author: MINORA, J.,

text:
    Ruby v. Delta International Machinery Corp.

      C.P. of Lackawanna County,
    no. 97-CV-5248.

      Randy R Wendolowski and William M. Blaum, for plaintiffs.

      Timothy E. Foley and Daniel E. Cummins, for defendants
    November 17, 2000
   MINORA, J.,

Currently before the court come the plaintiffs seeking to dismiss defendants’ objections to subpoenas upon non-parties, and to compel this court to award sanctions to the plaintiffs and/ or hold the defendants in contempt. Plaintiffs initially brought suit to recover damages after plaintiff John Ruby was injured using a table saw designed, manufactured and sold by defendants. At issue is whether plaintiffs’ motion to dismiss objections of defendants to subpoenas of non-parties should be granted if the subpoenas in question were properly issued; and whether plaintiffs are entitled to sanctions and/or contempt for defendants’ alleged failure to produce discovery. Arguments on these issues were heard before this court on September 26, 2000. Both parties have subsequently submitted their respective briefs, and the matter is now ripe for decision. For reasons discussed below, we find that the defendants’ objections to the subpoenas were properly raised. However, because the subpoenas were properly issued, the objections must be denied. Therefore, plaintiffs’ motion to dismiss objections of defendants must be granted. We also find that plaintiffs are not entitled to sanctions and/ or contempt at this time. Accordingly, plaintiffs’ motion to dismiss objections of defendants Delta International Machinery Corporation and Invicta Delta to subpoenas upon Aetna Insurance Company and Constitution State Service Company is granted and plaintiffs’ motion for sanctions and/or contempt is denied.

FACTUAL HISTORY

John and Laura Ruby, plaintiffs, brought this products liability action against the defendants alleging that plaintiff John Ruby was injured while operating a table saw. Plaintiff John Ruby purchased a saw from defendant Snee & Sunday Company. The saw was designed, manufactured and sold by Defendant Delta International Machinery Corporation. (Hereinafter “defendants” refer to Delta International Machinery Corporation and Invicta Delta.) On November 7,1995 plaintiff John Ruby alleges that he received several injuries including lacerations to the left thumb, index finger and middle finger while operating the saw. The plaintiffs brought counts alleging negligence, strict liability, breach of warranty and punitive damages.

On January 28,1998, plaintiffs served defendants with interrogatories and request for production. On April 22, 1998, plaintiffs filed a motion to compel for defendants to respond to said request. On that same day this court rendered an order mandating defendants to respond. On July 22,1998, defendants were served with a second set of interrogatories and request for production. On December 29, 1998, plaintiffs filed another motion to compel the second request. On that same day this court issued another order requiring defendants to respond. On February 18,1999, plaintiffs filed a motion to compel alleging that defendants’ responses to both requests were incomplete. On that same day a rule was effectuated that defendants had until March 12, 1999 to answer. Defendants replied to said request and the matter went before this court on oral arguments. On December 23, 1999, Judge Minora issued an order requiring defendants to provide a complete set of answers to plaintiffs’ and second sets of interrogatories and requests for production, provide any information on any prior accidents, provide any information on alternate guard designs, provide any documents regarding the sale of interest in Invicta-Maqinas Para Madeira Ltda. Plaintiffs allege that defendants did not fully comply with this court order. On July 17,2000, Judge Nealon issued a rule on defendants, Delta International Corporation and Invicta Delta to file and answer to plaintiffs’ petitions, and if an answer is timely filed, a hearing shall be held July 26, 2000.

The plaintiffs presented a notice to serve subpoenas on the Aetna Insurance Company and Constitution State Service Company of Hartford, Connecticut seeking information from their files. The defendants filed objections to these subpoenas on grounds that the subpoenas were improperly issued because the subpoenaed non-parties were outside of the Commonwealth of Pennsylvania, and that the offices of the non-parties within Pennsylvania do not possess the documents requested in discovery. Plaintiffs have filed a motion to dismiss the objections of defendants to these subpoenas. Plaintiffs have also filed a motion for sanctions and/or contempt.

DISCUSSION

I. Plaintiffs Motion To Dismiss Objections of Defendants to Subpoenas Upon Aetna Insurance Company and Constitution State Service Company

A. Issuance of Subpoenas

The issuance of subpoenas is governed by 42 Pa.C.S §5905, and states,

“Every court of record shall have power in any civil or criminal matter to issue subpoenas to testify, with or without a clause of duces tecum into any county of this Commonwealth to witnesses to appear before this court or any appointive judicial officer. Subpoenas shall be in the form prescribed by general rules.” 42 Pa.C.S §5905.

Pa.R.C.P. 4009.21(a) requires that, “A party seeking production from a person not a party to the action shall give written notice to every other party of the intent to serve a subpoena at least 20 days before the date of service. A copy of the subpoena proposed to be served shall be attached to the notice.” Pa.R.C.P. 4009.21(a). Under Pa.R.C.P. 4009.21(c) “[a]ny party may object to the subpoena by filing of record written objections and serving a copy of the objections upon every other party to the action.” Pa.R.C.P. 4009.21(c). Pa.R.C.P. 4009.21(d)(1) states, “If objections are received by the party intending to serve the subpoena prior to its service, the subpoena shall not be served. The court upon motion shall rule upon the objections and enter an appropriate order.” Pa.R.C.P. 4009.21(d)(1).

B. Plaintiffs’ Argument

Plaintiffs request that this court deny and dismiss the objections to subpoena posited by defendants to the Aetna Insurance Company and Constiution State Service Company. Plaintiffs argue that the subpoenas are necessary because of defendants’ alleged continual refusal to provide the information requested and ordered by this court.

Plaintiffs argue that defendants have not identified sufficient facts to support either of their objections in this case. Plaintiffs submit that the objections are merely conclusory statements that the courts of this Commonwealth are powerless, and that defendants have properly responded to discovery requests. Plaintiffs contend that the party setting forth objections has the burden of proof to not only establish the viability of an objection, but also to set forth facts that are sufficient to support that objection. Plaintiffs submit that defendants have failed to allege any specific facts regarding their objections, and that the objections should be dismissed on this basis alone.

Plaintiffs submit that the supoenas are intended to be served upon entities other than the defendants. Plaintiffs argue that defendants do not have standing to object to the subpoenas at issue on the basis of the purported procedural deficit. Plaintiffs submit that if the insurance companies themselves felt this was an issue, then they would have standing to bring forth objections. Plaintiffs contend that defendants have absolutely no basis to object to the subpoenas and should be dismissed by this court.

Plaintiffs argue that 42 Pa.C.S.§5905 does not specifically preclude the issuance of subpoenas on out-of-state entities. Plaintiffs assert that 42 Pa.C.S. §5905 merely provides powers to county courts to issue subpoenas. Plaintiffs contend that defendants’ reliance on 42 Pa.C.S §5905 is misplaced, and that 42 Pa.C.S. §5905 does not preclude this court from issuing subpoenas in this case.

A tribunal of this Commonwealth may exercise personal jurisdiction over a person who acts directly or by an agent, as to a cause of action or other matter arising from such person [by] transacting business in this Commonwealth. 42 Pa.C.S. §5322(a)(l). Plaintiffs argue that personal jurisdiction of both Aetna Insurance Company and Constitution State Service Company lies within the Commonwealth of Pennsylvania because each entity has taken affirmative steps to register with an agency of the Commonwealth of Pennsylvania. Plaintiffs submit that Aetna Insurance Company has obtained a certificate of authority to do business in Pennsylvania as required by section 46 of the Insurance Act. Plaintiffs also submit that Constitution State Service Company is registered to do business and is qualified to do business in Pennsylvania. Plaintiffs argue that even if 42 Pa.C.S. §5905 precluded service on out-of-state entities, that preclusion would not apply here because both insurance companies are, for purposes of personal jurisdiction, residents of Pennsylvania and can be served within the boundaries of Pennsylvania.

C. Defendants’ Position in Opposition

The defendants have raised two objections. First, the defendants assert that the subpoenas issued by the Court of Common Pleas of Lackawanna County are powerless outside the Commonwealth of Pennsylvania under 42 Pa.C.S. §5905. Secondly, the defendants assert that the discovery requests were properly responded to by the defendant.

Defendants submit that 42 Pa.C.S. §5905 specifically limits the court’s power to issue subpoenas to witnesses in any county of this Commonwealth. Defendants assert that plaintiffs’ argument that defendants are without standing to raise this issue is devoid of merit. Defendants contend that plaintiffs’ effort to have this court issue a subpoena upon a foreign entity is not permissible no matter who raises the issue. Defendants assert that plaintiffs have offered no evidence to support their contention that the insurance companies to which subpoenas were forwarded are Pennsylvania residents. Defendants assert that plaintiffs’argument that the plaintiffs can serve subpoenas upon a Pennsylvania entity, presumed to be capable of receiving such service on behalf of a foreign entity which actually possesses the desired documents, is nothing more than an attempt to circumvent 42 Pa.C.S. §5905. Defendants submit that the court cannot issue the subpoenas as requested by the plaintiffs.

Defendants argue that their objections are supported by the fact that the defendants have previously produced appropriate responses to the plaintiffs’ discovery requests. Defendants contend that plaintiffs’ argument on the issue of collateral estoppel is misplaced. Defendants submit that plaintiffs’ argument that the court’s order of August 23, 1999, which noted that the objections raised by the defendants to the first and second set of plaintiffs’ interrogatories and first and second set of request for production of documents are waived leads to the conclusion that the defendants are now powerless to submit objections to the subpoenas in this matter is devoid of merit as the subpoenas constitute a distinct and separate discovery request from those discovery requests covered by the court’s August 23, 1999 order. Defendants contend that they filed the appropriate objections to the plaintiffs’ subpoenas under the applicable Rules of Civil Procedure.

Defendants request that this court deny the plaintiffs’ motion to dismiss objections of the defendants to subpoenas upon Aetna Insurance Company and Constitution State Service Company, even if the subpoenas are served upon affiliated entities within the Commonwealth of Pennsylvania presumed to be capable of receiving such service of subpoenas, because the desired documents are in the possession of a foreign entity and not in the possession of the entity served.

Although defendants have properly raised objections to the subpoenas under Pa.R.C.P. 4009.21(c), the subpoenas were validly issued under 42 Pa.C.S §5905. Therefore, the plaintiffs can seek production of discovery from non-parties, Aetna Insurance Company and Constitution State Service Company.

II. Plaintiffs’ Motion for Sanctions and/or Contempt

A. Award of Sanctions and Contempt

Pa.R.C.P. 4019 governs the award of sanctions and states, “The court may, on motion, make an appropriate order if a party or person otherwise fails to make discovery or to obey in order of court respecting discovery.” Pa.R.C.P. 4019(a)(l)(viii). Rule 4019(a) of the Pennsylvania Rules of Civil Procedure authorizes the imposition of sanctions for failure to comply with discovery orders. Steinfurth v. LaManna, 400 Pa. Super. 384, 388, 590 A.2d 1286, 1288 (1991). When a discovery sanction is imposed, the sanction must be appropriate when compared to the violation of the discovery rules. Id. citing Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 553 A.2d 82 (1989). There are several factors that must be considered when a discovery sanction is imposed. Id. The first factor to consider is the party’s failure in light of the prejudice caused to the opposing party and whether the prejudice can be cured. Id. A second factor to be examined in reviewing a sanction is the defaulting party’s willfulness or bad faith in failing to comply with the discovery order, i.e., the merits of their excuse. Id. The third factor to consider is the number of discovery violations because repeated discovery abuses are disapproved. Id. The final factor is the importance of the precluded evidence in light of the failure. Id. at 1289. See also, Grunde v. Huff, 433 Pa. Super. 94, 100-101, 639 A.2d 1227, 1230 (1994).

Pa.R.C.P. 4019(c)(3) provides in pertinent part, “The court . . . may make an order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or entering a judgment of non pros or by default against the disobedient party or party advising the disobedience.” Pa.R.C.P. 4019(c)(3).

B. Plaintiffs’ Argument for Sanctions and/or Contempt

Plaintiffs filed a motion for sanctions and/or contempt against the defendants Delta International Machinery Corporation and Invicta Delta. In said motion, plaintiffs contended that the defendants should be held in contempt and/or sanctioned by this court by entering the following orders against defendants: (1) A judgment of non pros pursuant to Pa.R.C.P. 4019(c)(3). (2) A finding that the saw at issue was unreasonably dangerous and/or defective and/or Defendants were negligent in designing, manufacturing and/or distributing the saw and/or that defendants’ design, manufacture, and/or distribution of the saw breached the applied warranty of merchantability such that the only issue to be decided at trial is the compensatory and punitive damages to be rendered against the defendants. (3) Prohibiting defendants from presenting evidence and/or testimony at trial to contradict plaintiffs’ assertions that the saw was unreasonably dangerous and/or defective, and that the defendants were negligent in its design, distribution, manufacturing of the saw at issue. (4) Striking defendant’s new matter pursuant to Pa.R.C.P. 4019(c)(3). (5) Compelling defendants to provide any and all information pursuant to the court’s March 29, 2000 order including the following: Correspondence, records, documents, pleading, depositions, statements, complaints, claim notes, insurance correspondence, judgments, settlement agreements, releases, evidence of payment, expert reports, curriculum vitae of experts, product literature, inspections, any and all documents concerning any response the defendants have made to the Consumer Safety Council regarding any injury, accident, claim and/or lawsuit and/or testimony. (6) That the requested information be provided within 10 days of this court’s order. (7) That an additional hearing be scheduled 14 days from this court’s order to determine whether defendants have complied with the court’s order. (8) That defendants reimburse plaintiffs for counsel fees expended in presenting and furthering this motion. (9) That defendants be held in contempt of court. (10) That the defendants be assessed a daily fine and/or penalty for every day after March 29, 2000 until they fully comply with the court’s order. (11) Such other relief that the court deems appropriate.

In plaintiffs’ brief for sanctions and/or contempt, plaintiffs submit that defendants be held in contempt of court. Plaintiffs request that a daily fine and/or penalty be assessed against defendants on or after March 29, 2000 until defendants fully and completely comply with this court’s order, that defendants reimburse plaintiffs for attorney fees in drafting and pursuing two motions to compel, two motions for contempt/sanctions and the present motion. Plaintiffs further submit that plaintiffs are entitled to an order sanctioning the defendants. Plaintiffs contend that they are entitled to an order of non pros against defendants in that a finding be made that defendants are liable to plaintiffs in this matter such that the only issues to be addressed at trial are compensatory and punitive damages pursuant to Pa.R.C.P. 4019(c). In the alternative, plaintiffs submit that defendants should be precluded from bringing forth any defenses in this matter, or contesting liability in this case with an appropriate order, including but not limited to an order striking out portions of defendants’ pleadings and/or making specific findings regarding the unreasonably dangerous nature of the product at issue, negligence and/or liability of defendants and/or precluding defendants from contesting any liability issue in this case by way of presenting evidence, testimony including but not limited to expert opinions and/or any other sanction that this court deems necessary.

C. Defendants’ Position in Opposition

Defendants request that this court deny plaintiffs’ motion for contempt and/or sanctions and to enter an order awarding reasonable expenses, including attorney’s fees incurred by defendants in opposing plaintiffs’ motion, in favor of the defendants. Pa.R.C.P. 4019(g)(2) states,

“If the motion for sanctions is denied, the court shall, after opportunity for hearing, require the moving party or the attorney advising the motion or both of them to pay to the party or deponent who opposed the motion the reasonable expenses incurred in opposing the motion, including attorney’s fees, unless the court finds that the making of the motion was substanially justified or that other circumstances make an award of expenses unjust.” Pa.R.C.P. 4019(g)(2).

Plaintiffs’ relief requested in the motion as to production of documents is moot at this time following an order issued by Judge Minora on October 10, 2000. The order requires Delta Machinery Corporation to make available for inspection, copying and review any files, documents, records and/or information with regard to the list, which has previously been provided by defendant within 90 days. The order preserves jurisdiction of the motion to produce with Judge Minora, and that Judge Minora will entertain a motion for sanctions if either side is dissatisfied with the production request

III. Conclusion

For reasons discussed above we find that the defendants’ objections to the subpoenas were properly raised, however, the subpoenas were properly issued.

Therefore, plaintiffs’ motion to dismiss objections of defendant must be granted. We also find that plaintiffs are not yet entitled to sanctions and/or contempt at this time. Accordingly, plaintiffs’ motion to dismiss objections of defendants Delta International Machinery Corporation and Invicta Delta to subpoenas upon Aetna Insurance Company and Constitution State Service Company is granted, and plaintiffs’ motion for sanctions and/ or contempt is denied.

An appropriate order consistent with the reasoning of this memorandum follows.

ORDER

And now November 17, 2000, it is hereby ordered and decreed that the plaintiffs’ motion to dismiss objections of defendants to subpoenas upon Aetna Insurance Company and Constitution State of Service Company is granted; and plaintiffs’ motion for sanctions and/or contempt is denied.

      . The Insurance Act states in pertinert part, “No insurance company, association, or exchange of another state or foreign government shall do an insurance business within this Commonwealth without first having obtained a certificate of authority from the insurance commissioner authorizing such company, association or exchange to do business.” 40 P.S. §46(a).


source: Caselaw Access Project

author: LOUGHRAN, J.,

license: Public Domain

text:
    Ondish v. Moon

      C.P. of Westmoreland County,
    no. 2533 of 1933.

      John N. Scales, for plaintiff.

      Diane Bar Quinlin and Deborah D. Olszewski, for defendant Moon.

      Robert W. Murdoch, for defendant Rao.

      James R. Hartline, for defendant Jeannette DMH.
    October 26, 2000
   LOUGHRAN, J.,

The instant case involves allegations of medical malpractice arising from a series of injections administered to plaintiff’s lower back on May 1, May 9, and May 16, 1991. Following the third injection on May 16,1991, plaintiff experienced a variety of symptoms including pain, discomfort, nausea, and other symptoms which led him to finally seek medical treatment on July 8,1991. At this time, plaintiff was diagnosed with a coag positive staph infection, a lumbar spinal infection, and other diagnoses. Plaintiff alleges that before the diagnosis on July 8, 1991, he did not know the type or extent of his injury, nor did he have any knowledge of the cause of his symptoms.

Plaintiff commenced this action against defendants, Dr. Moon and Jeannette Hospital, in the Court of Common Pleas of Westmoreland County on April 5, 1993. Plaintiff initially served a reissued notice to defend and writ of summons (reissued on April 30, 1993) upon defendants, Sung Bin Moon M.D., Sung Bin Moon M.D. & Associates, and Jeannette District Memorial Hospital on May 10, 1993. Plaintiff then again reissued the writ of summons on June 1,1993 including for the first time, Mandiga Rao M.D. Plaintiff thereafter filed a complaint in civil action including defendant, Mandiga Rao M.D. on June 18, 1993.

The defendants, Mandiga Rao M.D. and Sung Bin Moon M.D. have moved for summary judgment based upon the contention that the statute of limitations ran upon the plaintiff’s cause of action.

Summary judgment should not be entered unless a case is free from doubt; the moving party must prove that there is no genuine issue of material fact to be tried and that it is entitled to judgment as a matter of law and, moreover, the record must be viewed in light most favorable to non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Richland Mall Corp. v. Kasco Construction Co., 337 Pa. Super. 204, 486 A.2d 978 (1984).

By statute, Pennsylvania has a two-year statute of limitations on personal injury actions. As a rule, “It is the duty of the party asserting a cause of action to use all reasonable diligence to properly inform himself of the facts and circumstances upon which the theory of recovery is based and to institute within the prescribed period.” Schaffer v. Larzelere, 410 Pa. 402, 189 A.2d 267 (1963). However, the so-called “discovery rule” is an exception to that rule, and its application tolls the running of the statute of limitations. Szpynda v. Pyles, 433 Pa. Super. 1, 639 A.2d 1181 (1994). The “discovery rule” is a three-prong test to determine whether a litigant has exercised reasonable diligence. These prongs are as follows:

(1) The litigant must have knowledge of his injury,

(2) The operative cause of his injury, and

(3) The causative relationship between his injury and the operative conduct. Petri v. Smith, 307 Pa. Super. 261, 453 A.2d 342 (1982).

The defendants assert that as the plaintiff experienced some pain and complained of pain on the date of his last injection on May 16, 1991, the plaintiff knew of his injury and should have taken reasonable steps to ascertain the cause thereof. As he did not do so, the defendants assert that he failed to use reasonable diligence and the statute of limitations commenced on May 16, 1991.

What a reasonable time period for the plaintiff to discover his injury is, is usually a question for the jury. Ingenito v. AC&S Inc., 430 Pa. Super. 129, 633 A.2d 1172 (1993). The defendant, however, argues the plaintiff needs only to know that he was injured, and that the plaintiff did not act in a timely manner, and summary judgment should be granted. Groover v. Riddle Memorial Hospital, 357 Pa. Super. 420, 516 A.2d 53 (1986).

However, reviewing the pleadings and record in a light most favorable to the non-moving party and resolving all doubts as to the existence of a genuine issue of material fact against the moving party, as this court must do in deciding summary judgment motions, defendants’ motions must be denied. In applying these principles to plaintiff’s cause of action, this court must conclude that it was not until diagnoses were rendered to the plaintiff, that he had any means to know of the extent of his injury, the nature of his injury or the causal relation between the injury and the injections.

Therefore, by application of the “discovery rule,” the statute of limitations began to run on July 8,1991, when the plaintiff was admitted and actually diagnosed with his various conditions at Jeannette District Memorial Hospital. Thus, when the amended writ was permitted, by order of court, on June 1,1993, said amendment and reissuance of the writ of summons was well within the two-year statutory time frame. Therefore, defendants’ preliminary objections in this regard must be dismissed.

It should be noted that the other matters raised by the defendants were disposed of by order of court rendered at oral argument on October 26, 2000.

ORDER

And now, to wit, December 12,2000, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the motions of summary judgment of the defendants based upon the issue of the statute of limitations are denied.


author: GOODHEART, J.,

text:
    Rota v. Methodist Hospital

      C.P. of Philadelphia County,
    August Term 1997,
    no. 425.

      Michael F. Barrett, for plaintiffs.

      William J. Mundy, for defendants.
    November 6, 2000
   GOODHEART, J.,

This opinion is being filed for the limited purpose of explaining my decision, on June 21, 1999, to grant in part the defendants’ motion for summary judgment, and to dismiss the portion of the plaintiffs’ claims that arose from the abscess and infection suffered by the wife-plaintiff, as described in the complaint.

Following the denial of post-trial motions (by the Honorable Frederica Massiah-Jackson), the defendants filed three separate appeals to the Superior Court. The first, from that denial itself, was docketed by the Superior Court at number 2464 EDA 2000. Judge MassiahJackson has already filed an opinion in support of her decision, which I mention only for the sake of completeness.

The second appeal — which was taken from my June 21, 1999 order, thus necessitating this opinion — was docketed by the Superior Court at number 2466 EDA 2000.

The third appeal, docketed by the Superior Court at number 2467 EDA 2000, was taken from an order entered on March 31, 1999 by the Honorable Jacqueline Allen, denying the defendants’ motion to compel discovery, specifically certain documents for which the attorney-client privilege was asserted. Similarly, Judge Allen has already issued an opinion in support of her decision, and I therefore mention the third appeal only for the sake of clarity.

Because the defendants have appealed, and the plaintiffs have not, I will also briefly discuss why I denied the remainder of the defendants’ motion, though — from a practical standpoint — the jury verdict in favor of the plaintiff at trial strongly (if not conclusively) indicates that my decision was correct.

On August 14, 1992, plaintiff Janice Rota delivered her first child, by caesarean section, at Methodist Hospital. Shortly thereafter, she began to complain of pain in her lower back, heavy bleeding, diarrhea and fever, but she was nevertheless discharged from Methodist on August 18, 1992.

On August 24, 1992, Ms. Rota — who was still experiencing those symptoms — visited the defendants’ office, and was examined by Dr. Jenofsky, who discovered a large pelvic abscess behind her uterus. She was readmitted to Methodist Hospital on that same day; a pelviscopy was performed on August 31,1992, and a JP drain was installed to drain the abscess, and the plaintiff was discharged from Methodist on September 7, 1992.

The plaintiffs’ suit was filed on August 6,1997, nearly five years after the treatment described above; the statute of limitations for tort claims is, of course, two years.

I granted the defendants’ motion for summary judgment on the plaintiffs’ claims arising from the treatment rendered to Ms. Rota in 1992, because it is clear from the face of the plaintiffs’ complaint that the existence of those claims was — or should have become — clear to the plaintiffs at or about the time that Ms. Rota experienced the symptoms described above, or at the absolute latest, in August, 1993 when she met with counsel to discuss the filing of a lawsuit.

There is thus no basis to apply a “discovery rule” to toll the statute of limitations as to those claims, and— because they are clearly time-barred — my decision to dismiss them was proper.

By the same token, it was not clear from the record (as it existed at the time that I considered the motion) that Ms. Rota knew (or should have known), at any time before October, 1996 (when, the parties agree, Dr. Gocial so advised her) that she would be unable to again conceive naturally.

In short, the defendants’ argument turns on their contention that the abscess and infection suffered by Ms. Rota in 1992 (for which the statute of limitations was not tolled) placed her on notice of all claims possibly arising from her August, 1992 treatment, and that if the statute of limitations expired as to some of those claims, it must be treated as having expired as to all of those claims, thus barring the infertility claim as well.

Summary judgment is reserved for the clearest of cases, in which reasonable minds could reach but one conclusion. Based upon the parties’ submissions, I felt that the nature and extent of the plaintiffs’ knowledge regarding the infertility claims presented a factual dispute that could only properly be resolved by a jury, and in such instances, summary judgment is inappropriate,

Because I had no further role in the disposition of this case, I will defer to my colleagues, Judges Allen and Massiah-Jackson, on the remaining issues raised in post-trial motions.

      . At the time that I considered this motion, defendant Methodist Hospital had been stipulated out of the case; all of the remaining defendants had joined in the motion, but because I did not dismiss all claims as to all defendants, my order only became appealable after the remainder of the case was tried to a verdict, and post-trial motions were disposed of. Thus measured, the notice of appeal from my order was timely, even though it was filed more than a year after its entry.


author: FRIEDMAN, J.,

text:
    Renk v. HealthAmerica Corp.
    C.P. of Allegheny County,
    nos. GD 97-11697, GD 97-11699.

      Neil R. Rosen, for plaintiffs.

      Deborah D. Olszewski, for defendant HealthAmerica.

      Giles Gaea, for defendants Ganti and Penn Group Medical Associates.
    December 19, 2000
   FRIEDMAN, J.,

INTRODUCTION

Defendants HealthAmerica Corporation of Pennsylvania, d/b/a HealthAmerica, Penn Group Medical Associates, and Murty S. Ganti M.D. have filed post-verdict motions asserting a variety of errors by the court. The plaintiffs have filed a motion to mold the verdict and to add delay damages.

The case involves allegations of negligence, in particular the failure of Dr. Ganti to perform a screening test which allegedly led to a belated diagnosis of colon cancer. The delay in diagnosis was said to have greatly increased Mr. Renk’s risk of premature death and also to have subjected him to much more drastic treatment measures than would otherwise have been necessary.

In addition to the law of negligence, the case also involves the law of contracts. Defendant HealthAmerica had made specific contractual promises to Mr. Renk (as one of its many customers/clients/insureds) regarding the performance of necessary screening, inter alia, as part of the preventive medicine component of its health maintenance program which was the subject of its contract with Mr. Renk.

ISSUES RAISED BY DEFENDANTS’ MOTIONS

Many of the issues raised by HealthAmerica, Dr. Ganti and Penn Group are similar. Those issues may be grouped together as follows:

(1) Whether the court erred in directing a verdict against Dr. Ganti on the issue of negligence.

“The court erred in granting plaintiff’s motion for directed verdict on the issue of colorectal screening/sigmoidoscopy.” (Ganti/Penn Group issue 1.)

“The trial erred in directing a verdict against Dr. Ganti based solely on Dr. Ganti’s oral testimony given at trial.” (HealthAmerica issue (a).)

“The court erred in refusing to submit the issue of Mr. Renk’s negligence to the jury.” (Ganti/Penn Group issue 4 and HealthAmerica issue (c).)

“The court erred after directing a verdict against Dr. Ganti on negligence in submitting to the jury, at the request of plaintiff’s attorney, a verdict slip question 2 and 3.” (Ganti/Penn Group issue 5.)

“The trial court erred in submitting to the jury the issue of negligence of Dr. Ganti for only one visit, after the court had improperly directed a verdict against Dr. Ganti on the issue of negligence.” (HealthAmerica issue m

(2) Whether the court erred in striking portions of Dr. Kuhns’ testimony by videotape deposition.

“The court erred in striking portions of the video deposition of Dr. Kuhns.” (Ganti/Penn Group issue 2.)

“The trial court erred in excluding portions of Dr. Kuhns’ testimony on the knowledge that Mr. Renk had of HealthAmerica’s guidelines on the availability and advisability of colorectal cancer screening and yearly physicals, as well as the issue of Mr. Renk’s contributory negligence for not making an appointment for a comprehensive physical at the age of 50.” (Health-America issue (b).)

(3) Whether the court erred in refusing to admit HealthAmerica magazine articles to prove Mr. Renk’s contributory negligence.

“The court erred in refusing admission of Health-America journals offered by Defendants for the purpose of showing Mr. Renk’s knowledge and negligence.” (Ganti/Penn Group issue 3.)

(4) Whether the court erred in charging the jury on the life expectancy tables as to Mr. and Mrs. Renk. (Ganti/ Penn Group issue 6 and HealthAmerica issues (i) and (])•)

The following issues were raised only by the party indicated.

(5) Whether “[tjhe court erred in permitting plaintiffs to call Mr. Lauritzen on rebuttal. ” (Ganti/Penn Group issue 7.)

(6) Whether “[tjhe trial court erred in excluding the testimony of Dr. John Durocher on the growth rate of tumors. ” (HealthAmerica issue (f).)

(7) Whether “[tjhe trial court erred in failing to charge the jury on the issue of the Two Schools of Thought Doctrine as testified to by Dr. Richard Bruehlman. ” (HealthAmerica issue (g).)

(8) Whether “[tjhe verdict was excessive because of the errors committed above which created an unfair and prejudicial atmosphere for jury deliberations. ” (Health-America issue (k).)

DISCUSSION

(1) The Court Was Not in Error for Directing a Verdict on the Issue of Dr. Ganti’s Negligence While Still Permitting the Jury To Decide the Issue of Causation

The court expressly told the jury that they would not have to decide whether or not Dr. Ganti was negligent, but that they would have to decide whether or not Dr. Ganti’s admitted negligence caused the damages plaintiffs claim to have suffered. The jury were also asked to consider whether or not HealthAmerica was directly liable to plaintiffs (based on allegedly inadequate operating procedures and policies given the promises it had made). It was undisputed that HealthAmerica was vicariously liable for any harm Dr. Ganti’s negligence may have caused, so the question of vicarious liability was not submitted to the jury.

The defendants all contend that directing the jury on the issue of Dr. Ganti’s negligence was erroneous and somehow confusing since causation was not also directed. The court does not agree at all. Juries are perfectly capable of understanding the differences and interrelationships among the concepts of negligence, causation, and liability. Furthermore, as was the case here, juries are routinely told in every negligence case that a negligent act does not, alone, result in liability. In addition, as was the case here, juries are not usually asked to answer questions on a fact that is not in dispute, whether the lack of dispute is based on an agreement of counsel or on an admission by a defendant in open court.

In objecting to the instruction as to negligence, counsel for Dr. Ganti argued that, since Dr. Ganti’s admission was elicited on cross-examination, it is not really an admission. (TT, vol. II, p. 148,11. 21-23.) Were this the case, there would be no reason to ever allow cross-examination, the ultimate purpose of which is to elicit admissions that what was said on direct was less than accurate.

Dr. Ganti also argued that oral testimony cannot be a basis for a directed verdict. That may be a correct statement about testimony, but it is not applicable to an oral admission by a party. Dr. Ganti’s admission that he did a certain act coupled with his additional admission that it was negligent for a doctor to have so acted, leaves no disputed issue of negligence for the jury to decide.

Were we to adopt Dr. Ganti’s reasoning, it would also follow that he could argue his own untruthfulness to the jury. His admission under oath is no less an admission because it was oral. It is no less an admission because made during cross-examination. Once made, it is no different from any other type of admission.

The court’s charge clearly left the crucial disputed issue of causation to the jury. The jury were given the usual instructions regarding professional negligence and liability. (TT, vol. II, pp. 301,1. 23 through 306,1. 20.) They were then told that Dr. Ganti was negligent as a matter of law (TT, vol. II, p. 306,11. 21-24) and they were reminded of what had been instructed previously, that it was left for them to determine whether Dr. Ganti’s negligence was a substantial factor in bringing about the harm. (TT, vol. II, p. 397,11. 12-14.) In addition, the interrogatories the jury answered also clearly left causation and liability for them to decide.

As to plaintiff’s claim against HealthAmerica, the court implicitly ruled as a matter of law that this failure by Dr. Ganti also constituted a material breach of Health-America’s contractual duty to Mr. Renk to provide him the necessary preventive screening, a promise HealthAmerica attempted to fulfill by placing a bright yellow checklist in a highly prominent place in each patient’s chart. Mr. Renk’s contract with HealthAmerica created the separate duty in Dr. Ganti to perform a sigmoidoscopy even if such a screening test were not required by the ordinary standard of care. That contract also created the direct duty in HealthAmerica to set up procedures that would assure that its employees, such as Dr. Ganti, performed in accordance with the contract. As previously indicated, the vicarious liability of HealthAmerica was undisputedly based on the liability or not of Dr. Ganti. Since the jury found Dr. Ganti liable to both plaintiffs, HealthAmerica is vicariously hable to plaintiffs based on the law of agency. The jury found in favor of HealthAmerica on the issue of its direct liability (a/k/a corporate negligence), probably because of the brightly colored and highly visible checklist which Dr. Ganti nevertheless admittedly ignored.

(2) The Court Properly Excluded Portions of Dr. Karen F. Kuhns’ Testimony

Dr. Karen F. Kuhns was a physician employed by the U.S. Steel Division of USX. Her testimony was by videotape and was proffered as a part of Dr. Ganti’s case. The discussion of objections regarding her testimony is located in volume IA of the transcript at pp. 610-29 and volume II of the transcript at pp. 33-38.

Plaintiff objected that although Dr. Kuhns testified that (in plaintiff’s counsel’s words) “at some point in time, at U.S. Steel, they began to offer preventive physical exams to non-management people.” (TT vol. IA p. 61111. 3-4.) Dr. Kuhns testified that she didn’t know when that occurred or how the employees became aware that the screening was being offered. Plaintiff objected to the line of questions following that, saying that it was unfair to have Dr. Kuhns testify to things she didn’t have knowledge of. Plaintiff’s counsel said he had information that the program did not start until 1994. Dr. Ganti’s counsel, on the other hand, observed that Dr. Kuhns was a treating physician not in his control, and that he was therefore not permitted to speak to her prior to her deposition.

We excluded that line of questions, stating: “And so the question is whether Dr. Ganti did or did not advise plaintiff, Mr. Renk, that he ought to have a sigmoidoscopy. It is not whether USX offered it or didn’t offer it back in 1991 through 1994 or 1995. Even if they had, if he didn’t have the screening then that doesn’t exonerate Dr. Ganti at all. So I don’t see that that is relevant and I’m happy to rule that way and stick by that ruling.” (TT, vol. IA, pp. 619,1. 21-620 1. 2.) And in a later discussion, “The reason for my ruling is that the questions refer to the possibility of invitations to preventive services being given to non-management personnel such as the plaintiff as early as 1991, when this witness had previously testified she knows nothing about when they were offered to non-management personnel. And, in fact, her answer on page 56 is she would presume that, yes. And a presumption is not knowledge and is consistent with her other testimony that she knows nothing about when non-management personnel were offered this before 1994 and 1995.” (TT, vol. II, p. 36,1. 19-p.37 1. 5.)

(3) The Court Properly Refused To Admit Copies of Magazine Articles Where the Sole Purpose of the Offer Was To Prove Mr. Renk’s Contributory Negligence, Where the Magazines Themselves Had a General Caveat About Reliance on Their Articles, and Where There Was No Other Evidence That Mr. Renk Himself Had Ever Been Told by Any Defendant To Arrange Screening Himself

This issue was discussed at various times during the trial, most thoroughly at TT, vol. I, p. 257,1. 25 through p. 266,1.13, which contains the rating of which Health-America complains. HealthAmerica sought to have admitted into evidence copies of articles in various issues of the periodical it sent to all the patients it served. Counsel for HealthAmerica offered the magazine articles “to show that HealthAmerica takes certain steps to ensure that these preventative [sic] medicine services are delivered. . . . (TT, vol. I, p. 259,11. 23-25.) As counsel for plaintiff pointed out, the same magazines have a kind of disclaimer saying “these guidelines are for your general information only and your primary care physician will let you know exactly what preventive checkups and diagnostic tests are suitable for you as well as offering them.”

The relevance asserted by HealthAmerica was to the issue of its direct liability. The court sustained plaintiffs’ objection. Even if the ruling were erroneous, which the court respectfully suggests it is not, there is no harm to HealthAmerica, because the jury found in its favor on the issue of direct liability.

As to Dr. Ganti, there was no objection made on his behalf to the ruling referenced above, nor was there any contention during that discussion that the articles were relevant as to Dr. Ganti’s defense. Assuming Dr. Ganti properly raised the issue at some other point in the proceedings, it seems clear that a patient cannot be contributorily negligent for seeking medical care from his doctor rather than from magazine articles.

(4) The Court Properly Took Judicial Notice of the Life Tables and Properly Instructed the Jury on Their Use

At trial, during the in-chambers discussion of the charge, Dr. Ganti’s counsel objected to the introduction of life expectancy tables as to Mr. Renk, because plaintiffs’ expert had testified that Mr. Renk’s life expectancy was limited, and as to Mrs. Renk, “because that is not an issue. Her claim is for loss of consortium.” (TT, vol. II, p. 199,11. 3-5.)

We included the reference to the life expectancy tables in the instructions because the jury needed to know both plaintiffs’ normal life expectancy in order to calculate their damages. As pointed out in the note to no. 6.21 of the Pennsylvania Suggested Standard Civil Jury Instructions, the Pennsylvania Supreme Court has “specifically approved” the life expectancy tables. The note also clearly states that there is no need for them to be offered by the plaintiff. In other words, the tables are proper subjects of judicial notice. It would have been error not to charge the jury on them.

In the instruction given in this case, we properly cautioned the jury that plaintiffs’ own expert testified that Mr. Renk’s life expectancy had been significantly shortened. We also instructed the jury that they were “to consider [both plaintiffs’] health, their manner of living, their personal habits, and other factors that might also affect the duration of their life.” (TT, vol. II, p. 311,11. 2-4.)

(5) It Was Not Error To Permit Rebuttal Testimony From Mr. Thomas Lauritzen.

Mr. Thomas Lauritzen, a human resources manager for U.S. Steel, was called by plaintiff as of rebuttal after the defense rested. The discussion regarding his testimony is in transcript volume II, pp. 126-29. His testimony was proffered to show that it was only after 1994 that physical exams were offered to non-management employees. Dr. Ganti’s counsel contended that Mr. Lauritzen should have been called during the plaintiffs’ case in chief and that his testimony was cumulative. The court concluded that the testimony was proper for rebuttal, because during the plaintiffs’ case in chief there was no dispute as to this issue, and the dispute as to this issue did not arise until the jury heard Dr. Kuhns’ testimony in the course of defendants’ case.

(6) The Court Properly Excluded the Testimony of Dr. John Durocher on the Growth Rate of Tumors

The discussion regarding Dr. Durocher is located in volume IA of the transcript at pp. 463-76. Dr. Durocher was an expert witness for HealthAmerica. The plaintiff objected to Dr. Durocher testifying as to the growth rate of tumors because that was not mentioned in his report. The plaintiff also objected that an expert should not be permitted to read and cite literature or articles as a part of their testimony. The court ruled:

“The Court: He can certainly talk about his own experience. He can’t get into the area of doubling [rates of cancer]. And I don’t view it [‘doubling’] as a magical word, okay. So he can’t get into the items that [are] covered solely by Dr. Ostrum’s report with regard to the doubling. In other words, he is not to be a substitute for Dr. Ostrum.

“[Counsel for HealthAmerica]: But he can testify, I will propose, to the basis for his opinions.

“The Court: Yes, his own, if it is truly the basis of his opinion, he can. But he can’t describe all the other research or get into it. Unless he has done it himself.” (TT, vol. IA, p. 474,1. 17-p. 475,1. 3.)

The reason for the ruling was the prejudice to plaintiff given the fact that defendants (who were represented by one attorney until two months prior to the trial) decided to withdraw Dr. Ostrum as an expert rather than comply with an order of Judge Strassburger directing Dr. Ostrum to supply certain financial information. Dr. Ostrum’s report extensively discussed growth rates, while Dr. Durocher’s report barely alluded to “growth” at all and to “rates,” doubling or otherwise, not at all. Defendants attempted to circumvent Judge Strassburger’s order. It was not error to prevent this.

Furthermore, Dr. Ostrum said that metastases grow faster than the primary tumor, and it would have increased unfairly the prejudice to plaintiff to let Dr. Durocher say what was not covered by his report, and what Dr. Ostrum himself had denied.

(7) The Two Schools of Thought Doctrine Does Not Apply to the Facts of This Case

HealthAmerica, in its proposed point for charge no. 14, sought to have the jury instructed about the Two Schools of Thought Doctrine. The discussion of this is in transcript volume II, pp. 184-89. Based on testimony of Dr. Richard Bruehlman, a family physician who testified as part of HealthAmerica’s case, HealthAmerica’s counsel argued to the court that there was more than one school of thought as to how HealthAmerica could properly permit its physicians to practice medicine with regard to whether it is the physician or the patient who has the responsibility to schedule screening or preventative examinations. Dr. Bruehlman testified:

“Dr. Bruehlman: There are two schools of thought at least on preventive medicine and the approach to preventive medicine. I think the more traditional view has been that doctors have asked the patients to have scheduled their own preventive maintenance or health checkups. You can think of it as a complete physical, going to your doctor for the complete physical examination.

“At that point generally there is extra time scheduled as opposed to a sore throat or earache visit where the history and physical examination is done and a plan is set up for preventive health care throughout the next— be it month or several years.

“The other school of thought, which is more recent, is that you try to do it periodically as people come to the office for other things, although I think this has really been a focus that’s been going on more for the last couple of years than a longer term.” (TT, vol. IA, p. 552 11. 7-23.)

The leading case on the doctrine is Jones v. Chidester, 531 Pa. 31, 610 A.2d 964 (1992). In Jones, the Pennsylvania Supreme Court defined the doctrine as follows: “Where competent medical authority is divided, a physician will not be held responsible if in the exercise of his judgment he followed a course of treatment advocated by a considerable number of recognized and respected professionals in his given area of expertise.” 531 Pa. at 40, 610 A.2d at 969. (emphasis added)

We refused to charge the jury on the doctrine because we concluded that HealthAmerica’s policies should be assessed based on the two standards of care that were applicable to it: (1) what was reasonable under the circumstances, and (2) its contractual promise to defendant. Furthermore, the doctrine only applies to physicians, not to HMOs such as HealthAmerica. Lastly, the policy, as defined by the Supreme Court above, applies to courses of treatment, not to whether or not preventive screening should take place.

(8) The Asserted Instances of Error Did Not Result in an Excessive Verdict the Trial Was Fairly Conducted

As discussed above, the court’s rulings complained of were not erroneous. In addition, the testimony regarding the extraordinary suffering and grace of both plaintiffs was especially compelling. The jury had ample evidence from which to find that Mr. Renk’s life had been tragically affected both in quality and duration. They also had ample evidence from which to conclude that Mrs. Renk’s loss of consortium claim was sincere and substantial. The evidence was overwhelming that she and her husband had an exceptionally loving marriage.

PLAINTIFFS’ MOTION FOR DELAY DAMAGES

The plaintiffs also filed a motion to mold the verdict and add delay damages. Plaintiffs’ counsel indicated at oral argument that plaintiffs would accept defendants’ calculation of delay damages; the court’s notes indicate that the parties agreed that delay damages in the amount of $595,000 would be added to the award to Mr. Renk.

CONCLUSION

The defendants’ motion must be denied. As to plaintiffs’ motion for delay damages, it must be granted and the award for Mr. Renk increased by $595,000.

ORDER

And now to wit, December 19, 2000, it is hereby ordered that the motion for post-trial relief of defendants Murty S. Ganti M.D. and Penn Group Medical Associates Inc., and the motion for a new trial of defendant HealthAmerica Corporation of Pennsylvania, d/b/a HealthAmerica be and hereby are denied.

It is further ordered that plaintiffs’ motion to mold the verdict and motion to add delay damages be and hereby is granted, and the verdict is hereby molded to add $595,000 to the award to Robert G. Renk.

It is further ordered that judgment be and hereby is entered against all defendants and in favor of plaintiff Robert G. Renk in the amount of $4,220,000 and against all defendants and in favor of plaintiff Roberta P. Renk in the amount of $1,650,000.

      . His admissions are found at TT vol. II, p. 98,1. 20 to p. 99,1. 1; TT vol. H, p. 116,1.22 to p. 117 1.14. Furthermore, the evidence from all parties, not just Dr. Ganti himself, overwhelmingly supported the conclusion that the failure to refer Mr. Renk for a routine screening sigmoidoscopy at age 50 was negligent.

        . Dr. Ganti carried most of the argument on this point during the discussion of the court’s charge.

      . Nanty-Glo Borough v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932) was a case in which the trial directed a verdict for the plaintiff based upon oral testimony of witnesses. The Supreme Court reversed, holding that judgment may not be granted summarily by the court based solely on oral testimony because the credibility of witnesses, even if uncontradicted, is for the jury.

        Nanty-Glo did not involve an admission by a party. The Nanty-Glo rule has since been limited as it applies to motions for summary judgment. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996). In Ertel, the Supreme Court held that the non-moving party, when countering a motion for summary judgment, must come forward with sufficient evidence on issues for which he bears the burden of proof as would permit the jury to find in his favor.

      . Penn Group also would be vicariously liable for Dr. Ganti’s conduct.


author: KLEENEFELTER, P.J.,

text:
    Machado v. Harrisburg Hospital

      C.P. of Dauphin County,
    no. 4950 S 1996.

      Ronald L. Wolf, for plaintiff.

      Steven D. Snyder, for defendant Holy Spirit Hospital.

      Evan Black, for defendant Caruso.

      Kendra McGuire, for defendant Harrisburg Hospital.
    February 2, 2001
   KLEENEFELTER, P.J.,

Before the court for disposition is the petition for delay damages submitted by plaintiff Linda Machado. At the conclusion of a trial that took place March 27 to April 5,2000, Mrs. Machado, her daughter Ashley, and the estate of her late husband Howard M. Machado received an award of $3,072,426 in this medical malpractice action.

The jury award included damages resulting from a survival action on behalf of the estate of Mr. Machado, and a wrongful death action brought by Mrs. Machado on behalf of herself and her daughter. Under the survival action, Mr. Machado’s estate received a molded verdict of $647,426, consisting of lost wages and pain and suffering. Under the wrongful death action, Mrs. Machado and her daughter Ashley received $275,000 for loss of financial contributions. They also each received damages for loss of consortium in the amounts of $650,000 and $1,500,000, respectively. The jury apportioned the negligence of the defendants at 75 percent for Holy Spirit Hospital and at 25 percent for Garson M. Caruso, M.D. At trial, defendant Harrisburg Hospital stipulated that Dr. Caruso was at all pertinent times acting within the scope of his employment at the hospital. Defendants made no offer of settlement prior to the trial.

During the course of the trial, Mrs. Machado entered into a $1,000,000 settlement with Holy Spirit and the Medical Professional Liability Catastrophe Loss Fund (CAT Fund), the defendants’ excess insurance carrier. The CAT Fund settlement agreement included the following terms:

“(1) Plaintiff is willing to forgo any additional payment by the Medical Professional Liability Catastrophe Loss Fund ... on behalf of any or all defendants in consideration for the promise of payment of $1,000,000 by the Medical Professional Catastrophe Loss Fund ... on behalf of defendant Holy Spirit Hospital. The amount promised to be paid by the fund shall not become payable until December 29, 2000. Additionally, it is further understood that the settlement will be contingent on the signing of a standard fund release, which contains a confidentiality clause.

“(2) It is understood and agreed that plaintiff will not seek recovery of personal assets of any defendants involved in this case.

“(3) It is further understood that settlement with the fund has been achieved, therefore plaintiff is foregoing any delay damages and/or post-judgment interest relative to any layer of fund coverage.” (Letter to Ronald L. Wolf, Esquire, from Lew Wolfgang, attorney examiner for the Medical Professional Catastrophe Loss Fund, dated April 3, 2000.)

The pertinent post-trial procedure began with Mrs. Machado’s timely petition for delay damages, filed on April 12, 2000. In answer to our April 13 rule to show cause, both Harrisburg Hospital/Dr. Caruso and Holy Spirit submitted answers with new matter on April 24, 2000. Thereafter, on May 1,2000, we received a motion for leave to file an amended answer with new matter from Holy Spirit, as well as an amended answer filed the same day, without leave of court. A memorandum of law was included. Mrs. Machado filed replies to both Harrisburg Hospital and Dr. Caruso’s new matter and Holy Spirit’s amended new matter on May 17. A surreply to Mrs. Machado’s reply to Harrisburg Hospital and Dr. Caruso’s response to her petition for delay damages was filed by Harrisburg Hospital/Dr. Caruso on June 2, 2000. Holy Spirit’s sur-reply was filed June 6. Finding no significant factual issues, we decline to grant a hearing on the matter pursuant to Pa.R.C.P. 238(c)(1) and we now consider this issue ripe for disposition.

We begin our analysis by acknowledging that Pa.R.C.P. 238 governs the issue of delay damages:

“(a)(1) At the request of the plaintiff in a civil action seeking monetary relief for bodily injury, death or property damage, damages for delay shall be added to the amount of compensatory damages awarded against each defendant or additional defendant found to be liable to the plaintiff in the verdict of a jury, in the decision of a court in a nonjury trial or in the award of arbitrators appointed under section 7361 of the Judicial Code, 42 Pa.C.S. §7361, and shall become part of the verdict, decision or award.

“(2) Damages for delay shall be awarded for the period of time

“(i) [Omitted]

“(ii) in an action commenced on or after August 1, 1989, from a date one year after the date original process was first served in the action, up to the date of the award, verdict or decision.

“(3) Damages for delay shall be calculated at the rate equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus one percent, not compounded.

“(b) The period of time for which damages for delay shall be calculated under subdivision (a)(2) shall exclude the period of time, if any,

“(1) after which the defendant has made a written offer of

“(i) settlement in a specified sum with prompt cash payment to the plaintiff, or

“(ii) a structured settlement underwritten by a financially responsible entity,

“and continued that offer in effect for at least 90 days or until commencement of trial, whichever first occurs, which offer was not accepted and the plaintiff did not recover by award, verdict or decision, exclusive of damages for delay, more than 125 percent of either the specified sum or the actual cost of the structured settlement plus any cash payment to the plaintiff; or

“(2) during which the plaintiff caused delay of the trial.”

Our first substantive examination is the validity of Harrisburg Hospital and Dr. Caruso’s argument that Pa.R.C.P. 238 is unconstitutional, since its outcome is determinative of whether further proceeding is necessary. The essence of their argument is that Pa.R.C.P. 238 violates due process, equal protection, and goes beyond the rule making authority of our Supreme Court.

We find Costa v. Lauderdale Beach Hotel, 534 Pa. 154, 626 A.2d 566 (1993) to be controlling. In Costa, our Supreme Court effectively reaffirmed its constitutional analysis developed in Laudenberger v. Port Authority of Allegheny County, 496 Pa. 52, 436 A.2d 147 (1981). The pertinent discussion follows.

“In Laudenberger, the court held that the former version of Rule 238 did not exceed this court’s rule-making authority, nor did it violate the federal and state guarantees of equal protection and substantive due process. The court explained that Rule 238 had two purposes: to encourage settlement and to promote prompt, expeditious trial. The rule therefore was within the court’s authority and duty under Article V, Section 10(c) of the Pennsylvania Constitution to ‘prescribe general rules governing practice, procedure, and the conduct of all courts.’ ...

“The court acknowledged that the rule had some effect on the substantive rights of the parties because it created a new ‘duty’ on the part of defendants. However, the court went on to explain that the ‘essence of this duty’ was merely to extend ‘the compensatory damages necessary to make the plaintiff whole.’ . . . Delay damages merely compensate a plaintiff for ‘the money that he would have earned on his award if he had promptly received it.’... That the rule had some collateral effect on the parties’ substantive rights was not sufficient reason to prevent the court from exercising its duty to resolve procedural questions. ...

“The court went on to find that the rule did not offend equal protection, because the distinction between plaintiffs and defendants was a reasonable one and the rule bore a rational relationship to the goal of encouraging settlement. The court pointed out that the classification rested upon the difference between the situation of plaintiffs and defendants: The plaintiffs have been wrongly injured and have suffered financial losses because of the defendants’ action.’ . . . Similarly, the court found no violation of substantive due process because the rule was rationally related to a legitimate state goal. . . .” Costa, 534 Pa. at 159-61, 626 A.2d at 569. (citations omitted) (footnote omitted)

Finally, the court noted,

“Delay damages do not penalize a defendant that chooses to go to court; they simply do not permit a defendant to profit from holding money that belongs to the plaintiff, by requiring the defendant to compensate the plaintiff for the loss of the use of that money during the time the defendant held it.... Delay damages are incentive to settle and to avoid delay of trial not because the defendant faces penalty if it chooses not to settle, but because the defendant may limit the size of the compensation award by settling the case or by choosing not to engage in dilatory pretrial tactics.” Costa, 534 Pa. at 163, 626 A.2d at 570. (citation omitted)

Accordingly, we are obliged to follow our Supreme Court in Costa, and deem Pa.R.C.P. 238 constitutional.

Now that we have determined the constitutionality of Pa.R.C.P. 238, we must turn to its applicability to the wrongful death award. As indicated, Mrs. Machado and her daughter received a total of $2,425,000 under the Wrongful Death Act.

Defendants cite Anchorstar v. Mack Trucks Inc., 533 Pa. 177, 620 A.2d 1120 (1993), in support of their argument that delay damages as prescribed by Pa.R.C.P. 238 are not recoverable for wrongful death awards since such are only allowed for “bodily injury, death or property damage.” Pa. R.C.P. 238(a)(1). We agree.

Factually, Anchorstar involved a loss of consortium claim by the wife of a truck driver who sustained injuries as a result of the failure of his truck’s defective steering mechanism. We find the analysis in Anchorstar applicable to the instant situation:

“The claim filed in the present case by Mr. Anchorstar was plainly one seeking compensation for bodily injury. In contrast, the claim filed by Mrs. Anchorstar was for loss of consortium. A claim for loss of consortium is quite different from a claim for bodily injury. While it stems from the spouse’s bodily injury, it is nevertheless a separate and distinct claim. Loss of consortium is a loss of services, society, and conjugal affection of one’s spouse. . . . One who has suffered a loss of consortium has not sustained a bodily injury but rather has experienced an injury to marital expectations. Clearly, too, the mere fact that such a claim is joined in the same civil action as a claim for bodily injury does not alter its basic character as a separate and distinct claim____” Anchorstar, 533 Pa. at 180, 620 A.2d at 1121-22. (citations omitted)

Applied to the case before us, it is the estate of Mr. Machado, via an action under the Survival Act that is seeking compensation for his injuries. Under Anchor-star, it is this survival action alone that is subject to the imposition of delay damages. Linda and Ashley Machado’s wrongful death action is separate and distinct despite its evolvement from the death of Howard Machado. Thus, we find the tenets of Anchorstar equally applicable to both the loss of consortium and loss of financial contribution elements of the wrongful death action, in that neither claim prayed for compensation for physical injuries suffered by the plaintiff.

Lastly, we turn to the claim by Holy Spirit that they are not responsible for delay damages on that portion of the verdict payable by the CAT Fund. As noted above, under the survival action, the jury awarded Mr. Machado’s estate $647,426 — 75 percent of which, or $485,570 was assessed to Holy Spirit. Of this total, the first $200,000 is the responsibility of Holy Spirit’s insurance carrier, and the balance, $285,570 is picked up by the CAT Fund.

Notwithstanding the foregoing, when the CAT Fund settled with Mrs. Machado on behalf of Holy Spirit during the trial, the settlement agreement (see ¶3, supra) clearly provided that “any delay damages and/or past judgment interest” would be waived. Thus, delay damages in this case are limited to the first $200,000 of the survival action against Holy Spirit, as well as the full $161,856 attributed to Harrisburg Hospital and Dr. Caruso.

In summary, we award delay damages as shown in the following exhibit.

Amount subject to delay damages (survival action): $647,426

Harrisburg Hospital and Dr. Caruso — 25% $161,856

Holy Spirit Hospital— 75% $200,000

($485,570-$285,570 CAT Fund layer)

Delay damages attributable to Harrisburg Hospital and Dr. Caruso

10/21/97 to 12/31/97 71 days @ 9.25% $2,913.42

1/1/98 to 12/31/98 365 days @ 9.5% $15,376.32

1/1/99 to 12/31/99 365 days @ 8.75% $14,162.40

1/1/00 to 4/5/00 96 days @ 9.5% $4,030.21

Total delay damages attributable to Harrisburg Hospital and Dr. Caruso: $36,482.35

Delay damages attributable to Holy Spirit Hospital

6/30/98 to 12/31/98 185 days @ 9.5% $9,640.00

1/1/99 to 12/31/99 365 days @ 8.75% $17,500.00

1/1/00 to 4/5/00 96 days @ 9.5% $4,980.00

Total delay damages attributable to Holy Spirit Hospital: $32,120.00

Total delay damages payable to the estate of Howard Machado: $68,602.35

Accordingly, we enter the following:

ORDER

And now, February 2,2001, upon consideration of the petition for delay damages of plaintiff Linda Machado, the following is hereby ordered.

(1) Defendants Harrisburg Hospital and Garson M. Caruso are directed to remit delay damages to plaintiff in the amount of $36,482.35;

(2) Defendant Holy Spirit Hospital is directed to remit delay damages to plaintiff in the amount of $32,120.20;

(3) There shall be no delay damages assessed against the Medical Professional Liability Catastrophe Loss Fund.

      . The terms “a standard fund release” were deleted and “a mutually acceptable agreement” was substituted and initialed by Mrs. Machado’s counsel, Ronald L. Wolf, Esquire.