author: NEALON, J.,

text:
    White v. Behlke

      C.P. of Lackawanna County,
    no. 03 CV 2663.

      Jeffrey M. Kornblau and Lynn Sare Kornblau, for plaintiffs.

      Eugene P. Feeney, for defendants Behlke, Rabin and OB/GYN Consultants Ltd.

      Michael P. Perry, for defendant CMC.
    March 22, 2004
   NEALON, J.,

The parties’ discovery dispute in this malpractice action concerns defense counsel’s ability to privately communicate with a plaintiff’s subsequent treating physician, and more specifically, the scope of the “ostensible employee” exception in Pa.R.C.P. 4003.6(3) which generally bars ex parte contact between a treating physician and defense counsel. Counsel for the defendant hospital argues that Rule 4003.6(3) permits defense counsel to privately discuss the plaintiff’s medical condition with any subsequent treating physician who conceivably may be an ostensible employee of the hospital even if that physician’s treatment is not the subject of the pending malpractice suit. For the reasons set forth below, we conclude that defense counsel may invoke the “ostensible employee” exception to engage in ex parte communications with the plaintiff’s treating physician only if that physician’s status as an ostensible agent of the defendant and the physician’s treatment of the plaintiff are both at issue in the medical negligence litigation.

I. FACTUAL BACKGROUND

Plaintiffs Laura White and Daniel S. White filed this obstetrical negligence claim against various physicians and defendant Community Medical Center alleging prenatal and perinatal injuries to the Whites’ first child, Cody White, who was bom at CMC on June 30, 2001. (See docket entry no. 11.) Almost two years after the birth of Cody, plaintiff Laura White became pregnant and came under the care of a perinatologist, Keith Rawlinson M.D., who delivered Ms. White’s second child on August 5, 2003. An independent contractor physician with staff privileges at CMC, Dr. Rawlinson serves as the chair of CMC’s maternal-fetal medicine department and he treated Ms. White at CMC and delivered her second child there. Dr. Rawlinson was not involved with the care of Cody White, nor is Dr. Rawlinson’s treatment of the Whites’ second child at issue in this case. (Id., nos. 31, 34, ¶¶1-3; no. 35, p. 2.)

On September 18,2003, the Whites’ counsel forwarded a letter to Dr. Rawlinson requesting a copy of his medical records pertaining to his care and treatment of Laura White in conjunction with her second pregnancy. (Id., no. 34, exhibit B.) Upon his receipt of this correspondence, Dr. Rawlinson transmitted the records request to the CMC’s risk manager who in turn forwarded it to CMC’s counsel in this case. By letter dated October 7, 2003, counsel for CMC advised the Whites’ counsel that he was in receipt of the records request directed to Dr. Rawlinson and had “been advised that the only records that Dr. Rawlinson has would be those contained in the CMC chart” which was already being copied for production. {Id., exhibit C.) Based upon the assumption that CMC’s counsel had communicated ex parte with Dr. Rawlinson, the Whites’ counsel forwarded a letter to CMC’s counsel objecting to such putative contact as vio-lative of Pa.R.C.R 4003.6. {Id., exhibit D.)

On December 8, 2003, the Whites filed the instant motion seeking to preclude defense counsel from engaging in private discussions with Dr. Rawlinson and alleged that “CMC’s counsel has communicated with Dr. Rawlinson on an ex parte basis” and “has clandestinely shared the information derived from Dr. Rawlinson ex parte with co-defense counsel in this litigation.” {Id., no. 34, ¶¶5-6.) Counsel for CMC has adamantly denied participating in any direct contact with Dr. Rawlinson, who apparently forwarded the Whites’ records request to the CMC risk manager on his own volition and without any prompting by CMC. {Id., no. 31, ¶¶5, 7, 10-11.) The Whites have not produced any evidence of ex parte communications between Dr. Rawlinson and CMC’s counsel to date. Nevertheless, at the time of oral argument on February 18, 2004, counsel for CMC did indicate his intention to privately discuss this matter with Dr. Rawlinson in the future on the basis that Dr. Rawlinson is an ostensible employee of CMC. Thus, although no ex parte contacts have yet taken place, the Whites’ motion seeking to preclude any future private communications between Dr. Rawlinson and CMC’s counsel does present a justiciable issue.

The Whites maintain that Pa.R.C.P. 4003.6 regulates discovery from a treating physician and obligates defense counsel to employ a formal method of discovery to obtain information from a treating physician absent written consent of the plaintiff/patient. CMC counters that Rule 4003.6 provides exceptions for certain types of physicians and permits a defense lawyer to obtain information privately from defense counsel’s client or an actual or ostensible employee of that client. CMC posits that since Dr. Rawlinson is the chair of CMC’s maternal-fetal medicine department, he is an ostensible agent of CMC and is allowed to participate in ex parte discussions with CMC’s counsel. Consequently, it is necessary to examine the parameters of Rule 4003.6’s prohibition against ex parte communications, and in particular, the limits of the “ostensible employee” exception.

n. DISCUSSION

(A) Ex Parte Prohibition

The debate over the propriety of ex parte contacts between treating physicians and their patients’ adversaries in litigation has created dissention among the trial bar for decades. Patient advocates have long maintained that although the physician-patient privilege is waived by the filing of suit, a separate fiduciary relationship exists between the physician and patient which is derived from public policy considerations and the physician’s code of ethics. See Woodard, Shielding the Plaintiff and Physician: The Prohibition of Ex Parte Contacts with a Plaintiff’s Treating Physician, 13 Campbell L. Rev. 233, 243-45 (spring 1991). Plaintiffs have argued that this pub-lie policy-based fiducial duty bars treating physicians from engaging in certain litigation conduct to the detriment of their patients. See e.g., Alexander v. Knight, 25 D.&C.2d 649, 655 (Phila. Cty. 1961), aff’d per curiam on opinion below, 197 Pa. Super. 79, 177 A.2d 142 (1962) (reasoning that members of the medical profession owe “a duty to aid the patient in litigation” and “a duty to refuse affirmative assistance to the patient’s antagonist in litigation,” subject to the physician’s obligation “to speak the truth ... only at the proper time.”).

Several trial courts relied upon this public policy in barring physicians from participating in ex parte interviews with defense counsel, see McNally v. Easton Hospital, 46 Northamp. Cty. Rep. 202, 204-205 (1985); Hoffmeyer v. Pell, 23 D.&C.3d 448, 453-55 (Somerset Cty. 1982), or performing medical examinations for the defense pursuant to Pa.R.C.P. 4010. See Freyer v. The Travelers Indemnity Co., 15 D.&C.3d 649, 651 (Westmoreland Cty. 1980); Shea v. McCadden, 46 D.&C.2d 560, 562 (Delaware Cty. 1969). The most comprehensive discussion of the public policy ban is contained in Manion v. N.P.W. Medical Center, 676 F. Supp. 585 (M.D. Pa. 1987) (Nealon, CJ.) where the court found that “[t]he statutory privilege determines whether certain information may be disclosed” whereas “the prohibition against unauthorized ex parte contacts regulates only how defense counsel may obtain information from a plaintiff’s treating physician, i.e., it affects defense counsel’s methods, not the substance of what is discoverable.” Id. at 593. (emphasis added) In holding that Pennsylvania law requires reasonable notice to plaintiffs or their counsel before defense counsel may attempt to communicate privately with the plaintiff’s treating physician, the Manion court concluded:

“When a plaintiff’s treating physician is interviewed ex parte by defense counsel without prior notice to the plaintiff or his counsel, there are no safeguards against the revelation of matters irrelevant to the lawsuit and personally damaging to the plaintiff/patient, and the potential for breaches in the confidentiality between a patient and his physician could have a chilling effect upon the patient-physician relationship.

“Furthermore, the unauthorized ex parte interview of a plaintiff’s treating physician by defense counsel creates a situation which may invite questionable conduct. This court will not overlook the current concerns in the medical malpractice insurance industry and the attitudes of physicians and carriers alike. An unauthorized ex parte interview could disintegrate into a discussion of the impact of a jury’s award upon a physician’s professional reputation, the rising cost of malpractice insurance premiums, the notion that the treating physician might be the next person to be sued, and other topics which might influence the treating physician’s views. The potential for impropriety grows even larger when defense counsel represents the treating physician’s own insurance carrier and when the doctor, who typically is not represented by his personal counsel at the meeting, is unaware that he may become subject to suit by revealing the plaintiff/ patient’s confidences which are not pertinent to the pending litigation.” Id. at 594-95. (emphasis in original) Accord, Corboy, Ex Parte Contacts Between Plaintiff’s Physician and Defense Attorney: Protecting the Patient- Litigant’s Right to a Fair Trial, 21 Loy. U. Chi. L.J. 1001 (summer 1990).

Although the Supreme Court of Pennsylvania never addressed the appropriateness of such ex parte contact prior to the adoption of Pa.R.C.P. 4003.6, the Superior Court condoned the use of private interviews as a cost-efficient alternative to formal discovery and declined, on the facts alleged, to recognize a cause of action for defamation and breach of confidentiality against a plaintiff’s treating physician who participated in private pretrial discussions with defense counsel. See Moses v. McWilliams, 379 Pa. Super. 150, 167-69, 549 A.2d 950, 958-60 (1988), appeal denied, 521 Pa. 631, 558 A.2d 532 (1989). In the wake of Moses, the Supreme Court promulgated Pennsylvania Rule of Civil Procedure 4003.6 which states:

“Discovery of treating physician

“Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. This rule shall not prevent an attorney from obtaining information from

“(1) the attorney’s client,

“(2) an employee of the attorney’s client, or

“(3) an ostensible employee of the attorney’s client.” Pa.R.C.P. 4003.6. See also, Heacock v. Sun Co. Inc., 38 D.&C.4th 1, 6 (Phila. Cty. 1998) (“In addition to Pennsylvania decisions which clearly expressed a strong public policy discouraging ex parte communications between defense counsel and treating physicians, Rule 4003.6 was anticipated by Chief Judge William J. Nealon [in 1987 in Manion v. N.P.W. Medical Center of N.E. Pennsylvania Inc.].”).

The plain language of Rule 4003.6 clearly indicates that unless defense counsel secures the written consent of the patient, [s]he may only obtain information from a treating physician by way of written interrogatories, requests for production of documents or depositions which require advance notice to the patient and afford the patient an opportunity to object prior to the disclosure of irrelevant or privileged matter. See e.g., Pa.R.C.P. 4003.1(a), 4004(a)(1) and (e), 4007.1(a), 4009.21(a) and (c), 4012, 4016. The Pennsylvania trial courts have strictly enforced the ban against ex parte contact and have shown little tolerance for violations of Rule 4003.6. See Jakobi v. Ager, 45 D.&C.4th 189, 194-95 (Phila. Cty. 2000) (since defense counsel conversed by telephone with the treating physician after he was subpoenaed for a deposition, the defense attorney and his entire firm were disqualified from representing the defendants and barred from transmitting to successor counsel any information obtained during the telephone discussion); Tollari v. General Motors Corp., 40 D.&C.4th 339, 346-48 (Allegheny Cty. 1998) (although plaintiff provided defense counsel with a signed authorization for release of medical records, he did not consent to ex parte discussions or solicitation of further reports, such that defense counsel was ordered to return a letter sent to him by plaintiff’s treating physician and was prohibited from referencing the substance of the letter during trial).

In the only reported appellate case addressing Rule 4003.6, the Superior Court in Marek v. Ketyer, 733 A.2d 1268 (Pa. Super. 1999), appeal denied, 561 Pa. 677, 749 A.2d 471 (2000), examined the breadth of the ex parte proscription. Defense counsel in Marek spoke privately with a physician who had interpreted the deceased plaintiff’s echocardiogram and the defense retained that physician as a liability expert in a malpractice action instituted by the plaintiff’s parents. The trial court denied the plaintiff’s motion in limine seeking to preclude the physician’s testimony at trial and permitted the physician to testify regarding the appropriate standard of care, provided that he did not mention his personal involvement with the child’s treatment. The lower court reasoned that Rule 4003.6 “was designed to prevent a treating physician from disclosing confidential information received from a patient” and was not violated by the physician’s testimony concerning standard of care since he did not divulge confidential information. Id. at 1269.

On appeal, defense counsel contended that the physician could not be classified as a “treating physician” under Rule 4003.6 since he merely interpreted the echocardiogram and communicated his impressions to members of the cardiology team, but never spoke with the parents or recommended any medication or therapy. In rejecting that argument, the Superior Court noted that the physician had billed the parents for his services which were rendered “in the treatment of this child in an effort to see to her recovery” and found that he “must be considered a treating physician.” Id. The Marek court likewise disavowed the suggestion that Rule 4003.6 only bars the disclosure of “confidential information” and instead concluded that “it prohibits a treating physician from providing the opposing party with any information without written consent of the patient.” Id.

In awarding the plaintiff a new trial based upon the defense’s violation of Pa.R.C.P. 4003.6, the Superior Court observed that “[ejven prior to promulgation of Rule 4003.6, Pennsylvania’s policy of protecting the confidential nature of physician-patient relationships was recognized in Manion v. N.P.W. Medical Center Inc., 616 F. Supp. 585 (M.D. Pa. 1987).” Id. at 1270. The court also agreed that the rule “regulates the manner in which defense counsel obtains information from the plaintiff’s treating physician” and “affects defense counsel’s methods, not the substance of what is discoverable.” Id. (quoting Manion, supra). Thus, Marek construed Pa.R.C.P. 4003.6 as imposing a broad ban against ex parte contacts and held:

“Rule 4003.6 is clear in its directive. Only upon consent or through a method of authorized discovery may information be obtained from a party’s treating physician. These procedures protect both the patient and the physician by ensuring that adverse counsel will not abuse the opportunity to contact or interrogate the physician privately. When formal discovery is undertaken in the presence of a patient’s counsel it can be assured that irrelevant medical testimony will not be elicited and confidences will not be breached, preserving the trust which exists between doctor and patient.” Id. Compare Blaner v. IDEC Pharmaceuticals Corp., 58 D.&C.4th 129, 135-36, 143-44 (Allegheny Cty. 2002) (recognized expert in skin autoimmune disease with whom plaintiff’s treating physician had informally consulted, but who never treated plaintiff, charged for his consultation, made any treatment decisions or established a physician-patient relationship with plaintiff, was not barred by Rule 4003.6 from testifying as a defense expert in a drug product liability and malpractice case filed by plaintiff).

(B) Ostensible Employee Exception

Under Pennsylvania tort law, hospitals, HMOs and physicians may be vicariously liable for the negligence of their own employees, Tonsic v. Wagner, 458 Pa. 246, 253-54, 329 A.2d 497, 501 (1974), and the malpractice of independent contractors who are their ostensible or apparent employees. Parker v. Freilich, 803 A.2d 738, 746-49 (Pa. Super. 2002), appeal denied, 573 Pa. 659, 820 A.2d 162 (2003); Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 368-69, 430 A.2d 647, 649-50 (1980). In defending a medical negligence claim, defense counsel obviously must be permitted to confer privately with the attorney’s client or the actual or ostensible employees of the client who were involved with the plaintiff’s care and treatment which are the subject of the suit. For that reason, Rule 4003.6 states that it does “not prevent an attorney from obtaining information from (1) the attorney’s client, (2) an employee of the attorney’s client, or (3) an ostensible employee of the attorney’s client.”

Counsel for CMC interprets the “ostensible employee” exception in Pa.R.C.P. 4003.6 as granting defense counsel carte blanche authority to privately discuss the plaintiff’s medical condition with any past or present treating physician who serves as chair of any medical department at CMC or otherwise could be regarded as CMC’s ostensible agent. See Reaser v. CMC, 102 Lacka. Jur. 219, 224-28 and n.4 (2000) (analyzing hospital actions which could be deemed “holding out” the independent contractor physician as a hospital employee). According to CMC, although Dr. Rawlinson’s management of Ms. White’s second pregnancy and his purported status as an ostensible employee of CMC are not in dispute in this case, CMC’s counsel may nonetheless converse privately with Dr. Rawlinson about Ms. White’s condition and care since he could be considered an ostensible agent of the hospital in another setting. No Pennsylvania case has addressed the scope of the “ostensible employee” exception or the construction of Rule 4003.6(3) being advanced by CMC.

We interpret the exceptions in Pa.R.C.P. 4003.6 as applying only to defense counsel’s client and the client’s actual or ostensible employees whose treatment and agency status are relevant to the claims in the underlying malpractice suit. By way of illustration, if the plaintiff presented to the CMC emergency room with an orthopedic ailment and was assigned an attending physician by CMC, the hospital’s counsel would be permitted to privately discuss the plaintiff’s condition and care with that assigned physician if the plaintiff later commenced a malpractice action against CMC and asserted that it was vicariously liable for the attending physician’s negligence under an ostensible agency theory of liability. However, if that same plaintiff later returned to the CMC for psychiatric, gynecological, urological or other care that was wholly unrelated to the earlier orthopedic treatment in the emergency room, CMC’s counsel in the emergency medicine case would not be at liberty to privately discuss the plaintiff’s mental health, gynecologic or urologic condition with the plaintiff’s treating physicians who coincidentally chair those departments at the CMC since neither their treatment nor their status as ostensible employees would be in question in the malpractice suit.

In ascertaining the intention of the Supreme Court in promulgating Rule 4003.6, it is presumed that the Supreme Court did not intend a result that is absurd or unreasonable. See Pa.R.C.R 128(a). Taking CMC’s argument to its logical extension, “the attorney’s client” exception in Rule 4003.6(1) would permit CMC’s counsel to privately discuss the plaintiff’s medical condition with any former or current treating physicians so long as they are the attorney’s client in any case. For example, if Laura White had received subsequent treatment from a physician at a different hospital and CMC’s counsel in this case fortuitously represents that treating physician or other hospital in another malpractice matter, then CMC’s proffered construction of Rule 4003.6 would enable its counsel to participate in ex parte communications with that physician or the other hospital’s actual or ostensible employees since they are “the attorney’s client,” albeit in an unrelated case. Such an absurd or unreasonable result would allow defense counsel to circumvent the rule’s ban against ex parte contact by allowing defense attorneys to privately discuss the plaintiff’s medical condition with those treating physicians that defense counsel incidentally represents in other matters. Cf. Heacock, 38 D.&C.4th at 3-4, 8 (rejecting defendant’s argument that its counsel could unilaterally secure plaintiff’s medical records directly from the workers’ compensation carrier that defense counsel represented in other cases and holding that “[t]he term ‘client’ in Rule 4003.6 can only reasonably be read to apply to the specific client involved in that litigation.”).

Pa.R.C.P. 4003.6 was adopted to “protect both the patient and the physician by ensuring that adverse counsel will not abuse the opportunity to contact or interrogate the physician privately” and to “assured that irrelevant medical testimony will not be elicited and confidences will not be breached... Marek, 733 A.2d at 1270. Allowing defense counsel to privately discuss the plaintiff’s medical condition with any department chair who subsequently treated the plaintiff for unrelated conditions would emasculate the stated purposes of the mle. See Pa.R.C.P. 127(c) (the intention of the Supreme Court in adopting a rule may be ascertained by considering the occasion and necessity for the rule, the mischief to be remedied, and the object to be attained). Since Dr. Rawlinson’s classification as an ostensible employee of CMC and his treatment of Laura White are not in dispute in this malpractice action, CMC’s counsel may not engage in ex parte contact with Dr. Raw-linson under the guise of the “ostensible employee” exception in Rule 4003.6(3). If CMC’s counsel wishes to obtain relevant medical information from Dr. Rawlinson with regard to his treatment of Laura White, defense counsel may utilize a formal method of discovery which affords the patient advance notice and an opportunity to object. Accordingly, the Whites’ motion to preclude any ex parte discussions between Dr. Rawlinson and CMC’s counsel in the future will be granted.

ORDER

And now, March 22, 2004, upon consideration of the plaintiffs’ motion to preclude the defendants from engaging in ex parte communications with the female plaintiff’s subsequent treating physician, Keith Rawlin-son M.D., the memoranda of law submitted by the parties and the oral argument of counsel, and based upon the reasoning set forth in the foregoing memorandum, it is hereby ordered and decreed that:

(1) Plaintiffs’ motion to preclude the defendants and their counsel and representatives from engaging in ex parte communications with Dr. Keith Rawlinson in the future is granted; and

(2) Since the defendants and their counsel and representatives have not initiated any such ex parte contact with Dr. Keith Rawlinson to date, the plaintiffs’ request to bar Dr. Rawlinson from testifying as a witness in this case is denied provided that the defendants and their counsel and representatives comply with Pa.R.C.P. 4003.6 and employ a formal method of discovery in obtaining medical information about the plaintiff from Dr. Rawlinson during the remainder of this litigation.

      . Based upon the mistaken belief that CMC’s counsel had already participated in ex parte contact with Dr. Rawlinson, the Whites’ motion also sought to bar the defense “from calling Dr. Rawlinson as a trial witness.” (dkt. entry no. 34, p. 4.) Since no violation of Rule 4003.6 has yet occurred, the Whites’ request to preclude Dr. Rawlinson from testifying will be denied provided that defense counsel resorts to a formal method of discovery in securing information from Dr. Rawlinson during the remainder of this suit.


source: Caselaw Access Project

author: VAN HORN, J.,

license: Public Domain

text:
    Black v. Jamison

      C.P. of Franklin County,
    no. 2001-1609.

      Amy L. Coryer-Host, and Scott B. Cooper, for plaintiffs.

      James G. Nealon III, for defendant Jamison.

      Dennis J. Bonetti, for defendant Myers.

      Steven C. Gould, for the Commonwealth.
    March 16, 2004
   VAN HORN, J.,

FACTUAL HISTORY

(1) Plaintiffs’ cause of action arose out of an automobile accident occurring on May 15,1999, at the intersection of Lincoln Way East (State Route 30) and Rocky Mountain Road North (State Route 233), Greene Township, Franklin County, Pennsylvania.

(2) The automobile accident involved vehicles driven by decedent, John R. Myers, and defendant Todd L. Jamison.

(3) Eric L. Black was a front-seat passenger in the automobile operated by decedent, John R. Myers, and owned by defendant Diane E. Myers.

PROCEDURAL HISTORY

(1) On May 9, 2001, plaintiffs, Ellen L. Black, as administrator and executrix of the estate of Eric L. Black, and on her own behalf and Randy L. Black, commenced the above-captioned action against several defendants, including the Commonwealth of Pennsylvania, Department of Transportation.

(2) On March 22, 2002, plaintiffs executed a document entitled, “Release and settlement agreement” in their case against State Farm Insurance Company in the Court of Common Pleas of Adams County, no. 00-31-02. Said case originated from the same set of facts that gave rise to the present action. The case in Adams County is captioned as follows: Ellen L. Black, as Administrator and Executrix of the Estate of Eric L. Black, and on her own behalf and Randy L. Black v. State Farm Insurance Company.

(3) On February 19, 2003, PennDOT filed its answer and new matter to plaintiffs’ complaint in the Franklin County matter affirmatively asserting that plaintiffs’ action is barred pursuant to the doctrine of release.

(4) On October 13, 2003, PennDOT served on plaintiffs a request for production of documents. In response, plaintiffs provided PennDOT with the release of March 22, 2002.

(5) On December 3, 2003, PennDOT filed a motion for summary judgment claiming that the release of March 22, 2002, is a general release.

(6) On December 16, 2003, plaintiffs filed their answer and new matter motion for sanctions to PennDOT’s motion for summary judgment.

(7) On January 5, 2004, PennDOT filed its response in opposition to plaintiffs’ new matter motion for sanctions.

(8) On January 20, 2004, PennDOT filed its brief in support of its motion for summary judgment.

(9) On January 23, 2004, plaintiffs filed their brief in opposition to PennDOT’s motion for summary judgment and in support of their motion for sanctions.

(10) On February 13,2004, PennDOT filed its brief in opposition to plaintiffs’ motion for sanctions.

(11) On March 4,2004, oral argument was heard solely on PennDOT’s motion for summary judgment as PennDOT objected to having the motion for sanctions heard at this time.

DISCUSSION

Before the court is PennDOT’s motion for summary judgment and plaintiffs’ countermotion for sanctions. In regards to the motion for summary judgment, the issue is whether the release executed by plaintiffs pursuant to their case against State Farm Insurance Company is a general release. In regards to the countermotion for sanctions, the issue is twofold: (1) whether PennDOT filed for summary judgment without any basis in law or fact, and (2) whether PennDOT was dilatory, obdurate, and vexatious in failing to provide the police incident numbers requested and for filing what plaintiffs assert was a frivolous motion for summary judgment.

1. Motion for Summary Judgment

Under Pennsylvania Rules of Civil Procedure, any party may move for summary judgment as a matter of law, “[ajfter the relevant pleadings are closed, but within such time as not to unreasonably delay trial... (1) whenever there is no genuine issue of any 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. “A material fact is one that directly affects the outcome of the case.” Kuney v. Benjamin Franklin Clinic, 751 A.2d 662, 664 (Pa. Super. 2000).

PennDOT claims it is entitled to summary judgment because plaintiffs, by signing the release, released, acquitted and discharged PennDOT from any and all liability arising from the May 15, 1999 accident.

In construing a release, the court is guided by general contract principles. Martin v. Donahue, 698 A.2d 614, 616 (Pa. Super. 1997). In Martin, the court says that it “must look to the terms of the release, both clear and ambiguous, and examine the document to determine the intent of the parties.” Id. citing Harrity v. Medical College of Pennsylvania Hospital, 439 Pa. Super. 10, 653 A.2d 5 (1994).

The court goes on to say the following:

“Since we are bound to give deference to the written word when it is clear, we will not re-write a contract.... However, when the language is ambiguous, and the court cannot readily determine the intentions of the parties, it may allow oral testimony to show the intent of the parties. ... Moreover, a written contract must be examined as a whole; we glean the intent of the parties through an examination of the entire document.... At times, in order to ascertain the intent of the parties, it is necessary to examine the circumstances through affidavits or testimony of the involved parties....” Id. (citations omitted)

PennDOT believes Buttermore v. Aliquippa Hospital, 522 Pa. 325, 561 A.2d 733 (1989), controls the present case. In Buttermore, the plaintiff was involved in a vehicle accident and received treatment from the defendant hospital. Id. at 327, 561 A.2d at 734. The plaintiff signed a release in settlement of his claim against the driver of the other vehicle, releasing “any and all other persons, associations and/or corporations, whether known or unknown, suspected or unsuspected, past, present and future claims... resulting or to result from [the motor vehicle accident].” Id. at 327-28, 561 A.2d at 734. The plaintiff then filed an action against the defendant. The defendant raised the release as a defense and then moved for summary judgment, which the trial court granted. Id. at 328, 561 A.2d at 735.

The Pennsylvania Supreme Court reversed the Superior Court and affirmed the trial court when, after looking at the ordinary meaning of the language of the release, the Supreme Court determined that “[h]owever improvident [the parties] agreement may be or subsequently prove for either party, their agreement, absent fraud, accident or mutual mistake, is the law of their case.” Id. at 329-30, 561 A.2d at 735.

PennDOT also cites Republic Insurance Co. v. Paul Davis Systems of Pittsburgh South Inc., 543 Pa. 186, 670 A.2d 614 (1995), in support of its claim. In Republic, the insured sued Republic, his insurer, and a release was subsequently executed. Id. Republic then tried to sue a third party, PDS, and in its defense PDS claimed the release barred Republic’s claim. Id. at 188, 670 A.2d at 615. The trial court granted PDS’s motion for summary judgment. Id.

The Pennsylvania Supreme Court reversed the Superior Court and affirmed the trial court’s granting of summary judgment, stating:

“The release in the present case was clear, unambiguous, and broad in scope....

“Given the language releasing ‘all other persons’ from ‘any and all actions’ of ‘whatsoever kind or nature,’ ... the decision of the Superior Court that the release did not apply to tort claims against PDS was without basis. Indeed, it would be difficult to conceive of language more clear, pertinent, and all-inclusive. The trial court, applying the ordinary meaning of the release, properly concluded that it was an effective bar to Republic’s action.” Id. at 189-90, 670 A.2d at 615. (footnote omitted)

PennDOT believes that the release presently at issue is substantially similar to the releases at issue in the above two cases. Therefore, PennDOT claims that the court need only examine the ordinary language of the release which is clear and unambiguous in determining the intent of the parties. In support of its argument, PennDOT quotes the following paragraph from the release:

“[Plaintiffs] release, acquit and discharge State Farm Mutual Automobile Insurance Company, their predecessors, heirs, successors and assigns, their officers, directors, owners, employees and agents, and all other persons, firms, corporations, associations, partnerships, affiliates, subsidiaries and entities whatsoever (hereinafter collectively referred to as ‘releasees’), of and from any and all actions, causes of actions, claims, demands damages, costs, loss of services or use, expenses and compensation of whatever kind or nature on account of or in any way growing out of any and all personal injury, death and/or property damage and consequences thereof, and for any damages which may develop at some time in the future, and for any and all unforeseen developments arising from known or unknown injuries or property damage, including all claims resulting or to result from an accident which occurred on or about May 15, 1999, at the intersection of State Route 0233 (Rocky Mountain Road North) and State Route 0030 (Lincoln Way East) in Greene Township, Franklin County, Pennsylvania.” See release at page 1.

PennDOT further claims that the release states that the plaintiffs completely read, fully understood, and voluntarily accepted the terms of the release, and understood that the release applied to “any and all claims” on account of the damages and losses from the May 15,1999 accident. In that respect, the release states the following:

“Randy L. Black and Ellen L. Black, individually, as the administrator and executrix of the estate of Eric L. Black, hereby declares that the terms of this release and settlement agreement have been completely read; that they have had the opportunity to discuss the terms of this settlement with legal counsel of their choice; and that said terms are fully understood and voluntarily accepted for the purpose of making a full and final compromise of any and all claims on account of the damages and losses mentioned above and further for the express purpose of precluding forever and further or additional suits by themselves or the estate of Eric L. Black arising out of the aforesaid claims.” See release at pages 2-3.

PennDOT also directs the court’s attention to the fact that the release states that “there are no written or oral understandings, or agreements, directly or indirectly connected with this release and settlement that are not incorporated herein.” See release at page 2.

The language contained in the first paragraph quoted above is substantially similar to the language contained in the releases at issue in both Buttermore and Republic. If the release at issue was made up of only the language of the first paragraph or even if the release was made up of all the language quoted above then Buttermore and Republic would control as the ordinary language would clearly convey the intent of the parties. However, the following is additional language in the release which cannot be ignored:

“It is understood and agreed that this settlement is being offered as the available underinsured coverage under a policy [sic] issued by releasee, State Farm, to releasor, Randy L. Black, and that said releasees deny liability and intend merely to finalize and avoid litigation and buy their peace.” See release at page 2.

In claiming that the release is not a general release, plaintiffs assert several theories for the court to consider. Plaintiffs’ first theory is similar to PennDOT’s claim that the ordinary language of the release is clear and unambiguous. Plaintiffs, of course, believe that it is clear from a reading of the whole release that the intent of the parties was to limit the release to State Farm Insurance Company. In support of their claim that the limiting language of the release is clear on its face, plaintiffs cite Martin, supra.

In Martin, a release was signed specifically naming the defendant with whom the plaintiff intended to settle. Id. at 615. The plaintiff subsequently sued a doctor who performed surgery on him after his work-related accident. The doctor claimed the release signed with the named defendant also released him from liability. Id. The release states that it pertains to “any and all entities who are or may be determined to be liable for ‘the claims referred to [In the Matter of Martin v. Heydt Plaster and Stucco Inc., Chester County Court of Common Pleas, no. 91-01797].’ ” Id. at 617. The court said, “a reading of the full text of the release illuminates the fallacy of [the doctor’s] position, since the language of the document limited the discharge of liability to named parties. Buttermore is easily distinguishable as there was no limiting language.” Id. (emphasis in original)

The court finds that the language of the release in question does not limit the scope of the release in as clear a manner as the language of the release in Martin. However, the release presently at issue, in its first paragraph, contains language consistent with a general release but in its third paragraph specifies that the parties to the settlement, which then resulted in the release, are State Farm Insurance Company and Randy L. Black. Therefore, while the court cannot rule in the plaintiffs’ favor on a reading of the release itself, the court does agree with plaintiffs’ second theory in support of its claim that the release is not a general release. Plaintiffs’ second theory is that the first and third paragraphs of the release create an ambiguity, thus allowing the court to look outside the document to determine the intent of the parties to the release. Id. at 616.

The court reviewed the following information in determining the intent of the parties after finding the language of the release to be ambiguous: the affidavits provided by the various parties involved in the settlement; the petition to compromise, settle, and discontinue a minor’s claim; and the documents provided by plaintiffs at oral argument. The court also considered the fact that two actions, which arose from the same set of facts, were pending at the same time, which is a procedural distinction from the facts of the previously cited cases.

The court examined the affidavits provided by the various parties involved in the settlement. The attorney for plaintiffs, the plaintiffs, and an employee of State Farm all said, “[t]his settlement was settlement of a claim for underinsured motorist benefits only.” The attorney who drafted the release for State Farm stated, “[m]y understanding as to the intent of all parties to this release was to release any claims for the available underinsured motorist coverage against State Farm.”

Clearly, all the parties involved in the settlement meant only to release State Farm Insurance Company from any further liability.

The court also reviewed the petition to compromise, settle and discontinue a minor’s claim. This document contains the following language:

“State Farm Insurance has offered to pay the policy limits of $60,000 in full and final satisfaction of petitioner’s claim for underinsured motorist coverage for the May 15, 1999 automobile accident that resulted in the death of petitioner’s son, Eric L. Black. Petitioners have accepted the offer of State Farm Insurance Company to pay the policy limits of $60,000 for underinsured motorist coverage pending court approval.”

This language clearly defines the parties to the settlement, the purpose of the settlement and the amount of the settlement, which all serve as evidence that the settlement between plaintiffs and State Farm Insurance Company was intended by the parties to be solely between them.

At oral argument, counsel for plaintiffs provided the court with several documents from their files regarding the issue of settlement. The court has reviewed said documents and most importantly noted the following language in a letter from State Farm Insurance Company’s counsel: “I have been provided a copy of the proposed petition to compromise, settle and discontinue a minor’s claim regarding State Farm’s tender of the policy limits for a full and final satisfaction of any claims the decedent or his parents may have against State Farm relative to the May 15, 1999 motor vehicle accident.”

Clearly, counsel for State Farm Insurance Company understood the limited purpose of the petition to compromise, settle and discontinue a minor’s claim.

In determining the intent of the parties, the court also took into consideration the fact that in the present case the plaintiffs had two actions pending at the same time. The action in Adams County named State Farm Insur-anee Company as the defendant and the action in Franklin County included PennDOT as one of the defendants. Plaintiffs were discussing settlement with PennDOT on November 20, 2003, in the amount of $464,000, $250,000 of which they were asking come from PennDOT. This serves as evidence that plaintiffs did not intend for the release of State Farm Insurance Company on March 22, 2002, for the amount of $60,000, to release the defendants of a completely separate legal action in Franklin County from which they were expecting a much larger settlement.

2. Motion for Sanctions

The second issue before the court is twofold: (1) whether PennDOT filed for summary judgment without any basis in law or fact, and (2) whether PennDOT was dilatory, obdurate, and vexatious in failing to provide the police incident numbers requested and for filing what plaintiffs assert was a frivolous motion for summary judgment.

The court finds that PennDOT’s motion for summary judgment does have basis in law and in fact. PennDOT based its claim on Buttermore, supra; Republic, supra; and Taylor, supra. PennDOT raised genuine legal issues regarding how the court should interpret the intent behind a release.

Section 2503(7) in the Judicial Code entitles a participant in litigation to receive an attorney fee as a sanction against another participant for “dilatory, obdurate, or vexatious conduct during the pendency of a matter.” 42 Pa.C.S. §2503(7). While the court has expressed its concern with PennDOT’s apparent lack of professionalism with regards to its failure to respond to both informal and formal requests for information from plaintiffs, its conduct did not rise to the level of dilatory, obdurate or vexatious.

Plaintiffs claim PennDOT’s motion for summary judgment was frivolous because the release was clearly not a general release. However, as the court has determined above, the nature of the release was not clear on its face. Furthermore, plaintiffs claim that because PennDOT had the affidavits from all the parties involved in the settlement between plaintiffs and State Farm Insurance Company, PennDOT was aware of the intent of the parties. However, PennDOT had every right to bring its motion for summary judgment without considering anything but the release itself as the threshold question for the court is whether the release is ambiguous on its face. It furthermore does not appear that PennDOT filed its motion for summary judgment for purposes of delay or annoyance. Thus, by filing the motion for summary judgment, PennDOT’s conduct was not dilatory, obdurate or vexatious.

CONCLUSION

PennDOT’s motion for summary judgment is denied. The court determines the release is ambiguous on its face and thus it may examine the circumstances surrounding the release to come to a conclusion as to the intent of the parties. The court determines that plaintiffs intended to release only State Farm Insurance Company pursuant to the release of March 22, 2002.

Plaintiffs’ countermotion for sanctions is denied. First, the court determines PennDOT did have basis in law and fact to bring its motion for summary judgment. Furthermore, PennDOT’s conduct in bringing the motion for summary judgment was not dilatory, obdurate or vexatious. Second, the court determines that while PennDOT’s behavior in failing to respond to both formal and informal requests for information was lacking in professional courtesy, its behavior did not rise to the level of dilatory, obdurate or vexatious.

ORDER

And now, March 16, 2004, this matter having come before the court on the defendant, Commonwealth of Pennsylvania, Department of Transportation’s motion for summary judgment and plaintiffs’ countermotion for sanctions, the court having considered the relevant documents and having heard oral argument hereby orders the following:

(1) Defendant, Commonwealth of Pennsylvania, Department of Transportation’s motion for summary judgment is denied.

(2) Plaintiffs’ countermotion for sanctions is denied.

      . In the interest of judicial economy, the court will decide the countermotion for sanctions on the parties’ briefs as we do not see the need for an evidentiary hearing.

      . PennDOT cites Taylor v. Solberg, 566 Pa. 150, 778 A.2d 664 (2001), as a third case in support of its action. Taylor contains a summary of the law as set forth in Buttermore and Republic.

      . Plaintiffs presented a third theory to the court, which the court will not address as the issue can be resolved based on the theories now before it.

      . The affidavits are attached to plaintiffs’ answer to PennDOT’s motion for summary judgment as exhibits B, C, D, E.

      . The petition to compromise, settle and discontinue a minor’s claim is attached to plaintiffs’ answer to PennDOT’s motion for summary judgment as exhibit F.

      . Said letter is attached to plaintiffs’ answer to PennDOT’s motion for summary judgment as exhibit H.


author: GRENE, J.,

text:
    Roberts v. Brytczuk

      C.P. of Centre County,
    nos. 1999-2792, 1999-2826.

      Anthony J. Gerace Jr., for plaintiffs.

      George R. Farneth II and Kevin M. Blake, for defendants.
    March 16, 2004
   GRENE, J.,

This matter stems from an automobile/tractor-trailer accident that occurred on December 6, 1997, in Mercer County, PA, for which plaintiffs Sharon Dixon-Brytczuk and Matthew Dixon seek to recover injuries and damages allegedly sustained. At this time, defendants bring a motion in limine to preclude or limit plaintiff Sharon Dixon-Brytczuk from presenting evidence of amounts paid for medical expenses from this accident by Interstate Hotels Health Plan, an ERISA self-funded plan, through her employment. The health plan claims a right to reimbursement from any monies received by plaintiff from a third party as recovery damages for the accident. Therefore the health plan will have a lien on any award plaintiff gains from this lawsuit for the amount of medical expenses the health plan paid for plaintiff.

Defendants’ motion seeks to keep plaintiff from presenting evidence that part of her award will be paid back to the health plan, and contends that (1) Pennsylvania’s Motor Vehicle Financial Responsibility Law at 75 P.S. §1797 (otherwise known as Act VI) limits any recovery of medical expenses paid by the ERISA self-funded plan; (2) that the health plan does not provide for subrogation, but for reimbursement; and (3) that the health plan cannot enforce any right of subrogation against plaintiff.

In a motion dated June 1,2003, the parties had agreed to a consent order providing (1) that the health plan was a self-funded ERISA from 2000-2002; (2) whether the plan remained self-funded during 2003 would be the subject of further submissions; (3) in the event the court subsequently determines that the cost containment provisions of the MVFRL, 75 P.S. §1797 apply to plaintiff’s claim, plaintiff would have the burden of proving that the amounts paid were in accordance with that provision; (4) and within 30 days of the date of the consent order defendants were to file a motion if they wished to assert that the health plan did not provide for subrogation. Defendants now bring their motion in limine.

First, defendants contend that plaintiff may only introduce into evidence the amount of the medical and hospital expenses paid by the health plan that comply with Act VI of the MVFRL. Section 1797(a) of the MVFRL sets forth limits on the amount a healthcare provider can charge for medical services given to a victim of a motor vehicle accident. There was testimony in this matter that claims for medical expenses under plaintiff’s health plan were paid in accordance with agreements with the healthcare providers, without regard to the MVFRL limitations. In other words, the medical bills paid by the health plan on plaintiff’s behalf are likely higher than what would have been allowed under the MVFRL.

Plaintiff argues that ERISA provisions pre-empt the limitation clause of the MVFRL. The pre-emption clause of ERISA states that “[E]xcept as provided in subsection (b) of this section, the provisions of this subchapter . . . shall supercede any and all state laws insofar as they may now or hereafter relate to any employee benefit plan. . . .” ERISA §514(a); 29 U.S.C. § 1144(a). The subsection (b) referred to, under (b)(2)(A), known as the “savings clause,” states that “[Ejxcept as provided in sub-paragraph (b), nothing in this chapter shall be construed to exempt or relieve any person from any law of any state which regulates insurance. . . .” ERISA §514(b)(2)(A); 29 U.S.C. § 1144(b)(2)(A). Furthermore, subparagraph (B) provides that an employee benefit plan governed by ERISA cannot be deemed an insurer. ERISA §514(b)(2)(B); 29 U.S.C. § 1144(b)(2)(B). Pennsylvania’s MVFRL defines an “insurer” as “[A] motor vehicle liability insurer subject to the requirements of this chapter (the MVFRL).” 75 Pa.C.S. §1702.

Further, the U.S. Supreme Court gives the ERISA preemption clause a broad reading:

“It establishes as an area of exclusive federal concern the subject of every state law that ‘relate[s] to’ an employee benefit plan governed by ERISA. The savings clause returns to the states the power to enforce those state laws that ‘regulate insurance,’ except as provided in the deemer clause. Under the deemer clause, an employee benefit plan governed by ERISA shall not be ‘deemed’ an insurance company, an insurer, or engaged in the business of insurance . . . FMC Corp. v. Holliday, 498 U.S. 52, 58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990).

In FMC Corp., the U.S. Supreme Court ruled that the anti-subrogation provisions of Pennsylvania’s MVFRL (sections 1720 and 1722) were pre-empted by ERISA where a self-funded plan was involved, stating that if state law provisions had to be applied to calculate benefit levels differently in each state, the application of differing state subrogation laws would frustrate plan administrators’ continuing obligation to calculate uniform benefit levels nationwide. Id., supra.

Plaintiff asserts that this logic should apply equally to section 1797 of the MVFRL. Plaintiff cites Klinefelter v. Faultersack, 31 F. Supp.2d 457 (E.D. Pa. 1998), where the court held that medical bills arising out of a motor vehicle accident in Pennsylvania that were paid by an ERISA plan were not limited by section 1797 of the MVFRL on the grounds of pre-emption. Further, plaintiff provides that avoiding conflicting state laws affecting the administration of employee benefit plans is the “specific evil ERISA was intended to address.” Orndoff v. Wilson, 760 A. 2d 1, 5 (Pa. Super. 2000). Plaintiff also notes that a significant amount of her medical expenses were paid to medical providers in Maryland, which are not controlled by Pennsylvania’s MVFRL.

The court finds that federal ERISA law pre-empts Pennsylvania’s MVFRL provisions in this matter in that the self-funded ERISA plan is not considered an insurer and not subject to the MVFRL limitations at section 1797.

Next, defendants claim that the health plan does not provide for subrogation, but only for reimbursement, and that these two terms have different legal consequences. Plaintiff argues that, although health plan uses the term “reimbursement,” it has the same effect as subrogation and should be applicable in the same manner. The health plan contains the following language:

“Acts of third parties

“This provision applies whenever someone else ... is legally responsible or agrees to compensate you for an illness or injury suffered by you or your dependent(s). In that case, you must reimburse the plan for any benefits it paid relating to that illness or injury, up to the full amount of the compensation received from the other party (regardless of how that compensation may be characterized).”

The court does not find a distinction here between the terms reimbursement and subrogation. The clause in the health plan, quoted above, is a plain-language definition of subrogation, written so the layperson can easily understand his obligation in common terms. Because the health plan clearly has the right to be reimbursed from any recovery obtained by plaintiff, plaintiff has the right to bring into evidence the amounts paid by the health plan for medical expenses incurred as a result of the accident in the instant matter. Plaintiff also notes this claim is untimely under the consent order, and can be dismissed on those grounds as well.

Defendants also claim that the health plan cannot enforce any right of subrogation against plaintiff. The court agrees that this is not an issue which defendant has standing to raise. Whether or not the health plan can enforce its right to subrogation against plaintiff is an issue between the health plan and plaintiff; only a participant, beneficiary or fiduciary can assert such an action. Further, it is clear that the health plan has an enforceable right to reimbursement for the amounts paid by it for the medical expenses of plaintiff.

Finally, defendants request authorization from the court to pay health plan directly from any damages plaintiff receives from defendants to resolve the lien on plaintiff’s recovery. The court will grant this request for defendants to pay health plan directly, after payment of any attorney costs, fees or contingent fee agreement, or other contractual arrangements based on the amount of the award outcome, and further directs defendants to provide plaintiff with timely documentation of satisfaction of this lien at the appropriate time.

ORDER

And now, March 16,2004, for the reasons stated above, it is ordered and decreed that defendants ’ motion in limine is hereby denied.

It is further ordered and decreed that defendants will pay off plaintiff’s debt to health plan directly from any damage awards granted to plaintiff, after payment of any attorney costs, fees or contingent fee agreement, or other contractual arrangements based on the amount of the award outcome, before paying the remainder to plaintiff. Defendants are directed to provide plaintiff with timely documentation of satisfaction of this lien at the appropriate time.


author: LESKINEN, J.,

text:
    Schock v. T. J. Care Inc.

      C.P. of Fayette County,
    no. 2816 of 2003.

      Cynthia M. Porta-Clark, for plaintiff.

      John W. Burns and John T. Pion, for defendant.
    March 10, 2004
   LESKINEN, J.,

Before this court are preliminary objections to plaintiff’s complaint filed by defendants. After full consideration of the record, applicable law, and briefs of counsel, this court finds that the punitive damages claimed in the complaint are not supported by legally sufficient factual averments. Therefore, this court grants defendants’ preliminary objections.

BACKGROUND

A civil complaint was filed by Lucinda B. Schock (plaintiff) on December 12, 2003. In her complaint, plaintiff’s counsel alleges that on or about May 20,2002, the two named nurse’s aides used excessively hot water to wash Ms. Schock’s hair, causing second-degree bums and other related injuries. Counsel alleges the individual defendants “knew or should have known of the dangers associated with using hot water in close proximity of the plaintiff....” The conduct is alleged to have been reckless, and a claim for punitive damages is included. The corporate defendant is alleged to have had knowledge that the individual defendants “were not qualified to perform” duties as nurse’s aides. Likewise, the corporate defendant’s actions are generally alleged to have been reckless, and punitive damages are claimed.

The defendants filed the within preliminary objections to plaintiff’s complaint, alleging that the facts pled are not sufficient to justify the claim of punitive damages, and asking the claim be stricken. Both parties have briefed and argued the issue.

DISCUSSION

Both parties agree that the phrase “punitive damages” does not need to be in the relief requested in the complaint in order for such damages to be recovered. So why do the defendants care whether or not that phrase is used in the complaint?

If fact-finders can be trusted not to award punitive damages when they are not appropriate, why go through the additional expense of preliminary objections? There is an overriding practical reason. Insurers control the defense of most civil actions. Insurers provide coverage for civil damages arising from accidents, usually occurring as the result of negligence, but not for damages arising from intentional or reckless “criminal” conduct. Punitive damages fall within the “gray area” between civil recovery and criminal sanctions. If such damages are awarded, the named defendants are bad people who have to pay the award without indemnity from their insurer. The potential of such an award creates a conflict of interest for the attorney who is hired and paid by the insurance company, but who must attempt to represent the interests of both the insurance company and the insured. It is the effort to eliminate that conflict, and the expense associated with hiring two independent attorneys, that leads to preliminary objections like those at issue here.

At argument, the parties also agreed that “punitive damages” can be awarded only where the complaint contains sufficient factual averments to support such an award. See Nido v. Chambers, 70 D.&C.2d 129 (1975). The parties did not agree whether the factual averments in this complaint are sufficient.

Punitive damages are not a separate cause of action. Punitive damages cannot be recovered when there is no claim for compensatory damages. Houston v. Texaco Inc., 371 Pa. Super. 399, 538 A.2d 502 (1988). In that sense, punitive damages are “incidental” to the underlying cause of action. However, plaintiffs must plead additional facts in order to recover punitive damages. Facts that establish only negligence, even gross negligence, are not sufficient. Punitive damages depend on the actor’s state of mind, and are only proper when the action was reckless or intentional. Hart v. O’Malley, 781 A.2d 1211 (Pa. Super. 2001). However, it is not sufficient just to state legal conclusions, such as averring that the defendant’s conduct was malicious, wanton, willful, reckless, oppressive or outrageous. What must be pled are the facts supporting such legal conclusions.

Recklessness occurs when the actor consciously disregards a great risk of physical harm to the victim. Where a defendant does not consciously realize the high degree of risk involved, the imposition of punitive damages is not appropriate. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991); Jones v. McDonald’s Corp., 958 F. Supp. 234 (E.D. Pa. 1997).

More than one court has held that the conduct must also independently be found to be “outrageous” or “egregious.” Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970); Hough v. Meyer, 55 D.&C.4th 473 (2002); Chestnut v. Clover, 22 D.&C.4th 399 (1994), aff’d in part, rev’d in part, 450 Pa. Super. 707, 676 A.2d 277 (1996). The use of such undefinable terms relegates punitive damages to a realm of subjectivity, i.e., “I know it when I see it.” Subjective judgments should normally be made by the jury. However, their award cannot be the result of caprice, prejudice, partiality, corruption or some other improper influence. Pioneer Commercial Funding Corp. v. American Financial Mortgage Corp., 797 A.2d 269 (Pa. Super. 2002). Subjectivity cannot go so far as to become arbitrary, and the due process set forth in the Fourteenth Amendment of the United States Constitution requires judicial review of punitive damage awards. Id. Unfortunately, that judicial review must be subjective, and it also runs the risk of being arbitrary. State Farm v. Campbell, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003).

In the instant case, the plaintiff has alleged that the defendants acted with knowledge of the potential physical harm resulting from their actions, thus satisfying the minimum requirements for recklessness or intentional conduct. Litigants are permitted to plead state of mind generally. See Pa.R.C.P. 1019(b). The only remaining issue is whether the facts alleged are subjectively “outrageous” or “egregious” enough that this court would sustain a jury’s award of punitive damages.

As a question of first impression, this court finds that the specific material facts alleged in this complaint are not subjectively “outrageous” enough to sustain an award of punitive damages. See Mancini v. Yavorek, 61 D.&C.4th (2003) (medical negligence, sponge left in incision). However, it is possible that there are additional facts not yet pled that would sustain such an award. (Eg., Did the defendants use “tap” water? If so, was the water heater improperly set? Who controlled the water heater? Did defendants heat the water? Did defendants do anything to test the temperature? Were other patients treated similarly? Was the corporate defendant aware of other similar injuries?) While there are factual scenarios consistent with the complaint that could lead to the imposition of punitive damages, it is unfair to require the defendants to proceed without concrete allegations of fact. Such allegations cannot be made without a good faith basis in knowledge or expectation. See Pa.R.C.P. 1023.1(c) and (d).

If plaintiff knows of such facts, or reasonably anticipates that discovery will generate evidence of such facts, a properly drafted amended complaint can be filed. McClean v. O’Kelly, 54 D.&C.4th 1 (2001). Such an amended complaint will give the defense fair notice. It will also give the defense the ability to challenge irresponsible pleading. See Pa.R.C.P. 1023.2. Barring such an amended complaint, fairness requires that the claim for punitive damages be stricken while discovery proceeds.

Wherefore, this court enters the following:

ORDER

And now, March 10, 2004, upon consideration of the preliminary objections filed on behalf of defendants and upon further consideration of the applicable law and briefs of counsel, it is hereby ordered and decreed that defendants’ preliminary objections to plaintiff’s complaint are sustained. The allegations of knowledge and recklessness, and the claims for punitive damages, are ordered stricken from the complaint, without prejudice.

Plaintiff is granted leave to file an amended complaint in compliance with the above opinion within 20 days of this order.