author: TURGEON, J,

text:
    Pitts v. Tate

      Sheila Britt, for Pitts.

      Richard E. Tate, pro se.
    November 22, 2005
   TURGEON, J,

Richard Tate appeals from an order issued July 27,2005, denying his motion challenging an intercept of his federal tax refund made for the purpose of applying it to his child support arrearage. This opinion is written in support of the order denying his motion, pursuant to Pa.R.A.P. 1925(b).

BACKGROUND

Nichole Pitts filed a support complaint June 14,2000, by which she sought support from petitioner for the parties’ daughter. After petitioner acknowledged paternity, an initial support order was entered August 22, 2003, effective June 14, 2000, requiring that petitioner, who was then incarcerated, pay $7 per week plus $3 per week for arrears. The order stated, in relevant part, as follows:

“Arrears set at $1,169 as of August 22, 2003 are due in full IMMEDIATELY. All terms of this order are subject to collection and/or enforcement by contempt proceedings, credit bureau reporting, tax refund offset certification, driver’s license revocation, and the freeze and seize of financial assets. These enforcement/collection mechanisms will not be initiated as long as obligor does not owe overdue support. Failure to make each payment on time and in full will cause all arrears to become subject to immediate collection by all the means listed above.”

The support order was later modified July 19, 2004, effective June 3,2004, to $70 per week plus $5 per week for arrears. This increased support obligation reflected that petitioner was out of jail and working. The order stated that arrears then totaled $1,940, and included the identical language regarding collection and enforcement as set forth in the initial order, quoted above.

According to petitioner’s motion, on April 8, 2005, he was notified by the Dauphin County Domestic Relations section that it had intercepted his federal tax refund from the IRS, in the amount of $849, and that the Domestic Relations section intended to apply the refund to his arrears, which petitioner believed were then $2,417.51. (Petitioner’s motion ¶¶1 -3.) Petitioner claims that the court erred by intercepting the full amount of the refund since “only a percentage can be garnished to adjudge his debt to [the Domestic Relations section].” (¶3.) He asserts the Domestic Relations section violated his due process rights by not taking a reasonable portion (no more than one-half) of his refund, which he asserts was his principal source of income, leaving him broke, in dire straights and unable to apply the funds to other family matters. (¶¶4, 8.) He claims that it was a further violation of his due process rights that “he never/ ever was notified . . . that his personal mail, including but not limited to his tax refund, would be intercepted by the domestic unit” to satisfy his child support debt. (¶¶ 6-7.) Petitioner sought an injunction or restraining order preventing the interception of his legal mail. After the Dauphin County Domestic Relations section filed an answer, I issued an order July 27, 2005, denying his motion. Petitioner thereafter filed an appeal that was docketed in the Domestic Relations section on September 16, 2005.

LEGAL DISCUSSION

The two issues raised by petitioner were that, to the extent interception of his tax refund was permitted, the full amount of his refund should not have been seized, and also that he was not notified that the Domestic Relations section could intercept his IRS refund. Under both claims, he asserts violation of his due process rights. Before addressing these issues, it is necessary to first provide background on the IRS intercept program.

In 1975, Congress enacted the Child Support Enforcement Act, which is incorporated into the Social Security Act as title IV-D. 42 U.S.C. §651 et seq. The title IV-D program is intended to reduce state and federal expenditures often necessitated by the failure of noncustodial parents to meet their support obligations. See Pennsylvania Department of Public Welfare v. United States HHS, 80 F.3d 796, 799 (3d Cir. 1996). Under title IV-D, the federal government provides funding to participating states which must create plans that provide, inter alia, for the establishment of the paternity of children, location of absent parents, and collection of financial support for children through various means, such as wage withholding, property liens, withholding of unemployment compensation and interception of tax refunds. See 42 U.S.C. §§654(4), (5), (6); 664; 666(a)(1), (3), (4), (b)(1), (8). Under the intercept program, the Secretary of the Treasury is directed to intercept federal income tax refund checks made payable to persons whose child support payments are past due. 42 U.S.C. §664(a)(2)(A). In exchange for their compliance with federal guidelines, the federal government reimburses the states part of the operating costs of the tax refund intercept program. Id. (citing 42 U.S.C. §655(a)(2)(C) (1988)).

In order to participate in the Child Support Enforcement program, each state must designate the IV-D agency responsible for administering the program. 42 U.S.C. §654(3). Under section 4307 of the state Domestic Relations Code, the Department of Public Welfare (DPW) has been designated the IV-D agency in Pennsylvania and provided authority to implement a tax refund intercept program pursuant to the Social Security Act. 23 Pa.C.S. §4307. The Pennsylvania program is formally administered by the Bureau of Child Support Enforcement (BCSE), a division of the DPW. The BCSE has entered into title IV-D Cooperative Agreements with each county under which the Domestic Relations sections are responsible for local and county title IV-D program operations, including operation of the intercept program and the control and disposition of intercepted refunds in the county. See http://www.dpw. state.pa.us/general (last visited 11/9/05); Rogers v. Bucks County Domestic Relations Section, 959 F.2d 1268, 1270 (3d Cir. 1992).

Once per year, the Domestic Relations sections throughout Pennsylvania submit to the state BCSE a certified list of individuals who are in arrears for child support and the amount of the arrears. Rogers, supra. The BCSE in turn submits this information to the federal Office of Child Support Enforcement (OCSE), which sends a list to the IRS so that income tax refunds can be flagged for interception. Id. If a tax refund is due, the IRS intercepts the refund and the OCSE wires the funds to the state BCSE. Anderson v. White, 888 F.2d 985, 988 (3d Cir. 1989) (citing 26 C.F.R. §301.6402-5); Rogers, supra. The BCSE then mails a check directly to the appropriate County Domestic Relations section, which applies the funds against the obligor’s arrearage.

Because the interception of a tax refund involves deprivation of the support obligor’s property interest, the obligor must be afforded procedural due process; i.e., notice and the opportunity to be heard. See Presley v. Regan, 604 F. Supp. 609, 613 (N.D.N.Y. 1985) (cases cited therein). The applicable federal law and regulations provide a two-step process: the obligor is entitled to an advance, or preoffset, notice informing them that their tax refund is subject to interception, as well as a second notice upon interception, or at-offset. 42 U.S.C. §664(a)(3)(A) and 45 C.F.R. §303.72(e). In Pennsylvania, as elsewhere, the state BCSE has the option of sending out its own notice or of permitting the federal office to send a pre-offset notice on the state’s behalf. Pennsylvania, like most other states, has chosen to have the federal office send the mandatory preoffset notice. Anderson, supra. The obligation to send the at-offset notice to the taxpayer/obligor is that of the Secretaiy of the Treasury. 26 U.S.C. §6402(c). Both types of notice include the name and address of the county Domestic Relations section as the agency to contact if the obligor seeks administrative review. Where an obligor does seek such review, the Domestic Relations section must conduct a review. See 45 C.RR. §303.72(f). If the parent makes no objection or if the objections are dismissed, the tax refund is sent to the Domestic Relations section for application against the taxpayer’s delinquent support obligation. Id.

We thus turn to petitioner’s arguments. His chief claim is that the court erred by intercepting the full amount of his refund since “only a percentage can be garnished to adjudge his debt to [the Domestic Relations section].” (Petitioner’s motion ¶3.) He asserts the Domestic Relations section should have taken no more than one-half of his refund. This argument is unsupported by the law. The law provides that the Secretary of the Treasury is required to withhold from a tax refund “an amount equal to the past-due support.” 42 U.S.C. §664(a)(1) and (2). Thus, the law places no limit upon the amount of a tax refund that is subject to interception, so long as the amount intercepted is no greater than the total child support arrearage owed. Id.

With regard to petitioner’s other argument, the record contradicts his assertion that he was “never/ever notified .. . that his tax refund would be intercepted by the domestic unit.” (Petitioner’s motion ¶¶6-7.) Both the initial and modified support orders explicitly informed him that his arrears would be subject to collection and/or enforcement, including by “tax refund offset certification” and that such enforcement and collection would be viable if he owed overdue support. To the extent petitioner is raising lack of notification as it pertains to his due process right to pre-offset notification, the Dauphin County Domestic Relations section confirmed with this court that, based upon information it received from the federal OCSE, petitioner was sent a pre-offset notice on October 15,2003. That notice was sent to petitioner’s Graterford prison address, where he was then housed. Furthermore, this court would note that petitioner does not raise either of the two bases for seeking administrative review set forth in the pre-offset notice: a right to contest the state’s determination that past-due support is owed or the amount of past-due support owed. 45 C.F.R. §303.72(e). Petitioner in fact admits that he owes a child support arrearage and that the amount of his arrearage is greater than the amount of the tax intercept. (Petitioner’s motion, ¶3.)

Accordingly, I entered my order July 27,2005, denying petitioner’s challenge to the interception of his IRS refund for the purpose of applying it to his child support arrearage.

      . “Overdue support,” as the term is used in the support order, is the amount of delinquent support, equal to at least one month’s support obligation, that accrues as the result of the obligor’s non-payment of the support order. Pa.R.C.P. 1910.1(c). “Past due support” is the amount of support that accrues prior to entry or modification of a support order as a result of the retroactive effect of the support order. Id. The arrears accrued by petitioner upon the effective date of his initial support order were “past due support.”

      . Petitioner has since returned to Graterford as of March 17,2005, following his guilty plea to drug charges. He is serving a state sentence of 15 to 30 months. Commonwealth v. Tate, no. 4148 CR 2004 (Dauphin Cty.).

      . The motion is titled “Petitioner’s motion for an emergency hearing to redress garnishing of petitioner financial income and related matters of concern to petitioner.”

      . I received a copy of petitioner’s notice of appeal post-marked August 1,2005. The notice indicated it was also served upon the attorney for the Dauphin County Domestic Relations section, who confirmed receipt of the notice of appeal around August 1, 2005. The notice of appeal was not stamped or filed in the Domestic Relations section until September 16, 2005, however, in light of these circumstances, this court assumes the notice of appeal was timely. See Pa.R.A.P. 905(a).

      . The federal statute defines “past-due support” as “the amount of a delinquency, determined under a court order ... for support and maintenance of a child.” 42 U.S.C. §664(c)(1).

      . In order to be subject to tax intercept, the parent must be past-due in his or her child support in welfare cases by $150 or more, and in non-welfare cases by $500 or more. See Anderson v. White, 888 F.2d 985, 988 (3d Cir. 1989) (citing 45 C.F.R. §303.72).

      . The pre-offset notice must inform the obligor of their right to contest the state’s determination that past-due support is owed or the amount of past-due support; their right to an administrative review; of the procedures and time frame for contacting the appropriate state agency to request review; and that, in the case of a joint return, the Secretary of the U. S. Treasury will notify the noncustodial parent’s spouse at the time of offset regarding the steps to take to protect the share of the refund which may be payable to that spouse. 45 C.F.R. §303.72(e).

      . “Overdue support,” as the term was used in the support orders, is the amount of delinquent support, equal to at least one month’s support obligation, that accrues as the result of the obligor’s non-payment of the support order. Pa.R.C.P. 1910.1(c). “Past due support” is the amount of support that accrues prior to entry or modification of a support order as a result of the retroactive effect of the support order. Id. It is clear from the record that petitioner owed overdue support at the time tax intercept proceedings were initiated.

      . A notation in the PACSES system indicates that the at-offset notice was mailed to him through the IRS on March 25,2005.


source: Caselaw Access Project

author: MOSCHETTA, J.,

license: Public Domain

text:
    Ramsey v. Rich Hill Township Volunteer Fire Department

      Edward J. Balzarini Jr., for plaintiff.

      Victor J. Sullivan Jr., for defendant Rich Hill Township Volunteer Fire Dept.

      Jayne M. Chiurazzi, for defendant EMS Southwest Inc.

      Kathleen S. McAllister, for defendant United Services Ambulance Inc.

      Steven M. Toprani, for intervenor, Commonwealth of PA, Dept, of Public Welfare.
    October 12, 2005
   MOSCHETTA, J.,

Presently before the court is a petition for leave to intervene in partial settlement of a minor’s claim pursuant to joint tort-feasor releases, filed by the Commonwealth of Pennsylvania, Department of Public Welfare. For the reasons that follow, the motion will be denied.

I. BACKGROUND

The parties are familiar with the facts of this case and they need not be recited in detail here. At this juncture, plaintiff and several of the defendants are in a position to partially settle the case. The Commonwealth now brings this petition to intervene in the proposed settlement so that it might attempt to recover funds, in the form of a subrogation lien, that it has expended for the purpose of providing medical care to plaintiff.

II. STANDARD OF REVIEW

Whether to permit intervention is a matter within the court’s sound discretion. Viadock v. Nesbitt Memorial Hospital, 339 Pa. Super. 437, 442, 489 A.2d 240, 242 (1985), citing Darlington v. Reilly, 363 Pa. 72, 69 A.2d 84 (1949) and Harrington v. Philadelphia City Employees Federal Credit Union, 243 Pa. Super. 33, 364 A.2d 435 (1976). Unless the court manifestly abuses its discretion, its decision regarding intervention will not be disturbed. Id.

III. DISCUSSION

The Pennsylvania Superior Court has stated it is well established that an action for subrogation is one based on considerations of equity and good conscience. The goal is to place the burden of the debt upon the person who should bear it. The right of subrogation may be contractually declared or founded in equity, but even if contractually declared, it is to be regarded as based upon and governed by equitable principles. It has often been said that the equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights and disabilities he is subrogated. Brinkley v. Pealer, 341 Pa. Super. 432, 438-40, 491 A.2d 894, 898 (1985).

In the instant case, plaintiff does not have a valid claim against defendants for the recovery of medical expenses. Had his mother and natural guardian, Mary Blake, filed an action on her own behalf, she could have sought compensation from defendants for her son’s past and future medical expenses. She did not file an action on her own behalf, however, and it is uncontested that the statute of limitations on any such action expired in 1996. Accordingly, because neither plaintiff Jonathan Ramsey nor his mother and guardian, Mary Blake, have a cognizable cause of action for medical expenses against defendants, the Commonwealth does not have a valid subrogation lien and as such, the court will not permit it to intervene in the proposed partial settlement of this case.

IV. CONCLUSION

As a subrogee, the Commonwealth cannot assert rights greater than those held by Jonathan Ramsey, plaintiff in this action. Because plaintiff does not have a valid claim for medical expenses, neither can the Commonwealth of Pennsylvania, Department of Welfare. Thus, its petition to intervene in the partial settlement between plaintiff and several of the defendants in this matter is denied.

ORDER

And now, October 12, 2005, after argument and in consideration of the motions and briefs filed, the Commonwealth of Pennsylvania, Department of Welfare’s petition for leave to intervene in partial settlement of a minor’s claim pursuant to joint tort-feasor releases is hereby denied.


author: MOTT, J.,

text:
    Schultz v. Alex Enterprises LLC

      Ray DePaola, for plaintiffs.

      Scott D. Pellinger, for defendant.
    October 6, 2005
   MOTT, J.,

Before the court is the motion for summary judgment filed by the defendant, Alex Enterprises LLC, d/b/a Alex Enterprises. The facts of this case are as follows: On May 7, 2001, the plaintiffs entered into a contract with Alex for the sale of two parcels of real property located in Wysox, Pennsylvania. Alex intended to lease the property to Tops in order for Tops to build a grocery store at that location. As part of the agreement, Alex paid a total of $ 10,000 to the plaintiffs ($5,000 to the Schultzs and $5,000 to the Jurnacks), as down payments on the properties that they respectively owned. This amount was held in escrow by the defendant, Commercial Choice Realty Inc. One hundred and eighty days later, Alex paid another $5,000 to the Schultzs and $5,000 to the Jurnacks, to extend the agreement by an additional 180 days. This second payment was also held in escrow by Commercial Choice. On May 14, 2002, Alex terminated the agreement because Tops decided not to build the store and, therefore, Tops did not need to lease the property. As a result, Commercial Choice returned the $20,000 it held in escrow to Alex.

The plaintiffs allege that Alex defaulted under the contract and, thereby, forfeited the $20,000 advance payments.

Initially, we note that a party may move for summary judgment after the relevant pleadings are closed 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 reports. Pa.R.C.P. 1035.2(1). In the alternative, a party may move for summary judgment if, after the completion of discovery relevant to the motion, the party who bears the burden of proof at trial has failed to produce evidence essential to sustain his case at trial. Pa.R.C.P. 1035.2(2). Our standard for determining whether to grant such a motion is well settled. We must resolve all doubt against the moving party and examine the record in a light most favorable to the non-moving party. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996). Summary judgment can only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id.

The defendant, Alex Enterprises, asserts that summary judgment should be entered in its favor because the plaintiffs have failed to plead, or to offer any proof, that the conditions precedent of the contract have been met. Pa.R.C.P. 1019(c) states that “[i]n pleading the performance of occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred.” Paragraph eight of the contract, attached as exhibit B to the complaint, lists the conditions precedent as requiring that the purchaser must obtain zoning approval satisfactoiy to the purchaser, that the purchaser must be able to receive utility services, that the purchaser must be able to obtain engineering, wetlands, and environmental reports, soil tests, and planning feasibility studies, and that the purchaser must be able to obtain final site approval from its lessee pursuant to an executed lease satisfactory to the purchaser. In this case, the plaintiffs did not even plead that these conditions precedent have been met, let alone offer any proof that they have been. Furthermore, the defendant has offered evidence that the “final site approval” condition precedent has not been met, because Tops decided not to build on the properties. Finally, the plaintiffs have not offered any evidence to contradict the defendant’s evidence in regard to site approval. See Pa.R.C.R 1035.3(a)(1) and (2) (stating, in relevant part, that the adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response identifying one or more issues of fact arising from evidence in the record controverting the evidence cited in support of the motion, or evidence in the record establishing the facts essential to the cause of action which the motion cites as not having been produced). Therefore, the defendant’s motion will be granted.

Accordingly, we enter the following:

ORDER

And now, October 6,2005, in accord with the memorandum opinion filed this date, the motion for summary judgment filed by the defendant, Alex Enterprises, is granted. As a result, on praecipe, the clerk of courts is directed to enter judgment in favor of the defendant, Alex Enterprises, and against the plaintiffs, David Schultz, Lynette Schultz, David Jumack and Mary Jumack.


author: MASCARA, J.,

text:
    Verno v. Safeco Property & Casualty Insurance Companies

      Joe Francis, for plaintiff.

      Daniel McDyer, for defendant.
    August 18, 2005
   MASCARA, J.,

This case stems from a civil action wherein a complaint was filed on November 18,2004. The plaintiff, Carmine P. Vemo, filed suit against defendant Safeco Property & Casualty Insurance Companies, alleging that plaintiff was involved in an automobile accident on or about March 20, 2002. Mr. Vemo alleged that he sustained various injuries for which he was treated and the defendant, Safeco, paid all the medical bills as the workers’ compensation carrier. Plaintiff alleges, at paragraph 4 of his complaint, that on or about February 2004, when plaintiff asked the time limit for making a claim against Geico Insurance, the company which insured the other automobile involved in the accident with plaintiff, defendant responded that plaintiff had three years to make such a claim in Pennsylvania. The complaint further alleges that Safeco wrote a letter to Geico, advising them that plaintiff was pursuing a claim for special and general damages. At paragraph 6, the complaint states that plaintiff sent a demand letter to Geico Insurance Company, on or about April 14, 2004, advising them of his medical expenses, lost wages, and pain and suffering damages. Plaintiff apparently received a letter from Geico dated April 23, 2004, advising him that that statute of limitations in Pennsylvania was two years from the date of the loss and that the statute had expired as to plaintiff’s claim. Plaintiff alleges that, due to the “misinformation” he received from the defendant relative to the statute of limitations issue, he did not take action on his claim prior to March 20, 2004. The complaint goes on to state that defendant’s “failure to exercise reasonable care, skill and diligence in advising plaintiff of the statute of limitations in Pennsylvania constitutes a negligent act and a breach of duty to the plaintiff.” (Complaint at paragraph 8.)

Defendant filed preliminary objections on December 20,2004. Defendant maintained it was immune from suit, having provided workers’ compensation benefits to plaintiff. Defendant further alleged that certain averments in plaintiff’s complaint were sufficiently vague to render the pleading insufficient. Amotion to schedule argument was filed on December 29, 2004, and argument was scheduled for January 28,2005. Plaintiff filed a petition for extension of time in which to file a brief in opposition to the preliminaiy objections and a new argument date was scheduled for February 23, 2005. The court heard arguments on that date, and, after a review of the file and applicable law, the preliminary objections to the complaint were sustained and the complaint was dismissed. This appeal followed.

Plaintiff’s singular issue in his statement of matters complained of on appeal is as follows: “[t]he court improperly granted summary judgment [sic] in favor of defendant by misinterpreting the Pennsylvania Workers’ Compensation Act and by applying same to this case when the issues are whether the defendant caused damages to the plaintiff by informing plaintiff that he had three years in which to bring a lawsuit, when in fact he had only two years to do so.”

From the onset, it should be noted that the court views plaintiff’s claim as specious. Plaintiff apparently takes no responsibility whatsoever for having allowed the statute of limitations to run on his third-party claim, but rather places blame squarely upon the shoulders of his employer’s workers’ compensation carrier. While the court could find no case directly on point, the basic premise upon which plaintiff’s complaint establishes his foundation is false. The elements of a negligence-based cause of action are a duty, breach of duty, causal relationship between breach and resulting injury, and actual loss. Campo v. St. Luke’s Hospital, 755 A.2d 20 (Pa. Super. 2000). In the instant case, none of those elements exist. This court does not believe defendant had any duty whatsoever to plaintiff, above and beyond those contemplated by the workers’ compensation statute. Certainly no privity of contract existed between the parties. In reality, it is Mr. Verno who had a duty to investigate the actual statute of limitations in the state of Pennsylvania. Plaintiff had two years to do so and, despite a plethora of personal injury attorneys who advertise in every conceivable media format, plaintiff allegedly decided to rely exclusively upon the representations of a claims representative for defendant. Compounding plaintiff’s problems is the fact that the defendant provided him with workers’ compensation benefits.

Section 481(a) ofthe Pennsylvania Workers’ Compensation Act indicates that “the liability of an employer under this act shall be exclusive and in place of any and all other liability to such employees ... or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death . . . .” 77 P.S. §481(a). (footnotes omitted) Section 501(a)(1) of the Act states that every employer liable under the Act shall insure the payment of compensation through an insurance company, or mutual association or company, unless exempted and “[sjuch insurer shall assume the employer’s liability hereunder and shall be entitled to all of the employer’s immunities and protection hereunder . . ..” 77 P.S. §501(a)(1).

While the statutory language is clear enough, plaintiff’s claim attempts to differentiate between the workers’ compensation benefits provided, and any possible claims related thereto, and a common-law action against the employer for an injury which is noncompensable under the Act. In opposition to the preliminary objections, plaintiff cites Grant v. GAF Corp., 415 Pa. Super. 137, 608 A.2d 1047 (1992), affirmed, 536 Pa. 429, 639 A.2d 1170 (1994), which certainly discusses the relationship between negligence cases and workers’ compensation cases. In Grant, a consolidated appeal, three widows filed suit against various manufacturers and sellers of asbestos-containing products, alleging that plaintiffs’ decedents had developed asbestosis and carcinoma as a result of exposure to defendant’s products. Several plaintiffs had previously filed workers’ compensation claims and all were denied. When these plaintiffs continued to pursue the civil action, motions for summary judgment were filed by some of the defendants and these motions were granted with the trial court determining that plaintiffs were collaterally estopped from pursuing their claims which had already been adjudicated at the workers’ compensation actions. Plaintiffs appealed on the basis that collateral estoppel did not apply. On appeal, the Superior Court held that collateral estoppel did apply; however, Grant does hold that the exclusivity provision of the Workers’ Compensation Act does not bar common-law actions against an employer for injuries which are noncompensable under the Act. That holding, of course, assumes that a litigant has some sustainable action at common law. This is precisely where plaintiff’s claim in the instant case falls short of the mark. The Grant case is clearly distinguishable from the instant case.

In support of the preliminary objections, defendant cites Santiago v. Pennsylvania National Mutual Casualty Insurance Company, 418 Pa. Super. 178, 613 A.2d 1235 (1992). In Santiago, the appellant suffered a work-related injury and, as a result, underwent surgery and subsequent physical therapy. The appellant received weekly disability benefits pursuant to the Workers’ Compensation Act and alleged that, as a result of his injury, he developed a psychiatric injury and was hospitalized several times for psychiatric care. Defendant paid for this care for a short period of time and then terminated payment. Appellant then filed a claim petition with the Workers ’ Compensation Bureau, alleging that appellant’s attorney and an alleged representative of defendant had entered into settlement negotiations. Appellant argued that, upon reaching a settlement, he was notified that the representative did not have authority to act on behalf of the defendant and that a settlement would occur only if he agreed to a waiver for any future psychiatric treatment. The settlement fell through and appellant attempted suicide, which he claims was the result of exacerbated depression caused by the collapse of the settlement agreement. Appellant alleged fraud, intent to deceive and bad faith on the part of defendant. Defendant filed preliminary objections which were sustained by the trial court. The issue raised on appeal was whether the trial court erred in finding the alleged causes of action were barred by the exclusive remedy provisions under the Workers’ Compensation Act. The Superior Court, after a thorough analysis of existing case law, held that because appellant’s claims were completely intertwined with his original compensable injury, his remedy was specifically addressed by the provisions of the Workers’ Compensation Act and he was precluded from seeking redress in tort against the insurance carrier. While helpful for academic purposes, Santiago is not directly on point as the “injuries” (bad legal advice) complained of in the instant case are completely unrelated to the original injuries (physical and/or mental) sustained by the plaintiff. In fact, in Santiago, a distinction was made between actions arising as a result of the carrier’s “mishandling of claims,” which have their ultimate basis in the underlying work-related claim, and actions which are not based upon an injury compensable under the Workers’ Compensation Act and seek redress for a separate injury. No such “mishandling” allegation is made by the plaintiff herein. In truth, the case does not assist the defendant, who missed the mark by failing to address the underlying “negligence/ duty” issues.

This court has also reviewed the cases of Kuney v. PMA Insurance Company, 525 Pa. 171, 578 A.2d 1285 (1990); Taras v. Wausau Insurance Co., 412 Pa. Super. 37, 602 A.2d 882 (1992); and Fry v. Atlantic States Insurance Company, 700 A.2d 974 (Pa. Super. 1997), none of which are directly on point. It is important to note that the plaintiff in the instant case does not allege fraud, intentional deception or even misleading statements on the part of the defendant. It has been held that, absent such allegations, an employer has no affirmative duty to apprise a workers’ compensation claimant of any or all available benefits. See Miller v. Keystone Insurance Co., 535 Pa. 531, 636 A.2d 1109 (1994). This is not a case where an insurer fraudulently or deceptively lulled an insured into inaction. At best, even accepting all allegations in the complaint as true, Mr. Vemo can only prove that defendant may have given gratuitous, albeit bad advice. In order for there to be an action at common law sounding in negligence, the alleged tort-feasor must first owe a duty to the injured party. Salvatore v. State Farm Mutual Automobile Insurance Company, 869 A.2d 511 (Pa. Super. 2005). Where there is no duty, there can be no negligence. Id.


author: MINORA, J.,

text:
    Alpaugh v. Koch

      Martina W. McLaughlin, for plaintiff.

      Benjamin A. Post and Tara A. Reid, for defendants Mercy Hospital/Mercy Health Partners.

      Patrick C. Carey, for defendant Von Koch.
    August 10, 2005
   MINORA, J.,

Before the court is the plaintiff’s petition to strike off and/or open judgment of non pros regarding claims against the defendants, Mercy Health Partners — Northeast Region and Mercy Hospital — Scranton. Judgment of non pros was entered by the Lackawanna County Clerk of Judicial Records against plaintiff and in favor of the defendants on December 29, 2004. The interested parties have submitted written arguments and briefs upon which oral argument was held before this court on June 6, 2005. For the reasons set forth below, the requested relief will be granted pursuant to the attached order.

STATEMENT OF THE CASE

The instant action was commenced by the plaintiff, Madeline Alpaugh, by complaint filed on October 27, 2004. Therein, the plaintiff asserts medical negligence claims of vicarious liability, direct liability and corporate negligence. Specifically, Count I asserted against defendant, Lear Von Koch M.D. and Lear Von Koch M.D. and Associates, is grounded in medical negligence and vicarious liability for Lear Von Koch M.D., his agents, servants and/or employees. The second count asserted is against defendants, Mercy Hospital — Scranton and Mercy Health Partners — Northeast Region (Mercy defendants) and is based upon the medical negligence of these defendants and vicarious liability for the actual, apparent or ostensible agents, servants and/or their employees. Count III is asserted against the Mercy defendants and is centered upon corporate negligence. The defendant, Lear Von Koch M.D. is a duly licensed physician of the Commonwealth of Pennsylvania. The defendants, Mercy Hospital — Scranton and Mercy Health Partners — Northeast Region are both Pennsylvania corporations which at all times relevant to this action, have been engaged in the business of providing health care services as a hospital.

The circumstances that led to the filing of the complaint are as follows. The plaintiff, Mrs. Alpaugh, a patient of Dr. Lear Von Koch, was examined and advised that she undergo surgery to correct her condition known as moderately severe mitral valve insufficiency with mild mitral stenosis. The plaintiff consented to cardiothoracic surgery for replacement of the mitral valve which was performed by Dr. Koch at the Mercy Hospital — Scranton on October 31, 2002. As alleged, the defendants failed to diagnose the postoperative bleeding suffered by the plaintiff after completion of surgery and as a result, the plaintiff suffered cardiopulmonary arrest leading to brain damage negatively impacting the plaintiff’s motor and cognitive functions.

In the plaintiff’s complaint, she includes the individuals, by name or description, who acted as agents, servants or employees of the Mercy defendants at all relevant times to this matter. (See complaint/amended complaint ¶¶9,10.) On November 3, 2004, the plaintiff filed a certificate of merit, verified by the plaintiff’s attorney and listed all defendants including the Mercy defendants. The plaintiff followed the prerequisites of Pa.R.C.P. 1042.3, to file a certificate of merit, and obtained affidavits of merit regarding the inadequate health care provided by Lear Von Koch M.D. and the health care professionals at Mercy Hospital on October 31 through November 1, 2002. (See Pa.R.C.P. 1042.3(a) (1).)

The Mercy defendants filed a praecipe for entry of judgment of non pros on December 29, 2004, with the Lackawanna County Clerk of Judicial Records. Therein, the Mercy defendants contested the plaintiff’s compliance with the requirements of Pa.R.C.P. 1042.3 regarding the plaintiff’s claims of vicarious liability as to the Mercy defendants. The defendants declared in their praecipe that the plaintiff failed to file a certificate of merit regarding the claims of agency, specifically indicating that the Mercy defendants deviated from the acceptable professional standards supported by allegations that other licensed professionals deviated from their acceptable standards of whom the Mercy defendants retain responsibility and control. On December 29, 2004, the clerk of judicial records entered judgment of non pros regarding the professional liability claim asserted against the Mercy defendants. At present, the plaintiff asks the court to strike the judgment of non pros, or, alternatively, open the judgment of non pros.

Certificate of Merit

The certificate of merit is a procedural requirement applicable in medical liability actions wherein it is alleged that licensed professionals deviated from the acceptable standards of professional conduct and responsibility. Pa.R.C.P. 1042.3. The rule requires that the plaintiff file a certificate of merit with the complaint or within 60 days, whereby a licensed professional believes that the complained-of actions fell outside the acceptable standards of professional conduct. Pa.R.C.P. 1042.3(a); see also, {News Release, Supreme Court of Pennsylvania as attached as exhibit “A” to plaintiff’s brief in support of petition to strike off and/or open judgment of non pros). The rule itself provides several options in filing the certificate of merit listed under Pa.R.C.P. 1042.3(a) and (b). Subsection Pa.R.C.P. 1042.3(a) commands that a certificate of merit be filed that either complies with subsection 1042.3(a)(1), (2) or (3). (emphasis added) Therefore, subsection (a) must be applied as a disjunctive rule. Pa.R.C.P. 1042.3(a)(1) commands that an appropriate licensed professional supply a written statement providing that there is a reasonable probability the complained-of acts did fall outside the acceptable standard of professional conduct and caused the complained-of injury. Pa.R.C.P. 1042.3(a)(2) requires a certificate be filed for, “the claim that a defendant who deviated from the acceptable professional standards is based solely on aliegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard.” (emphasis added) Additionally, the third option in which the certificate of merit may be provided may state that expert testimony is unnecessaiy for the prosecution of the claim. Pa.R.C.P. 1042.3(a)(3). This section is not applicable in the present matter. The alternative in subsection Pa.R.C.P. 1042.3(b) involves filing a separate certificate of merit to each licensed professional against whom a claim is asserted. In deciding which alternative to pursue, 1042.3(a) or 1042.3(b) is a matter of preference, while selecting from among the options listed as subsections 1042.3(a)(1), (2), or (3) is a matter driven by the factual circumstances of the case.

Presently, the plaintiff filed one consolidated certificate of merit delineating all named defendants. These were included in one consolidated certificate of merit encompassing all named defendants. Several different affidavits of merit pertaining to various defendants were secured in support of the one consolidated certificate of merit filed. We must now determine whether the one consolidated certificate of merit filed satisfies the procedural rule.

A necessary distinction that must be addressed involves the difference between a certificate of merit and an affidavit of merit. The rules of procedure order the certificate of merit to be filed in a professional liability action. The certificate of merit must be based on the statement of an appropriate licensed professional. Here, those statements have been supplied in the form of several affidavits of merit. The purpose of the procedural rule commanding that a certificate of merit be filed either together with a professional liability claim or within 60 days thereafter is to ensure that only meritorious professional liability claims are pursued, (emphasis added) Moreover, the certificate of merit offers proof that the complaining party’s assertions are solidified and supported by evidence provided by a professional expert with sufficient education, training, knowledge and expertise to provide credible testimony. (See note Pa.R.C.P. 1042.3(a)(1).) Therefore, the court may be assured that when a certificate of merit accompanies a complaint, or is later filed in support of a complaint in a malpractice action, competent experts have reviewed the available evidence and have concluded that some form of professional negligence has been committed by the health care provider bringing about the harm or injury to the plaintiff.

The competent expert, as described by the explanatoiy note to Rule 1042.3(a)(1), in a medical professional liability action, who provides the statement/affidavit of merit supporting the certificate of merit should meet the qualifications set forth in section 512 of the MCARE Act. The requisite expert qualifications an individual needs to be competent to offer an expert medical opinion in a medical professional liability action, include that the person possess sufficient education, training, knowledge and experience to provide credible and competent testimony, retain a license, and be familiar with the applicable standard of care as well as other specific criterion given the subject of testimony to be provided. See 40 RS. §1303.512(a)-(e). Furthermore, the term “health care provider” includes a primary health care center, corporation, physician, certified nurse midwife, hospital, nursing home or employee or agent of any provider listed within the rule in the course or scope of employment. 40 P.S. §1303.503. The Mercy defendants are health care providers as described by the Medical Care Availability and Reduction of Error (MCARE) Act. As no example has been provided in the procedural rules or note describing the competency requirements of an expert providing a professional opinion in regard to the negligence and liability of a medical corporation, we find the requirements to be identical to those described by section 512 of the MCARE Act, 40 P.S. §1303.512.

As further explanation of the application of Pa.R.C.P. 1042.3, Supreme Court Chief Justice Ralph J. Cappy supplied an amendment for the purpose of explaining the present rule and addressing the misconception that the rule requires the plaintiff to file a certificate of merit for each licensed professional involved in the alleged misconduct. (See exhibit “A” to plaintiff’s brief in support of petition to strike off and/or open judgment of non pros.) The amendment was made to the note accompanying Pa.R.C.P. 1042.3(a)(2). The amendatory language affirms that the statement supplied in support of the certificate under subparagraph (a)(1) does not have to identify the specific professionals who deviated from the requisite standard of care. The additional language was incorporated into Pa.R.C.R 1042.3, pursuant to per curiam order dated February 11, 2005, and effective immediately. Although the amendment was adopted after the entry of judgment of non pros, we must note that we are not applying a rule retroactively, but instead instituting the Supreme Court’s explanation as guidance to the application of an already existing rule. The Supreme Court in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 59, 436 A.2d 147, 151 (1981), clarifies that explanatory notes, “indicate the spirit and motivation behind drafting of the rule, and they serve as guidelines for understanding the purpose for which the rule was drafted.” Helfrick v. UPMC Shadyside Hospital, 64 D.&C.4th 129 (2003), and 65 D.&C.4th 420 (2003); Moore v. Luchsinger, 862 A.2d 631 (Pa. Super. 2004).

A recent Superior Court decision regarding certificates of merit is Yee v. Roberts, 2005 WL 1524965 (Pa. Super. 2005). There, claims of both direct liability and vicarious liability were asserted against a professional dental partnership for failure to properly train and supervise employees and for the negligent acts performed by the employees during the course of their employment duties. The court determined that a certificate of merit must be filed for professional liability actions or vicarious liability actions regarding professional negligence because expert testimony would be required to establish the requisite standards of care applicable to execute upon those duties or to train and supervise the employees. The court does not demand that separate certificates of merit be filed for each potential tort-feasor over whom the corporate entity may be found vicariously liable.

We also direct attention to another recent decision dealing with the same issue before this court. In Miller v. Purcell, slip opinion, 04-00, 691 CCP Lycoming Cty. (Judge Dudley Anderson, November 3, 2004), the court stated that to dismiss claims in a medical liability action on the basis that the certificate of merit combined all defendants is both unnecessary and in violation of the legislative intent of the Medical Care Availability and Reduction of Error Act which ensures due process to those persons injured due to medical negligence. (See 40 P.S. §1303.502.)

The certificate of merit filed by the plaintiff was in consolidated form and included all named defendants and was properly supported by separate affidavits of merit. We are guided by statutory language, case law and the commentary of the Supreme Court in determining that the certificate filed in this matter was acceptable according to the rule requirements. To do otherwise would be to elevate form over substance to an absurd degree and result, which the facts of the present case could never justify.

Standard of Review

The request for relief from the entry of a judgment of non pros is required to be presented to the court by petition. Upon the entry of judgment of non pros, a three-part test pursuant to Pa.R.C.P. 3051 may be employed to determine whether the petitioning party may obtain the relief requested. The court may either strike off the judgment or open the judgment pursuant to Pa.R.C.P. 3051 depending upon the requested relief. The criterion that must be established to satisfy the three-part test includes that (1) the petition is timely filed (2) there is a reasonable explanation or legitimate excuse for inactivity or delay and (3) there is a meritorious cause of action. Pa.R.C.P. 3051(b)(1-3); see also, Hoover v. Davila, 862 A.2d 591 (Pa. Super. 2004). The Superior Court instructs that a petition to open a judgment of non pros is directed to the equitable powers of the court. Esslinger v. Sun Refining and Marketing Co., 379 Pa. Super. 69, 73, 549 A.2d 600, 602 (1988), citing Geyer v. Steinbronn, 351 Pa. Super. 536, 506 A.2d 901 (1986). Moreover, it is within the trial court’s discretion to either grant or deny a party’s petition to open a judgment of non pros. Esslinger, supra at 73, 549 A.2d at 602, citing First Valley Bank v. Steinmann, 253 Pa. Super. 8, 384 A.2d 949 (1978). A petition to strike a judgment of non pros may be granted when it is apparent that there are defects on the face of the record. Esslinger, supra at 75, 549 A.2d at 603, citing Ruehl v. Maxwell Steel Co., 327 Pa. Super. 39, 474 A.2d 1162 (1984) (prothonotary had no authority to enter judgment against garnishee for amount in excess of the amount admitted). The unauthorized entry of a judgment by the prothonotaiy renders a judgment void, and therefore the judgment must be stricken. Ruehl, supra at 42, 474 A.2d at 1163.

Here, the petition was timely filed and therefore the first element of the three-prong test has been met. The entry of judgment of non pros was made December 29, 2004, and the petition to strike off and/or open judgment of non pros was filed seven days later on January 6, 2005. The second condition that the petitioner must satisfy is that there is a reasonable explanation for the delay or inactivity that preceded the entry of the judgment. Presently, there was no delay or inactivity that led to the entry of judgment of non pros. As discussed above, the one consolidated certificate of merit was timely filed and it satisfies the Pennsylvania Rules of Civil Procedure, therefore fulfilling the second prong. The third requirement is that there is a meritorious cause of action asserted by the plaintiff. Here, we see that the claims presented have merit based upon the certificate of merit and supporting affidavits of merit. We find little need to discuss each claim asserted against the moving defendants at this juncture.

In following the above standard to open or strike a judgment of non pros, we recognize that, given the current circumstances, it is more appropriate for the court to open the judgment rather than strike it since there are no patent defects of record. Here, the judgment of non pros should never have been entered since a sufficient certificate of merit had been filed prior to the filing of the praecipe. (See Pa.R.C.P. 1042.6.) Therefore, it is only proper that the court open the judgment of non pros. An appropriate order accomplishing opening of judgment of non pros follows.

ORDER

And now, to wit, August 10,2005, upon consideration of the plaintiff’s petition to open and/or strike off judgment of non pros, the verbal and written arguments of counsel and in accordance with the preceding memorandum, it is hereby ordered and decreed that the plaintiff’s requested relief to open the judgment of non pros entered against petitioning plaintiff and dated December 29, 2004, is hereby granted.

      . In Count II, ¶82, the plaintiff incorporates by reference ¶¶1-81 as though set forth in full. Furthermore, ¶83, subparagraphs (a) though (oo) identify the specific failures to act made by the defendants including the doctors, nurses and assistants.

      . Certifícate of merit as to defendants Lear Von Koch M.D., Lear Von Koch M.D. and Associates, Mercy Health Partners — Northeast Region, and Mercy Hospital — Scranton
      “I, Martina M. McLaughlin, Esquire, certify that appropriate licensed professionals have supplied written statements to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by these defendants in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.”

      . The record provides that the plaintiff obtained an affidavit of merit containing the professional opinion of medical experts that Mercy Hospital, by Dr. Koch and health care professionals failed to act, adopt or enforce rules, policies or procedures to ensure quality care was extended to Mrs. Alpaugh and such breach was a substantial factor in the cause of Alpaugh’s injuries. A separate affidavit of merit was supplied by an expert specializing in critical care nursing who was of the professional opinion that the performance of the nursing staff of Mercy was inadequate and below the accepted standards while caring for Alpaugh and that Mercy failed to formulate or adopt and enforce rules, policies or procedures to ensure quality postoperative nursing care was extended to patients that have undergone cardiac surgery. (See exhibit “F” to plaintiff’s petition to strike off and/or open judgment of non pros.)

      . In the present matter, the medical professional opinions supplied as the basis of the certificate of merit have been given in the form of affidavits of merit. Because affidavit of merit is not defined by the rule under scrutiny, we shall turn to the definitions listed under Pa.R.C.P. 76. There, the term affidavit is defined as “a statement in writing of a fact or facts, signed by the person making it, that either (1) is sworn to or affirmed before an officer authorized by law to administer oaths, or before a particular officer or individual designated by law as one before whom it may be taken, and officially certified to in the case of an officer under seal of office, or (2) is unsworn and contains a statement that it is made subject to the penalties of 18 Pa.C.S. §4904 relating to unsworn falsification to authorities.” Pa.R.C.P. 76. The court relies upon the statements provided by the medical professionals in both affidavits of merit as sufficient to maintain claims of coiporate liability and vicarious liability asserted by this medical professional liability action.

      . Medical Care Availability and Reduction of Error Act, 40 P.S. §1303.512.


author: WORTHINGTON, J.,

text:
    Lee v. Denner

      Sidney D. May, for plaintiffs.

      Richard Adamson, for defendant.
    May 16, 2005
   WORTHINGTON, J.,

This matter comes before us on preliminary objections filed by Ronald E. Lee Jr., Lissa Lee, and their minor children, Tamara Lee and Amanda Huss (plaintiffs), in response to a new matter filed by Lidia Denner (defendant) on December 29, 2004, in this civil action arising from a two-vehicle accident in which plaintiffs and defendant were involved.

The complaint, filed on September 16, 2004, alleged that on November 24,2002, plaintiff, Ronald E. Lee Jr., the owner/operator of a 1994 Jeep Cherokee, was operating the Jeep southbound on Route 447, with plaintiffs Tamara Lee and Amanda Huss as passengers, when defendant, the owner/operator of a Mercury Grand Marquis, who was operating the Mercury northbound on Route 447, crossed into plaintiffs’ lane of travel, causing a collision between the Mercury and the Jeep. Count I of the complaint avers that plaintiff, Ronald E. Lee Jr., suffered numerous injuries as a result of defendant’s carelessness, recklessness and negligence, and continues to suffer from pain, discomfort, frustration and anxiety, and has suffered a loss of earnings as a result of the collision. Count II avers that plaintiff, Lissa Lee, suffered a loss of consortium of her husband as a result of defendant’s carelessness, recklessness, and negligence. Counts III and IV aver that plaintiffs, Tamara Lee and Amanda Huss, minors, by and through their parents and natural guardians, Ronald E. Lee Jr. and Lissa Lee, suffered injuries as a result of defendant’s carelessness, recklessness and negligence, and continue to suffer from pain, discomfort, frustration and anxiety. The plaintiffs in all counts demanded an unliquidated sum in excess of the jurisdictional requirements for mandatory arbitration from defendant, plus interest and costs.

Defendant filed an answer and new matter on December 23, 2004. In her answer, defendant denied all pertinent allegations by claiming that she was without sufficient knowledge or information to form a belief as to the truth of plaintiffs’ averments. Defendant further claimed to have no memory of the events leading up to the collision. In her new matter, defendant asserted that plaintiffs’ claims are barred by the applicable statute of limitations; plaintiffs’ claims are barred, in whole or in part, by applicable provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law; and that the accident and plaintiffs’ injuries and damages, if any, were caused by the superseding intervening acts of a third person or entity other than defendant.

Plaintiffs filed preliminary objections to defendant’s new matter on December 29,2004. Plaintiffs’ motion to strike is premised on the allegation that defendant’s new matter violates the pleading requirements set forth in Pennsylvania Rule of Civil Procedure 1019(a). Plaintiffs claim that the averments and contents of paragraph 35 of defendant’s new matter, which reads, “the accident and plaintiff’s injuries and damages, if any, were caused by the superseding intervening acts of third person [sic] or entities other than defendant,” are impermissible and insufficiently specific. Furthermore, such a broadly stated affirmative defense exposes the objecting plaintiffs to the danger of having defendant offer proof at trial of any number of conceivable “third person[s] or entities” who would fall within the general language of these impermissibly broad allegations beyond the expiration of the statute of limitations, in violation of Pa.R.C.P. 1019(a). Plaintiffs therefore request that we strike paragraph 35 of defendant’s new matter.

In her reply to plaintiffs’ preliminary objections, filed on January 11, 2005, defendant notes that pursuant to Pennsylvania Rules of Civil Procedure 1030 and 1032, she was required to plead her affirmative defenses to plaintiffs’ complaint in her new matter or they would be waived. Defendant further argues that Rule 4003.1 gives plaintiffs the opportunity, through discovery, to investigate any affirmative defenses that defendant has raised. In fact, defendant proposes that it is possible that she may find, through discovery, that plaintiffs have knowledge of a superseding, intervening act that caused the harm to the plaintiffs, yet she would be precluded from raising it at trial if she failed to plead this defense now. Defendant thus claims that the defense she raised in paragraph 35 is not in violation of Rule 1019(a) because the material facts upon which the defense is based may actually be known to plaintiffs. Defendant therefore contends that it is she, not plaintiffs, who would be prejudiced if plaintiffs’ motion to strike is granted because she would be precluded from asserting a potential defense that may be supported solely by evidence in plaintiffs’ possession.

Finally, defendant argues that plaintiffs’ substantive interests would not be placed in serious jeopardy by permitting defendant to assert, at this time, that it was the superseding, intervening acts of another person or entity that caused the accident because plaintiffs will be permitted, through discovery, to investigate the defendant’s allegation. Moreover, defendant cannot call any witnesses at trial without notifying plaintiffs of their existence. Therefore, plaintiffs will have the opportunity to independently interview or depose any witnesses defendant may call at trial to support her assertion that the intervening acts of another caused the accident. For the foregoing reasons, defendant requests that we deny plaintiffs’ motion to strike paragraph 35 of her new matter.

Both parties submitted briefs, and on March 7, 2005, we issued an order declaring that we would review this matter based upon the parties’ briefs without hearing oral argument. We are now ready to dispose of plaintiffs’ preliminary objection.

In ruling on preliminary objections, we recognize that we must accept as true all well-pleaded, material and relevant facts. Mellon Bank v. Fabinyi, 437 Pa. Super. 559, 567, 650 A.2d 895, 899 (1994). We need not accept as true, however, “conclusions of law, unwarranted inferences from the facts, argumentative allegations or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Commw. 1998). When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the clearest of cases. King v. Detroit Tool Co., 452 Pa. Super. 334, 337, 682 A.2d 313, 314 (1996). Alternatively, amotion to strike apleading may be granted when lack of conformity to a law or a rule of court occurs. Pa.R.C.P. 1028(a)(2). Such amotion is therefore the proper way to object to formal errors in a pleading. See Commonwealth ex rel. Sheppard v. Central Penn National Bank, 31 Pa. Commw. 190, 375 A.2d 874 (1977). With these standards in mind, we now address plaintiffs’ preliminary objection to defendant’s new matter.

The sole issue to be resolved is whether paragraph 35 of defendant’s new matter violates the pleading requirements of Pennsylvania Rule of Civil Procedure 1019(a). Paragraph 35 states: “The accident and plaintiff’s injuries and damages, if any, were caused by the superseding intervening acts of third person [sic] or entities other than defendant.” Rule 1019(a) requires that “the material facts on which a cause of action or defense is based shall be stated in concise and summary form.” Pa.R.C.P. 1019(a); see also, Laursen v. General Hospital of Monroe County, 259 Pa. Super. 150, 393 A.2d 761 (1978). Pennsylvania is a fact pleading state. Pleadings in a “fact pleading” jurisdiction serve several functions: not only must pleadings put an opponent on notice of what he will be called upon to meet at trial, they must also form the issues in an action so that the proof at trial may be restricted to those issues. See Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983); Hustey v. Hustey, 76 Luz. Reg. Reports 199 (1986). Furthermore, pleadings are to be construed against a pleader; on the theory that he has stated his case as best he can, any conflicts or ambiguities are to be interpreted against him. See Philadelphia v. Pachelli, 168 Pa. Super. 54, 76 A.2d 436 (1950).

Plaintiffs ultimately claim that if the overly broad, conclusory allegations contained in paragraph 35 of defendant’s new matter are allowed to remain, they would place plaintiffs’ substantive interests in serious jeopardy. The language of the affirmative defense in question denies plaintiffs the right to know what defendant intends to prove at trial and consequently denies plaintiffs the ability to adequately prepare because there is no reference to the identity of the alleged “third person[s] or entities” who may have caused the collision. Therefore, plaintiffs request that we strike paragraph 35 of defendant’s new matter.

Defendant, conversely, claims that we should deny plaintiffs’ motion to strike because she has complied with all relevant Rules of Civil Procedure in pleading her new matter. Rule 1019(a), which plaintiffs use to support their argument, states that “the material facts on which a defense is based shall be stated in concise and summary form.” Pa.R.C.P. 1019(a). Defendant claims she has met this requirement by concisely stating the basis for her defenses, that the superseding intervening acts of another caused the accident. She argues that she is under no obligation to refer to specific individuals or entities having knowledge of this affirmative defense in her pleadings. Defendant argues that paragraph 35 was intended simply to put the plaintiffs on notice that she may raise this defense to the allegations against her in the complaint. If she did not raise this potential defense now, she would be precluded from raising it at a later time.

Defendant further argues that plaintiffs will have access to the facts supporting her defense that are within her knowledge during the discovery process. If there are witnesses to support her defense that it was the superseding intervening act of another individual that caused the accident, then plaintiffs will determine the identity of those individuals through discovery. Moreover, it is the defendant, not the plaintiffs, who would be prejudiced if paragraph 35 were stricken from her pleadings. Defendant may learn of information that supports her affirmative defense during the discovery process. However, she would be precluded from raising this defense at trial if she failed to assert it with her other affirmative defenses in her new matter. By striking paragraph 35 from defendant’s pleadings, she would be denied the ability to present this defense to a jury, in which case she would be severely prejudiced.

A trial court has broad discretion in determining the amount of detail that must be averred in a pleading, because the standard of pleadings set forth in Rule 1019 does not lend itself to precise measurement. See United Refrigerator Co. v. Applebaum, 410 Pa. 210, 213, 189 A.2d 253, 255 (1963). In order to dispose of plaintiffs’ preliminary objection, our necessary determination is whether defendant must plead in her new matter the material facts upon which her affirmative defense is based. Although there are no recorded appellate decisions addressing this issue and the decisions by the various courts of common pleas are divided in their holdings, we find in the affirmative.

The issue before us demands a consideration of the requisite specificity of pleadings. Pennsylvania Rule of Civil Procedure 1019(a) provides that “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). In support of their preliminary objection, plaintiffs argue the applicability of Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Connor has been used by the Pennsylvania courts to preclude general allegations in complaints. Connor stands for the proposition that general averments in a complaint should be remedied by preliminary objections, which operate to have the offending averment stricken and later amended. The objectionable alternative would be to have both parties embark upon a course of extended discovery that would hopefully assure that there are no unpled facts that would support anew claim. See Allen v. Lipson, 8 D.&C.4th 390, 393 (1990). The court in Connor reasoned that the former option is not only easier, but more likely to guarantee the desired result of eliminating surprise on the eve of trial than the latter.

Plaintiffs seem to infer that the pleadings at issue here are analogous to the pleadings in Connor and that we should therefore apply the Connor holding to defendant’s factually void affirmative defense in her new matter. We agree. Plaintiffs should have the same recourse in dealing with the factually unsupported allegations contained in defendant’s new matter to minimize the chance that they will have to defend a surprise claim or defense at trial. It is our determination that to hold otherwise “would put the onus on plaintiffs to conduct extensive discovery to disprove a factually unsupported allegation rather than requiring defendant, who asserted the allegation, to marshal the facts to support it.” Allen v. Lipson, 8 D.&C.4th 390, 393 (1990). We find that the party asserting the allegation, the defendant in this case, should bear this burden.

The Rules of Civil Procedure are in place to ensure that a new matter not only gives the opposing party notice of any affirmative defenses, but also makes clear the grounds upon which it rests by including a summary of the facts essential to support that defense. See Alpha Tau Omega Fraternity v. University of Pennsylvania, 318 Pa. Super. 293, 298, 464 A.2d 1349, 1352 (1983); Clemleddy Construction Inc. v. Yorston, 810 A.2d 693, 696 (Pa. Super. 2002), citing Denlinger Inc. v. Agresta, 714 A.2d 1048, 1050 (Pa. Super. 1998); see also, Pa.R.C.P. 1019(a). More precisely, Rule 1019(a) requires that “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Pa.R.C.P. 1019(a). Thus, the purpose of 1019(a) is to require the pleader to disclose the “ ‘material facts’ sufficient to enable the adverse party to prepare his case.” Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974), citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225, 282 A.2d 335, 339 (1971). The term “material facts” has been defined as “those facts essential to support the claim” raised in the matter. Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974). A pleading therefore must do more than simply give the adverse party fair notice of what his claim or defense is and the grounds upon which it rests; it should, instead, formulate the issue by fully summarizing the material facts.

We find that plaintiffs are unable to adequately confirm or deny the allegations in defendant’s new matter without the benefit of further facts. We do not think the parties should be forced to proceed to discovery until further specificity is provided by defendant regarding her affirmative defense that “the accident and plaintiff’s injuries and damages, if any, were caused by the superseding intervening acts of third person [sic] or entities other than defendant.” Our holding today is narrowly constrained. Certain defenses, such as pleading intervening and superseding acts of others, require more specificity than others. Fitzgerald v. Kaguyutan, 18 D.&C.4th 1, 3 (1993). We therefore find that defendant’s new matter does not comply with the pleading requirements because the statement set forth in paragraph 35 is not sufficiently specific to set forth the grounds for defendant’s affirmative defense. Id., citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957).

We render our decision today in light of the language of Rule 126, which allows courts to liberally interpret the pleading rules and directs that the Pennsylvania Rules of Civil Procedure be “construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126; see also, Omicron Systems Inc. v. Weiner, 2002 WL 452238 (Pa. Com. Pl. 2002), citing St. Hill & Assocs. P.C. v. Capital Asset Research Corp., no. 5035, 2000 WL 33711023, *1 (Pa. Com. Pl. 2000). A motion for a more specific pleading designed to enforce Pa.R.C.P. 1019, as is plaintiffs’ motion in the present case, is available so that a plaintiff’s right and ability to answer and defend will not be unduly impaired by a defendant’s vagueness in stating the grounds of his affirmative defense. See Local No. 163, International Union v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965). For the reasons set forth in this opinion, we hereby grant plaintiffs’ preliminary objection in the nature of a motion to strike paragraph 35 of defendant’s new matter. Defendant is granted leave to amend the allegations with specificity.

Accordingly, we enter the following:

ORDER

And now, May 16, 2005, in consideration of the preliminary objection filed by plaintiffs to defendant’s new matter, it is ordered as follows:

(1) Plaintiffs’ preliminary objection in the nature of a motion to strike paragraph 35 of defendant’s new matter is granted, and defendant is granted leave to amend paragraph 35 of her new matter with specificity within 20 days of the date of this order.

      . Defendant consistently refers to paragraph 35 as paragraph 19. We recognize the error as one that arises from the fact that defense counsel is representing defendant in two lawsuits brought by two different sets of plaintiffs, both of whom were involved in the same car accident. Defendant has issued identical new matters in both cases and the same preliminary objections to her new matters were filed by plaintiffs’ counsel in both cases. Paragraph 19 is the paragraph called into question by plaintiffs in the case of Carlton v. Denner, 6354 CV 2004. We recognize that this is a clerical error, and defendant more properly meant to cite paragraph 35.


author: SHEPPARD JR., J.,

text:
    Walden v. Mercedes Benz Credit Corp.

      Alan M. Bredt, for plaintiff.

      Stephen G. Harvey and Stacy 1. Georgelis, for defendant.
    April 27, 2005
   SHEPPARD JR., J.,

Plaintiff, Michael Walden, has moved to preclude defendant, Mercedes Benz Credit Corp. (MBCC), from repossessing a certain Mercedes Benz automobile which Walden claims to own, and in which MBCC claims to have a security interest.

The car was originally purchased from a Mercedes Benz dealer in California by an individual whom the parties refer to as Customer. Customer financed her purchase of the car through MBCC and granted MBCC a security interest in the car. Customer subsequently transferred the car to a California auto dealership known as Duty Free Car Payment Inc. Walden purchased the car from Duty Free pursuant to an installment sales contract under which he continued to make payments until Duty Free ceased to exist. Customer did not continue to make her installment payments to MBCC once the car ceased to be in her possession. MBCC now claims that Customer may have obtained the car from the Mercedes dealership fraudulently and that she and Duty Free may have been part of an auto theft ring. As a result, MBCC claims that Walden does not have valid title to the car and that MBCC is entitled to possession of the car due to its perfected security interest.

Since Customer entrusted possession of the car to Duty Free, which was “a merchant who deals in goods of that kind,” Duty Free had “the power to transfer all rights of [Customer] to a buyer in ordinary course of business ... even though the disposition of [the car] by [Duty Free] was such as to be larcenous under criminal law.” 13 Pa.C.S. §2403(b), (c). In addition, since the car was originally “delivered [to Customer] under a transaction of purchase, [Customer] ha[d] such power [to transfer good title to a good faith purchaser for value] even though ... the delivery [to Customer may have been] procured through fraud punishable as larcenous under the criminal law.” 13 Pa.C.S. §2403(a)(4). Furthermore, the “agreement between [Customer] and [MBCC] which prohibits a transfer of [Customer’s] rights in [the car] or makes the transfer a default does not prevent the transfer from taking effect.” 13 Pa.C.S. §9401. Therefore, Customer and/or Duty Free were capable of transferring good title to the car to Walden, even if one or both of them was guilty of theft with respect to the car, but that does not mean that they were also capable of transferring clear title.

The question is whether Duty Free’s transfer to Walden extinguished MBCC’s security interest in the car, or if Walden took title subject to the security interest of MBCC. Normally, “a buyer in the ordinary course of business . . . takes free of a security interest created by the buyer’s seller, even if the security interest is perfected and the buyer knows of its existence.” 13 Pa.C.S. §9320(a). Flowever, MBCC’s security interest was not created by Duty Free (the buyer’s seller), but rather by Duty Free’s transferor, Customer. Therefore, Walden cannot claim the benefit of section 9-320, and MBCC’s “security interest... continues in [the car] notwithstanding sale... or other disposition thereof....” 13 Pa.C.S. §9315. See Gordon v. Hamm, 63 Cal. App. 4th 1324, 74 Cal. Rptr.2d 631 (2d Dist. 1998) (purchaser of used motor home from dealer took subject to security interest created by original owner); Marine Midland Bank v. Smith Boys Inc., 129 Misc.2d 37, 492 N.Y.S.2d 355 (Erie Cty. 1985) (purchaser of used boat from dealer took subject to security interest created by original owner); Ocean County National Bank v. Palmer, 188 N.J. Super. 509, 457 A.2d 1225 (1983) (purchaser of used boat from dealer took subject to security interest created by original owner, even though dealer had been involved in obtaining that security interest); Martin Bros. Implement Co. v. Diepholz, 109 Ill. App.3d 283, 440 N.E.2d 320 (4th Dist. 1982) (purchaser of used bulldozer from dealer took subject to security interest created by original owner). Cf. Schultz v. Bank of the West, CBC, 325 Or. 81, 934 P.2d 421 (1997) (purchaser of used motor home from dealer took free and clear of security interest created by original owner where original owner consigned motor home to dealer); C&J Leasing II, Ltd. Partnership v. Agri Financial Services Inc., 439 N.W.2d 210 (Iowa 1989) (purchaser of used farm equipment from dealer took free of security interest created by original owner where dealer was instrumental in creating original owner’s security interest and original owner left equipment in dealer’s possession); Adams v. City National Bank & Trust Co. of Norman, 565 P.2d 26, 31 (Okla. 1977) (“Nothing in the comments to article 9 required the ‘created by [buyer’s] seller’ limitation to be an insurmountable barrier to good faith acquisition of pre-encumbered property from a dealer who himself was instrumental in creating the encumbrance and conflict”).

Since Walden purchased the car subject to MBCC’s perfected security interest, and there was a default by Customer on the loan underlying the security interest, MBCC may repossess the car. See 13 Pa.C.S. §9609. However, since Walden has an ownership interest in the car, he is entitled to notice of disposition of the sale, to redeem the car before disposition, and to an accounting for the surplus, if any, after disposition. See id. at section 9623. See also, Security Pacific National Bank v. Goodman, 24 Cal. App. 3d 131 (2d Dist. 1972).

CONCLUSION

For all the foregoing reasons, plaintiff’s renewed motion for preliminary injunction is denied.

ORDER

And now, April 27, 2005, upon consideration of plaintiff’s renewed motion for injunction, defendant Mercedes Benz Credit Corp.’s response in opposition, the briefs in support and opposition, all other matters of record, and in accord with the opinion being issued contemporaneously, it is hereby ordered that the motion is denied.

      . It is not clear whether the “transfer” was a gift, sale, consignment, or some other kind of transaction.

      . MBCC has not offered any evidence that Customer or the car was part of this alleged scam, nor is the hearsay evidence of Duty Free’s involvement and its agents’ indictments sufficient for this court to conclude that the alleged auto thefts actually occurred.

      . “ ‘BUYER IN ORDINARY COURSE OF BUSINESS.’ A person that buys goods in good faith, without knowledge that the sale violates the rights of another person in the goods, and in the ordinary course from a person, other than a pawnbroker, in the business of selling goods of that kind. A person buys goods in the ordinary course if the sale to the person comports with the usual or customary practices in the kind of business in which the seller is engaged, or with the seller’s own usual or customary practices. ... A buyer in ordinary course of business may buy for cash, by exchange of other property or on secured or unsecured credit and may acquire goods or documents of title under a preexisting contract for sale.” 13 Pa.C.S. §1201. Mr. Walden is a buyer in ordinary course of business from Duty Free. Likewise, he was a good faith purchaser for value.

      . Since all of the relevant transactions took place in California, California law should be applied to determine the legal significance of those transactions. However, because there is no conflict between the relevant provisions of the California U.C.C. and the comparable Pennsylvania U.C.C. provisions, the court will cite to the latter, which are more familiar.

      . Numerous courts and commentators have “criticize[d] section 9-320(a)’s harsh effects because they cannot identify a tenable policy to support it. Despite the criticism, the section stands virtually unchanged since the Code’s inception in September 1951.” Comment: The Article 9 Buyer’s Seller Rule & the Justification for Its Harsh Effects, 83 Or. L. Rev. 289,290 (spring, 2004). Section 9-320 attempts to strike a fair balance between the interests of innocent purchasers and the interests of secured lenders. See id. at 310 (“The mere fact that this rule fails to protect every single buyer in the ordinary course of business is not a failure to facilitate commercial transactions because a strict application would hamper the facilitation to a greater degree by making credit transactions more dangerous [to lenders]”). Furthermore, where, as here, the secured party’s interest is noted on the title, “then the rule’s harsh effects are in order because it is not burdensome for a buyer to look at the title, which one would expect a seller to possess if it were really intending to make a sale.” Id. at 311. But see Nowka, section 9-320(a) of revised article 9 and the Buyer in Ordinary Course of Pre-Encumbered Goods: Something Old and Something New, 38 Brandeis L.J. 9 (fall 1999) (arguing that, by stretching the doctrine of estoppel, one could prevent the secured party from enforcing its security interest in goods that its debtor had transferred to a dealer in goods of that kind).


author: BARATTA, J.,

text:
    Langille v. The Genie Company

      Martin D. Cohen, for plaintiff.

      Joseph P. Connor III, for defendant Assembly Plus.

      Kenneth M. Dubrow, for defendant Home Depot Inc.
    April 25, 2005
   BARATTA, J.,

STATEMENT OF REASONS

On October 8,2004, the videotaped deposition of Peter McGauley was taken for use at trial. This deposition was taken in Longwood, Florida, where Mr. McGauley currently resides. Defendant, Assembly Plus Inc., issued the notice of deposition.

By way of factual background, Mr. McGauley was an employee of Assembly Plus and the installer of the garage door opener subject to this litigation. Since the installation, Mr. McGauley has left the employ of Assembly Plus and relocated to Florida. The deposition transcript clearly revealed that Mr. McGauley was agitated and unhappy with the prospect of being deposed.

Almost immediately upon the commencement of the deposition, Mr. McGauley proffered his unsolicited opinion as to causation of plaintiff’s injuries. Mr. McGauley volunteered his opinion as to how plaintiff was injured, despite the fact that he did not observe the incident.

At the time that Mr. McGauley proffered his opinion, no objection was made by plaintiff’s counsel.

Plaintiff has filed the instant motion in limine to preclude Assembly Plus from presenting that portion of McGauley’s deposition containing his unsolicited opinion as to causation. Plaintiff presents two arguments in support of this motion in limine. First, plaintiff claims that Assembly Plus has violated the Rules of Civil Procedure by not presenting expert interrogatories and a report identifying Mr. McGauley as an expert. Therefore, Mr. McGauley’s testimony should be stricken as a sanction for the rule violation. Second, plaintiff argues that Mr. McGauley should not be permitted to testify because he does not qualify as an expert pursuant to Pennsylvania Rule of Evidence 702.

In opposition, Assembly Plus asserts that the failure of plaintiff’s counsel to properly place an objection on the record during the deposition resulted in a waiver of this objection. In addition, plaintiff argues that Mr. McGauley’s testimony is permitted under our Rules of Evidence and related case law.

Discussion

Plaintiff’s argument with regard to the violation of the Rules of Civil Procedure is not persuasive.

Pennsylvania Rule of Civil Procedure 4003.5 addresses the obligations of parties regarding the identification and discovery of expert testimony intended to be used at trial. Rule 4003.5 provides, in pertinent part:

“(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:
“(1) A party may through interrogatories require
“(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and
“(b) the other party to have each expert so identified by him state the substance of the facts and opinions to which the expert is expected to testify and a summaiy of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert or have the interrogatories answered by his expert. The answer or separate report shall be signed by the expert.
“(b) if the identity of an expert witness is not disclosed in compliance with subdivision (a)(1) of this rule, he shall not be permitted to testify on behalf of the defaulting party at the trial of the action. However, if the failure to disclose the identity of the witness is the result of extenuating circumstances beyond the control of the defaulting party, the court may grant a continuance or other appropriate relief.” Pa.R.C.P. 4003.5.

The sanctions of Rule 4003.5 are not obligatory. See Miller v. Brass Rail Tavern Inc., 541 Pa. 474, 488 n.5, 664 A.2d 525, 532 n.5 (1995). Our Supreme Court has held that failure to comply with Rule 4003.5 should result in sanctions only if the result would result in prejudice to the innocent party or was the result of bad faith. See Miller, 541 Pa. 474, 488 n.5, 664 A.2d 525, 532 n.5.

It is apparent that defendant’s intention was to take Mr. McGauley’s deposition as a lay witness and not an expert. Mr. McGauley was to testify as to his involvement in installing the garage door opener at issue. The questions asked of Mr. McGauley by defense counsel were questions designed to obtain appropriate lay witness testimony. Mr. McGauley, who was apparently hostile to both plaintiff and the defendants, clearly had his own agenda and was determined to offer his unsolicited opinion as to causation.

We do not believe that the record supports the assertion that defense counsel violated Rule 4003.5.

In the alternative, plaintiff argues that Mr. McGauley should not be permitted to present opinion testimony before the jury because he is not qualified as an expert to give such testimony. Plaintiff cites Pennsylvania Rule of Evidence 702 which provides as follows:

“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” Pa.R.E. 702. (emphasis added)

Assembly Plus contends that Mr. McGauley was properly qualified to proffer expert testimony. We disagree.

Mr. McGauley’s testimony regarding his qualifications were presented after he proffered his opinion on causation. His experience was that, by the year 2000, he had a year’s worth of experience installing garage door openers. He also indicated that he had training at “garage door school” for “a couple of weeks, three weeks.” See deposition transcript 10/8/05, pp. 15-16.

The Pennsylvania Supreme Court set forth in Miller v. Brass Rail Tavern, 541 Pa. 474, 481, 664 A.2d 525, 528 (1995):

“The test to be applied when qualifying an expert witness is whether the witness had any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” (citations omitted)

While we might accept an argument that Mr. McGauley may qualify as an expert regarding the installation of garage doors, his education and training certainly does not qualify him as an expert in accident reconstruction, engineering or other types of forensic investigation sufficient to render an opinion as to the causation of plaintiff’s injuries. Therefore, it is clear that Mr. McGauley’s opinion testimony is not permitted under Pennsylvania Rule of Evidence 702.

The next issue we must address is the argument proffered by Assembly Plus that, even if we find that Mc-Gauley’s opinion testimony is not proper expert opinion under Rule 702, plaintiff waived his objection because counsel failed to make an appropriate objection at the time the opinion was offered during the deposition.

Plaintiff’s counsel argues that an appropriate objection was eventually made regarding the opinion testimony, however, our review of the record indicates that it was not made at the time that the opinion was offered. Further, the late objection was made as to the failure to provide an expert report during discovery.

The argument by defense counsel that plaintiff’s counsel lost the ability to correct any errors when the objection was not timely made is unpersuasive. The case law cited by Assembly Plus addresses scenarios where no objection is made to an expert opinion proffered during trial before the jury. Here, trial was months away at the time that the opinion was proffered.

We note that the defect regarding Mr. McGauley’s response to questioning is substantive and not procedural. We find that defense counsel could not have presented any question, no matter how carefully crafted, that would have permitted Mr. McGauley to present expert opinion testimony as to causation.

Ultimately, we believe that our decision in this matter is discretionary. Therefore, the factors that we look for are prejudice and bad faith, as well as any equitable or fairness arguments.

First, we find that neither plaintiff nor defendant acted in bad faith regarding this issue. Second, we find that Mr. McGauley’s testimony is improper under the Pennsylvania Rules of Evidence.

Third, we find that the defendant would not be prejudiced if we preclude Mr. McGauley’s testimony because the defendant has several expert witnesses who have been properly qualified to offer their expert opinion as to causation. Thus, as we understand it, the only benefit that McGauley’s testimony would provide the defense is one of cumulation.

Fourth, regarding plaintiff, we find that the expert opinion proffered by McGauley is prejudicial.

Finally, with regard to equitable or fairness issues, the Pennsylvania Rules of Evidence preclude this type of lay opinion testimony simply because the witness has no reasonable experience, education or background which would permit him to proffer a reliable opinion as to causation. Any expert opinion which is proffered from an unreliable source should not be presented to a jury.

For these reasons, even though plaintiff’s counsel failed to timely object to Mr. McGauley’s opinion testimony, we find such testimony is improper and should be precluded at trial.

ORDER

And now, April 25,2005, plaintiff’s motion in limine to preclude portions of the deposition testimony of lay witness, Peter McGauley, is hereby granted, as it relates to the unsolicited opinions proffered regarding causation.


author: NEW, J.,

text:
    McGarrity v. Hard Rock Café International

      Robert J. Mongeluzzi, for plaintiffs.

      David S. Wolf, Kurt E. Kramer and Robert P. Corbin, for defendants.
    April 6, 2005
   NEW, J.,

This court properly denied defendant’s motion to transfer venue based on forum non conveniens because venue is proper in Philadelphia County. Further, this appeal should be quashed as it is interlocutory.

FACTUAL AND PROCEDURAL HISTORY

James and Elizabeth McGarrity, Lawerence and Madeline Farrell, Joseph and Julia Cottman and John Reid (plaintiffs) initiated an action against Hard Rock International Inc., t/a, Hard Rock Café or Hard Rock Café Pittsburgh and Jeffrey Buckel (Hard Rock defendants) as a result of an altercation that occurred in Pittsburgh, Pennsylvania. Plaintiffs filed suit in Philadelphia County, basing venue on Hard Rock defendants’ regularly conducting business in Philadelphia County. After discovery, a new defendant, Kenneth Grayson, was identified and plaintiffs filed a second suit, adding this new defendant. The two cases were then consolidated. Subsequently, Hard Rock defendants filed a writ to join Forest City Station Square and Securitas Security SVC, USA Inc. as additional defendants. As a result of the joinder of the additional defendants, counsel for plaintiffs and Hard Rock defendants agreed to dismiss plaintiffs’ original actions and re-file the present lawsuit directly naming all defendants.

In the original action, Hard Rock defendants filed a petition to transfer venue based on forum non conveniens, which was denied by an order dated August 20, 2004. On December 1, 2004, the additional defendants filed an almost identical motion to transfer venue to the Hard Rock defendants’ motion to transfer. In an order dated January 31, 2005, this court denied additional defendants’ motion to transfer venue based on forum non conveniens. Additional defendants now, without court approval, appeal that interlocutory order.

LEGAL ANALYSIS

The trial court is vested with discretion when determining whether or not to grant preliminary objections as to venue. Mathues v. Tim-Bar Corp., 438 Pa. Super. 231, 234, 652 A.2d 349, 351 (1994). The decision to transfer a case will not be disturbed absent an abuse of discretion. Jackson v. Laidlaw Transit Inc., 822 A.2d 56 (Pa. Super. 2003). Pennsylvania Rules of Appellate Procedure 311 states the circumstances in which an appeal may be taken as a right. Pa.R.A.P. 311(c) permits appeals to be taken of right from orders changing venue. Okkerse v. Howe, 521 Pa. 509, 516, 556 A.2d 827, 831 (1989). The case sub judice does not involve changing of venue, transferring the matter or declining to proceed based on forum non conveniens. Pa.R.A.P. 311(c) is therefore inapplicable. Pa.R.A.P. 311(b) allows for the appeal of orders sustaining venue or personal or in rem jurisdiction. However, forum non conveniens is not mentioned in Pa.R.A.P. 311(b). Contrasted with the specific mention of the doctrine of forum non conveniens in Rule 311(c), such omission appears to be deliberate. Centerre Bank of Kansas City N.A. v. Arthur Young & Co., 348 Pa. Super. 365, 368, 502 A.2d 251, 253 (1985). Absent the inclusion of forum non conveniens as a basis for an appeal as of right, the appealability of an order pursuant to Rule 311 (b) is not clear. Id. However, even if Rule 311 (b) were construed as encompassing the doctrine of forum non conveniens, the fact remains that neither of the requirements of election or certification set forth in subsection (1) and (2) of Rule 311(b) have been met. Id. In the case sub judice, additional defendants also do not meet the appeal requirements set out in Pa.R.A.P. 311(b)(1) and (2). Therefore, this appeal is interlocutory and should be quashed.

Wherefore, for the above mentioned reason, this appeal should be quashed.

      . Pa.R.A.P. 311(c) states: “Changes of venue, etc. An appeal may be taken as of right from an order in a civil action or proceeding changing venue, transferring the matter to another court of coordinate jurisdiction, or declining to proceed in the matter on the basis of forum non conveniens or analogous principles.”

      . Pa.R.A.P. 311(b) states: “Order sustaining venue or personal or in rem jurisdiction. An appeal may be taken as of right from an order in a civil action or proceeding sustaining the venue of the matter or jurisdiction over the person or over real or personal property if:
      “(1) the plaintiff, petitioner or other party benefiting from the order files of record within 10 days after the entry of the order an election that the order shall be deemed final; or
      “(2) the court states in the order that a substantial issue of venue or jurisdiction is presented.”