author: COX, J.,

text:
    McConnell v. Delprincipe

      C.P. of Lawrence County,
    No. 10017 of 2013

      Patrick L. Sullivan, for plaintiffs.

      Joseph F. Butcher, for defendants.

      Oct. 2, 2014
   COX, J.,

Before the court for disposition is the motion for partial summary judgment filed on behalf of the defendants David V. Del Principe and Del’s Garage, Inc., which argues that the plaintiffs are collaterally stopped from asserting injuries beyond a cervical sprain/ strain which was determined to be Mark McConnell’s injuries by Workers’ Compensation Judge Perry D. Jones’ decision dated July 11, 2013.

On February 21, 2011, the plaintiff Mark McConnell, as owner and operator of McConnell, Inc., was contacted by the police to aid motorists stranded on Maitland Lane in New Castle, Lawrence County, Pennsylvania, due to inclement weather. When Mr. McConnell finished aiding the stranded motorists and was walking down a hill returning to his vehicle, Mr. Del Principe, while traveling on Maitland Lane, lost control of his tow truck, which was owned by Dei Principe Garage, Inc., and struck Mr. McConnell. This accident occurred while Mr. McConnell was acting within the scope of his employment. The plaintiffs claim that Mr. McConnell suffered injuries, which included herniated discs at C5-C7, headaches, cervical sprain and strain, aggravation of degenerative disc disease, numbness and tingling in his neck and bilateral shoulders, right upper extremity pain and weakness, thoracic strain and sprain and lumbar strain and sprain. Mr. McConnell also claims that he suffers many problems due to the accident and is limited in his work related activities. He continues to treat with John Wrightson, M.D., by receiving epidural steroid injections into his neck.

Mr. McConnell filed a workers’ compensation claim and personal injury claim that is the subject of this case. On July 11, 2013, Workers’ Compensation Judge Perry D. Jones entered findings of fact stating, “Claimant [Mr. McConnell] was not disabled by Dr. Wrightson and thus did not sustain a loss of earnings as a result of the work injury. In making this determination, it is found that claimant did not have competent medical testimony which restricted him from working.” Judge Jones also held that Mr. McConnell fully recovered as of July 19, 2011, from his work related cervical strain/sprain suffered as a result of the aforementioned accident. Judge Jones denied Mr. McConnell’s claim for lost earnings and he only received medical benefits. Mr. McConnell did not appeal that decision. However, in the current case, he is seeking to recover for damages beyond a cervical strain/sprain.

The defendants have now filed a motion for partial summary judgment contending that the plaintiffs are collaterally stopped from asserting injuries beyond a cervical sprain/strain that was determined to be Mark McConnell’s injuries by Workers’ Compensation judge Perry D. Jones’ decision dated July 11, 2013.

The purpose of the summary judgment Rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after the relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). The mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial. The summary judgment rule exists to dispense with a trial of a case or, in some matters, issues in a case, where a party lacks the beginnings of evidence to establish or contest a material issue. Ertel v. Patriot-News Company. 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied, (1996), certiorari denied, 519 U.S. 1008 (1996).

Any party may move for summary judgment in whole or in part as a matter of law whenever there is no genuine issue of materia! fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report or if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury. Pa.R.C.P. No. 1035.2. However, summary judgment is only appropriate when discovery relevant to the motion has been completed. Id. Summary judgment may be granted only in cases where it is clear and free from doubt that there is no genuine issue as to any material fact and that the moving party is entitled to a summary judgment as a matter of law. Kafando v. Erie Ceramic Arts Co.. 764 A.2d 59, 61 (Pa. Super. 2000) (citing Rush v. Philadelphia Newspaper. Inc., 732 A.2d 648, 650-651 (Pa. Super. 1999)).

The moving party bears the burden of proving the nonexistence of any genuine issue of material fact. Kafando, supra. A material fact, for summary judgment purposes, is one that directly affects the outcome of the case. Gerrow v. Shincor Silicones, Inc., 756 A.2d 697 (Pa. Super. 2000); Kunev v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000). The non-moving party must adduce sufficient evidence on issues essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Ertel, supra. The non-moving party must demonstrate that there is a genuine issue for trial and may not rest on averments in its pleadings. DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); Merriweather v. Philadelphia Newspaper, Inc., 453 Pa. Super. 464, 469-472, 684 A.2d 137, 140 (1996).

When determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Hughes v. Seven Springs Farm. Inc., 563 Pa. 501, 752 A.2d 339 (2000); Dean v. Commonwealth Department of Transportation, 561 Pa. 503, 751 A.2d 1130 (2000). Summary judgment is proper only when the uncontroverted allegations in the pleadings, depositions, answers to interrogatories, admissions of record, and submitted affidavits demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to judgment as a matter of law. P.J.S. v. Pennsylvania State Ethics Comm’n, 555 Pa. 149, 153, 723 A.2d 174, 175 (1999); Basile v. H&R Block, 761 A.2d 1115 (Pa. Super. 2001); Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super. 2000); Stevens Painton Corporation v. First State Insurance Company, 746 A.2d 649 (Pa. Super. 2000).

Only when the facts are so clear that reasonable minds cannot differ, a trial court may properly enter summary judgment. Basile, supra, if there are no genuine issues of material fact in dispute or if the non-moving party has failed to state a prima facie case, summary judgment may be granted. Dudley v. USX Corporation, 414 Pa. Super. 160, 606 A.2d 916 (1992). Thus, a proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001). The trial court must confine its inquiry when confronted with a motion for summary judgment to questions of whether material factual disputes exist. Township of Bensalem v. Moore, 152 Pa. Cmwlth. 540, 620 A.2d 76 (1993). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Pennsylvania Securities Commission, 143 Pa. Cmwlth. 494, 579 A.2d 1358 (1990).

“The doctrine of collateral estoppel is not unavailable simply because administrative procedures are involved; where the agency is acting in a judicial capacity and resolves disputed issues of fact which the parties had an opportunity to litigate, the [courts] will not hesitate to apply preclusion principles.” John T. Gallaher Timber Transfer v. Hamilton, 932 A.2d 963, 968 (Pa. Super. 2007) (quoting Capobianchi v. BIC Corporation, 446 Pa. Super. 130, 666 A.2d 344, 348 (1995)). However, collateral estoppel between an administrative agency and the court is only appropriate when the policies and the goals are the same for both proceedings. Rue v. K-Mart Corp., 456 Pa. Super. 641, 649, 691 A.2d 498, 502 (1997) (quoting Johnsonbaugh v. Dep’t of Public Welfare, 665 A.2d 20, 24 (Pa. Cmwlth. 1995)). Collateral estoppel may only be applied if:

(1) the issue decided in the prior adjudication was identical with the one presented in the later action,
(2) there was a final judgment on the merits,
(3) the party against whom the plea is asserted was a party...to the prior adjudication, and
(4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in a prior action. Lamborn v. W.C.A.B. (Armoroso Baking, 656 A.2d 593, 595 (Pa. Cmwlth. 1995) (citing Safeguard Mutual Insurance Co. v. Williams, 463 Pa. 567, 574-575, 345 A.2d 664, 668(1975)).

Collateral estoppel, also referred to as issue preclusion, is a broader concept than res judicata as it prevents the relitigation of common questions of law or issues of fact. Incollingo v. Maurer, 394 Pa. Super. 352, 356, 575 A.2d 939, 940 (1990). The basic difference between res judicata and collateral estoppel is the parties do not have to be identical in each action to invoke the doctrine of collateral estoppel. Mellon Bank v. Rafsky, 369 Pa. Super. 585, 592-593, 535 A.2d 1090, 1093 (1987). “Collateral estoppel may be used as either a sword or a shield by a stranger to the prior action if the party against whom the doctrine is being asserted was either a party or in privity with a party in the prior action.” Harter v. Reliance Ins. Co., 386 Pa. Super. 14, 24, 562 A.2d 330, 335 (1989) (citing Mellon Bank, supra.; Brock v. Owens, 367 Pa. Super, 324, 332, 532 A.2d 1168, 1172 (1987)). Additionally, “the fact or facts at issue in both instances were identical; [and] that these facts were essential to the first judgment and were actually litigated in the first cause.” Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnik, 526 Pa. 541, 546, 587 A.2d 1346, 1348 (1991) (quoting Schubach v. Silver, 461 Pa. 366, 377, 336 A.2d 328, 334 (1975)). A prior judgment only acts as an estoppel to issues actually controverted in the first action. Thompson v. Karastan Rug Mills, 228 Pa. Super. 260, 264, 323 A.2d 341, 343 (1974) (citing Aetna Life Ins. Co. of Hartford v. Martin, 108 F.2d 824, 827 (8th Cir. 1940)).

This issue was addressed in Frederick v. Action Tire Co., 744 A.2d 766 (Pa. Super. 1999). In that case, the appellant was struck by a van owned by the appellee during the course of his employment. The appellant claimed injuries to his left hip and buttocks and a herniated disc. Initially, the appellant treated at the emergency room and had several surgeries. He then filed a workers’ compensation claim seeking disability payments from the date of the accident plus payment for medical bills. The workers’ compensation judge rendered a decision dismissing the appellant’s claims finding that the appellant’s testimony was neither reliable nor credible as she observed the appellant over the two years that hearings were scheduled and noted that he did not appear to be in any discomfort until after the surgeries. Further, the doctor who performed the appellant’s surgeries did not examine him until a year after the accident and the only causal connection to the work-related injury was the appellant’s version of the incident. The workers’ compensation judge relied on the doctor, who examined the appellant three days after the accident. The doctor stated that the appellant’s injuries were not caused by the accident as the appellant had no bruising when she examined him and she noted similar findings a year later.

The appellant in Frederick subsequently filed a claim for social security disability benefits stating that he is unable to work. In that case, the administrative law judge found that the appellant was unable to work due to severe impairment of the spine. Between the two administrative claims, the appellant filed suit asserting a claim of negligence against the appellee. The appellant elected the limited tort provisions of the Pennsylvania Motor Vehicle Financial Responsibility Law, so he was not eligible for noneconomic damages unless he sustained “serious injury.” In response, the appellee filed a motion for summary judgment arguing that the appellant’s claims were collaterally stopped in accordance with the decision rendered by the workers’ compensation judge. The appellant then filed a motion for summary judgment claiming the social security decision should be given preclusive effect in the tort action because it requires a more stringent burden of proof in that proceeding. The trial court denied the appellant’s motion for summary judgment and granted the appellee’s motion for summary judgment. The appellant then filed an appeal with the Superior Court of Pennsylvania.

First, the Frederick Court explained that the workers’ compensation judge directly addressed the issue in question as it held that the appellant was injured, but not disabled in a manner that would prevent him from performing his job. Id. 744 A.2d at 767. The workers’ compensation judge found that the appellant was struck by the appellee’s vehicle, but the impact would not cause serious injury. Id. The Frederick Court agreed with the trial court that the appellant failed to demonstrate he was injured from being struck by the appellee’s vehicle in the workers’ compensation case, which is a necessary element in the negligence case as well. Id. The court also stated that the second and third prongs of the collateral estoppel test have been met as the workers’ compensation claim resulted in a final judgment on the merits, the appellant was a party in the prior proceeding and he is the party against whom collateral estoppel is asserted. Id. However, the appellant asserted that the fourth prong of the test was not met as he did not have a fair opportunity to litigate the issues concerning the injury and causation in the prior proceeding. The Frederick Court stated, “The fact remains that Pennsylvania appellate courts have consistently held findings in workers’ compensation cases may bar relitigation of identical issues in collateral civil actions, even third party tort actions.” Id. (citing Phillips v. A.P Green Refractories, 428 Pa. Super. 167, 630 A.2d 874 (1993)). The appellant emphasized the procedural distinctions between workers’ compensation proceedings and civil actions, as workers’ compensation proceedings are informal in nature, involve lesser damages and are tailored to adjudicate claims quickly. The Court noted that the appellant was seeking significant damages in the workers’ compensation proceeding in the amount of $115,000 lost wages and over $132,000 in medical expenses. Id., 744 A.2d at 768. In addition, the court noted that the appellant was not deprived of the opportunity to present favorable witnesses as those witnesses could have been deposed and their testimony presented at one of the hearings before the workers’ compensation judge. Id. The appellant also argued that the determination by the social security decision should be given preclusive effect. The court did not agree as the third prong of the collateral estoppel test was not met as the appellee was not a party to that claim because the social security proceeding determined whether the appellant was disabled and not the cause of the disability. Id. As a result, the appellee was not a party to that proceeding. Id. Therefore, the Frederick Court affirmed the trial court and reiterated that the workers’ compensation claim had preclusive effect on the subsequent tort case as it met all of the elements of the collateral estoppel test. Id.

In the case sub judice, Mr. McConnell filed a workers’ compensation claim after being injured during the course of his employment when Mr. Dei Principe lost control of his vehicle and struck Mr. McConnell. At the hearing concerning Mr. McConnell’s claim, he presented the testimony of Dr. Wrightson, who treated Mr. McConnell for neck pain with tingling radiating into his right arm. Dr. Wrightson opined that Mr. McConnell suffered a cervical strain/sprain as well as an aggravation of an underlying degenerative disc disease in his neck. Dr. Wrightson testified that he did not recommend that he refrain from working and that Mr. McConnell has recovered from his cervical sprain/strain. The employer presented the testimony of Robert L. Waltrip, M.D., a board certified orthopedic surgeon, who examined Mr. McConnell at the employer’s request. He reviewed records and conducted an examination of Mr. McConnell. He then opined that the MRI imaging displayed age appropriate degenerative changes to Mr. McConnell’s neck and there was no aggravation of that injury due to the accident. Dr. Waltrip also testified that the medical records support the diagnosis that Mr. McConnell suffered a neck strain or sprain. Workers’ Compensation Judge Perry D. Jones found Dr. Waltrip’s testimony was credible that Mr. McConnell suffered a neck strain or sprain as result of the accident, but did not suffer an aggravation of his degenerative disc disease. Judge Perry then ruled that Mr. McConnell was not disabled by the accident and he did not incur a loss of earnings from the work injury. Judge Perry stated, “The employer has sustained the burden of proof that claimant had fully recovered from his February 21, 2011 work related cervical sprain/strain as of July 19, 2011. This finding is based upon the credible opinion of Dr. Waltrip which is accepted over the contrary opinion of Dr. Wrightson.”

The decision of Judge Perry now precludes the plaintiffs from recovering damages for injuries to Mr. McConnell beyond a cervical sprain/strain as al! of the elements have been met for the collateral estoppel test. First, the issue decided at the workers’ compensation hearing is identical as the issue raised in this case. At that hearing, Mr. McConnell attempted to claim that he suffered loss of earnings due to injuries that he suffered in the accident. In making that claim, Mr. McConnell presented the testimony of Dr. Wrightson in an attempt to demonstrate that he suffered from a cervical sprain/strain and the aggravation of his degenerative disc disease. In this case, the plaintiffs are asserting a similar claim that Mr. McConnell incurred injuries beyond a cervical sprain/strain. Hence, identical issues concerning the type and severity of Mr. McConnell’s injuries have been raised in both proceedings. Next, Judge Perry rendered a final judgment on the merits concerning Mr. McConnell’s workers’ compensation claim, which was dated July 11, 2013. Mr. McConnell did not appeal that decision. In addition, Mr. McConnell is the party against whom collateral estoppel is being asserted and he was the party asserting the claim in the workers’ compensation proceeding. Moreover, Mr. McConnell had a full and fair opportunity to litigate that issue as he was provided with an opportunity to present witnesses and to cross examine the employer’s witnesses as well. Thus, the defendants are able to establish all of the elements for the defense of collateral estoppel.

The plaintiffs contend that the decision in the workers’ compensation proceeding should not have a preclusive effect on the plaintiffs’ claims in this case as they are entitled to a jury trial in this case, but the same is unavailable in a workers’ compensation hearing. However, the Frederick Court unequivocally stated, “The fact remains that Pennsylvania appellate courts have consistently held findings in workers’ compensation cases may bar relitigation of identical issues in collateral civil actions, even third party tort actions.” Frederick, 744 A.2d at 767 (citing Phillips v. A.P Green Refractories, 428 Pa. Super. 167, 630 A.2d 874 (1993)). It is a well established in Pennsylvania that findings in a workers’ compensation case preclude the relitigation of identical issues in collateral civil matters. Therefore, this court finds that the determination of Judge Perry in the workers’ compensation proceeding precludes the ‘plaintiffs from seeking damages beyond the cervical sprain/strain suffered by Mr. McConnell on February 21, 2011, from which he fully recovered as of July 19, 2011.

For the reasons set forth in this opinion, the defendants’ motion for partial summary judgment is granted.

ORDER OF COURT

Now this 2nd day of October, 2014, this case being before the court on August 25, 2014, for oral argument on the motion for partial summary judgment filed by the defendants, with both parties appearing through their counsel, the plaintiffs, Mark McConnell and Cindy McConnell, husband and wife, represented through counsel, Patrick L. Sullivan, Esquire, and the defendants, David V. DelPrincipe and Del’s Garage, Inc., represented through counsel, Joseph F. Butcher, Esquire, and after consideration of the arguments and briefs presented and submitted by counsel and a complete and thorough review of the applicable record, the court enters the following order, and it is hereby ordered, adjudged and decreed as follows:

1. In accordance with the attached opinion, the motion for partial summary judgment is hereby granted.

2. The plaintiffs are precluded from claiming damages and injuries other than for a cervical sprain and strain in existence from February 21, 2011, to July 19, 2011, in the above-entitled action.

3. The prothonotary shall serve a copy of this order of court and attached opinion upon counsel of record, Patrick L. Sullivan, Esquire, and Joseph F. Butcher, Esquire.


source: Caselaw Access Project

author: GLAZER, J.,

license: Public Domain

text:
    Freedom Medical Supply Inc. v. PMA Capital Insurance Co.

      C.P. of Philadelphia County,
    April Term, 2008
    No. 003988

      Robert D. Greenbaum, Andrea L. Wilson and Robert S. Kitchenoff, for plaintiffs.

      Bradley J. Vance, Bryan M. Ferris, Robert J. Foster, Richard H. Maurer, Ryan N. Boland and Keith E. Smith, for defendants.
    Aug. 8, 2014
   GLAZER, J.,

Over the last 12 years, this trial court has hosted a series of class actions brought by medical providers against various insurance companies that neglected to pay statutorily mandated interest on late reimbursement payments under the Workers Compensation Act (“WCA”) and the Motor Vehicle Financial Responsibility Law (“MVFRL”). While the statutes foci are quite different — the WCA governs medical services provided to employees injured at work, and the MVFRL governs medical services provided to people injured in auto accidents — both statutes require that an insurer pay claims within 30 days after it is billed properly by a medical provider or that it pay interest on the amount it does not pay timely.

One of the earlier of this court’s medical provider class actions was filed in 2002, under the MVFRL, by Richard S.Glick, D.O. against Progressive Northern Insurance Company (“Progressive”). This court certified the class of medical providers in Glick and made rulings as to Progressive’s liability for payment of interest. Those rulings were eventually appealed.

While Glick was being litigated before this court, additional, similar, class actions were filed by plaintiff Freedom Medical Supply, Inc. (“Freedom”). Specifically, Freedom filed the present action against the PMA Companies (“PMA”) under the WCA, and it filed an action against American Independent Insurance Company (“AIICo”) under, the MVFRL. Freedom also filed several other class actions against other insurance companies under the WCA and MVFRL, which actions either settled or are in the process of settling.

In this case, this court certified the following class against PMA:

All providers who submitted bills and reports under the Pennsylvania Workers Compensation Act, 77 P.S. §1, et seq., as amended (the “Act”), to one or more defendants, and who received a payment which was issued more than thirty (30) days after receipt of the bill and report by defendant(s), but which payment did not include interest earned on or after April 8, 2002, or included less than the amount of interest provided for in the Act.

Similarly, in the AIICo case, this court certified a class of medical providers who were owed interest under the MVFRL.

The parties in this PMA action then proceeded to conduct contentious merits discovery, and in November, 2013, this court held a trial of this matter. The parties submitted their proposed findings of fact and conclusions of law on January 31, 2014. One week prior to those submissions, the Superior Court’s decision in Glick was announced.

In the Glick opinion, the Superior Court held that the class of medical providers should not have been certified under the MVFRL because “what will constitute ‘reasonable proof’ [of the amount of benefits due] is a question of fact answered on a case by case basis after review of relevant evidence addressing several factors, including coverage, causation, and medical necessity.... This factual inquiry requires individualized determinations not readily suitable for class action.”

After the Glick decision was issued, defendant in AIICo filed a motion for reconsideration on the issue of class certification. In addition, this court allowed PMA to file a motion to decertify the class in this action, which motion was not fully briefed until May, 20, 2014.

On June 9, 2014, this court granted the AIICo defendant’s motion for reconsideration and decertified the class in that case. That decision has been appealed. The precise issue that was before the Superior Court in Glick was before this court in AIICo — namely whether a medical provider’s submission to the insurer of a standard HCFA-1500 or UB-92 form is sufficient evidence of the benefits due to the provider under the MVFRL that it triggers the thirty day period in which the insurer must pay the claim or pay interest if the claim is paid late.

Although the Superior Court’s Glick opinion is unpublished and generally non-precedential, this court was compelled for consistency’s sake to adopt the Glick court’s reasoning as this court’s own in AIICo because the two classes of medical providers overlapped significantly. Now, in its motion to decertify the class, PMA asks this court to apply similar reasoning in this WCA case.

Although the MVFRL and WCA evidence the same legislative intent — to encourage insurers to pay provider claims promptly by imposing an interest penalty for late payment — the two statutes use different language to create the disincentive to late payment. The MVFRL provides that “[bjenefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits.” The WCA is worded differently; it provides that “[t]he employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section. All payments to providers for treatment provided pursuant to this act shall be made within thirty (30) days of receipt of such bills and records.” However, the difference in language is not sufficient to create a difference in outcome. If a class of late paid providers cannot be certified under the MVFRL, then it should not be certified under the WCA either.

The question before the Glick court and before this court in AIICo was whether the HCFA1500 billing form, which is routinely submitted by the provider class members to the insurer, constitutes “reasonable proof of the amount of the benefits” so as to trigger the statute’s 30 day payment period. The question before this court in this WCA case is what constitutes submission of sufficient “bills and records” to trigger the insurer’s duty to pay within 30 days.

While the HCFA 1500 appears to qualify as a “bill” ■under the WCA, it is not also the requisite “report.” Instead, providers are apparently required to submit the necessary reports on a form known as LIBC-9, which calls for information different than and in addition to what is set forth on the HCFA-1500.

For the same reasons that the HCFA 1500 alone is not reasonable proof of the amount of benefits under the MVFRL, the HCFA 1500 alone cannot trigger the running of the 30 day period under the WCA. Other documentation is needed, and such documentation will vary from patient to patient.

As the Superior Court reasoned in Glick, which reasoning this court adopted in AIICo, and as borne out by the requirements of the WCA and its implementing regulations:

Receipt of the HCFA-1500 Form is merely indicative of treatment and provides prima facie evidence that such treatment was medically justified. It does not establish coverage for such treatment. Whether an insured is entitled to coverage in the form of medical benefits raises additional questions unanswered by mere submission of the form, including causation for example [and medical necessity. Such questions of fact must be] answered on a case by case basis after review of relevant evidence... This factual inquiry requires individualized determinations not readily suitable for class action.

The proof offered at trial in this action also supports this conclusion. Freedom introduced evidence from PMA’s computerized records which showed an initial “image received date” for each claim and a payment date more than thirty days thereafter. However, Freedom failed to establish that the “image received date” constituted the date that all the requisite “bill and report(s)” were submitted to PMA. To the contrary, PMA’s witness testified that the “image received date” may reflect the receipt of only one of such necessary forms, or neither, and providers may have to submit supplemental forms or information to PMA after the “image received date” in order to trigger the 30 day payment period under the WCA.

In this case, proof as to one claimant does not constitute proof as to all; instead, it constitutes proof as to none. In order to prove the class members’ claims, plaintiffs would have to sift through each of the insurer’s claims files to show what forms and information were submitted and when such submission was complete before plaintiffs could establish the date from which interest could be computed on each class member’s claim.

Freedom apparently recognizes that the claims files are the best and only proof as to when all the requisite forms and information were submitted to PMA because it has filed a motion to re-open the trial record to include 9 of Freedom’s claims files on which Freedom asserts it is due a total of $4,965 in interest from PMA. Freedom neglected to offer such files as evidence at trial, so understandably PMA did not cross-examine any Freedom witness or offer rebuttal evidence as to those non-proffered files. It would be prejudicial to PMA to admit such files now when PMA can no longer dispute or explain their contents. However, such prejudice can be cured by allowing both parties to re-litigate Freedom’s individual claims only. Since such limited claims are for less than $50,000, the re-trial shall take place in this court’s arbitration program.

CONCLUSION

For all the foregoing reasons, defendants’ motion to decertify the class and for judgment in favor of defendants and plaintiffs’ motion to re-open trial record are both granted in part and denied in part.

ORDER

And now, this 8th day of August, 2014, upon consideration of defendants’ motion to decertify the class and for judgment in favor of defendants, the response thereto, and all other matters of record, and in accord with the opinion issued simultaneously, it is ordered that said motion is granted in part and the class is decertified. The remainder of the motion is denied.

Upon consideration of plaintiffs’ motion to re-open trial record, the response thereto, and all other matters of record, it is ordered that said motion is granted in part and plaintiff’s individual claims against defendants shall be transferred to this court’s arbitration program for trial. The remainder of the motion is denied.

It is still further ordered that plaintiffs’ motion to strike is dismissed as moot.

      . The undersigned uses the term “this court” in this opinion to encompass all the past and present judges of the civil trial division in Philadelphia County, not just the undersigned. We are part of a unified judicial system; we strive for consistency in our decision making and are ever mindful of the law of the case doctrine and other rules regarding legal precedent.

      . MVFRL — 75 Pa. Cons. Stat. § 1716 (“Benefits are overdue if not paid within 30 days after the insurer receives reasonable proof of the amount of the benefits...overdue benefits shall bear interest at the rate of 12% per annum from the date the benefits become due.”) WCA — 77 Pa. Stat. § 531(5) (“The employer or insurer shall make payment and providers shall submit bills and records in accordance with the provisions of this section. All payments to providers for treatment provided pursuant to this act shall be made within thirty (30) days of receipt of such bills and records”); 34 Pa. Code § 127.210 (“If an insurer fails to pay the entire bill within 30 days of receipt of the required bills and medical reports, interest shall accrue on the due and unpaid balance at 10% per annum.”)

      . Glick v. Progressive, March Term, 2002, No. 001179.

      . Order entered October 2, 2003 (Cohen, J.).

      . Order entered April 17,2009 (New, J.)

      . Freedom v. PMA, April Term, 2008, no. 03988.

      . Freedom v. AllCo, February Term, 2009, no. 04484.

      . Order entered August 29, 2011 (New, J.)

      . Order entered January 13,2014 (Glazer, J.)

      . Glick v. Progressive Northern Ins. Co., no. 2073 EDA 2012 & no. 2145 EDA 2012 (Sup. Ct. Jan. 24, 2014).

      . For purposes of this opinion, this court will refer to both of these standard billing forms as “HCFA-1500.”

      . “An unpublished memorandum decision shall not be relied upon or cited by a court or a party in any other action or proceeding, except when it is relevant under the doctrine of law of the case, res judicata, or collateral estoppels.” 210 Pa. Code § 65.37; Boring v. Erie Ins. Grp., 434 Pa. Super. 40, 43, 641 A.2d 1189, 1191 (1994).

      . An order certifying a class “may be conditional and, before a decision on the merits, may be revoked, altered or amended by the court on its own motion or on the motion of any party.” Pa. R. Civ. P. 1710(d).
      In light of this court’s recent decision in AIICo, which was based on the Superior Court’s recent decision in Glick, the motion to decertify can also be viewed as a motion for reconsideration of the court’s decision to certify the class based on newly developed legal authority.

      . 75 Pa. Cons. Stat. § 1716.

      . 77 Pa. Stat. § 531(5). See also 34 Pa. Code § 127.208(a) (“Payments for treatment rendered under the act shall be made within 30 days of receipt of the bill and report submitted by the provider.”)

      . See 11 Pa. Stat. § 29 (“Bill’ means a statement or invoice for payment of services...which identifies the claimant, the date of injury, the payment codes...and a description of the services provided on or in standard form prescribed by the Department of Labor and Industry.”); 34 Pa. Code § 127.201(a) (“Requests for payment of medical bills shall be made either on the HCFA Form 1500 or the UB92 Form (HCFA Form 1450), or any successor forms, required by HCFA for submission of Medicare claims.”)

      . See 11 Pa. Stat. § 531(2) (“Any provider who treats an injured employe shall be required to file periodic reports with the employer on a form prescribed by the department which shall include, where pertinent, history, diagnosis, treatment, prognosis and physical findings. The report shall be filed within ten (10) days of commencing treatment and at least once a month thereafter as long as treatment continues. The employer shall not be liable to pay for such treatment until a report has been filed.”)

      . See 34 Pa. Code § 127.203 (“(a) Providers who treat injured employees are required to submit periodic medical reports to the employer, commencing 10 days after treatment begins and at least once a month thereafter as long as treatment continues. If the employer is covered by an insurer, the provider shall submit the report to the insurer.... (c) The medical reports required by subsection (a) shall be submitted on a form prescribed by the Bureau for that purpose. The form shall require the provider to supply, when pertinent, information on the claimant’s history, the diagnosis, a description of the treatment and services rendered, the physical findings and the prognosis, including whether or not there has been recovery enabling the claimant to return to pre-injury work without limitations. Providers shall supply only the information applicable to the treatment or services rendered, (d) If a provider does not submit the required medical reports on the prescribed form, the insurer is not obligated to pay for the treatment covered by the report until the required report is received by the insurer.”)

      . See 34 Pa. Code § 127.203 (c) (“The [report] form shall require the provider to supply, when pertinent, information on the claimant’s history, the diagnosis, a description of the treatment and services rendered, the physical findings and the prognosis, including whether or not there has been recovery enabling the claimant to return to pre-injury work without limitations. Providers shall supply only the information applicable to the treatment or services rendered.”)

      . Glick, at pp. 7-9.

      . See November 19, 2013 Notes of Testimony (“NT”), pp. 56-74; 92-97; 128-134.

      . See Samuel-Bassett v. Kia Motors Am., Inc., 613 Pa. 371, 409, 34 A.3d 1, 22 (2011) (discussing commonality requirement).

      . Or at least a representative sampling of them.

      . See NT, pp. 45, 59-60.

      . Freedom apparently, and mistakenly, believed that this court’s reliance upon the contents of such files when granting the original motion to certify the class somehow made them part of the record for purposes of the trial on the merits.


author: ZULICK, J.,

text:
    DeAngelo v. Stroud Township Zoning Hearing Board

      C.P. of Monroe County,
    No. 96 CV 2014

      Aaron M. DeAngelo, for appellant.

      Joseph P. McDonald, for appellee.

      RichardE. Deetz and Christie E. Bower, for intervenors.
    Sept. 11, 2014
   ZULICK, J.,

This matter comes before the court on the appeal of Susan C. DeAngelo from the December 13, 2013 decision of the Stroud Township Zoning Hearing Board granting the Township of Stroud and Stroudsburg Wesleyan Church (Church) an approval as a special exception of a seasonal homeless shelter in the existing church gymnasium.

“The real estate in question is located in the C-l zoning district.... The two properties contain approximately 2.75 acres, improved with a Church sanctuary and a 9,300 square foot (1st floor) addition for classrooms, multipurpose room and recreation space [,] including the gymnasium in question in this hearing.” ZHB Decision at 2. The church proposed a seasonal homeless shelter to take place in the existing church gymnasium during the months of November through March. Id. at 4. The gymnasium would house 18 people on temporary beds, divided by gender and families, from 10:00 p.m. until 5:45 a.m. Beds and dividing walls would be removed by 6 a.m. to prepare the gymnasium for the church’s daytime programs. Id. at 4, 15. The church additionally proposed a small outdoor smoking area for the participants. Hearing transcript (Sept. 4,2013) at 17-18. This area is planned to be landscaped by a local Boy Scout troop so as to be further concealed from public view when in use. Id., at 50-51.

The church is a lawful, nonconforming use in the C-l zoning district. The church requested a special exception use, an expansion of the nonconforming use, or, alternatively, an accessory use from the Stroud Township Zoning Hearing Board (ZHB) that would allow church members to establish the desired homeless shelter.

Susan DeAngelo, a neighborhood resident, opposed the shelter and was granted party status. Hearings on the requested special exception use were held on September 4, October 2, and November 6, 2013, which all parties attended and evidence was taken in the form of testimony and exhibits.

On December 13,2013, the ZHB rendered its decision, granting the special exception, and, alternatively, the accessory use, and the expansion of the lawful, nonconforming use. The ZHB justified its decision by stating that “A homeless shelter is not defined in the zoning ordinance; however, the services offered through the homeless shelter are consistent with other defined uses permitted under use class 83, Social Services.” ZHB Decision at 20. The ZHB determined that the Church met its burden regarding the special exception use, and that the objectors did not provide persuasive evidence to establish that the homeless shelter would adversely affect the health, safety, and welfare of the community, or the community residents’ property values. Alternatively, the ZHB determined that the homeless shelter is a permitted accessory use to the principal use of the Church. And finally the ZHB determined that “The proposed homeless shelter is a reasonable alteration or extension of a lawful nonconforming use...”, Id. at 21.

Ms. DeAngelo appealed the ZHB’s decision, asserting that “the finding of the homeless shelter as an accessory use is contrary to the law and facts as presented;” that “Applicant... failed to carry its burden with regard to the special exception conditions, including but not limited to the impact on the surrounding neighborhood;” that a board member was excluded without cause in favor of an alternative which had a significant effect on the 2-1 decision; and that the “conditions that were proposed by the Township Engineer were [improperly] ignored[.]” Appellant’s brief pp. 2-3. Appellees ZHB and church contend that the ZHB properly decided the case based on the facts and the law; that the alternate board member was substituted for good cause, consistent with the Municipalities Planning Code; and that the township engineer’s conditions were suggestions and not binding. All parties submitted briefs in support of their respective positions. A hearing was held on July 7, 2014, at which all parties argued their positions, and no new evidence was taken.

DISCUSSION

“In reviewing the decision of a zoning hearing board where the trial court has not taken any additional evidence, as occurred here, our review... is limited to determining whether the board abused its discretion or committed a legal error.” Smalley v. Zoning Hearing Bd. of Middletown Tp., 834 A.2d 535, 538 (Pa. 2003). “An abuse of discretion will be found only where the zoning board’s findings are not supported by substantial evidence. By substantial evidence we mean such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. (quoting Valley View Civic Ass’n. v. Zoning Bd. of Adjustment, 462 A.2d 637 (Pa. 1983)). “It is well settled that a zoning hearing board’s interpretation of its own zoning ordinance is entitled to great weight and deference from a reviewing court.” Lancaster Twp. v. Zoning Hearing Bd. of Lancaster Twp., 6 A.3d 1032, 1034 (citations omitted). This judicial deference results from the knowledge and expertise a zoning board has in interpreting the ordinance it administers. Id.

SPECIAL EXCEPTION USE

A special exception use under a zoning ordinance is a “conditionally permitted use, legislatively allowed if the standards are met.” Bray v. Zoning Board of Adjustment, 410 A.2d 909, 911 (1980). “A special exception is not an exception to the zoning ordinance, but rather a use which is expressly permitted, absent a showing of a detrimental effect on the community.” Johnson v. North Strabane Township, 546 A.2d 1334 (1988); A.J. Groseck & Associates v. Zoning Hearing Board of Montrose Borough, 450 A.2d 263 (1982). The use must comply with the enumerated uses in the ordinance. Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board, 590 A.2d 206, 215 (1991). The Municipalities Planning Code states:

“Where the governing body, in the zoning ordinance, has stated special exceptions to be granted or denied by the board pursuant to express standards and criteria, the board shall hear and decide requests for such special exceptions in accordance with such standards and criteria. In granting a special exception, the board may attach such reasonable conditions and safeguards, in addition to those expressed in the ordinance, as it may deem necessary to implement the purposes of this act and the zoning ordinance.”
53 P.S. § 10912.1.

The church is located in Zoning District C-l, a residential and commercial district. The ZHB analyzed the special use exception as belonging to the permitted social services exception detailed in the ordinance. ZHB decision at 11. The special exception requirements under article 4.800 are as follows:

“4.821: Shall not cause substantial injury to the value of other property where it is to be located.
4.822: Shall conform with regulations applicable to the district where located or shall conform to the more specific standards listed in article V of this ordinance, and shall conform to the intent of the district,
4.823: Shall be compatible with adjoining development,
4.824: Shall provide adequate landscaping and screening to protect and enhance adjoining areas. Adequate landscaping and screening may include a landscaped buffer yard(s) and buffer strip(s) as defined by section 6.200 and section 6.300 as deemed necessary by the Zoning Hearing Board.
4.825: Shall provide off-street parking and loading and access in keeping with this ordinance so as to minimize interference with traffic on the local streets.
4.826: Shall not jeopardize the public health, safety, welfare, and convenience.
4.827: Such Special Exceptions which are authorized by the board may be subj ect to any additional conditions and safeguards established by the Zoning Hearing Board in each case which may be warranted by the character of the areas in which such cases are proposed or by other special factors and which are necessary to implement the purposes of this ordinance.”

The ZHB granted the special exception use as falling under the non-residential and non-commercial exceptions enumerated in the ordinance. The ordinance contains non-exclusive language, including subheadings for “Residential Care” and the undefined term, “Social Services, not elsewhere classified.” ZHB decision at 13. The zoning ordinance also contains the definitions for “Residential Care facility,” and “Personal Care Home/’ both of which allow social services, including “24 hour care” to unrelated adults as a social services use of a C-l property. Id. At 13-14.

These permitted uses are indeed more “intense” than the proposed seasonal, overnight homeless shelter at the church. The ZHB cites Zoning Ordinance § 1.152 Interpretation Standards, which provides that “any list of permitted or prohibited uses shall not be deemed to be an exhaustive list, but rather is for the purposes of clarity and emphasis and to illustrate uses which are desirable, be they permitted, special or conditional uses.” “Permissive terms in zoning ordinance must be construed expansively, so as to afford the landowner the broadest possible use and enjoyment of his land.... Conversely, “[Restrictions on a property owner’s right to free use of his property must be strictly construed and all doubts resolved in his favor.” Manor Healthcare, 590 A.2d at 69. The ZHB appropriately interpreted the category “Social Services” broadly to include a temporary, seasonal homeless shelter as a special exception use of the church. Thus, if the church has met the standards in the ordinance, its proposed use will comply with the Social Services exception.

Ms. DeAngelo argues that the ZHB inappropriately applied the burden of proof in this type of special exception use case. Ms. DeAngelo contends that the church has the burden of production and persuasion to ensure that the proposed use will not harm the health, safety, and general welfare of the community. Ms. DeAngelo further states that this burden was not met, as the church did not provide adequate assurance that this use will not harm the community. Appellant’s brief at 7-14. However, she is mistaken on this point. The decision in Manor Healthcare Corp. v. Lower Moreland Township Zoning Hearing Board defines the burdens of “proof’ in special exception use cases. Manor Healthcare, 590 A.2d at 70. Ms. DeAngelo is correct in stating that the burdens of persuasion and production begin with the church. However, the church does not have the burden to prove that the proposed use will not harm the community; rather, the church has a positive burden to demonstrate that the special exception use will comply with the ordinance. Id. at 70. After that, the burden of production regarding the special exception use’s detriment to the health, safety, welfare of the community shifts to the objectors, while the burden of persuasion remains with the applicant. Id.; Bray, 410 A.2d at 911; Greaton Properties v. Lower Merion Township, 796 A.2d 1038, 1045 (2002). Greaton Properties is the most recent case detailing the requirements for a special exception use, and it states, “Objectors still retain the initial presentation burden with respect to the general matter of the detriment to health, safety and general welfare. The evidence presented by objectors must show a high probability that the use will generate adverse impacts not normally generated by this type of use and that these impacts will pose a substantial threat to the health and safety of the community.” Greaton Properties, 796 A.2d at 1045.

Here, the ZHB properly applied the burden of proof, although it did not detail the process explicitly in its decision. The church demonstrated that a landscaping project will block the smoking area from view, although this area is already secluded. Hearing transcript (Sept. 4, 2013) at 50-52. See exhibit A-5. The church demonstrated it had more than adequate parking — 87 spaces available for an 18 bed shelter, and it is unlikely that many of the participants will drive vehicles. Hearing transcript (Sept. 4, 2013) at 20. See exhibit A-4. The requirements in 4.822 and 4.823 that the use conform to regulations and that the use be compatible with the adjoining development are addressed by the broadly interpreted Social Services exception.

The only special exception use requirement that the church does not explicitly meet through testimony is 4.821, “Shall not cause substantial injury to the value of other property where it is to be located.” Ms. DeAngelo asserts that “The Applicant failed to present expert, anecdotal or factual testimony regarding this prong, and their case should fail for that reason.” Appellant’s brief at 9. Ms. DeAngelo cited the church’s attempt to contact realtors for appraisals; the realtors would not answer definitively whether the property values would decrease. Id. at 5. However, nothing in the zoning ordinance states that, though the applicant bears in the burden on this issue, the applicant must prove this point through appraisal testimony. During the September 4, 2013 hearing, Pastor Antal testified about the church’s efforts to make the homeless project as discreet as possible. The testimony does not address these property value concerns in a systematic fashion; however, the pastor emphasized that the outside area was already hidden from view and efforts would be made to make the area even more private. The pastor went on to describe how the participants will arrive by 10 p.m., lights out will occur at 12 a.m., and the participants will be woken at 5:45 a.m. Hearing transcript (Sept. 4, 2013) at 18-20. By 6:00 a.m., the participants will be out of the building and the building will be cleaned up. Id. The church will provide transportation downtown to those who need it. Id.

Similar assurances satisfied the court in Sunnyside Up Corp. v. City of Lancaster Zoning Hearing Board, in which the proposed juvenile delinquent housing would resemble a school and would be screened from view, among other things. Sunnyside Up Corp. v. City of Lancaster Zoning Hearing Board, 739 A.2d 644, 650-51 (1999). The court stated, after the Applicant County had met its burden, “the [objecting] testimony was mere speculation of a reaction which fell short of the “high degree of probability” of a substantial affect (sic) on the community required, especially where the measures utilized by the County will ensure the facility is compatible with the residential nature of the community.” Id. at 651.

The evidence presented by the church supported the ZHB finding that the special exception use will not cause substantial injury to the value of other property where it is to be located as described in 4.821. The church’s plans indicate that the homeless shelter use will primarily occur within the existing walls of the church. Although smoking will be permitted outside, the church made plans to make smokers there as unobtrusive as possible. The rest of the special exception activity will be conducted inside. There is nothing planned to cause a gathering of the homeless outside the facility other than ingress and egress.

Ms. DeAngelo additionally asserts that there are 133 homeless people in Monroe County; thus, over 100 people will be turned away each night. The use of this number is misleading because not every homeless person in the county is likely to seek this shelter on a nightly basis, but even if it is true, there is nothing about the church’s proposed use to suggest that the unsuccessful visitors will remain in the area of the church or become a disruption to the neighborhood when they are turned away. Also, the homeless population is transient, and its numbers are not stable. This argument is extreme; the church has addressed the issues it has foreseen in a practical matter, and the number of homeless seeking shelter may indeed be greater at times than the church can accommodate. An applicant for a special exception use is not required to address every possible outcome of their proposed use, no matter how unlikely. The church had the burden of addressing each requirement of 4.800, and it did so through testimony and the various exhibits. The church has met the objective requirements for a special exception use and has also met its initial burden that the church’s proposed use is not detrimental to the health, safety, and general welfare of the community. Manor Healthcare, 590 A.2d at 216.

The burden of production then shifts to the objectors to demonstrate to a “high probability” that there will be a detriment to the health, safety, and welfare of the community, greater than the use would normally entail. The community residents merely expressed a fear of increased traffic in the area and a distaste for the church’s existing programs. The church’s existing programs are not under review. The residents did not provide evidence beyond speculation that something similar would occur as a result of this program. Furthermore, the residents provided no evidence of their own regarding the potential decrease in property value, Even if the community members had provided evidence of increased “wandering” or a decrease in property value, again, it would have to be more substantial than the usual effects associated with this kind of special exception use, and that is not apparent from the residents’ testimony. Sunnyside Up Corp,, 739 A.2d at 651. Additionally, the mere existence of “aberrated” people in the area is not sufficient. Appeal of Fleming, 405 A.2d 1309, 1310 (1979). Thus, the ZHB was correct in determining the objectors failed to meet their burden, as the objectors did in fact have the burden of production here. The ZHB properly found that a special exception use exists pursuant to the evidence presented.

ACCESSORY USE

Ms. DeAngelo also asserts that a homeless shelter is not an accessory use incidental to the principal use of a church. An accessory use is defined as a use that is “customarily incidental” to the main, permitted use under the ordinance. Benoff v. Zoning Board of Adjustment, 479 A.2d 68, 70 (1984). The ZHB found that the proposed homeless shelter was permitted as an accessory use to the church, in addition to being a proper special exception use. Ms. DeAngelo argues that a homeless shelter has no religious significance or connection to the principal use of the building as a place of worship. Appellant’s brief at 4-5. Furthermore she argues that allowing such an accessory use would allow all religious institutions to perform any manner of activities on their property. Id.

The evidence does not support this argument. While other religious institutions in the neighborhood may not run similar programs, small, temporary homeless shelters are often housed in churches, as demonstrated by the church’s witness from the Diocese of scranton. Hearing transcript (Oct. 2, 2013) at 6-12. This is what is meant by customary use — it does not necessarily have to exist in every institution of its kind, nor does necessarily it have to be a frequent use. Aldridge v. Jackson Township, 983 A.2d 247, 255 (2009). The ZHB must examine several factors, including “the applicant’s particular circumstances, the zoning ordinance and the indications therein as to the governing body’s intent regarding the intensity of land use appropriate to the particular district, as well as the surrounding land conditions and any other relevant information, including general experience and common understanding, to reach a logical conclusion as to whether a reasonable person could consider the use in question to be customarily incidental.” Aldridge, 983 A.2d at 255-56. Because of the incidental nature of accessory uses, the use in question does not have to be directly related to worship. The ZHB appears to have addressed these issues and properly found the church’s proposed homeless shelter to be an accessory use.

ALTERNATE BOARD MEMBER

As stated in the appellees’ brief, the Municipalities Planning Code, 53 P.S. 10906 addresses the organization of the board:

“(B) the chairman of the board may designate alternate members of the board to replace any absent or disqualified member, and if, by reason of absence or disqualification of a member, a quorum is not reached, the chairman of the board shall designate as many alternate members of the board to sit on the board as may be needed to reach a quorum. Any alternate member of the board shall continue to serve on the board in all proceedings involving the matter or case for which the alternate was initially appointed until the board has made a final decision on the matter or case...”
53 P.S. § 10906(b).

Mr. Barcafer, the replacement board member, was present at all hearings as one of two alternate board members. The board member that did not vote, Keith Drozal, was not present at the October 2 hearing, during which many witnesses testified. The Code does not define “disqualified member,” but pursuant to the language and context of 53 P.S. §10906, the ZHB properly appointed Mr. Barcafer as a voting replacement in the quorum when Mr. Drozal was absent from an important hearing. Allowing Mr. Drozal to vote in the decision would have been harmful to the parties, as he had not personally heard much of the witness testimony. The MPC requires the alternate to continue to serve “until the board has made a final decision.” Since that is what happened here, the ZHB acted appropriately.

TOWNSHIP ENGINEER’S CONDITIONS

Finally, Ms. DeAngelo argues that the church did not properly adhere to the conditions in the township engineer’s letter. Ms. DeAngelo’s brief cites the decision in Edgmont Township v. Springton Lake Montessori School, Inc, 622 A.2d 418 (Pa. Cmwlth. 1993) to support this argument, but Ms. DeAngelo has mistaken the context of the Edgmont decision. The decision refers to a conditional special exception use, stating, “we overturned the grant of a special exception where the plan submitted to the Board did not comply with the on-site parking requirement necessary to obtain a special exception even though the grant of the special exception was conditioned on the applicant obtaining off-site parking.” Edgmont Township v. Springton Lake Montessori School, Inc., 622 A.2d 418, 420 (1993) (referring to Lafayette College v. Zoning Hearing Board of the City of Easton, 588 A.2d 1323 (1991)). Here, the ZHB’s grant of the special exception was not conditioned on anything; the ZHB determined that the church had met the requirements for a special exception and granted the use. The Edgmont decision does not refer to the recommendations of the township engineer. The school in Edgmont was not in compliance with the ordinance upon receiving the special exception use but promised it would be in compliance within an ascertained time period. Edgmont, 622 A.2d at 419. This is not analogous to the case at hand, as the ZHB found the church to be in compliance with the ordinance at the time of the special exception use request, thus meeting its burden. While the church proposed additional landscaping and safety precautions, the ZHB decision granted the special exception use because it met the requirements of the ordinance. Because the recommendations of the township engineer appear to be just that, rather than binding requirements, this court will affirm the ZHB’s grant of a special exception use without condition.

ORDER

And now, this 11th day of September, 2014, following consideration of the parties’ briefs and arguments, it is ordered that:

1. The decision of the Stroud Township Zoning Hearing Board is affirmed.

2. The appeal of Susan DeAngelo is denied.


author: MARK, J.,

text:
    Elkadi v. Pa. Department of Transportation

      C.P. of Monroe County,
    No. 1048 CV 2007

      Regis M. McClelland, for plaintiffs.

      John W Stahl, for Commonwealth.
    Sept. 15, 2014
   MARK, J.,

Previously, we issued an order granting the motion of the Commonwealth of Pennsylvania, Department of Transportation (“PennDOT”) for summary judgment. In the order, we summarized our reasons for granting the motion and indicated that an opinion would follow. This opinion fleshes out the reasons why we granted PennDOT’s motion.

On February 24, 2005, plaintiff’s father, James O. Allison (“decedent”), was operating a vehicle westbound on State Route 940 in Tobyhanna Township when, according to plaintiff, “[t]he vehicle’s right tires became caught in a pothole, drop-off, and/or rutted areas along the right side of the road surface, ...[which] caused the vehicle to fishtail across the roadway and to collide with a truck heading eastbound in the oncoming traffic.” (Pl.’s Compl. ¶ 4.) As a result of the collision, plaintiff’s father suffered severe injuries and died. (Id at ¶ 5.)

Subsequent to her father’s death, plaintiff filed a wrongful death and survival action. In her complaint, plaintiff alleged that PennDOT and Tobyhanna Township breached duties owed to her father and the traveling public, by, among other acts or omissions,:

a. Failing to properly inspect, maintain, and/or repair the roadway and shoulder areas of Route 940;
b. ...allowing the condition of the surface of the roadway and/or shoulder of the roadway to deteriorate and develop dangerous drop-offs, ruts and/or potholes;
c. ... failing to...alert motorists to the dangerous and/or hazardous condition of the roadway [] and/or shoulder of Route 940;
g. ...negligently and improperly designing and constructing the roadway of Route 940 so that motorists are forced to utilize the shoulder of the roadway as a lane of travel in order to pass traffic making a left turn; thereby, contributing to the deterioration of the condition of the surface of the shoulder and the roadway;
****
j. ...failing to take action to repair potholes, a drop-off, and/or ruts in the roadway after defendant PennDOT was notified of the existence of the same; and;
h. ... failing to keep the roadway safe from dangerous conditions.

(Id. at ¶ 5-6.)

Following a lengthy discovery period that stretched out over six years, PennDOT filed the instant motion for summary judgment arguing that, under current law, it did not owe plaintiff’s decedent a duty and no exception to sovereign immunity applies because it did not have a duty to maintain the shoulder of the road or eliminate the edge drop off that caused the fatal accident. Plaintiff filed an answer asserting that PennDOT did owe a cognizable duty, that at least one exception to immunity applies, and that this matter is distinguishable from the cases on which PennDOT relies.

After considering the exhaustive briefs and arguments of the parties, we issued our order granting PennDOT’s motion. We found that, under current precedent and on the record presented, we were “constrained to find that plaintiff failed to establish that defendant had a duty to plaintiffs decedent and breached it or that any exception to sovereign immunity applies.”

Discussion

Under the Pennsylvania Rules of Civil Procedure, summary judgment is appropriate where:

After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.

Pa.R.C.P. 1035.2. Summary judgment may be granted only in cases where the right is free and clear from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). Typically, the moving party has the burden of proving the nonexistence of any genuine issue of material fact. Thompson, 412 A.2d at 469. The record must be viewed in light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970).

In response to a motion for summary judgment, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). In ruling on a motion for summary judgment, the court may consider the pleadings, depositions, answers to interrogatories, admissions, and supporting affidavits. Pa.R.C.P. 1035.1.

In support of its motion, PennDOT argues that it is protected from suit in this matter by sovereign immunity. While the general assembly has carved out exceptions to this general rule, PennDOT continues, none apply here. PennDOT also argues that our appellate courts have previously determined, in decisions that are binding upon this court, that PennDOT has neither a specific duty to clear the roads of ice and snow nor a duty to make the shoulders of the roadway whether paved or unpaved, safe for travel.

Plaintiff counters that the facts of this case are “clearly distinguishable” from the facts in the cases relied upon PennDOT. Most notably, plaintiff points to the fact that, in the area where the accident occurred, the shoulder is frequently used as a lane of travel by vehicles due to “frequent left turns” by other vehicles. Due to how often the shoulder is utilized, plaintiff continues, “it is reasonably foreseeable that the decedent’s car would travel onto the shoulder and be detrimentally impacted by its poor maintenance.” (Pl.’s Br. at 7.) Plaintiff further attempts to distinguish the facts of this case from those PennDOT cites by noting that the decedent’s vehicle “did not leave the roadway.” Instead, “[t]he [decedent’s] vehicle never in fact left the intended path of travel on the roadway. At most, the right side tires traveled inches onto the berm before the vehicle was thrown into a spin into oncoming traffic. Plaintiff submits that it was the condition of the road itself which caused the accident.” (Pl.’s Br. at 7-8.)

Generally, barring waiver of sovereign immunity by the general assembly, Commonwealth agencies are immune from suit for tort liabilities. Lambert v. Katz, 8 A.3d 409, 413 (Pa. Cmwlth. 2010). Under the Sovereign Immunity Act, 42 Pa.C.S. § 8522(a), the general assembly has authorized the “imposition of liability against Commonwealth agencies for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person to whom the defense of sovereign immunity is not available.” Id. To satisfy this threshold requirement, a plaintiff must establish the four elements of common law negligence: (1) the defendant’s legally recognized duty; (2) a breach of that duty; (3) causation; and (4) actual damages. Id.

As stated by our Supreme Court, the “’duty of care a Commonwealth agency owes to those using its real estate [] is such as to require that the condition of the property is safe for the activities for which it is regularly used, intended to be used or reasonably foreseen to be used.’” Id. (quoting Snyder v. Harmon, 562 A.2d 307, 312 (Pa. 1989)). In turn, motorists are obligated to “use the highways in the ordinary and usual manner of reasonable care.” Id. Because Commonwealth agencies are generally immune from suit, they may breach a duty owed “yet not be liable unless a breach is coincidental with an exception” to Section 8522(a) of the Sovereign Immunity Act. Id. at 414 (quoting Bendas v. Twp. of White Deer, 611 A.2d 1184, 1186 (Pa. 1992)). To overcome sovereign immunity, tort plaintiffs must further demonstrate their allegations fit within one of the enumerated exceptions as set forth in section 8522(b). Lambert, 8 A.3d at 414. There exist nine such exceptions, each of which we are required to strictly construe. Id.

Of these nine exceptions, only two are even potentially relevant to this case. The first is the real estate exception, which permits a claim against the Commonwealth when the claimant demonstrates that a dangerous condition of Commonwealth agency real estate and sidewalks, including highways under the jurisdiction of a Commonwealth agency, caused the injury that led to the claim. 42 Pa.C.S. § 8522(b)(4). For this exception to apply, the plaintiff must aver “that the dangerous condition derived, originated from or had as its source the Commonwealth realty itself.” Lambert, 8 A.3d at 414 (citing Jones v. SEPTA, 772 A.2d 435, 443 (Pa. 2001)).

The only other possible exception is the dangerous conditions exception. Under this exception, the Commonwealth will be held liable if there exists “[a] dangerous condition of highways under the jurisdiction of a Commonwealth agency created by potholes or sinkholes or other similar conditions created by natural elements.” 42 Pa.C.S. § 8522(b)(5). In order to prevail, however, a claimant must prove that the dangerous condition “created a reasonably foreseeable risk of the kind of injury which was incurred.” 42 Pa.C.S. § 8522(b)(5). A claimant must further demonstrate that the Commonwealth agency had actual written notice of the dangerous condition and sufficient time before the event to remedy the situation. 42 Pa.C.S. § 8522(b)(5).

In this case, plaintiff avers that decedent was traveling west on Route 940 when the “vehicle’s right tires became caught in a pot-hole, drop-off, and/or rut in the road surface,” causing the vehicle fishtail across the road into oncoming traffic. (Pl.’s Compl. ¶ 4.) Plaintiff goes on to allege, in several averments, that PennDOT failed, in a number of different ways, to properly maintain the shoulder on the section of Route 940 where the accident occurred. According to an accident reconstruction report compiled by Sgt. Chris Wagner of the Pocono Mountain Regional Police, a heavy accumulation of snow had “covered and obscured roadway markings and boundaries” on Route 940. (PennDOT’s motion ex. A.) Thereafter, decedent’s vehicle crossed over the white fog line onto the westbound shoulder. This particular section of the shoulder “was in disrepair, including, but not limited to an asphalt drop off of between 1-2 inches and several potholes.” (PennDOT’s motion ex. A.) As decedent attempted to correct his course and return to the roadway, “the asphalt drop off, coupled with snow accumulation, sent [eecedent’s vehicle] into a counter clockwise rotation,” which sent decedent’s vehicle spinning into the eastbound lane, where it collided with an oncoming truck. (PennDOT’s Br. Ex. A.). Sgt. Wagner reiterated and confirmed these conclusions during his deposition. (PennDOT’s motion ex. B.)

Plaintiff’s expert, Richard M. Balgowan, produced a report very much in accord with Sgt. Wagner’s investigation. Mr. Balgowan determined that the asphalt drop-off “was the trigger that initiated [decedent’s] loss of control and led to his death and the injuries to Kathleen Allison and John Pardue.” (PennDOT’s motion ex. D.)This drop-off into the shoulder “made the roadway dangerous in a manner that caused this crash.” (PennDOT’s motion ex. D.) “The absence of a safe and adequate shoulder deprived [decedent] of a normally provided safety feature and caused the crash.” (PennDOT’s motion ex. D) (emphasis added).

Plaintiff does not allege PennDOT failed to maintain the shoulder; instead, they contend — and base their case on — PennDOT’s “failure to maintain the highway in a condition safe for expected vehicular traffic.” (Pl.’s br. at 9.) Plaintiff submits that the paved area to the right of the white fog line on this particular portion of Route 940, as seen in many of the numerous photographs submitted by the parties, is frequently used as a passing lane for vehicles attempting to maneuver around other vehicles making left-hand turns. Therefore, plaintiff continues, use of this paved area is foreseeable if not intended, By making use of this paved area, Plaintiff argues, decedent’s vehicle never actually left the intended path of travel, and it was only because PennDOT failed to “adequately maintain the edge of the roadway, not its failure to create a safe shoulder area, caused the drop-off which resulted in [decedent’s] death.” (Pl.’s br. at 9.) “At most the right side tires traveled inches onto the berm before the vehicle was thrown into a spin into oncoming traffic. Plaintiff submits that it was the condition of the road itself which caused the accident.” (Pl.’s br. at 9.)

Plaintiff’s argument, though well-taken, is under current law misplaced. In Lambert, the Commonwealth Court defined the role of a shoulder on a highway. The court began by noting that case law has distinguished a “right-of-way” from the paved portions of a street for the purposes of the real estate exception. The “highway” includes both the “cartway,” which is the paved and traveled portion of the road, and the berm of shoulder, which is “’the paved portion to either side of the actual traveled portion of the highway, not the right-of-way.’” Lambert, 8 A.3d at 418 (quoting Granlich v. Lower Southampton Township, 838 A.2d 843, 846 (Pa. Cmwlth. 2003). The roadway, meanwhile, is the part of “’[t]hat portion of a highway improved, designed or ordinarily used for vehicular travel, exclusive of the... berm or shoulder even though such...berm or shoulder is used for pedacycles.’” Lambert, 8 A.3d at 418 (quoting section 102 of the Vehicle Code, 75 Pa.C.S. § 102) (emphasis in original). Taken together, these definitions indicate that the shoulder is the area, whether paved or not, that sits outside the white fog line. “By electing to exclude shoulders from the definition of roadway, the general assembly signaled its determination that shoulders, unlike the remaining part of the highway, are not intended for vehicular travel.” Lambert, 8 A.3d at 418.

Further, recent decisions from the Commonwealth Court make clear that PennDOT has no duty to “design, construct and maintain the shoulder drop-off.” Bubba v. Dept. of Transportation, 61 A.3d 313,317 (Pa. Cmwlth. 2013), petition for allowance of appeal denied, 79 A.3d 1099 (Pa. 2013). Here, plaintiff couches her argument in terms of the “edge of the roadway” and not the shoulder, but this is a distinction without a difference. The paved portion of any road must, of course, at some point come to an end, thus creating an edge often leads into a gravelly or rocky area, as was the case here. Where the edge of the pavement and the gravelly area meet, there is commonly some sort of drop-off. However, as noted, the Commonwealth Court expressly held that PennDOT has no duty to maintain this drop-off.

In Bubba, the driver of a vehicle swerved to avoid an animal. This sudden jerk of the wheel caused the right-side tires to “drop[] off the highway where the road abuts the dirt and gravel berm/shoulder.” Id. at 315. As the driver tried to correct her course by steering back to the left, the vehicle jumped up from the two- to three-inch dropoff, crossed the road, flipped, struck a utility pole and crashed into a house. Id. In determining whether PennDOT owed a duty to maintain the shoulder, the court examined Dean v. Department of Transportation, 751 A.2d 1130 (Pa. 2000) and Brown v. Department of Transportation, 11 A.3d 1054 (Pa. Cmwlth. 2011). In Dean, our Supreme Court determined that PennDOT has no duty to install guardrails, while the Commonwealth Court held in Brown that PennDOT has no duty to install rumble strips. In both of those cases, as well as in Quinones v. Department of Transportation, 45 A.3d 467 (Pa. Cmwlth. 2012), the courts focused their analysis on the reason the vehicle left the road. In Dean, the vehicle left the road because, as here, it slid on accumulated snow, while in Brown the driver fell asleep. In Quinones, too, driver conduct caused the vehicle to leave the road. Bubba, 61 A.3d at 317. Ultimately, the Bubba court concluded “that the drop-off did not cause [appellant’s] injuries, [the driver’s] lack of control of her vehicle did when she swerved to avoid the animal in the roadway. The shoulder is not intended for vehicular travel and, accordingly, [PennDOT] owed no duty to design, construct and maintain the shoulder drop-off.” Id.

In the instant case, plaintiff sparingly alleges that the right-side tires of decedent’s vehicle became caught in a “pothole, drop-off, and/or rutted area along the right side of the road.” (PL’s compl. ¶ 4.) Despite arguing that vehicles frequently traveled outside of the fog line on this particular portion of Route 940 to avoid vehicles making left turns, plaintiff does not allege that decedent was attempting to pass another vehicle when his tires left the roadway. As Sgt. Wagner noted in his report, “ [p]rior to and during this event, the area was experiencing a substantial accumulation of snowfall.” (PennDOT’s motion ex. A.) This snowfall “covered and obscured roadway markings and boundaries.” (PennDOT’s motion ex. A.) There is, as PennDOT argues, no evidence that the condition of the travel lanes, apart from snow accumulation, caused this accident. Instead, based on the pleadings and the evidence presented, it was a combination of snow accumulation and decedent’s inability to clearly see the roadway markings and boundaries that led his vehicle to drift off the roadway and onto the shoulder.

In sum, we granted summary judgment because, under the facts of this case and the holding and rationale of our Commonwealth Court in Bubba, supra and Lambert, supra, PennDOT owed no duty to plaintiff’s decedent and no exception to sovereign immunity applied. See also Hindle v. Department of Transportation, 2012 WL 8685890, No. 1561 C.D. 2011 (Pa. Cmwlth., filed July 5, 2012) (persuasive but non-precedential decision).

      . The Commonwealth Court long ago made clear that PennDOT has no duty “to remove or treat natural accumulations of ice and snow.” Huber v. Dept. of Transportation, 551 A.2d 1130, 1132 (Pa. Cmwlth. 1988).