nor does she 'rely on particular written documents in her complaint in order to establish her cause of action. Therefore, this court is bound to consider only the plaintiff’s complaint and we will not consider the exhibits attached to defendants’ brief in support of their preliminary objections, nor will we adopt the subsequent arguments raised by the defendants asserting the new Pennsylvania Rules of Evidence.

By first acknowledging what matters this court will consider in making its determination, we will now address the objections at issue.

Issue I: Whether Plaintiff’s Complaint Raises Sufficient Allegations To Sustain a Cause of Action Which Entitles Her to Relief

The first issue this court will dispose of concerns the plaintiff’s allegation that she was terminated from defendants medical association based on age discrimination. In order to resolve this issue, this court need only determine whether or not plaintiff has pled sufficient facts in her complaint to adequately state a claim for relief.

Plaintiff’s complaint identifies numerous allegations in which plaintiff proffers as evidence defendants’ discriminatory treatment against her based on plaintiff’s age. Examples enumerated in plaintiff’s complaint range from what plaintiff espouses as unwarranted reprimands to adverse employment opportunities. Specifically, plaintiff contends that because of her age, she was subject to modifications in her compensation, terms, conditions, and privileges of her employment, all to her detriment.

In stark contrast, defendants maintain that Billet v. Cigna Corp., 940 F.2d 812 (3d Cir. 1991), is identical to the case at hand and therefore resolves the above issue. Defendants assert that the case cited supra stands for the proposition that “the employee’s assertion of his own good performance was insufficient to prevent summary judgment where the employer produced performance reviews and other documentary evidence of misconduct and insubordination that demonstrated poor performance.” Sempier v. Johnson & Higgins, 45 F.3d 724 (3d Cir. 1995). (emphasis added) Defendants contend that plaintiff gave evidence of misconduct and poor performance in her complaint and, therefore, plaintiff’s complaint should be dismissed.

We find that defendants’ reliance on the two above-referenced cases to be misplaced. The reason we conclude that defendants are misguided in their application of the law is because defendants are attempting to incorporate documents outside the plaintiff’s complaint as exhibits. As this court has previously stated, we are not at liberty to utilize documents other than the complaint when deciding a preliminary objection sounding in demurrer.

Ultimately, defendants are seeking to offer plaintiff’s complaint filed in United States District Court which alleged a violation for age discrimination under the Federal Age Discrimination in Employment Act, 29 U.S.C. §621 et seq.

However, we are not permitted to rely on this federal complaint at this point in this case because it is not mentioned in the current plaintiff’s complaint filed in Lackawanna County. Therefore, we need not address defendants’ assertion pertaining to this issue and we conclude defendants’ above argument while it may ultimately have merit, has no merit at this stage in the proceedings. This issue is not ripe for consideration by this court since it is not pled in plaintiff’s complaint, which is the limit and focus of our inquiry in resolving a demurrer. Therefore, we hold that defendants’ preliminary objection seeking to dismiss the plaintiff’s complaint for failing to allege sufficient facts in her complaint to set forth a cause of action for discrimination is denied. Summary judgment which affords the court a much broader opportunity to consider all the pleadings, discovery and exhibits may yet yield a different result, especially if reviewed in the context of the new rules of evidence.

Issue II: Whether Plaintiff Is Entitled to a Trial by Jury

This court will address this issue because the plaintiff’s complaint demands a jury trial. In order to resolve this matter, we must consider that the plaintiff’s complaint alleges age discrimination under the Pennsylvania Human Relations Act. The Pennsylvania Superior Court recognized that “[i]t has long been recognized that the Pennsylvania Constitution ‘only preserves the right to trial by jury in those cases where it existed at the time the constitution was adopted.’ ” Murphy v. Cartex Corp., 377 Pa. Super. 181, 192, 546 A.2d 1217, 1222 (1988). In addition, the Murphy court stated that “[jjury trials are not available in proceedings created by statute unless the proceeding has a common-law basis or unless the statute expressly or impliedly so provides.” Id. at 192, 546 A.2d at 1222.

Accordingly, plaintiff argues that because Count II of her complaint, which alleges defamation, is based on common law and Count I which is based on PHRA, both arise from the same set of facts and therefore, she is entitled to a jury trial.

However, the Murphy court determined that the “PHRA and the rights it confers were nonexistent at the time the Pennsylvania Constitution was adopted. Therefore, no right to a jury trial existed which the constitution could preserve.” Supra at 192-93,546 A.2d at 1223. Additionally, the, Murphy court maintained that there was no constitutional right to have a jury hear a PHRA claim, as well as a “matter of statutory interpretation, that the legislature did not intend to provide a right to demand a jury trial in PHRA actions brought in the courts of common pleas.” Id. at 193, 546 A.2d at 1223. The Murphy court concluded that they were “convinced that the legislature did not intend to create a right to demand a jury trial when it enacted . . . PHRA.” Murphy, supra at 195, 546 A.2d at 1224.

Furthermore, five years after the Murphy court, the Pennsylvania Superior Court also held that there is no right to a jury trial under the PHRA. Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 239 n.1, 634 A.2d 237, 238 n.1 (1993). The Walker case provides additional guidance because that case involved claims based on both defamation and discrimination under the PHRA. The Walker court tried the defamation issue in front of a jury, while a bench trial was used for the PHRA claim. Id.

We hold that, based on the cases cited supra, plaintiff is not entitled to a jury trial for Count I, her alleged claim of discrimination arising under the PHRA. However, she may request a separate jury trial for Count II, her claim based on defamation. While this is contrary to the interest of judicial economy, it is a legally cognizable procedure. Therefore, defendants’ preliminary objection to dismiss plaintiff’s demand for a jury trial under the PHRA is granted.

Issue III: Whether the Plaintiff Could Be Terminated From Her Employment for Any or No Reason Even if She Was Considered an At-Will Employee

Defendants argue that in order for plaintiff to have a property right in her job, then plaintiff would have the duty to plead that she is other than an at-will employee. Defendants reason that because plaintiff does not allege that she has a written employment contract, nor any specific or special wages, hours and working conditions, thus, plaintiff was an at-will employee. Based on this reasoning, defendants rely on the general rule that, “Pennsylvania does not recognize a common-law cause of action for termination of an at-will employment relationship; our courts have instead protected the employer’s ‘unfettered right to discharge an at-will employee for any or no reason in the absence of a contractual or statutory prohibition.’ ” McLaughlin v. Gastrointestinal Specialists Inc., 696 A.2d 173, 176 (Pa. Super. 1997). Therefore, defendants maintain because plaintiff was an at-will employee she has no property right in her job and her position could be terminated for any or no reason at all. Defendants request this court to dismiss paragraph 30(a) of plaintiff’s complaint which defendants argue states that plaintiff is attempting to create a property right in her at-will employment.

Conversely, plaintiff avers that under the PHRA, individuals are protected against age discrimination. The PHRA defines “age” as the following: “any person 40 years of age or older and shall also include any other person so protected by further amendment to the Federal Age Discrimination in Employment Act.” 43 P.S. §954(h). Plaintiff asserts that there is no exception under 43 P.S. §954 pertaining to an at-will employee. Plaintiff contends that the PHRA was to prevent wrongful employment practices and discharge of those employees who otherwise were not protected by either contract or union membership. Therefore, plaintiff maintains she is precisely the employee the PHRA was established to protect, because of her employment status.

We agree with plaintiff, that the PHRA protects individuals who are in the same employment situation as the plaintiff, including at-will employees. We base our holding on the Pennsylvania Superior Court’s finding that “an action for wrongful discharge will lie where the employer’s conduct in terminating an at-will employee violates a clear mandate of public policy.” McLaughlin, supra at 176. In order for an employee to fit within the parameter of the public policy exception, the McLaughlin court stated that the “public policy at issue must be articulated in the constitution, legislation, administrative regulation or judicial decision.” Id. at 177.

We hold that there is a specific statute, PHRA, in which the plaintiff is a member. Plaintiff at the time of the alleged discrimination was 57 years old and, therefore, fits within the PHRA age definition, which only requires one to be 40 years or older. Because the PHRA applies to the plaintiff, this court holds that plaintiff has alleged a sufficient cause of action and we are therefore denying defendants’ preliminary objection concerning paragraph 30(a) of plaintiff’s complaint.

Issue IV: Whether Count II of Plaintiff’s Complaint Alleged the Necessary Elements To Maintain a Cause of Action for Defamation

Count II of plaintiff’s complaint alleges defamation of character in her lawsuit. Specifically, plaintiff alleges that defendants defamed her character and reputation by using false and unjustified accusations which caused plaintiff great physical, psychological and financial detriment.

In response to Count II, defendants argue that plaintiff failed to allege in her complaint necessary elements of the tort of defamation. Defendants contend that the plaintiff does not allege that defendants lowered her in the estimation of the community nor intended to deter third persons from dealing with her. Additionally, defendants aver that the PHRA provides specific remedies for its violations and, as such, this statute preempts tort claims for the same action. Defendants rely on the Pennsylvania Superior Court’s finding that the PHRA “preempts claims of wrongful discharge based on a violation of the public policy against discrimination.” Jacques v. Akzo International Salt Inc., 422 Pa. Super. 419, 429, 619 A.2d 748, 753 (1993). Therefore, defendants state that plaintiff did not plead sufficient facts to make a prima facie case for defamation and request this court to dismiss Count II.

In stark contrast, plaintiff avers that the Jacques case cited supra is inapplicable to the present case. The primary reason that the plaintiff differentiates Jacques from the current case is that the plaintiff maintains that Jacques’ court holding applies to preempt tort actions for wrongful discharge. Moreover, plaintiff contends that Count II of her complaint alleges defamation and not wrongful discharge, therefore, the PHRA does not preempt plaintiff’s claim. Finally, plaintiff argues that there are instances in which defamation claims are allowed with claims asserting violations of the PHRA. Yetter v. Ward Trucking Corp., 401 Pa. Super. 467, 585 A.2d 1022 (1991).

We hold that the plaintiff has failed “to make out a cause of action in defamation because Pennsylvania law requires the plaintiff to prove publication by the defendant.” Id. at 470,585 A.2d at 1024. “A publication is defamatory if it is intended to harass the reputation of another so as to lower him or her in the estimation of the community or if it tends to deter third persons from associating or dealing with him or her.” Walker, supra at 243, 634 A.2d at 240. Upon thorough examination of plaintiff’s complaint, this court is unable to locate any suggestion that there was the requisite element of a publication of a defamatory statement.

In addition, we find that the plaintiff has failed to adequately plead that either her reputation was lowered in the estimation of the community or that third persons were deterred from associating or dealing with her. Therefore, we are granting the defendants’ preliminary objection dismissing Count II of plaintiff’s complaint. Plaintiff and her counsel are hereby granted 20 days to amend their complaint within the confines of this opinion or alternatively to proceed without the stricken count.

Defendants further argue that Count II of plaintiff’s complaint should be dismissed because the existence of statutory remedies in PHRA, 43 PS. §962, preempt the tort action of defamation. In support of their argument, defendants direct this court’s attention to Jacques, supra, which stands for the proposition that when the statute in question provides specific remedies for its violation, then it preempts tort claims for the same action.

In response to defendants’ above argument, plaintiff concedes that Pennsylvania law requires an individual seeking relief to exhaust available remedies before she may obtain judicial review. Additionally, plaintiff argues that she has followed the proper procedures as outlined under PHRA §962(c), which provides the procedures to filing a suit based upon age discrimination in the court of common pleas. Finally, plaintiff maintains that nowhere does the PHRA state that when a matter is cross-filed with the PHRC and EEOC does the complainant have to exhaust both administrative forums before she can pursue the matter in the court of common pleas.

We agree with plaintiff. To start, “[t]he doctrine of exhaustion of administrative remedies is founded on judicial recognition of the mandate of the legislature that statutorily prescribed remedies are to be strictly pursued.” Ohio Casualty Group v. Argonaut Insurance Co., 514 Pa. 430, 435, 525 A.2d 1195, 1197 (1987). (footnote omitted) Furthermore, the Pennsylvania Supreme Court stated that “our case law reinforces the rule that a party seeking relief must exhaust available administrative remedies before he may obtain judicial review.” Id. at 435-36, 525 A.2d at 1197.

In order to determine whether plaintiff has successfully followed proper administrative procedures, this court is guided by PHRA §962(c) which mandates the procedures to filing a suit based on age discrimination. This section states the following:

“If within one year after the filing of a complaint with the commission, the commission dismisses the complaint or has not entered into a conciliation agreement to which the complainant is a party, the commission must notify the complainant. On receipt of such a notice the complainant shall be able to bring an action in the courts of common pleas of the Commonwealth based on the right to freedom from discrimination granted by this Act.”

We find the above-cited statute clearly resolves the issue, that is, plaintiff has followed proper procedure in filing her current complaint. The operative words of PHRA §962(c) state that if a complaint is dismissed by the PHRC, then the complainant shall be able to bring an action for age discrimination in the court of common pleas. Instantly, the facts here demonstrate that the PHRC dismissed plaintiff’s complaint on October 1, 1997. Subsequent to this dismissal, plaintiff properly followed the procedure under PHRA §962(c) and filed this complaint on January 26,1998. Therefore, we hold that plaintiff’s current complaint properly followed the provisions under PHRA §962(c) and thus is not preempted.

Issue V: Whether 43 P.S. §962(c) Bars Plaintiff’s Claim for All Wages, Benefits and Other Monetary Claims

In order to dispose of this issue, this court must first examine the statute in dispute and its application to the case at hand. 43 P.S. §962(c) states that “[b]ack pay liability shall not accrue from a date more than three years prior to the filing of a complaint charging violations of this Act.” When confronted with the issue of determining the application of 43 P.S. §962(c)’s limitation, the United States District Court of the Middle District of Pennsylvania maintained that “[c]alling this a limitation is a misnomer. Rather, it states a limit as to the period of time prior to filing of a complaint for which back pay may be awarded. Thus, a three-year ‘cap’ does not preclude back pay in this case for the period between termination of employment . . . and the date of this memorandum and order, which is a period of approximately three years, five and one half months.” Gallo v. John Powell Chevrolet Inc., 779 F. Supp. 804, 812 (M.D. Pa. 1991).

The language of the statute clearly mandates that back pay shall not accrue more than three years prior to the filing of a complaint which charges violations under the PHRA. In the present case, plaintiff was terminated on October 27, 1994 and filed her initial complaint with the PHRC on April 20,1995. This complaint was filed within one year of the charged violation and, therefore, was well within the three-year limitation as provided under 43 P.S. §962(c). Despite the fact that the present complaint filed before this court was not until January 26, 1998, which is after the three-year limitation, we hold that the plaintiff has met the requirement of 43 P.S. §962(c). We base our holding on the fact that the statute requires that only a complaint be filed alleging a violation of the PHRA within three years, and does not state that the state court complaint must fit within this time frame. We hold that the plaintiff’s initial complaint filed on April 20, 1995 with the PHRC satisfies the requirement of filing within three years. Therefore, we are denying defendants’ preliminary objection attempting to bar plaintiff from recovering back pay.

CONCLUSION

In sum, this court holds that when viewing all facts set forth in the complaint as true, there were five issues before this court which were ripe for disposition. We hold that defendants’ preliminary objections are granted in part and denied in part, in a manner consistent with this opinion. Specifically, we hold the following issues: (1) Defendants’ preliminary objection seeking to dismiss the plaintiff’s complaint for failing to allege sufficient fact to set forth a cause of action for discrimination is denied; (2) Defendants’ preliminary objection to dismiss plaintiff’s demand for a jury trial under the PHRA is granted; (3) Defendants’ preliminary objection attempting to dismiss paragraph 30(a) of plaintiff’s complaint is denied; (4) Defendants’ preliminary objection to dismiss Count II of plaintiff’s complaint is granted with possibility of plaintiff amending her complaint within 20 days of this opinion or alternatively to proceed without the stricken count; (5) Defendants’ preliminary objection to bar plaintiff from recovering back pay is denied.

Based on our holding, we need not address any other issues raised by either the plaintiff or defendants in their respective preliminary objections because they are rendered moot. For these reasons and those stated above, the defendants’ preliminary objections are denied in part and granted in part and the parties are to proceed in a manner consistent with this opinion. An appropriate order follows.

ORDER

And now, to wit, January 4,1999, it is hereby ordered that the preliminary objections raised by the defendants concerning Issues I, III, and V are denied. Defendants’ preliminary objections raised in Issues II and IV are granted, while allowing plaintiff the opportunity to amend Issue IV (Count II) within 20 days of this opinion or alternatively to proceed without the stricken count. All other preliminary objections raised by either defendants or plaintiff are rendered moot.

The parties to this action are further ordered to proceed in this case in a manner consistent with this opinion.


source: Caselaw Access Project

author: FRIEDMAN, J.,

license: Public Domain

text:
    Vukmir v. University Anesthesiology and Critical Care Medicine Associates

      C.P. of Allegheny County,
    no. GD 99-0134.

      Charles E. Boyle, for petitioner.

      Martin J. Saunders, for respondent.
    April 12, 1999
   FRIEDMAN, J.,

— The petitioner has appealed this court’s order of January 28,1999 in which we refused to compel the respondent to arbitrate a contract dispute. The issue is whether a court may apply the doctrine of collateral estoppel when deciding a petition to compel arbitration, denying the petition to compel because issues critical to the dispute sought to be arbitrated have already been finally adjudicated by another court. The issue appears not to have been previously addressed by the appellate courts, possibly because it is axiomatic. After argument, we concluded that a court may apply the doctrine of collateral estoppel in such a situation, and we denied the petition filed by petitioner in the captioned case.

I. FACTUAL AND PROCEDURAL HISTORY

The petitioner, Rade B. Vukmir M.D. has appealed from this court’s order dated January 28,1999, in which we denied his “petition/application for an order directing arbitration according to provisions of agreement.” Although the petition does not say so in so many words, the dispute which Dr. Vukmir seeks to have arbitrated is whether his employment with the respondent, University Anesthesiology and Critical Care Medicine Associates (UACCMA), was improperly terminated.

In addition to being employed as a physician by UACCMA, Dr. Vukmir had also been a “non-tenure stream” assistant professor with the University of Pittsburgh. (UACCMA’s brief in support of objections to petition, p. 2.) Dr. Vukmir’s employment with UACCMA was governed by a contract, which was entered into on July 1, 1991 and which may be found in its entirety in “defendant’s appendix to brief in support of objections” at tab J. The section of the contract which governed Dr. Vukmir’s term of employment contained a provision linking his employment by UACCMA with his appointment as a faculty member at the University of Pittsburgh. That section of the contract is set forth in its entirety below:

Section 1. Term of employment The corporation shall employ the professional employee from the effective date of this contract until the last day of the professional employee’s full-time faculty appointment to the faculty of the University of Pittsburgh School of Medicine, unless this contract is terminated pursuant to the provisions herein. It may be automatically renewed if mutually agreeable, to coincide with any successive term(s) of the professional employee’s faculty reappointment.”

The facts of record are set forth as follows in respondent’s brief (petitioner has not disputed them and they are not contradicted by the averments of his petition): “In October 1996, the university made the decision not to reappoint applicant to its faculty. Under the terms of his contract with UACCMA, applicant was obligated to maintain his faculty status. Both his university appointment and his employment contract with UACCMA were fully performed by all parties through the contract expiration date — June 30, 1997. Applicant’s contract with UACCMA was not renewed and his employment relationship with UACCMA ended.” (UACCMA’s brief in support of objections to petition, pp. 2-3.)

Dr. Vukmir filed a grievance with the university, which was denied. He then filed a complaint in the United States District Court for the Western District of Pennsylvania, naming as defendants the “University of Pittsburgh a/k/a University of Pittsburgh Medical Center a/k/a University of Pittsburgh Medical Center Systems; and Leonard Firestone M.D.; and James Snyder M.D.” (Defendant’s appendix to brief in support of objections, tab B.) The current respondent, UACCMA, was not named as a defendant in the federal court action. However, UACCMA alleges, and Dr. Vukmir does not dispute, that Dr. Firestone and Dr. Snyder were “officers and agents” of UACCMA. (UACCMA’s brief in support of objections to petition, p. 4.) In his complaint in federal court, Dr. Vukmir alleged that the university improperly terminated his faculty position as a sanction for his exercise of free speech in criticizing patient care. Dr. Vukmir also claimed that Dr. Firestone and Dr. Snyder improperly interfered with his relationship with both the university and UACCMA, intentionally acting to cause both entities to terminate their relationships with Dr. Vukmir.

On August 29,1997, the Honorable Donald E. Ziegler of the United States District Court for the Western District of Pennsylvania issued a memorandum order in which he granted a motion to dismiss the complaint filed on behalf of all the defendants. In that memorandum order, Judge Ziegler found the following, inter alia:

“We find that plaintiff does not state a claim for violation of his First Amendment rights because his criticisms regarding the medical judgment of fellow doctors in four isolated instances did not constitute speech on matters of public concern.” ¶8.

“As plaintiff was employed in a non-tenure stream position and the university merely failed to renew his employment contract after it expired, we find that plaintiff has failed to allege a constitutionally protected property interest that was denied by the university’s failure to give plaintiff a new contract.” ¶9.

“Plaintiff does not allege that the university denied plaintiff employment to which he was entitled or denied him the opportunity to pursue his career, and does not allege facts which could establish the university’s conduct injured his reputation.” ¶10. (citations omitted)

“Additionally, we find that plaintiff cannot state a claim for tortious interference with his contract or prospective contract relations with UACCMA. Plaintiff does not allege facts to support a finding that Drs. Firestone and Snyder acted with the intent to interfere with his relations with UACCMA or acted to induce any act of UACCMA; plaintiff had a right to a renewal contract from UACCMA; or there was a reasonable probability that plaintiff’s contract with UACCMA would be renewed.” ¶13.

On December 2, 1998, the United States Court of Appeals for the Third Circuit affirmed the district court’s order. Dr. Vukmir then commenced this action on January 6, 1999.

II. DISCUSSION

A. Is the Dispute Within the Scope of the Arbitration Provision?

It is well-settled that “[wjhen presented with a petition to compel arbitration the court is to determine whether an agreement to arbitrate the controversy exists. ‘If a valid arbitration agreement exists between the parties and appellant’s claim is within the scope of the agreement, the controversy must be submitted to arbitration.’ ” Santiago v. State Farm Insurance Co., 453 Pa. Super. 343, 346, 683 A.2d 1216, 1217 (1996), quoting Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 600, 641 A.2d 1167, 1170 (1994). It is a matter of law for the court to determine whether a dispute falls within the scope of an arbitration provision. Shadduck v. Christopher J. Kaclik Inc., 713 A.2d 635 (Pa. Super. 1998); Hiller v. Allstate Insurance Co., 300 Pa. Super. 149, 446 A.2d 273 (1982).

The arbitration provision at issue here is contained in section 8 of the employment contract between the parties. It provides in pertinent part as follows:

“Section 8. Arbitration Any controversy, claim or dispute between the parties directly or indirectly concerning this contract or the breach thereof or the subject matter thereof shall be fully and finally settled by arbitration held in Pittsburgh, Pennsylvania, in accordance with the Uniform Arbitration Act, as enacted in Pennsylvania, or any similar succeeding statute then in effect, and the rules of commercial arbitration then followed by the American Arbitration Association or any successor to, the functions thereof. The costs of arbitration shall be paid equally by the parties hereto.”

However, to determine whether the matter which plaintiff seeks to have arbitrated constitutes a “controversy, claim or dispute between the parties directly or indirectly concerning this contract or the breach thereof or the subject matter thereof,” we must also look at the other terms of the contract. A crucial term of the contract is the section dealing with “term of employment,” which was quoted above. That section provides that Dr. Vukmir’s employment with UACCMA would continue “from the effective date of this contract until the last day of the professional employee’s full-time faculty appointment to the faculty of the University of Pittsburgh School of Medicine.” Therefore, if the university properly terminated Dr. Vukmir’s faculty appointment, there is no arbitrable issue under his employment contract with UACCMA, since the contract by its clear terms is no longer in effect.

B. Is a Court, in Making Its Determination of Whether or Not a Dispute Falls Within the Scope of an Arbitration Provision, Bound by Factual and Legal Determinations Previously Made by Another Court via the Doctrine of Collateral Estoppel?

“It is well-settled that the doctrine of collateral estoppel prevents a question of law or an issue of fact that has been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Blake v. Garvin, 403 Pa. Super. 208, 210, 588 A.2d 553, 555 (1991). It appears, however, to be an issue of first impression whether a court may consider previously adjudicated issues as collaterally estopped when determining whether a dispute is within the scope of an arbitration provision.

We are mindful that, under Pennsylvania’s Uniform Arbitration Act, a court may not examine the merits of a controversy when acting upon a petition to compel arbitration. 42 Pa.C.S. §7304(e). However, we believe that we are not examining the merits when we apply the doctrine of collateral estoppel to prevent an issue which has been already litigated in federal court from being “relitigated” through arbitration. Collateral estoppel would certainly apply to prevent an issue from being relitigated in the court of common pleas, and we believe that there is no reason to exempt arbitration from that doctrine. To do otherwise would unfairly subject UACCMA to additional litigation on an issue which has already been resolved.

We can therefore proceed with a determination of whether the issue raised at arbitration has in fact been previously adjudicated. The requirements for collateral estoppel (sometimes also referred to as “issue preclusion”) have been described by the Superior Court as follows:

“Collateral estoppel applies if (1) the issue decided in the prior case is identical to one presented in the later case; (2) there was a final judgment on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding and (5) the determination in the prior proceeding was essential to the judgment.” Sterling v. Fineman, 428 Pa. Super. 233, 240 n.4, 630 A.2d 1224, 1228 n.4 (1993), quoting Incolingo v. Maurer, 394 Pa. Super. 352, 355, 575 A.2d 939, 940 (1990).

The first requirement in order for collateral estoppel to apply is that the issue decided in the prior case be identical to one presented here. It can be seen from an examination of Dr. Vukmir’s federal court complaint that the propriety of the university’s actions in terminating his faculty appointment — as discussed above, a crucial issue in determining whether the dispute at hand falls within the scope of the arbitration clause— was very much at issue in the federal court case. The entire federal court complaint is about the propriety of Dr. Vukmir’s dismissal from the faculty of the university and his subsequent termination as an employee of UACCMA.

The second component of collateral estoppel is that there be a final judgment on the merits. That component is undoubtedly met by Judge Ziegler’s memorandum order, which discusses the merits of the issues raised and dismisses the federal court complaint.

The third component is that “the party against whom the plea is asserted was a party or in privity with a party in the prior case.” Here, the party against whom collateral estoppel is being asserted is Dr. Vukmir, who was also a party to the federal court case. We also note that although the party asserting the doctrine of collateral estoppel — University Anesthesiology and Critical Care Medicine Associates — was not a party to the federal court action, Drs. Firestone and Snyder, who were parties to the federal court action, were officers and agents of UACCMA.

The fourth component is that “the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.” Dr. Vukmir had a full and fair opportunity to litigate this issue in federal court; his response to the defendant’s motion to dismiss may be found in “defendant’s appendix to brief in support” at tab E.

The final component is that the determination in the prior proceeding was essential to the judgment there. As discussed above, the issue of the propriety of Dr. Vukmir’s dismissal from the university’s faculty was the critical issue in the federal court case.

III. CONCLUSION

By applying the doctrine of collateral estoppel, we concluded that an issue which would prevent the dispute here from failing within the scope of the arbitration clause — the propriety of the university’s dismissal of Dr. Vukmir from its faculty — was already fully and finally litigated. We properly denied Dr. Vukmir’s petition to compel arbitration.

      . Although this court entered an order directing the petitioner to file a statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b), Dr. Vukmir has not complied. It is believed that any issues he might have raised on appeal may therefore have been waived. See Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998); Dollar Bank v. Swartz, 540 Pa. 369, 657 A.2d 1242 (1995). We leave it to the Superior Court to make that determination.


author: BRADLEY, J.,

text:
    Dittert v. PennDOT
    C.P. of Delaware County,
    no. 93-9918.

      Joseph L. Messa Jr. and Melissa C. Bittner, for plaintiffs.

      John P. Capuzzi, deputy attorney general, for Commonwealth.

      M. Elizabeth Naughton-Beck, for defendant.
    January 29, 1998
   BRADLEY, J.,

— Plaintiffs appeal from the order denying their motion for post-trial relief and affirming the granting of a nonsuit.

On September 12, 1992, plaintiffs, Robert and Carol Dittert, husband and wife, were riding a motorcycle eastbound on Baltimore Pike in Nether Providence Township. As they approached and entered the intersection of Baltimore Pike and Interstate 476, commonly known as the “Blue Route,” they had a green traffic light. Defendant, William Midkiff, was traveling westbound on Baltimore Pike in the designated left-turn lane because he wanted to turn left onto the entrance ramp to the Blue Route southbound. This left turn is controlled by a traffic signal with a left-turn arrow allowing such a turn and a red ball prohibiting one. Whether Midkiff saw any traffic lights at all at this intersection (and the ramifications flowing therefrom) was the subject of dispute at trial. As Midkiff turned left, the Ditterts collided with the side of Midkiff’s van, resulting in severe injuries to plaintiffs.

Plaintiffs commenced this action by way of complaint on July 21,1993 against defendants, PennDOT, County of Delaware, Nether Providence Township and William Midkiff. Prior to trial, the county’s motion for summary judgment was granted; Nether Providence Township was dismissed by stipulation and William Midkiff entered into a release with plaintiffs.

Trial commenced on June 26,1997. Lorraine Murray, a passenger in the car behind the motorcycle, and William Midkiff were the only eyewitnesses. Plaintiffs had no memory of the events immediately preceding the accident. Defendant Midkiff, called as on cross-examination, testified repeatedly and unequivocally, that he saw no traffic signals whatsoever at this intersection, even though it was customary for him to look. (N.T. 6/26/97, pp. 99, 100-101.) The import of his testimony was that he saw neither the traffic signal controlling the left-turn lane nor the other two traffic signals controlling traffic proceeding west on Baltimore Pike. Indeed, he testified that he did not see the overpass preceding all the traffic signals at the intersection of the Blue Route and Baltimore Pike. (N.T. 6/26/97, p. 98.)

Officer Douglas Soule, a Nether Providence police officer, who arrived at the scene shortly after the collision, was presented by plaintiffs. He testified that he was not personally aware that the left-turn signal, i.e., the red ball part of it, malfunctioned. (N.T. 6/26/97, p. 136.) He also testified that a fellow officer, Sergeant Elmore, investigated the accident and inspected the traffic light. (N.T. 6/26/97, p. 138.) Neither Officer Soule’s police report nor Sergeant Elmore’s diagram of the scene suggested a malfunctioning traffic signal. (N.T. 6/26/97, pp. 135-36.)

Plaintiffs presented two witnesses, Gary J. Cummings, the township manager of Nether Providence Township, and a professional engineer expert, Joseph A. Thompson. Thompson testified that based on the materials he viewed to form the basis for his expert opinion, the red ball in Midkiff’s left-turn lane had burned out and consequently, Midkiff would only have viewed the two green balls allowing westbound traffic to proceed through the intersection. Thompson testified Midkiff would have processed this information as okay for him to turn left. He also testified that this was a difficult interchange for a motorist because of the overpass immediately preceding it. In Thompson’s expert opinion, the traffic signal in question was negligently designed due to PennDOT’s failure to have a preventive maintenance program in place ensuring routine replacement of bulbs, and this failure was a substantial contributing factor to this accident.

On cross-examination, Thompson conceded that no documents, depositions, or accident reports indicate the light bulb behind the red ball prohibiting a left turn was burned out. (N.T. 6/27/97, pp. 69-71.) Thompson admits that underlying his expert opinion are the twin assumptions that Midkiff looked up and saw some traffic signals and that the bulb illuminating the red ball in the left-turn signal was burned out. (N.T. 6/27/97, pp. 74, 87.)

After Thompson’s testimony, court was recessed early on Friday afternoon to accommodate plaintiffs.

On Monday, June 30, 1997, plaintiffs presented the testimony of two treating doctors and the chief of police of Nether Providence Township. After lunch, plaintiffs intended to call Sergeant Elmore, another officer from Nether Providence Township who was present at the scene and investigated the accident. Plaintiffs’ counsel indicated that Sergeant Elmore was not available but perhaps could testify the next day. Plaintiffs had no further testimony or evidence to present other than Elmore’s uncertain testimony. PennDOT declined the invitation to go out of turn and moved for a nonsuit.

The motion for nonsuit was granted. Post-trial motions were filed by plaintiffs and denied. This appeal followed.

Although numerous issues were raised in plaintiffs’ statement of matters complained of on appeal, these issues can be grouped into three categories which will be addressed below.

Plaintiffs allege error in the granting of a nonsuit pursuant to Pa.R.C.P. 230.1 at the close of their case. A nonsuit is properly entered if the plaintiff has not introduced sufficient evidence to establish the necessary elements to maintain a cause of action. It is the duty of the trial court to make this determination prior to the submission of the case to the jury. Poleri v. Salkind, 453 Pa. Super. 159, 683 A.2d 649 (1996), alloc. denied, 548 Pa. 672, 698 A.2d 595 (1997). Where it is clear a cause of action has not been established, a compulsory nonsuit is proper. Wu v. Spence, 413 Pa. Super. 352, 605 A.2d 395 (1992).

Initially, plaintiffs assert that they presented sufficient facts at trial for the jury to reasonably conclude that the preponderance of the evidence favors liability. However, an examination of the record reveals that the facts presented by the plaintiffs were so clear that reasonable persons could not differ that no liability could attach to defendant.

Plaintiffs’ own witness, Midkiff, albeit called as on cross-examination, testified that he did not see any traffic signals whatsoever. This testimony of Midkiff’s defeats the basis for the expert witness’ opinion that because the red bulb behind the ball was out, Midkiff perceived the two illuminated green balls directing westbound traffic as allowing him to turn left. Plaintiffs are bound by Midkiff’s harmful testimony since it was left unrebutted in their case in chief. Taking all the evidence and reasonable inferences therefrom, plaintiffs cannot escape the obstacle that the expert could not opine that Midkiff was confused or misled where there is no evidence that Midkiff saw any lights. Moreover, the expert did not testify that the design and location of the traffic signals prevented Midkiff from seeing the traffic signals. With this scenario, how can PennDOT be held responsible?

Additionally, assuming plaintiffs had some evidence, direct or circumstantial, that Midkiff saw green lights which plaintiffs’ expert interpreted as giving Midkiff the perception he was permitted to turn left, there is still no evidence the red ball forbidding such a turn malfunctioned on the day in question. Plaintiffs only produced testimony that the bulb was replaced two days after the accident. There is no evidence the bulb was not working on September 12,1992. Although plaintiffs’ counsel indicated that Officer Soule could testify that Midkiff gave a statement to him at the scene that he had a green light, Officer Soule was not questioned about such a statement when he testified nor was there any hint of such on the accident report.

Plaintiffs next raise a procedural issue concerning the legal propriety of granting a nonsuit. A motion for a compulsory nonsuit permits a defendant to test the adequacy of a plaintiff’s evidence. To assure that the trial court bases its decision only on the evidence favorable to plaintiff, the court’s authority to grant a non-suit is strictly limited to where the defendant has offered no evidence. See Atlantic Richfield Company v. Razumic, 480 Pa. 366, 382, 390 A.2d 736, 744 (1978). This restriction has been interpreted as follows: “where the defendant offers evidence either during the plaintiff’s case,... [or] where the defendant exceeds [the] proper bounds of cross-examination so as to elicit matters constituting a defense to [this] action, the trial court is without the authority to enter a nonsuit.” Id. at 382-83, 390 A.2d at 744. (citations omitted) See Highland Tank & Manufacturing Co. v. Duerr, 423 Pa. 487, 225 A.2d 83 (1966); Smith v. Standard Steel Car Co., 262 Pa. 550, 106 A. 102 (1919); Hughes v. Westmoreland Coal Co., 104 Pa. 207 (1883). This rule is to be strictly applied. Storm v. Golden, 371 Pa. Super. 368, 538 A.2d 61 (1988).

Plaintiffs contend that PennDOT exceeded the scope of the direct examination of plaintiffs’ liability expert by eliciting testimony from him on matters which constituted defenses to plaintiffs’ cause of action. Plaintiffs equate this with the defense offering evidence during plaintiffs’ case, a fortiori, leaving the court without the authority to grant a nonsuit.

It is interesting to note that plaintiffs made no objection during the cross-examination of Thompson that PennDOT was exceeding the scope of the direct examination. PennDOT did not exceed the scope of the direct examination but was merely testing the basis of Thompson’s expert opinion. Specifically, PennDOT’s counsel cross-examined plaintiffs’ expert using the Pennsylvania Motor Vehicle Code on the statutory duties imposed when a motorist is confronted with the confusing scenario the expert had just testified to on direct. This is not exceeding the scope of direct examination. Thompson was also cross-examined on a publication entitled Traffic Signal Lanes published by the Institute of Transportation Engineers. On direct examination, Thompson testified he was a member of this organization. Cross-examining him on publications in his field is not exceeding the scope of direct examination. He also was cross-examined on publications by the Federal Highway Administration. On direct examination, he relied on Federal Highway Administration standards to support his expert opinion. (N.T. 6/27/97, p. 55.) Cross-examining Thompson on Federal Highway Administration publications accordingly did not exceed the bounds of the direct examination. Plaintiffs have failed to demonstrate that any cross-examination of Thompson was beyond the scope of his direct testimony so as to constitute the introduction by PennDOT of evidence in defense of their claim. See David v. Commonwealth, 143 Pa. Commw. 161, 168, 598 A.2d 642, 646 (1991). Moreover, assuming PennDOT somehow exceeded the bounds of cross-examination, that would constitute harmless error as the basis for granting a nonsuit was unrelated to the alleged improper cross-examination of the expert. See Bowser v. Lee Hospital, 399 Pa. Super. 332, 582 A.2d 369 (1990), alloc. denied, 527 Pa. 614, 590 A.2d 755 (1991).

Plaintiffs allege that the court erred by refusing to allow testimony regarding prior accidents at the intersection. The testimony offered did not meet the standard for its admission. In Stormer v. Alberts Construction Company, 401 Pa. 461, 165 A.2d 87 (1960), the court stated:

“Under some circumstances, [such], for example, [as where] cause of the accident or the defective or dangerous condition is unknown or disputed, evidence of similar accidents occurring at substantially the same place and under the same or similar circumstances may, in the sound discretion of the trial judge, be admissible to provide] constructive notice of a defective or dangerous condition and the likelihood of injury.” Id. at 466, 165 A.2d at 89.

Plaintiffs had no evidence to suggest that any of these prior accidents were substantially similar to the Ditterts’ accident. There were no copies of prior accident reports and no witnesses to elicit testimony regarding similarities between their accidents and the one in question. Their expert never addressed the issue of prior similar accidents.

Plaintiffs sought to rely on newspaper articles detailing prior accidents. Obviously, these articles were hearsay and therefore inadmissible. To no avail, plaintiffs further sought to elicit testimony on prior similar accidents from Chief Corbett and Officer Soule. Chief Corbett testified that he did not recall being on the scene of any similar accidents. (N.T. 6/27/97, pp. 69-70.) Officer Soule testified that he never made any complaint to PennDOT regarding the position and operation of the traffic signals at this intersection. (N.T. 6/26/97, pp. 132-33.)

Plaintiffs simply did not provide the requisite foundation testimony to make evidence of prior accidents admissible. Absent this, they attempted to elicit general testimony of prior accidents without any substantive foundation. Accordingly and in line with decisional law, the court precluded this testimony.

Plaintiffs’ final assertion of error is that the trial court improperly refused to permit plaintiffs’ counsel additional time to procure the appearance of additional fact witnesses who were under subpoena and did not exercise the court’s authority to compel such appearances. Plaintiffs’ statement of matters complained of on appeal, p. 4. A review of the notes of testimony of June 30, 1997 (N.T. 6/30/97, pp. 119-45), belies plaintiffs’ assertions and details the reasons for granting a nonsuit. During the presentation of plaintiffs’ case, the court had communicated its concern to counsel that a nonsuit was looming in light of Midkiff’s testimony that he didn’t see any lights. Indeed, the court recessed early on June 27, 1997 to give plaintiffs further opportunity to prepare their case on liability. On Monday, June 30, 1997, the court waited approximately one hour for plaintiffs’ witness, the Nether Township Chief of Police, who had no testimony to add on liability. Sergeant Elmore, an investigating officer, was scheduled to testify at 1 p.m. but did not appear. Moreover, Elmore could not testify about an alleged hearsay statement Midkiff made to officer Soule, to wit, that Midkiff said he had a green light. Therefore, any testimony Sergeant Elmore could offer would not correct the fundamental problem confronting plaintiffs, i.e., that Midkiff testified he didn’t see any lights at the intersection. It would, therefore, have been fruitless to adjourn the case until the next day to wait for Sergeant Elmore to appear. Furthermore, it was not certain whether Elmore could appear even the next day.

One further clarification is necessary. At no time did the court refuse to enforce plaintiffs’ subpoenas. Indeed, the court indicated its willingness to do so. (N.T. 6/27/97, p. 28.) Plaintiffs never requested the court to enforce any subpoena in this action.

It is for all the above reasons that the motion for nonsuit was granted and the motion for its removal was denied.

      . Recall that Elmore was the officer that indicated in the police report that the signals were functioning properly.


author: BLACK, J.,

text:
    Ramirez v. PP&L

      C.P. of Lehigh County,
    no. 98-C-1662.

      Richard J. Orloski, for plaintiffs.

      Steven E. Hoffman, for defendant PP&L.
    February 4, 1999
   BLACK, J.,

Plaintiffs acknowledge that they have no expert medical testimony to present, but claim that the existence of a causal relationship between the injury complained of and the alleged negligent act is so obvious that expert testimony is not needed. See Lattanze v. Silverstrini, 302 Pa. Super. 217, 223, 448 A.2d 605, 608 (1982). Plaintiff Alwin T. Ramirez has alleged tiredness and dizziness as a result of being struck in the head by a heavy metal filing cabinet, and also that this condition was exacerbated when defendant PP&L coerced him to come to work the following day against his doctor’s advice.

We believe it sufficiently obvious, without expert medical testimony, that a blow to one’s head from a heavy metal filing cabinet can cause tiredness and dizziness. Therefore, to this extent, we deny the motion for summary judgment.

However, to the extent plaintiffs’ claim that the injury was exacerbated by later events, this is not something that a layperson can properly evaluate. It is not obvious that plaintiff Alwin T. Ramirez suffered additional tiredness or dizziness as a result of working several hours the day following his injury. Although he claims to have felt “terrible” while working that day, he might have felt just as poorly if he had remained at home. Therefore, the motion for summary judgment is granted with respect to plaintiffs’ claim that the injury was exacerbated by defendant PP&L when it directed Mr. Ramirez to report to work.

ORDER

Now, February 4, 1999, upon consideration of defendant PP&L’s motion for summary judgment and plaintiffs’ response thereto, for the reasons set forth in the accompanying memorandum opinion, it is ordered that said motion is granted in part and denied in part as follows:

(1) The motion is granted with respect to plaintiffs’ claim that the physical injury alleged to plaintiff Alwin T. Ramirez was caused by negligence on the part of defendant PP&L in inducing said plaintiff to come to work against his doctor’s advice, and the averments with respect to this claim are stricken from the complaint.
(2) The motion is denied with respect to plaintiffs’ claim that defendant PP&L failed to provide a safe work area.

It is further ordered that this case shall be submitted to compulsory arbitration pursuant to Leh.R.C.P. 1301 et seq.

It is further ordered that this case shall be stricken from the pretrial list for March 24, 1999, and the jury trial list for April 5, 1999.


author: SOLOMON, J.,

text:
    Boyd v. Windsor Insurance Co.

      C.P. of Fayette County,
    no. 1110 of 1997, G.D.

      Willaim M. Radcliffe, for plaintiff.

      John W. Zotter, for defendant.
    February 8, 1999
   SOLOMON, J.,

Before the court is the motion for reconsideration or certification filed by the defendant, Windsor Insurance Company. In its motion, the defendant asks the court to reconsider its opinion and order of January 5, 1999. Therein, we held that, from the record, it appeared that there existed a crime-fraud exception to the attorney-client privilege and we granted the plaintiff’s motion to compel answers to interrogatories and request for production of documents. Only upon filing the instant motion did the defendant produce the documents sought by the plaintiff and request and in camera inspection of those documents. Having done so, we are of the opinion that we must reverse our order of January 5, 1999.

In order for the exception to apply, the defendant must have either conspired with its counsel or deceived its counsel for the purpose of furthering a continuing or future tort. Nadler v. Warner Company, 321 Pa. 139, 184 A. 3 (1936). The burden of proof is upon the plaintiff in this matter to establish that production of the documents would not violate the attorney-client privilege. In re Investigating Grand Jury of Philadelphia County, 527 Pa. 432, 593 A.2d 402 (1991). This burden has not been sustained.

Here, an examination of the documents in question fails to establish the claim that the crime-fraud exception applies. The documents do not disclose that the defendant used the services of its attorneys to further a continuing or future tort of bad faith and breach of fiduciary duty. The documents contain nothing more than legal advice given to the defendant.

Wherefore, we will enter the following order.

ORDER

And now, February 8, 1999, upon reconsideration, the plaintiff’s motion to compel answers to interrogatories and request for production of documents, regarding memorandums and correspondence between the defendant and its counsel, is ordered denied.


author: WALLACH MILLER, J.,

text:
    Speakes v. Fisher

      C.P. of Monroe County,
    no. 9692 Civil 1997.

      Patrick Geckle, for plaintiff.

      Benjamin A. Nicolosi, for defendant.
    December 17, 1998
   WALLACH MILLER, J.,

Plaintiff filed a complaint on December 24, 1997, alleging a two-vehicle car accident in which he, plaintiff, was allegedly rear-ended by Jean Fisher, defendant, on December 29,1995. Plaintiff claims to have suffered serious physical injuries and demands damages in excess of $50,000. The plaintiff’s wife is also claiming damages for loss of consortium.

At the time of the accident, the plaintiff had in effect an automobile insurance policy in which he had selected the limited tort option which would limit his recovery in case of an accident to economic damages unless he suffered a serious injury.

The issue presented is whether the defendant is entitled to summary judgment on the issue of plaintiff’s limited tort election and therefore the plaintiff should be restricted to seeking only economic damages incurred as a result of the car accident.

Summary judgment may be properly granted when there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report. Pa.R.C.P. 1035.2. With respect to the issue of the plaintiff’s election of limited tort coverage, if he cannot show that he suffered a serious injury as defined by the applicable statute, summary judgment may be properly granted as to his claims for noneconomic damages stemming from the accident. Under Pennsylvania law, a serious injury is a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. 75 Pa.C.S. §1701 et seq.

Under the Superior Court’s holding in Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), the determination of whether a limited tort elector had suffered a serious injury was one which must initially be made by the trial court judge. This was somewhat changed by the Pennsylvania Supreme Court in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998). The court held that the threshold determination was to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury had been sustained. The standard for deciding whether reasonable minds could not differ is to review (1) what body function was impaired, and (2) whether the impairment was serious. An impairment need not be permanent to be serious.

In Washington, the Pennsylvania Supreme Court applied this standard to the facts presented, including the injuries, and upheld the lower court’s grant of summary judgment. The body function that was impaired in Washington was the appellant’s right foot. The court found that the impairment was such that reasonable minds could not differ in finding that it was not serious, as aside from having to use a riding mower, the appellant was able to engage in his normal daily activities.

We now turn to the question of whether, under the standard outlined in Washington, reasonable minds could differ on the conclusion that the plaintiff did or did not suffer a serious injury. Under the facts here presented, we find that they could not. The body part that was impaired as a result of the accident was the plaintiff’s neck and lower back. As to whether that impairment was serious, we believe the facts show that it was not, and reasonable minds could not differ on that issue.

The plaintiff testified in his deposition that he was unable to perform certain activities after the accident. It is unclear, however, whether the plaintiff is still unable to perform these activities without pain or whether he has simply chosen to no longer perform them. It appears that the plaintiff was not a particularly active man even before the accident because he admitted at his deposition that he never engaged in any other activities because he is “lazy.” The only tangible effect of the accident that appears to be present today is that plaintiff is required to sit on a pillow when he drives.

More damaging to the plaintiff’s claims of a serious injury are the notes provided by his treating physicians. The plaintiff treated with the East Stroudsburg Orthopedic Group on four separate occasions, the final visit taking place on February 14,1996, less than two months after the accident. The notes of the treating physician state that the plaintiff had no complaints of neck or back pain at that point. The physician also noted that no further therapy would be necessary and the plaintiff could return to work,

Under the standard outlined in Washington as applied to these facts, we do not find that the plaintiff has suffered a serious injury and reasonable minds could not differ on that issue. We therefore enter the following order.

ORDER

And now, December 17, 1998, on the issue of plaintiff’s claims for noneconomic damages, the defendant’s motion for summary judgment is granted.


author: ACKERMAN, J.,

text:
    Valerio v. Keystone Turf Club Inc.

      I. Michael Luber, for plaintiffs.

      Andrew Kramer, for defendant.
    March 17, 1999
   ACKERMAN, J.,

After a jury trial, a verdict was entered in favor of the defendant and against the plaintiffs.

The jury found that the defendant was not negligent on the basis of the evidence in this case.

Plaintiffs filed a motion for post-trial relief in the nature of a motion for new trial. After argument and hearing, this court denied plaintiffs’ motion for post-trial relief and entered judgment upon the jury verdict in favor of the defendant and against the plaintiffs. Plaintiffs filed the instant appeal.

Plaintiffs contend that this court erred in the following respects:

(1) This court failed to charge the jury in accordance with Restatement (Second) of Torts §344.
(2) This court erred in accepting Dr. Frankel’s expert opinion which lacked sufficient scientific foundation.
(3) This court erred in sustaining defense counsel’s objection to plaintiffs’ expert’s reliance on learned treatises during plaintiffs’ case in chief and rebuttal.
(4) This court erred in charging the jury as to contributory negligence.
(5) This court erred in denying plaintiffs’ counsel the right to closing argument on rebuttal.

I. This Court Properly Refused To Charge As to Section 344 of Restatement

Section 344 provides as follows:

“A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to
“(a) discover that such acts are being done or are likely to be done, or
“(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.”

Comment “f” to section 344 which addresses the issue of foreseeability serves to limit the landowner’s liability as follows:

“(f) Duty to police premises. Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.” (emphasis added)

This suit involved an incident at the Upper Darby Turf Club while the plaintiff, Anne Valerio, was exiting that club. Plaintiff contended that her fall was as the result of a betting ticket left on one of the steps, improper lighting and the construction of the steps in question.

This court charged the jury as to the appropriate standard and responsibilities owed by a possessor of land to a business invitee. (Section 343 of Restatement.) The court explained that a possessor of land is required to use reasonable care in the maintenance and use of the property. The court’s charge reviewed that the reasonable care required of a landowner depends on and must be in keeping with the use the possessor expects to make of the property. The possessor of land has certain responsibilities and they include using reasonable care and maintenance, inspecting the premises to discover dangerous conditions and to use care not to injure a business visitor by negligent activity. The court also explained to the jury the notice requirement and the relevance of an open and obvious condition. See N.T. 9/24/98, pp. 150-55 (jury instructions).

Plaintiffs cite several cases in contending that this court erred in failing to charge as to section 344.

In the case of McMillan v. Mountain Laurel Racing Inc., 240 Pa. Super. 248, 367 A.2d 1106 (1976), the plaintiff had been at the racetrack in question for about two and a half hours along with about 1,000 other patrons. The floor in the room in question became increasingly littered as the races progressed. The plaintiff as she returned to her table after placing a wager fell and the plaintiff alleged that she had been caused to fall by liquid, cups, papers or tickets on the floor. The McMillan case went to trial and the trial judge entered a nonsuit at the close of the plaintiff’s evidence on liability. The plaintiff then filed post-trial motions stating that the nonsuit was inappropriate and that the jury should have potentially been charged on a number of Restatement (Second) of Torts sections, including section 341a entitled activities dangerous to invitees; section 343 entitled dangerous conditions known to or discoverable by possessor; and section 344 entitled business premises open to public: acts of third persons or animals. The Superior Court’s conclusion was simply that, based on the various Restatement (Second) of Torts sections cited, that the jury should have been given the opportunity to consider the issue of negligence. McMillan, supra at 259,367 A.2d at 1111. The Superior Court in McMillan did not hold that the trial court was required to instruct the jury using all of the Restatement (Second) of Torts sections cited by the plaintiffs in their post-trial motions but did hold that sufficient facts had been raised for the issue of negligence to have been decided by the fact-finder. McMillan, supra at 259, 367 A.2d at 1111.

In addition, the McMillan case involved a “place or character” of business where the very operation of the business catered to significant numbers of patrons inside of the premises. That factual difference alone was reason not to charge on section 344 in the instant case.

Similarly, the plaintiffs relied upon the case of Moran v. Valley Forge Drive-in Theater Inc., 431 Pa. 432, 434, 246 A.2d 875, 877 (1968) in which the plaintiff and his family purchased tickets to a movie theater. Upon entering the theater, the plaintiff went to the restroom where six or eight teenagers were acting in a boisterous manner and a lighted firecracker was thrown into the restroom, causing the plaintiff to lose his hearing and suffer a loud ringing in his ear. The Moran court held that section 344 of the Restatement (Second) of Torts was applicable in a situation where a jury question has been established that the defendants had notice either actual or constructive of prior acts committed by third persons within their premises which might cause injuries to other patrons. Moran, supra at 436, 246 A.2d at 878-79. The court stated that it is necessary under the Restatement (Second) of Torts §344 that reasonable measures be taken to control the conduct of third persons or to give adequate warning to enable patrons to avoid possible harm. It then becomes a question of fact for the jury as to whether or not the theater fulfilled its responsibility under the law. In the Moran case, the jury questions were whether adequate measures were taken to control the intentional conduct of third persons and as to whether the theater was justified in the failing to give sufficient warning which might have enabled patrons to avoid danger. Moran, supra at 437, 246 A.2d at 879.

Again, the Moran case involved a drive-in theater where the “place or character” of the business intrinsically involved negligent or criminal conduct inside of the premises which necessarily becomes part of the defendant’s past experience. Thus, the Moran case is factually distinguishable from the case at bar where the plaintiffs’ evidence at best established that an occasional betting ticket had been thrown on the outside steps by a patron.

The case of Murphy v. Penn Fruit Company, 214 Pa. Super. 427, 418 A.2d 480 (1980), involved a case where the defendant had prior notice of a variety of crimes having occurred within the store and behind the parking lot. Accordingly, the character of this business was such that section 344 was appropriately charged where plaintiff was injured as the result of a stabbing incident which occurred on the parking lot. In the instant case, nothing within the premises of the Turf Club, either intrinsic to that business or within the past experience of that business, justifies a charge pursuant to section 344.

The plaintiffs cite the case of Miller v. Peter J. Schmitt & Co. Inc., 405 Pa. Super. 502, 592 A.2d 1324 (1991). The Miller case involved a slip and fall in front of an ice machine inside of the premises of the defendant on “surface wetness.” The Superior Court held that section 344 controlled the issue before the court on a motion for judgment n.o.v. But it was comment “c” which was involved in the Miller case and which is not involved in our case.

Comment “c” reads as follows:

“(c) Independent contractors and concessionaires. The rule stated applies to the acts of independent contractors and concessionaires who are employed or permitted to carry on activities upon the land. The possessor is required to exercise reasonable care, for the protection of the public who enter, to supervise the activities of the contractor or concessionaire, including the original installation of his appliances and their operation, and his methods.” (emphasis in original)

The instant case does not involve the acts of independent contractors and concessionaires for whom the defendant should be responsible under section 344.

Accordingly, this court properly refused to charge on section 344.

II. This Court Properly Accepted the Defendant’s Expert, Dr. Victor R. Frankel’s,

Opinion on Causation

The trial testimony of Dr. Victor R. Frankel was taken by videotape deposition on September 14, 1998. A true and correct copy of Dr. Frankel’s videotape testimony was marked as exhibit D-51. Dr. Frankel was asked, based on the history that he took, his review of medical records and his physical examination of the plaintiff, whether he was able to form an opinion as to a reasonable degree of medical certainty as to the cause of the plaintiff’s tibia and fibula fractures. The doctor stated it was his opinion that Anne Valerio sustained a pathologic fracture. Dr. Frankel described a pathologic fracture as a fracture that occurs in weakened and abnormal bone by an activity of normal daily living which produces a fracture that would otherwise not occur in a normal bone. The plaintiffs did not raise any objection to Dr. Frankel giving this opinion at the time of the videotape deposition. See N.T., exhibit D-51, p. 61. The plaintiffs then cross-examined Dr. Frankel as to his conclusions. Dr. Frankel on redirect was asked about his testimony on cross-examination that the medical literature reveals that osteoporotic fractures occur more frequently in the hip and lower back. The doctor confirmed that an osteoporotic fracture can occur in a lower extremity but that it is seen on a more regular basis in the hip and low back because those bones are a spongy type bone which are weaker by nature and more vulnerable to osteoporosis. The extremity bones are more cortical and dense bone by nature and take longer to weaken in an association with osteoporosis. See N.T., exhibit D-51, p. 106.

The plaintiffs argue in their post-trial motion that Dr. Frankel’s opinion should not have been accepted by the court because his opinion was speculative and contrary to the accepted authoritative literature on pathologic fractures; therefore, not given to a reasonable degree of medical certainty. The plaintiffs go on to argue that an expert must state his opinion to a reasonable degree of medical certainty. However, in the case of Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987), the Superior Court has stated that a defendant is not under an obligation to prove that he or she is innocent of any alleged wrongdoing. Absent an affirmative defense or counterclaim, the defendant’s case is nothing more than an attempt to rebut or discredit the plaintiff’s case and, therefore, a defense expert can testify to an opinion to less than a reasonable degree of medical certainty. Neal, supra at 476, 530 A.2d at 109-110.

In the case at hand, the Valerios allege that the slip and fall accident was caused by either debris from the steps, poor lighting in the area and/or the construction of the steps. The defendant’s presentation of evidence from Dr. Frankel was merely to rebut the plaintiffs’ allegation and to discredit the plaintiffs’ case by arguing that the plaintiff’s fracture was a pathologic fracture caused by her severe and pre-existing osteoporosis. Due to the fact that plaintiffs’ counsel failed to object to Dr. Frankel’s opinion, when it was offered at the time of his deposition, as to the cause of the plaintiff’s fracture in combination with the fact that pursuant to the Neal decision, a defense expert does not have to state an opinion within a reasonable degree of medical certainty, this court properly accepted Dr. Frankel’s opinion which was in fact offered to a reasonable degree of medical certainty.

III. The Trial Court Properly Sustained the Defendant’s Objection to the Plaintiffs’ Expert Rebuttal Witness’s Attempt To Read Learned Treatises Into the Record

The plaintiffs’ rebuttal testimony was offered by Dr. Maureen Malloy, a board certified orthopedic surgeon, who testified that she completely disagreed with Dr. Frankel’s opinion that the plaintiff suffered a pathologic fracture. Dr. Malloy testified that she reviewed the x-rays, the plaintiff’s medical records and the surveillance video of the incident along with certain medical literature. The plaintiffs’ expert was permitted to identify the medical literature that she relied upon in the preparation of her expert report. However, the plaintiffs’ rebuttal witness was not permitted to read to the jury excerpts from the learned treatises. See N.T., 9/23/98, pp. 156-58.

The Pennsylvania Superior Court has specifically stated that it is well settled that an expert may be cross-examined on either the contents of a publication upon which he or she has relied in forming an opinion or any other publication which the expert acknowledges to be a standard work in the field. Majdic v. Cincinnati Machine Company, 370 Pa. Super. 611, 621, 537 A.2d 334, 339 (1988) (citing Cummings v. Borough of Nazareth, 430 Pa. 255, 242 A.2d 460 (1968); Walheim v. Kirkpatrick, 305 Pa. Super. 590, 451 A.2d 1033 (1982); Brannan v. Lankenau Hospital, 254 Pa. Super. 352, 385 A.2d 1376 (1978), reversed on other grounds, 490 Pa. 588, 417 A.2d 196 (1980)). In a situation where the literature is used for cross-examination purposes and is not admitted for the truth of the matter asserted but only used to challenge the credibility of the witness’s opinion and the weight to be accorded thereto, the literature is admissible. Majdic, supra at 621, 385 A.2d at 339. Treatises which are offered to prove the truth of the matters contained therein are hearsay and are not to be admitted into evidence for consideration by the jury. Majdic, supra at 621, 385 A.2d at 339 (citing McCormick on Evidence §321 at 899 (3d ed. 1984)).

The plaintiff attempts to circumvent the rule cited in the Majdic decision by citing an exception to the hearsay rule which permits medical experts to express opinions which are based in part upon reports which are not in evidence but which are customarily relied upon by experts in the practice of a profession. Commonwealth v. Thomas, 444 Pa. 436, 282 A.2d 693 (1971). The Superior Court has addresssed this exception to the hearsay rule on a number of occasions and, recently, has reviewed this area of the law in Primavera v. Celotex Corporation, 415 Pa. Super. 41, 608 A.2d 515 (1992). In the Primavera decision, the Superior Court stated that the underlying rationale for the hearsay exception is multifaceted and includes the fact that an expert’s opinion is based on years of professional experience and schooling, the expert is assumed to be able to evaluate the trustworthiness of data upon which he or she relied, the expert regularly relies on and uses similar data in the practice of his or her profession, and it is the type of data that is used in making daily judgments and diagnosis by the particular expert. However, the Primavera decision went on to state that it was the testifying expert’s opinion which was being presented and which was subjected to scrutiny, cross-examination and credibility determinations. Primavera, supra at 51, 608 A.2d at 520.

In the case at hand, the learned treatises were not being offered to cross-examine Dr. Malloy, to challenge the credibility of her opinion or to assist the jury in determining the weight that the jury should give to that opinion but were being offered by the plaintiff for the truth of the matter asserted in the treatise and, thus, were outside the hearsay exception as it has been delineated by the Celotex decision and properly excluded.

IV. This Court Properly Charged the Jury on Contributory Negligence

Plaintiffs properly did not, in their argument, pursue the contention that this court should not have charged the jury as to contributory negligence. That issue was clearly and properly for the jury in this case.

V. This Court Properly Limited the Time Counsel Had To Make Closing Arguments

The final point raised by the plaintiffs in their post-trial motion is that the court’s refusal to allow the plaintiffs any rebuttal argument was error and unfairly prejudiced the plaintiffs in the presentation of their case. On two separate occasions, the trial court explained to counsel that they would each have 40 minutes in which to make their closing arguments. The trial court specifically explained to plaintiffs’ counsel that the 40 minutes was to cover both closing and any rebuttal which he wished to make. The plaintiff was also cautioned by the court in the midst of his closing argument that he was approaching his prescribed time allotment. Regardless of the court’s admonition, plaintiffs’ counsel used his entire 40 minutes allotted for the closing argument and failed to save any of the time for rebuttal. See N.T., 9/24/98, pp. 29-30,43 and 68. At the conclusion of the plaintiffs’ closing argument, the court stated there would be no time for rebuttal. Plaintiffs’ counsel did not request any additional rime for rebuttal or take an exception to the court’s ruling. See N.T., 9/24/98, pp. 77, 78 and 107.

Pursuant to Pa.R.C.P. 223(a)(3), the Pennsylvania Rules of Civil Procedure specifically state that the court may regulate the number and length of counsel’s addresses to the jury or to the court. Furthermore, the Philadelphia Local Rule of Civil Procedure 223.1(b) states that the time to be occupied in examining a witness and addressing the jury is to be regulated by the trial judge.

Plaintiffs’ counsel could have saved as much of his allotted time for rebuttal as he desired if he had simply stopped his closing argument short of the 40 minutes or even stopped when the judge warned him that his time was short when he was advised by the court that he had 10 minutes of argument remaining. However, plaintiffs’ counsel voluntarily used all of his 40 minutes in his initial closing address to the jury. Furthermore, plaintiffs’ counsel failed to, as is required by Pa.R.C.P. 227.1(b)(1), raise an objection on the record as the court’s refusal to allow plaintiffs’ counsel additional time to make his rebuttal argument. Therefore, this court properly refused to provide plaintiffs’ counsel any time for rebuttal argument pursuant to Pa.R.C.P. 223(a)(3) and Phila.R.C.P. 223.1(b).

Accordingly, this court committed no error.


author: QUIGLEY, P.J.,

text:
    In re Adoption of Henderson
    C.P. of Perry County,
    no. 882 of 1997.

      Charles Petrie, for natural father and adopting mother.

      Chrystal Prosser, for natural mother.
    September 3, 1998
   QUIGLEY, P.J.,

Before the court is a motion for post-trial relief filed by the natural mother. Her parental rights were terminated by an order of court dated January 20, 1998. She raises three issues for post-trial relief. First, the natural mother received insufficient notice as required by 23 Pa.C.S. §2513; second, that there was insufficient evidence for finding a ground of termination under 23 Pa.C.S. §2511(a)(l); and third, that there was insufficient evidence to prove that termination was in the best interest of the child as required by 23 Pa.C.S. §2511(b).

First, Mother claims that she did not receive notice of the hearing in proper form and consequently she was prejudiced. 23 Pa.C.S. §2513 sets out a standard form to be sent to a natural parent when her rights are going to be terminated. Mother claims to have never received this notice and asks this court to dismiss the petition.

This court is satisfied that Mother had adequate notice. She attended the hearing and presented her case. Moreover, she was also represented by counsel provided to her by the county. Mother was given a full opportunity to be heard and was given a chance to present a defense to the petition. Thus, this court finds that she had adequate notice and was not deprived of due process.

The remaining issues in the post-trial motions suggest that petitioners did not meet their burden of proof. The petitioners must present clear and convincing evidence that first, a parent/mother for a period of at least six months evidenced or failed to perform parental duties and second, that termination is in the best interests of the children. 23 Pa.C.S. §2311. See also, In re V.E., 417 Pa. Super. 68, 611 A.2d 1267 (1992). This court is convinced that the petitioner’s burden has been met.

Mother has not made any meaningful contacts with the children and has not performed parental duties. She has had some roadblocks to communication with her children; however, her actions to avoid these obstacles have not been adequate. Mother did not even mail Christmas gifts for fear the children would not receive them. Even if the children had not gotten the gifts, Mother’s action of mailing the gift may have demonstrated a parental relationship. However, she chose not to proceed with this action. These are but a few examples of inadequacy and taking the record on the whole, there is clear and convincing evidence that Mother has failed to perform parental duties and her rights are terminable.

The court cannot stop here, however; the court must consider the best interests of the child. 23 Pa.C.S. §2311(b). In this case, it is in the children’s best interests to terminate. The idea of a stable home with a mother and a father is in the children’s best interests. Moreover, the children have not been in contact with the natural mother for over four years. During this time they have known only the adopted mother as “Mom.” It is in their best interests for this to continue.

ORDER

And now, September 3, 1998, in accordance with this court’s memorandum of January 20, 1998, and supplemental memorandum of September 3, 1998, the termination of parental rights of natural mother in Kristina Nicole Henderson and Charles Wade Henderson be and are hereby terminated.


text:
    Boyd v. Windsor Insurance Co.

      C.P. of Fayette County,
    no. 1110 of 1997, G.D.

      William M. Radclijfe, for plaintiff.

      John W. Zotter, for defendant.
    May 10, 1999
   SOLOMON, J.,

This matter comes before the court as a result of the preliminary objections of the defendant, Windsor Insurance Company, to the plaintiff, Lawrence Boyd’s, third amended complaint. The defendant’s preliminary objections are based on Boyd’s failure to plead a viable bad faith claim under 42 Pa.C.S. §8371 and on Boyd’s lack of standing.

DISCUSSION

When ruling on preliminary objections, the court must generally accept as true all well and clearly pleaded facts, but not the pleader’s conclusion or averments of law. Santiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa. Super. 178, 613 A.2d 1235 (1992). The question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Id. at 179, 613 A.2d at 1235. “Any doubt as to whether demurrer should be sustained should be resolved in favor of overruling demurrer.” Id. at 179, 613 A.2d at 1235.

Instantly, the defendant contends that the plaintiff has not pled a viable bad faith claim under 42 Pa.C.S. §8371. It is the position of the defendant that there is no affirmative duty on the part of an insurer to notify its insureds of all available benefits, and that a claim for bad faith must necessarily involve the refusal to pay a claim.

In support of its contention that an insurer need not inform an insured of all potential coverage, the defendant cites Miller v. Keystone Insurance Co., 535 Pa. 531, 636 A.2d 1109 (1994) and Dercoli v. Pennsylvania National Mutual Insurance Co., 520 Pa. 471, 554 A.2d 906 (1989). The Pennsylvania Supreme Court in Dercoli held that “[t]he duty of an insurance company to deal with the insured fairly and in good faith includes the duty of full and complete disclosure as to all of the benefits and every coverage that is provided by the applicable policy or policies along with all requirements, including any time limitations for making a claim.” Dercoli, supra, 520 Pa. at 478, 554 A.2d at 909. However, thereafter in Miller, the court restricted the holding in Dercoli since it was factually distinguishable. Specifically, the Miller court indicated that in Dercoli, “the insurer’s knowing and purposeful misrepresentation was [central] to this court’s determination that the insurers were bound to disclose all of the benefits to which the claimant was entitled.” Miller, supra, 535 Pa. at 537, 636 A.2d at 1112. The court then went on to hold that “in the absence of evidence of fraud, intentional deception, or the making of misleading statements, the employer has no affirmative duty to apprise a compensation claimant of any or all available benefits.” Id. at 539, 636 A.2d at 1113. The defendant asserts that since it did not act as the plaintiff’s counsel, as was the case in Dercoli, the Dercoli holding is inapplicable here.

The plaintiff takes the position that the present matter is distinguishable from both Dercoli and Miller because the alleged bad faith involved not only the failure to inform Boyd of potential coverage, but also the misrepresentation of coverage. In his brief, the plaintiff correctly points out that in order for us to decide whether the parameters of Dercoli and Miller apply here, we must first determine what constitutes bad faith under 42 Pa.CS. §8371.

Bad faith is not defined in 42 Pa.C.S. §8371. The defendant notes that bad faith has been defined as “any frivolous or unfounded refusal to pay proceeds of a policy.” Tenos v. State Farm Insurance Co., 716 A.2d 626, 631 (Pa. Super. 1998) (quoting Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa. Super. 545, 553, 646 A.2d 1228, 1232 (1994)). The plaintiff would have us adopt a more expansive definition of bad faith, one which encompasses not just the above definition, but would include conduct prohibited by the Unfair Insurance Practices Act, 40 PS. §1171.5(10)(i) et seq. He cites Romano v. Nationwide Mutual Fire Insurance Co., 435 Pa. Super. 545, 646 A.2d 1228 (1994) to support the proposition that “the rules of statutory construction permit a trial court to consider, either sua sponte or upon the request of a party, the alleged conduct constituting violations of the UIPA or the regulations in determining whether an insurer . . . acted in ‘bad faith.’ ” Id. at 554, 646 A.2d at 1233.

Despite the defendant’s argument that bad faith must involve the denial of a claim, and that such was not the case here, we agree with the plaintiff. First, Romano does not say that the denial of a claim is the only circumstance under which a trial court may consider the UIPA or the regulations in defining bad faith. Rather the Romano court stated that

“We find that a trial court, when evaluating a section 8371 petition or motion for costs and/or counsel fees for the ‘bad faith’ of an insurer, may look to: (1) other cases construing the statute and the law of ‘bad faith’ generally; (2) the plain meaning of the term(s) used in the statute; and/or (3) other statutes upon the same or similar subjects (like the UIPA in this case) . . . .” Id. at 555, 646 A.2d at 1233; see also, MGA Insurance Co. v. Bakos, 699 A.2d 751 (Pa. Super. 1997).

Furthermore, we are not convinced that the defendant did not implicitly refuse to pay a claim when it determined that the plaintiff was not entitled to under-insured motorist benefits. Arguably, the so-called “erroneous position” that the rejection forms were valid could be construed as a refusal of the claim. Still, we would reiterate that Romano apparently does not require the denial of a claim for bad faith to exist.

Keeping in mind Romano’s expansive view of bad faith, we return to the issue of whether the Dercoli holding is applicable here. As to that issue, we conclude that the defendant’s assertion that its underinsured motorist rejection forms were valid, at the very least, raises the question of whether it was acting in a deceptive manner or making misleading statements. Such actions, if proven, would violate the UIPA and the regulations. See 40 PS. §1171.5(10)(i), et seq.; 31 Pa.C. §§ 146.4(a), (b). They also leave open the possibility of recovery, thereby making demurrer inappropriate under the circumstances.

Admittedly, the defendant did not act as the plaintiff’s counsel, unlike the situation in Dercoli. However, since Miller indicated that insurers would have a duty to disclose benefits where fraud, deception, or misleading statements were involved, a factual inquiry is necessary to determine if the present defendant had this duty. Hence, the uncertainty created by this question leads us to the conclusion that the demurrer should be overruled.

Lastly, as to whether the plaintiff is an appropriate class representative, the plaintiff correctly notes that this matter is to be decided at the class certification hearing. We indicated as much in our opinion of March 26,1998, and this is in accordance with the Pennsylvania Rules of Civil Procedure. Rule 1705 of the Pennsylvania Rules of Civil Procedure provides that “[ijssues of fact with respect to the class action allegations may not be raised by preliminary objections but shall be raised by the answer.” Id. Thus, questions concerning the class representative shall be properly decided at the class certification hearing.

Wherefore, we will enter the following order. ORDER

And now, May 10, 1999, upon consideration of the preliminary objections filed by the defendant, it is hereby ordered and decreed that the same are denied.