author: MINORA, J.,

text:
    Ratchford v. Florey Insurance Agency

      C.P. of Lackawanna County,
    no. 00-CIV-2121.

      Christopher T. Powell, for plaintiff.

      Joseph Van Jura, for defendant Florey Insurance Agency.

      Thomas R. Daniels, for defendant American Independent Insurance Company.
    March 8, 2005
   MINORA, J.,

— This action is before the court by way of the defendant, Florey Insurance Agency’s motion for summary judgment pursuant to Pa.R.C.P. 1035.2 joined by co-defendant, American Independent Insurance Company. All parties have briefed their respective positions and oral argument was heard January 4,2005. Accordingly, this matter is ripe for disposition.

STATEMENT OF THE CASE

This matter has been instituted by the plaintiff’s complaint which was originally filed on June 10, 2000, and subsequently twice amended. The first amended complaint was filed September 13, 2000, and the second amended complaint was filed on October 6, 2000. The claims ultimately asserted by the plaintiff against the defendants include two separate counts of negligence, one against the Florey Insurance Agency and the other against American Independent Insurance Company. The root of the plaintiff’s allegations arise from an insurance policy covering motor vehicle liability which was provided to the plaintiff by Florey. The agency only secured a policy providing for limited tort coverage when plaintiff claims that full tort coverage was what he selected. The underlying circumstances that prompted the initiation of this suit are set forth below.

On May 2, 1998, the plaintiff was involved in an automobile accident that occurred at the comers of Main and Elm Streets in Moosic, Pennsylvania. Allegedly, the plaintiff was driving his 1994 BMW with his mother when he was struck by another vehicle owned and operated by the Strunks. The collision caused the plaintiff both economic and noneconomic damages. Prior to the accident, the plaintiff maintained an automobile insurance policy issued by the American Independent Insurance Company, and purchased from an agent of the Florey Insurance Agency. The plaintiff alleges that he notified American through its agent that he required an insurance policy covering full tort liability. (See second amended complaint ¶6.) It was not until after the accident that Mr. Ratchford, the plaintiff, was informed that his insurance policy did not include the full tort option. (See second amended complaint ¶8.) The plaintiff further alleges that neither Florey nor American presented the plaintiff with notice of the available tort options at the time application/renewal was made of his insurance coverage as is required under the Motor Vehicle Financial Responsibility Law §1791.1. (75 Pa.C.S. §1791.1.) Without full tort coverage, Mr. Ratchford is barred from recovering for his noneconomic damages from the accident of May 2, 1998.

Mr. Ratchford provided deposition testimony that he purchased the 1994 BMW 325i from the 286 Corporation on April 20, 1998. The plaintiff indicated that the salesperson from the car dealership, Dan Sylvester II, helped him obtain his insurance policy covering the BMW. The testimony indicates that Mr. Sylvester made a telephone call to the Florey Agency to arrange for insurance coverage on the plaintiff’s new vehicle including the full tort option. (See D.T. Ratchford pp. 76-78.)

After the accident on May 2, 1998, the plaintiff notified his insurer that both he and his mother were injured in the collision. Reportedly, the plaintiff was instructed by the Florey Agency to report to their office to sign documents to “make the policy right and to ensure payment of his medical bills.” (D.T. Ratchford p. 88.) On May 7, 1998, the plaintiff appeared at the Florey office and executed a written application for automobile insurance for his newly acquired BMW. The plaintiff testified that during that meeting he was under the impression that he was executing documents for his medical bills. (D.T. Ratchford p. 89 ¶3.) Instead he executed documents extending the policy that was currently in place including only the limited tort option to cover his new vehicle. The plaintiff recounted that no disclosure was made by the agents on the topic of tort options, nor was he given the required forms pursuant to the MVFRL. At the core of the complaint is the allegation that the defendants have neglected to extend full tort coverage to the plaintiff after he requested such coverage for his automobile insurance at the time of purchase. It is the defendants’ contention that, since the plaintiff merely added another vehicle to his then-existing policy of auto insurance, the plaintiff’s prior selection of the limited tort option should be operative since the plaintiff never specified to the defendants that he wanted full tort coverage. The factual dispute between the plaintiff, alleging he ordered full tort coverage, and defendant denying plaintiff ever so specified full tort coverage is enough to bar the pending motions, but to conclude that now is premature.

Before we begin our discussion of the issues presented by the defendants’ motions for summary judgment, we shall first set forth the standard of review.

Summary Judgment:

The parties have presented motions to the court pursuant to Pa.R.C.P. 103 5.2, which allows a party to move for summary judgment:

“(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 juiy trial would require the issues to be submitted to a jury.” See Pa.R.C.P. 1035.2(1) and (2).

Accordingly, summary judgment is appropriate only in those cases where the record demonstrates that there is no genuine issue of any essential facts, and that the moving party is entitled to judgment as a matter of law, Conway v. Tink’s Spearment Café Inc., 01 CIV 6105 C.C.P. Lacka. Cty. (Judge Minora August 13, 2004); Bird Hill Farms Inc. v. United States Cargo & Courier Service Inc., 845 A.2d 900, 903 (Pa. Super. 2004), and the moving party carries the burden to prove that no genuine issue of material fact exists. Aetna Casualty and Surety Company v. Roe, 437 Pa. Super. 414, 419-20, 650 A.2d 94, 97 (1994); Overly v. Kass, 382 Pa. Super. 108, 111, 554 A.2d 970, 972 (1989). A proper grant of summary judgment is dependent upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains sufficient evidence of facts to make out a prima facie cause of action or defense. Therefore, there is no genuine issue to be submitted to the jury. Wisniski v. Brown & Brown Insurance Co. of Pa., 852 A.2d 1206 (Pa. Super. 2004). Furthermore, if the defendant is the moving party, he may make the necessary showing to support the grant of summary judgment by pointing to materials that indicate the plaintiff is unable to satisfy an element in his cause of action. Rauch v. Mike-Mayer, 783 A.2d 815 (Pa. Super. 2001), appeal denied, 568 Pa. 634, 793 A.2d 909 (2002). Conversely, the non-moving party must adduce sufficient evidence on an issue essential to the case and on which bears the burden of proof, so that a jury could return a favorable verdict. Haney v. Pagnanelli, 830 A.2d 978, 980 (Pa. Super. 2003). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the non-moving party. Kurian ex. rel. Kurian v. Anisman, 851 A.2d 152 (Pa. Super. 2004). The court’s function is not to decide issues of fact but merely to determine whether any such issues exist. Wisniski, supra. If the non-moving party fails to come forward with sufficient evidence to establish or contest the material issue of the case, the moving party is entitled to judgment as a matter of law. Id; see Savitsky v. Waste Management of Pennsylvania Inc., 02 CV 3303 C.C.P. (Judge Minora, January 19, 2005).

Following these principles, we will now turn to the merits of the defendants’ motion. The Florey Insurance Agency has raised the following issues in its motion for summary judgment followed by defendant, American Independent Insurance Company’s, motion for summary judgment:

Issues:

(1) Whether Count I of the second amended complaint should be dismissed, and the defendant Florey Insurance Agency’s motion for summary judgment, pursuant to Pa.R.C.P. 1035.2, be granted since the plaintiff failed to state a claim upon which relief can be granted and has failed to set forth a legally cognizable action in negligence?

(2) Whether Count I of the second amended complaint should be dismissed and defendant Florey Insurance Agency’s motion for summary judgment, pursuant to Pa.R.C.P. 1035.2, should be granted because the issue of noneconomic damages has not been resolved in the third-party claim involving Edward and Lewis Strunk wherein the defense of limited tort was raised barring the plaintiff recovery for noneconomic damages?

(3) Whether Count II of the second amended complaint should be dismissed and defendant American Independent Insurance Agency’s derivative motion for summary judgment, pursuant to Pa.R.C.P. 1035.2, should be granted?

DISCUSSION

Negligence:

The plaintiff, Mr. Ratchford, asserts claims in negligence against both the insurance agency, Florey Insurance Agency, and the insurance provider, American Independent Insurance Company. Presently, defendant Florey represents that Ratchford failed to set forth a legally cognizable claim in negligence. Below we will consider whether Ratchford properly set forth a claim in negligence through his second amended complaint.

In a negligence action, it is rudimentary that the plaintiff raises and proves the elements of duty, breach, causation and damages. Essentially, the plaintiff must show that the defendant failed to conform to a requisite standard of conduct and the defendant’s breach of that duty caused the plaintiff’s underlying injuries. Wisniski, supra at 1212. (citations omitted) The Supreme Court of Pennsylvania has established that the determination of whether a duty exists is a question of law. Sharpe v. St. Luke’s Hospital, 573 Pa. 90, 96, 821 A.2d 1215, 1219 (2003). Therefore the question of duty is rightfully before this court.

Agents of the insurance industry must have the requisite competence maintained by others in the industry in conducting their business. The Wisniski court specifically set forth the duty of care of an insurance agent as follows: “As a licensed insurance agent, [the insurance agency is] required to exercise the skill and knowledge normally possessed by members of that profession and [its] failure to do so renderfs] it liable for any loss of coverage.” Wisniski, supra at 1212 citing Pressley v. Travelers Property Casualty Corp., 817 A.2d 1131, 1138 (Pa. Super. 2003) (footnote omitted); Restatement (Second) of Torts §299A.

Insurers and insurance agents have both a professional duty and a statutory duty to their customers. Namely, insurers have a duty to procure a policy of insurance in accordance with the customer’s requirements and specifications, while they adhere to the standards delineated by statute.

In the matter sub judice, the defendant, insurer, allegedly had a duty to supply the plaintiff, the insured, with the exact policy that he selected, to wit, full tort coverage. Part of our analysis involves the factual dispute of whether the plaintiff did choose the full tort option for his automobile insurance policy which he was ultimately, and negligently denied, or whether he selected limited tort coverage. Therefore, there appears to be a question of fact at issue. In reviewing the record in a light most favorable to the plaintiff as the non-moving party, there is testimony that the insured chose full tort coverage, but was negligently only provided limited tort coverage. (See D.T. Ratchford p. 77.) Plaintiff, Ratchford, testified that, when he renewed his insurance policy during the period of February 6, 1998 through August 6, 1998, he never received an explanation of the limited tort options. (See D.T. Ratchford pp. 83-84.) Mr. Ratchford was called to appear at the Florey Agency on May 7,1998, to fill out paperwork in regard to payment of his hospital bills from injuries sustained in the May 2, 1998 accident. (D.T. Ratchford p. 97.) It was at this meeting that that Mr. Ratchford signed documents indicating that he selected the limited tort option and waivers of uninsured motorist protection and underinsured motorist protection. (See defendant Florey’s exhibit “Ratchford E”.) Yet, there is no indication that Ratchford made these waivers knowingly or intelligently. Mr. Ratchford provided the following deposition testimony to Florey’s attorney, Mr. Joseph Van Jura, regarding the May 7, 1998 meeting at the Florey Agency:

“Q. Do you believe that you were misled with respect to where you signed on that line in the middle of page 3 of exhibit E?
“A. I feel like that, yeah.
“Q. And would you tell me what you base that on, what fact you base that on or what observation you base that on?
“A. What fact do I feel I was misled by?
“Q. Yes.
“A. The fact that the man from the — Dan from 286 called that policy in and then I was misled to believe I had it [full tort coverage]. Now I’m having problems with my hospital bills. I’m up there with the pretense that I’m signing something to straighten out the situation at the hospital.
“I didn’t — I had no reason to believe that, you know, anything like this was going to be put in front of me. I just signed it. It was late in the day, and I wanted to get in and out of there. And it was, ‘Here, sign this.’ I remember that. She was turning the pages over like this (indicating), so I signed it and left.” (See D.T. Ratchford pp. 96-97.)

The Superior Court noted that where an insured elects lower coverage under an insurance policy, the insurer bears the burden to prove that the election was made in a knowing and intelligent manner. Allwein v. Donegal Mutual Insurance Co., 448 Pa. Super. 364, 671 A.2d 744 (1996), citing 75 Pa.C.S. §§1731, 1734. Presently Florey has not provided any such proof indicating that the insured’s selection was made knowingly and intelligently. Instead, the record indicates that Ratchford blindly made his selection for the limited tort option, after the accident, when he was told by the agent, who should be advising him honestly, “Here, sign this.” (See D.T. Ratchford pp. 96-97.) This leads us to the next subject for discussion which is the notice requirements the insurer must provide according to statute.

The statute applicable under the present circumstance is the Motor Vehicle Financial Responsibility Law (MVFRL). 75 Pa.C.S. §1791.1(b) states that: “an insurer must, at the time of application for original coverage for private passenger motor vehicle insurance and every renewal thereafter, provide to an insured the ... notice of the availability of two alternatives of full tort insurance and limited insurance described in section 1705(c) and (d) (relating to the election of tort options).”

Accordingly, by law, the insurer is responsible for disclosing the available tort options to its customers upon application or renewal. This includes presenting the proper forms and waivers of coverage to the customer and explaining and differentiating the two tort options. The insurance agent should also be sure to provide a verbal explanation to the customer, assuring himself that the customer knows and understands the difference between the types of coverage, and has a conceptual understanding of what documents are being signed. Pursuant to the requirements of the MVFRL, it is of no consequence whether this court determines that Ratchford intended to renew his existing policy or acquire a new policy of automobile insurance when he added his BMW. In either scenario, the insurer must disclose the two types of tort coverage available according to 75 Pa.C.S. §1791.1(b). Here, the insurer had a duty to provide information on tort coverage elections to the insured and conform his actions to industry standards, on an original application for a new policy “and every renewal thereafter.” 75 Pa.C.S. §1791.1(b).

At this juncture it can be necessary to resolve whether the insurer breached its duty of care to Mr. Ratchford, the insured. As we have noted above the insurance agent or insurance company is required to exercise the skill and knowledge normally possessed by other members of the profession, while abiding by the standards under statute. Several Commonwealth courts before us have established that the question of whether the defendant breached a duty of care is a factual issue suitable for the jury to determine. Sharpe, supra; see also, Wisniski, supra. Therefore, based upon the record before this court there is a question of fact as to whether the Florey Agency breached its duty to Mr. Ratchford that is appropriate to submit to a jury.

The final two elements required in a negligence action are causation and damages. It is essential that the complainant suffer actual loss or damage to maintain a cause of action in negligence. Peters v. Sidorov, 855 A.2d 894, 898 (Pa. Super. 2004). The plaintiff, by his second amended complaint, asserts that, as a direct and approximate result of the defendants’ negligence, the plaintiff will be unable to recover his noneconomic damages from the car accident of May 2, 1998. The plaintiff’s complained-of injury is his inability to recover noneconomic damages from the car accident. As stated above, an insurer’s failure to exercise the skill and knowledge normally possessed by members of the profession render the insurer liable for loss of coverage. Wisniski, supra. Accordingly, the plaintiff’s alleged loss of coverage damages should be recoverable if a jury finds that the defendant, Florey Insurance Agency, was negligent in providing the plaintiff with the proper full tort coverage that he sought.

The next issue presented to the court by Florey’s motion for summary judgment incorporates the unresolved status of the limited tort option defense raised by the Strunk defendants as to the noneconomic damage claims of the plaintiff in the underlying action. The Ratchford v. Strunk action has not gone to trial and the Florey defendants assert that it is presently unknown and unknowable as to whether the limited tort defense will prove effective in that case. The Ratchford v. Strunk matter is a separate action with a separate docket number. That action involves Strunk’s negligent operation of a motor vehicle. Although the Strunk defendants assert as a defense Ratchford’s election of the limited tort option, it is of no consequence to this court if that defense prevails at trial. At present the plaintiff, Ratchford, has brought a negligence claim against his insurance company and insurance agency. The present action must be maintained separate, distinct and apart from the allegations against the Strunk defendants. Accordingly, we find that the Florey defendant’s argument lacks merit.

After a full examination of the position of the defendant, Florey Insurance Agency, we must deny its motion for summary judgment. We find that the plaintiff has asserted a sufficient claim against the defendant which raises a question of fact to be resolved by the jury. We further decline to extend summary judgment in favor of Florey on the basis of the third-party claim argument. The court is convinced the plaintiff has ultimately pled a second amended complaint showing duty, breach of duty, causation and damages. Therefore summary judgment is denied.

The final issue for this court to consider includes the derivative claim of negligence against defendant, American Independent Insurance Company, asserted by the plaintiff. Count II of the plaintiff’s second amended complaint alleges that American was negligent in selecting their agent, Florey Insurance Agency, and in providing the plaintiff with limited tort coverage rather than full tort coverage. (See second amended complaint ¶¶18,19, 20.) American does not contest that the allegations made against it are a result of Florey’s actions and inactions. The assertions made in American’s motion for summary judgment are identical to those made by Florey. We therefore have no choice but to deny American’s motion for summary judgment. An appropriate order consistent with this memorandum follows.

ORDER

And now, to wit, March 8, 2005, upon consideration of the defendants’ motions for summary judgment, the verbal and written arguments of counsel, and in accordance with the preceding memorandum it is hereby ordered and decreed:

(1) Defendant Florey Insurance Agency’s motion for summary judgment is denied and dismissed.

(2) Defendant American Independent Insurance Company’s derivative motion for summary judgment is denied and dismissed.

      . American Independent Insurance Company policy number assigned to Ratchford was policy ******

      . The Superior Court noted that consumers look at the insurance agent as possessing expertise in a complicated area; it is therefore not unreasonable for the consumers to rely on the representations of the expert rather than on the contents of the insurance contract. Pressley v. Travelers Property Casualty Corp., 817 A.2d 1131 (Pa. Super. 2003).

      . Insurance policy provision entitled “Notice to Named Insureds.”

      . Financial Responsibility Requirements of 75 Pa.C.S. § 1705(a):
      “(1) Each insurer, not less than 45 days prior to the first renewal of a private passenger motor vehicle liability insurance policy . .. shall notify in writing each named insured of the availability of two alternatives of full tort insurance and limited tort insurance.... The notice shall be a standardized form adopted by the commissioner and shall include the following language:
      “NOTICE TO NAMED INSUREDS
      “(A) ‘Limited tort’ option — The laws of the Commonwealth of Pennsylvania give you the right to choose a form of insurance that limits your right and the right of members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recoveiy for all medical and other out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of ‘serious injury’ as set forth in the policy or unless one of several other exceptions noted in the policy applies. The annual premium for basic coverage as required by law under this ‘limited tort’ option is $_.
      “Additional coverages under this option are available at additional cost.
      “(B) ‘Full tort’ option — The laws of the Commonwealth of Pennsylvania also give you the right to choose a form of insurance under which you maintain an unrestricted right for you and the members of your household to seek financial compensation for injuries caused by other drivers. Under this form of insurance, you and other household members covered under this policy may seek recovery for all medical and other out-of-pocket expenses and may also seek financial compensation for pain and suffering and other nonmonetary damages as a result of injuries caused by other drivers. The annual premium for basic coverage as required by law under this ‘full tort’ option is $_.
      “Additional coverages under this option are available at additional cost.”

      . It is undisputed that Mr. Ratchford reported at the Florey Agency May 7,1998, signed documents extending limited tort coverage to his BMW. Yet Florey contends that it merely was required to extend the previously obtained policy of insurance to cover the BMW, while the plaintiff maintains that he requested a new policy of insurance.

      . 75 Pa.C.S. §1791 contains a presumption that the insured has been notified of the benefits and limits available under the MVFRL if the requirements of section 1791 have been met. Here the necessities of section 1791 have been supplied to the insured. (See defendant Florey’s exhibit “Ratchford E”). Yet there is conflicting evidence of record which flies directly in the face of the presumption which includes the plaintiff’s testimony that when he was executing the documents of the insurance policy he did not realize it was the insurance policy and he was told by the insurer to merely “sign this.” (See D.T. Ratchford pp. 96-97.)

      . Matter docketed at Lackawanna County no. 99 CV 4841.


source: Caselaw Access Project

author: GRINE, J.,

license: Public Domain

text:
    Commonwealth v. Wesley
    C.P. of Centre County,
    no. CP-14-CR-1316-2001.

      Ray Gricar, for Commonwealth.

      William /. Arbuckle III and Kelley S. Gillette-Walker, for defendant.
    May 4, 2005
   GRINE, J.,

Presently before this court is the petition of Larry G. Wesley (petitioner) for relief under the Post Conviction Relief Act (PCRA). Petitioner alleges his trial counsel was ineffective and the prosecutor engaged in prosecutorial misconduct. He seeks relief from this court in two forms: a new trial, or, alternatively, the restoration of his direct appeal rights. A hearing was held on the matter on February 28, 2005, at which time this court heard the testimony of petitioner’s trial counsel, R. Bruce Manchester, Esquire as well as the testimony of petitioner’s mother and the petitioner himself. At the conclusion of the hearing, this court ordered counsel for both parties to submit suggested findings of fact, conclusions of law, and memorandums of law. Counsel for the Commonwealth and the petitioner submitted their suggested findings, conclusions and memorandums in a timely manner, and this court has reviewed the arguments contained in each, in coming to its decision on the matter. After reviewing the trial transcripts and the arguments submitted by counsel, this court finds that petitioner’s trial counsel was ineffective and grants petitioner’s request for a new trial.

PRELIMINARY DISCUSSION

Petitioner was convicted following a jury trial of criminal trespass, rape, sexual assault, indecent exposure with an individual under the age of 16 years present, and indecent assault. These charges stemmed from an incident that occurred in the early morning hours of July 25,2001. Though petitioner was also charged with burglary as a result of the incident, the jury found him not guilty of that charge.

Petitioner was working as a musician in the State College area performing at local nightclubs. He lived in a rented house with several students of the Pennsylvania State University, though he himself was not a student at the time of the incident. Through his work at clubs he met Alicia Pituch and later her roommates Christiana Hollobaugh and Nikki Soltis (the complainants). The four soon became friends and as individuals in their late teens and early twenties so often do, they would get together and “party” into the wee hours of the morning after local bars had announced their “last calls” and closed their doors. Petitioner and complainant Hollobaugh became especially good friends due to their mutual interest in music.

Petitioner had, over the course of his musical career, succumbed to the darker side of music that included drugs and alcohol. By the time he reached the age of 20, hard liquor and drugs were no strangers to him, a fact that at some point became apparent to these three friends.

In the late night of July 24 or early morning hours of July 25,2001, petitioner called complainant Hollobaugh to see if he could “come over and hang out.” She told petitioner that he could not come over to hang out at that precise moment due to the lateness of the hour and the fact that they were all in bed. Petitioner, however, went over to the house anyway some time between 4 a.m. and 7:30 a.m.

According to the testimony of the complainants, petitioner went into the bedroom where complainant Hollobaugh was sleeping and laid down in bed with her. She testified at trial that she was laying on her left side curled up in the fetal position and was sleeping in a state of undress, on top of the covers. According to her testimony, she awoke when she felt the petitioner attempt to put his penis inside her vagina. She testified that she did not feel him touch her, or even knew he was lying next to her until the moment of penetration. She asked petitioner what he was doing and pushed him away from her. Petitioner then left the room, and complainant Hollobaugh stayed in bed until her alarm went off later that morning.

According to the testimony of complainant Soltis, she awoke at approximately quarter after seven in the morning to find petitioner standing in the doorway to her room. He asked her if he could get into bed with her. Complainant Soltis moved to make room to accommodate petitioner as best she could given the fact that her niece was sleeping in the same bed on the other side of her. Upon getting into bed with her, petitioner began to grope her breasts. Complainant Soltis told him to stop. Petitioner then stopped groping her and began to masturbate. Complainant Soltis pointed out to petitioner that her niece was in the same bed, and that his behavior, given the situation, was most certainly inappropriate. She asked petitioner to leave, which he did, and she took no further action.

Later, during the day of July 25,2001, both complainants Soltis and Hollobaugh went to the Women’s Resource Center to report the incidents of the early morning hours. Petitioner was arrested at his apartment that afternoon by two detectives from the State College Police Department. Petitioner was interrogated by the police and ultimately gave a written statement later that evening. Following his giving a written statement, petitioner was arraigned before District Justice Daniel Hoffman and committed to the Centre County Prison in lieu of $50,000 bail.

Attorney R. Bruce Manchester (trial counsel) entered this case following a call from petitioner’s family. Petitioner’s mother, Sylvia Wesley, testified at the PCRA hearing that they were not from the Centre County area and had no knowledge of local attorneys either by name or reputation. Attorney Manchester, she testified was the first attorney the family spoke with who would agree to take the case.

Upon posting bail on July 30,2001, petitioner and his parents met with Attorney Brian Manchester (son and law partner of trial counsel) for approximately three hours and then with trial counsel for another three. The representation agreement between petitioner and counsel called for counsel to represent petitioner on the charges of burglary, criminal trespass, rape, sexual assault, indecent exposure and indecent assault. Following his conviction on five of the six charges, a direct appeal was filed in the case, to which this court issued an order pursuant to Pennsylvania Rule of Appellate Procedure 1925(b) ordering trial counsel to file a concise statement of matters complained of on appeal. That statement ultimately was never filed, and this court was compelled to inform the Superior Court thus. The Superior Court in turn ruled any matter complained of on appeal had been waived. It is this court’s understanding that trial counsel was paid separately for this appeal, and after having failed to perfect the appeal, counsel refused to return the money until threatened with suit by PCRA counsel. Counsel then only returned approximately $2,300 of the $3,500 paid-for appeal and then only in two installments.

DISCUSSION

In asserting a claim for post-conviction relief for ineffectiveness of counsel, a petitioner must clear several hurdles. Counsel are presumed effective, and a petitioner must establish otherwise. Commonwealth v. Carter, 855 A.2d 885 (Pa. Super. 2004). First, apetitioner must show his claim is of arguable merit. Next, a petitioner must show that the action or inaction on the part of counsel was “not grounded on any reasonable basis” to effectuate his interests. Third, a petitioner must show that, but for counsel’s action or inaction, the outcome of the proceedings would have been different. In other words, a petitioner must prove he was prejudiced by counsel’s action or inaction. Commonwealth v. Saranchak, 866 A.2d 292, 299 (Pa. 2005), citing Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987); Commonwealth v. Travaglia, 541 Pa. 108, 118, 661 A.2d 352, 356-57 (1995). Also, in the context of a PCRA, petitioner must “plead and prove that counsel’s stewardship ‘so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place.’ ” Commonwealth v. Correa, 444 Pa. Super. 621, 625, 664 A.2d 607, 609 (1995), quoting Commonwealth v. Granberry, 434 Pa. Super. 524, 530, 644 A.2d 204, 207 (1994).

It is with rare exception that this court finds a petitioner’s trial counsel ineffective in the context of a PCRA petition. This fact makes sense as competency of trial counsel is presumed, and is the general rule rather than the exception. This case, however, proves to be one of those few exceptions where petitioner’s trial counsel was ineffective, and the only adequate remedy is to grant petitioner a new trial.

So many incidents that occurred before, during, and after trial that amounted to ineffective representation and arguably unethical behavior that it would likely be easier on this court to point out instances where trial counsel was effective rather than examine the instances where trial counsel was ineffective. However, this court will follow convention and examine instances of counsel’s ineffectiveness.

Ineffective Representation of Trial Counsel

In his suggested findings of fact and conclusions of law, petitioner enumerates a plethora of incidents that tend to show the ineffectiveness of trial counsel. In reviewing these incidents, this court noted three themes and will address each of those themes separately.

A. Lack of Communication

Pennsylvania Rule of Professional Conduct 1.4 requires a lawyer to keep a client informed about “the status of a matter and promptly comply with reasonable requests for information” and that a lawyer “shall explain a matter to the extent necessary to permit the client to make informed decisions regarding representation.” The comment to the rule provides further guidance in that a lawyer should ensure a client has “sufficient information to participate intelligently in decisions concerning the objectives of the representation and the means by which they are to be pursued.”

At the PCRA hearing, trial counsel testified that he put extensive time in meeting with petitioner and his family. However, he could not provide this court with an exact figure of hours spent meeting with petitioner and his family or an exact number of meetings. He testified that since he had switched his billing practices to charging a flat fee for services, he quit taking “meticulous notes” with respect to time spent meeting with clients. He did recall meeting with them “fairly regularly” and explained to this court that since his first meeting with petitioner and his family, wherein the family brought him Pepsi, they developed the custom of drinking Pepsis and talking about the case at length. Trial counsel also indicated that petitioner would frequently meet and talk with his investigator.

Petitioner’s recollection of his meetings with trial counsel as well as the recollection of petitioner’s mother are somewhat different. Petitioner recalled meeting with Attorney Brian Manchester for approximately three hours after having posted bail before actually meeting with trial counsel for another three hours that same day. The next time petitioner met with counsel was prior to the preliminary hearing on August 1, 2001, for approximately one hour. Following the preliminary hearing, petitioner did not meet with counsel again until October 8,2001 at the time of the first jury selection in the case, at which time counsel’s only advice to petitioner was that they wanted young men on the jury and no one who would favor the district attorney. The next meeting occurred almost a month later on November 7, 2001, at which time petitioner went with counsel’s investigator to Cen-tre Community Hospital for DNA testing and then the two drove by the residence where the incident happened though they did not stop or attempt to enter the residence to investigate further. The trial was continued twice. In December 2001, petitioner and his father met with counsel briefly before the second jury selection, and petitioner and both his parents met with him again prior to the third jury selection.

With the case set to go to trial in March 2002, the Commonwealth filed a motion in limine to preclude petitioner’s expert witness, as to his state of intoxication. No response to the motion was ever filed by trial counsel, nor did he forward a copy of the motion to his client. Though the motion in limine was argued and decided in favor of the Commonwealth on March 12,2002, counsel never notified petitioner of the hearing, and petitioner, consequently, did not attend the hearing.

In addition to these meetings at critical junctures in the criminal proceedings, petitioner’s mother also testified that she attempted to reach counsel by phone several times in order to speak with him about the case. She testified that speaking with counsel on the phone was next to impossible. Before she could speak with him directly via telephone, she had to first schedule an appointment by phone. This initial phone call to schedule another phone call resulted in petitioner’s mother making multiple phone calls prompting counsel’s office to advise her that she was calling too much.

Additionally, lack of sufficient communication was made evident to this court in the fact that petitioner and his family had no idea what trial strategy counsel planned to use. Upon his suggestion, if not outright insistence, the family hired a toxicologist to make a report concerning petitioner’s level of intoxication but never fully understood the purpose behind the toxicologist nor saw his report before trial. Trial counsel indicated at the PCRA hearing that the whole point of the toxicologist’s examination and report was to mitigate petitioner’s level of culpability and lend credence to a defense of mistake of fact. Despite the fact that petitioner’s state of intoxication at the time of the incident was no defense to the rape and sexual assault charges, it was a mitigating factor to the charge of burglary. As counsel stated, one of their main reasons of going to trial was to fight the burglary charge, and the toxicologist report would assist them in fighting that charge.

According to petitioner, he believed that the whole reason for going to trial was due to the discovery of DNA evidence. As related supra, during one of the meetings with counsel and/or his investigator, petitioner voluntarily submitted to DNA testing. During the investigation and discovery phases of the case, it was learned that a semen stain had been found on a comforter belonging to one of the complainants. The DNA test performed ruled out petitioner as the source of the stain. As a result of the DNA test, petitioner’s mother testified that counsel called her and told her the news. In response to her asking what this meant for her son’s case, she testified counsel responded to her question by posing the question: “How could he go to jail if the semen stain was not his?”

It was not until trial that petitioner and his family learned that the forensic evidence proving the semen stain did not contain petitioner’s DNA would not be presented. As explained by trial counsel at the PCRA hearing, the Rape Shield Law prevented evidence of the complainant’s prior sexual history from being presented. Instead of filing a rape shield motion, counsel agreed to a stipulation that there was no physical evidence linking the petitioner to the scene, yet none of this was explained to petitioner prior to trial. This lack of communication prevented petitioner from fully understanding the state of his case, and, without that critical understanding, he could not adequately assist in his own defense or in making critical decisions with respect to the case.

B. Lack of Adequate Preparation for Trial

At the PCRA hearing, trial counsel testified that he had 28 years of experience primarily in criminal defense work. In 2002, the year of petitioner’s trial, counsel would have had 25 years of experience. There is no doubt in this court’s mind that, in 25 years of practicing law, counsel has gained an extensive knowledge in the area of criminal law and trial preparation. This court also has no doubt that trial counsel would agree with the rule ofP4— “Proper planning prevents poor performance.”

The final meeting with trial counsel occurred March 17, 2002, the day before trial, for approximately two hours in length. Petitioner and his mother testified that, at that meeting, counsel assigned them the task of reviewing the preliminary hearing transcript for any information that might prove useful at trial. Despite the fact that the trial was set to commence in less than 24 hours, petitioner was not prepped to testify during that meeting. Instead, counsel explained that, based on his years of experience, this trial would take the full two days allotted. Since petitioner was set to testify last, he was confident petitioner would not testify on the first day and stated they would prepare his testimony after the first day of trial. Though another meeting had been scheduled for the next day immediately before trial at counsel’s office, counsel did not show up for that meeting, and petitioner and his family instead met him at the courthouse.

While years of experience might have indicated to counsel that there was a good chance petitioner would not testify on the first day of trial, experience would have also indicated that the unexpected is always a possibility. On the afternoon of the first day of trial, the Commonwealth had rested with approximately 90 minutes remaining in the day. Trial counsel asked for a side-bar in which he asked this court when it planned on recessing for the day. Upon learning that this court planned on recessing at as good a stopping place as could be found around 5 p.m., counsel indicated he had two witnesses, including his client. His first witness was the petitioner’s roommate, who would testify that petitioner was “a gentleman with an alcohol problem” and suggested that the conclusion of her testimony would be a good “breaking point” for the day. N.T. 03/18/2005 at 230 1. 25.

Counsel’s explanation of his witness’ testimony prompted the unexpected — the Commonwealth objected to the witness on the grounds her proposed testimony was not relevant, and this court agreed. The court stated it would permit counsel to call the witness as a character witness only, an offer he declined. With only petitioner left to testify, counsel asked for a recess, and this court denied the request. Rather than paraphrase the exchange of events, this court cites the transcript verbatim:

“Mr. Manchester: I think I asked for a recess.
“The Court: No, not now.
“Mr. Manchester: Then I need at least a half an hour with my client, because I really need to talk to him about some points and I — I don’t know. I thought this would go the full — I thought that my case would get going tomorrow. If I made a miscall, which obviously I did, it’s my fault. I have him prepared to testify tomorrow morning ... .” N.T. 03/18/2002 at 232 11. 2-11.

Counsel insisted at the PCRA hearing that petitioner expected and prepared to testify, but, based on that exchange, it is obvious that counsel had not prepared his client to testify on the first day of trial, and 15 minutes of preparation is in no situation adequate to prepare a defendant to testify when on trial for rape, sexual assault, burglary, and a myriad of other offenses.

C. Abandonment of Client

The final aspect of trial counsel’s representation tending to establish his ineffectiveness can best be described as his outright abandonment of petitioner following his conviction.

It was evident from the PCRA hearing that neither petitioner nor his family were familiar with the criminal justice system prior to this incident and were relying on trial counsel to guide them through the process and see justice done. Counsel’s representation fell far short of even the most basic expectations. Instead of providing petitioner with the information and advice necessary to make critical decisions regarding the case, counsel provided petitioner and his family with a rose-tinted view of the case to the disservice of his client. Following petitioner’s conviction on the charges of rape, sexual assault, indecent exposure, criminal trespass, and indecent assault, counsel continued to give the family a false sense of hope. Counsel assured the family that, based on research he conducted, they had a “100 percent” chance of success on appeal. A claim no experienced trial attorney should make. Furthermore, counsel did not prepare petitioner for the possibility he would go to jail following sentencing. Instead, he told petitioner and his family that he would likely remain out on bail pending appeal, nor did he prepare petitioner for the total amount of incarceration time he would receive. Petitioner had no idea of his actual sentence until he arrived at the Camp Hill diagnostic center and saw his status sheet.

Though a motion for reconsideration was filed in the case, no copy was ever provided to petitioner or his family. When a hearing was held on the motion for reconsideration, as with the pretrial conference and motion in limine hearing, counsel waived petitioner’s appearance, effectively precluding petitioner from attending.

Quite possibly in response to counsel’s assertion that an appeal would be successful in at least getting petitioner a new trial, an appeal was filed in the case. Regardless of the merits on the appeal, petitioner’s direct appeal rights were deemed waived by the Superior Court when trial counsel failed to file a 1925(b) statement in response to this court’s order. After, as this court understands, counsel was paid separately for this appeal.

It is obvious to this court that petitioner’s claim of ineffective assistance has merit. Trial counsel essentially deprived petitioner of every means and opportunity to assist in his own defense, a series of actions for which this court can find no reasonable basis designed to effectuate petitioner’s interest. Even if this court were to accept trial counsel’s contention that this was a young man deep in the throws of addiction and depression, thus raising the implication that he could not adequately assist in his own defense, counsel was still obligated to maintain as normal an attorney-client relationship as possible, which included providing his client with the critical information necessary to participate in his own defense. See Pennsylvania Rules of Professional Conduct Rule 1.14(a) (“When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disease, or some other reason, the lawyer should, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.”). Counsel’s failure to do so did nothing to serve his client’s best interests and more than likely worked to petitioner’s detriment. As such, this court is satisfied that petitioner has established that he was prejudiced by the actions of trial counsel and that no accurate determination of his guilt or innocence could be determined. Petitioner, therefore, must be granted a new trial.

I. Prosecutorial misconduct

In addition to seeking PCRA relief on the grounds of ineffective assistance of counsel, petitioner also argues for relief on the grounds of prosecutorial misconduct. Specifically, petitioner claims that the district attorney made several statements during his closing arguments in which he injected his own personal opinion regarding petitioner’s guilt, credibility, strategy or truth or falsity of any testimony or evidence, misstated evidence and/or mislead the jury as to the inferences it could draw from the evidence, used arguments designed to inflame the jury, injected issues broader than the guilt or innocence of the petitioner, and made predictions as to the consequences of the jury’s verdict.

The role of the Commonwealth’s prosecutor is dual. A prosecutor’s job is not only to seek convictions but also justice. Commonwealth v. Green, 417 Pa. Super. 119, 124, 611 A.2d 1294, 1296 (1992) citing Commonwealth v. Gilman, 470 Pa. 179, 368 A.2d 253 (1977); Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975). A prosecutor crosses the line and engages in prosecutorial misconduct when the “unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict.” Commonwealth v. Chmiel, 777 A.2d 459, 466 (Pa. Super. 2001), citing Commonwealth v. D’Amato, 514 Pa. 471, 489, 526 A.2d 300, 309 (1987). (citations omitted) Yet it must also be recognized that a certain amount of latitude must be permitted in order to allow the Commonwealth to present arguments, as defense counsel is permitted, often referred to as “oratorical flair.” Id. referencing Commonwealth v. Chambers, 528 Pa. 558, 599 A.2d 630 (1991).

This court has reviewed the statements made by the district attorney upon which petitioner’s allegations of prosecutorial misconduct are based, and finds all the statements fell within the proper parameters of closing arguments save one that this court believes requires a greater analysis.

In arguing the district attorney made predictions as to the consequences of the jury’s verdict, petitioner points to the following statement made by the district attorney during his closing argument:

“Does she have to tolerate this? Is this okay in Centre County? If you find this man not guilty of rape, sexual assault and all of these crimes, that’s what you’re going to be saying. It’s not only going to be contrary to the evidence because the evidence supports every one of these charges, every one of them, but unfortunately you would also be sending the wrong message. You’d be sending the message that a woman really isn’t safe.” N.T. 03/ 19/2002 at 75 11. 10-19.

“Send a message” arguments fall within a gray zone that, depending on phrasing and context, can cross the line into the realm of prosecutorial misconduct, but in some instances they may be tolerable. For instance, in Commonwealth v. DeHart, 512 Pa. 235, 516 A.2d 656 (1986), the prosecutor’s stressing the deterrent effect of the death penalty was not prosecutorial misconduct based on the Pennsylvania Supreme Court’s decision in Commonwealth v. Zettlemoyer, 500 Pa. 16, 454 A.2d 937 (1982) (Reference to the deterrent effect of the death penalty not prejudicial “because it was a matter of public knowledge based on ordinary human experience.”). Likewise, in Commonwealth v. Peterkin, 538 Pa. 455, 649 A.2d 121 (1994), it was not prosecutorial misconduct for a prosecutor to urge the jury to send a direct message to the defendant. On the other hand, in Commonwealth v. Hall, 549 Pa. 269, 701 A.2d 190 (1997), the Pennsylvania Supreme Court reaffirmed its longstanding disapproval of “send a message” arguments in response to a prosecutor’s argument to the jury that it send a message “that... you come out here from Philadelphia, . . . and shoot someone like the defendant did, ... you are guilty of first-degree murder.” 549 Pa. at 294, 701 A.2d at 202. Ultimately, however, the court concluded that the prosecutor’s comments “did not warrant relief because they were based upon the evidence presented and did not ask the jury to send a message to the judicial system or to potential criminals.” Commonwealth v. DeJesus, 860 A.2d 102, 117 (Pa. 2004).

This court is inclined to agree with the Supreme Court’s sentiment that “send a message” arguments are such dangerous territory that only the bravest and most meticulous of prosecutors could safely tread through the land mine and ensure his/her comments not set off an explosion of misconduct. In the case at hand, the district attorney stated to the jury that, if it found the petitioner not guilty, it would be contrary to the evidence, and it would be sending a message to the women of Centre County that they were not safe. Based on the standard in Hall, as articulated in the DeJesus opinion, this statement made by the district attorney while treading on dangerous ground, did not constitute prosecutorial misconduct. His statement was based on the evidence, and the “message” was not directed to the judicial system or potential criminals. As such, this court finds no prosecutorial misconduct on the part of the district attorney.

The court enters the following order.

ORDER

And now, May 4, 2005, after a hearing on the matter and a review of the suggested findings of facts, conclusions of law, and memorandums of law submitted by counsel for petitioner and the Commonwealth, it is hereby ordered and decreed that petitioner’s trial counsel was ineffective.

Petitioner’s request for a new trial is granted. Trial to be set for a term of court to be determined by the Criminal Court Administrator.

      . As of January 1, 2005, the Pennsylvania Rules of Professional Conduct were changed, but as this trial occurred in 2002, any references by this court to the rules of professional conduct will be the rules that were effective until January 1,2005.


author: ACKERMAN, J,

text:
    Lineberger v. Wyeth

      Robert E.J. Curran, for plaintiff.

      Peter J. Grossi, for defendants.
    May 23, 2005
   ACKERMAN, J,

— Plaintiff, Patricia Lineberger, appeals this court’s order dated March 22, 2005, granting the Wyeth defendants’ motion for summary judgment and dismissing plaintiff’s action. For the following reasons, this court’s order should be affirmed.

I. BACKGROUND

Plaintiff Lineberger commenced the within Phen-Fen mass tort action by complaint on November 13, 2002, alleging that she developed aortic and mitral valve regurgitation from her ingestion of two prescription diet drugs, Pondimin and Redux, manufactured by Wyeth. The basis of Lineberger’s action is that Wyeth’s failure to warn of the association between diet drugs and heart valve damage was the cause of her injuries.

On February 25, 2005, Wyeth moved for summary judgment arguing that Lineberger was unable to prove that a different warning regarding the association between the ingestion of diet drugs and valvular heart disease would have prevented her physician from prescribing her the diet drugs. Wyeth further argued that, without evidence that a warning of valvular heart disease would have caused her physician to alter his prescribing practices, Lineberger is unable to establish that Wyeth’s failure to warn was the proximate cause of her alleged injuries. On March 22, 2005, after consideration of Wyeth’s motion and Lineberger’s response thereto, this court granted summary judgment in Wyeth’s favor and dismissed plaintiff’s action with prejudice.

On April 18, 2005, Lineberger timely filed this appeal. On May 2, 2005, in response to this court’s order, Lineberger filed her concise statement of matters pursuant to Pa.R.A.P. 1925(b). Plaintiff complains that this court committed an error of law in granting Wyeth’s motion for summary judgment.

II. DISCUSSION

“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.” Pa.R.C.P. 1035.2. “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 and, therefore, there is no issue to be submitted to the jury.” Biernacki v. Presque Isle Condominiums Unit Owners Association, 828 A.2d 1114, 1116 (Pa. Super. 2003) (quoting Grandelli v. Methodist Hospital, 777 A.2d 1138, 1143 (Pa. Super. 2001)). Where a motion for summary judgment is based upon insufficient evidence of facts, the adverse party must come forward with evidence essential to preserve the cause of action, and if he fails to do so, the moving party is entitled to judgment as a matter of law. See id.

The standard for reviewing a trial court’s grant of summary judgment is well established: the reviewing court must “view the record in the light most favorable to the non-moving party and resolve all doubts as to the existence of a genuine issue of material fact in its favor.” Haney v. Pagnanelli, 830 A.2d 978, 980 (Pa. Super. 2003) (quoting Juniata Valley Bank v. Martin Oil Co., 736 A.2d 650, 655 (Pa. Super. 1999)). “In reviewing a grant of summary judgment, the appellate court may disturb the trial court’s order only upon an error of law or an abuse of discretion.” Biernacki, 828 A.2d at 1116.

The purpose of summary judgment under Rule 1035.2 is “to eliminate cases prior to trial where a party cannot make out a claim or a defense after relevant discovery has been completed.” Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa. Super. 2000) (quoting Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997)). A plaintiff “must state a prima facie case before he will be allowed to proceed to trial.” Eaddy, 694 A.2d at 643. (emphasis in original)

At issue in the instant case is whether the record before this court contained sufficient evidence to permit Lineberger to proceed to trial. Specifically, Wyeth argued that under the learned intermediary doctrine, Lineberger needed to show that had her physician, Dr. John Lafferty, received a different warning regarding the association between diet drugs and valvular heart disease, he would have altered his prescribing habits and thus her injury would have been avoided. After careful review of the record, this court concluded that Lineberger failed to carry her burden, and summary judgment was warranted.

“There is no question that manufacturers of potentially dangerous drugs are held to a high degree of care.” Incollingo v. Ewing, 444 Pa. 263, 286, 282 A.2d 206, 219 (1971). But, unlike the duty imposed on most product manufacturers, Pennsylvania courts have repeatedly refused to impose strict liability on manufacturers of prescription drugs. See Hahn v. Richter, 543 Pa. 558, 563, 673 A.2d 888, 891 (1996) (“[Wjhere the adequacy of warnings associated with prescription drugs is at issue, the failure of the manufacturer to exercise reasonable care to warn of dangers, i.e., the manufacturer’s negligence, is the only recognized basis of liability.”); Baldino v. Castagna, 505 Pa. 239, 244, 478 A.2d 807, 810 (1984) (“[Ajssuming proper preparation and warning, a manufacturer of drugs is not strictly liable for unfortunate consequences attending the use of otherwise useful and desirable products which are attended with a known but apparently reasonable risk.”); Incollingo v. Ewing, 444 Pa. at 288, 282 A.2d at 219-20. Pennsylvania courts have recognized that “[tjhere are some products which, in the present state of human knowledge, are quite incapable of being made safe for their ordinary and intended use. These are especially common in the field of drugs ....” Coyle v. Richardson-Merrell Inc., 526 Pa. 208, 213, 584 A.2d 1383, 1385 (1991) (citing Restatement (Second) of Torts §402A(1965), comment k).

Accordingly, “a manufacturer [of prescription drugs] is liable only if he fails to exercise reasonable care to inform those for whose use the article is supplied, of the facts which make it likely to be dangerous.” Baldino, 505 Pa. at 244, 478 A.2d at 810. This duty to warn runs not to the patient or the general public, however, but to the prescribing physician. See Incollingo, 444 Pa. at 288, 282 A.2d at 220 (“Since the drug was available only upon prescription of a duly licensed physician, the warning required is not to the general public or to the patient, but to the prescribing doctor.”); Rosci v. Acromed Inc., 447 Pa. Super. 403, 423, 669 A.2d 959, 969 (1995) (“The intended ‘user’ in a case involving a prescription drug or device is, of course, the prescribing physician.”); Leibowitz v. Ortho Pharmaceutical Corp., 224 Pa. Super. 418, 431, 307 A.2d 449, 457 (1973) (“It is for the prescribing physician to use his own independent medical judgment, taking into account the data supplied to him from the drug manufacturer, other medical literature, and any other source available to him, and weighing that knowledge against the personal medical history of his patient, whether to prescribe a given drug.”); Demmler v. SmithKline Beecham Corp., 448 Pa. Super. 425, 431, 671 A.2d 1151, 1154 (1996) (“the prescribing physician can take into account the propensities of the drug, as well as the susceptibilities of his patient” and weigh “the benefits of any medication against its potential dangers.”). In discussing the rationale behind what has come to be known as the “learned intermediary” doctrine, the Leibowitz court explained:

“In approving a drug for marketing purposes, the F.D.A. is ever mindful of risks inherent in the use of a proposed drug. It also approves same because of the benefit said drug may have for the public as a whole. Every surgical procedure carries certain risks, as do driving an automobile or crossing an intersection. As different standards apply in the case of prescription drugs and over-the-counter drugs (the former requiring that the prescribing physician exercise the final judgment in each case), the risks must be balanced against the utility to the public-at-large. The warnings are directed to the prescribing physician who must make that balancing judgment in light of his personal knowledge of the patient’s medical history.” Leibowitz, 224 Pa. Super, at 432, 307 A.2d at 457-58.

Furthermore, “assuming that plaintiff]] [has] established both duty and a failure to warn, plaintiff[] must further establish proximate causation by showing that had defendant issued a proper warning to the learned intermediary, he would have altered his behavior and the injury would have been avoided.” Demmler, 448 Pa. Super. at 434,671 A.2d at 1155. Significantly, “[i]nthe event that a warning is inadequate, proximate cause is not presumed.” Id. Thus, where defendant has moved for summary judgment, in order to proceed to trial, the burden is on plaintiff to come forward with evidence to show that a different warning would have caused her physician to change his prescribing habits. Id., 448 Pa. Super, at 434, 671 A.2d at 1155. “[T]o create a jury question, the evidence introduced must be of sufficient weight to establish . . . some reasonable likelihood that an adequate warning would have prevented the plaintiff from receiving the drug.” Id. Absent proof that a more thorough or more explicit warning would have prevented plaintiff’s use of the drug, she cannot establish that defendants’ alleged failure to warn was the proximate cause of her injuries. Id.

In the instant case, it is undisputed that the drugs Pondimin and Redux are available only by prescription. There is also no question that Lineberger was under the care of Dr. Lafferty during the period that she took Pondimin and Redux for weight loss. Thus, Wyeth’s duty ran directly to Dr. Lafferty as Lineberger’s prescribing physician. This court concluded from the record that before prescribing diet drugs to Lineberger, Dr. Lafferty carefully weighed the risks and benefits to her health. Dr. Lafferty specifically chose Lineberger to be included among a group of patients that he personally felt were good candidates for diet drug therapy. See deposition of John Lafferty M.D., 2/15/05, p. 119, Wyeth’s motion for summary judgment, exhibit A; see also, affidavit of John Morrison Lafferty M.D., 3/9/05, 11. 5-6, plaintiff’s response to Wyeth’s motion for summary judgment, exhibit 1. Although Dr. Lafferty was unaware of the association between diet drugs and valvular heart disease at the time he prescribed diet drugs to Lineberger, he testified that he selected a “group of people who were very unlikely to have a cardiovascular event, so therefore [] didn’t think it was a material risk for these patients.” See Lafferty deposition, 2/15/ 05, pp. 37-38, 119, plaintiff’s response to Wyeth’s motion for summary judgment, exhibit 2; Lafferty affidavit, 11. 7-8.

Dr. Lafferty further testified that had a warning for valvular heart disease been given, he still would have prescribed the drugs to these selected patients:

“Q: And, doctor, if the words valvular heart disease had appeared alongside heart arrest, heart failure, myocardial infarction, it’s a fair statement that you wouldn’t have considered that a material risk given what was known at that time and you would have nevertheless prescribed it to these select patients?
“A: I think I would have still prescribed it.
“Q: And the same for Pondimin, doctor: If those words had appeared in the ‘warnings’ section would you have still prescribed it to that select group of patients that you — that you chose to?
“A: Yes.” See Lafferty deposition, 2/15/05, pp. 119-20.

This testimony was further strengthened by Dr. Lafferty’s affidavit at line 9 which reads:

“Even if the words ‘valvular heart disease’ had been added to the ‘warnings’ section of the label of the Physician’s Desk Reference while Pondimin and/or Redux were still on the market, I probably would have prescribed both drugs depending on the level of risk.” See Lafferty affidavit, 3/9/05,1. 9.

Given Dr. Lafferty’s uncontroverted testimony, this court had no choice but to conclude that he still would have prescribed Lineberger the diet drugs even if Wyeth had provided a warning including the risk of valvular heart disease. As previously discussed, the burden rests on Lineberger to establish, through evidence of “sufficient weight,” that an adequate warning would have prevented her from receiving the drug. See Demmler, 448 Pa. Super, at 434, 671 A.2d at 1155. This she has failed to do. Without evidence that Dr. Lafferty would not have prescribed the diet drugs, Lineberger is unable to establish that Wyeth’s alleged failure to warn was the proximate cause of her injuries. See id.

In an attempt to avoid summary judgment in the face of Dr. Lafferty’s testimony, Lineberger argues that she is entitled to a rebuttable presumption that either she or Dr. Lafferty (or both) would have followed an adequate warning had Wyeth provided one. This so-called “heeding presumption” was first adopted in Pennsylvania in Coward v. Owens-Corning Fiberglas Corp., 729 A.2d 614 (Pa. Super. 1999). In Coward, an asbestos product liability action, our Superior Court discussed at length the adoption of strict liability in this Commonwealth. See id., 729 A.2d at 618-20. Specifically, in adopting strict liability under section 402A, our Supreme Court molded Pennsylvania jurisprudence to “assure injured plaintiffs aright of recovery, regardless of fault, if their injuries were caused by a product lacking any element necessary for its intended use.” Id. at 619. In an attempt to further these policy objectives, the Coward court adopted the heeding presumption in cases “where warnings or instructions are required to make a product non-defective and a warning has not been given” and shifted the burden of production to manufacturers of such products. See id. at 621.

After review of existing Pennsylvania case law, we conclude that the “heeding presumption” is not applicable to the instant case as it has been applied exclusively to strict liability claims. It is well-settled in this Commonwealth that negligence is the only recognized basis of liability for failure to warn for manufacturers of prescription drugs. See Incollingo, 444 Pa. at 287-88, 282 A.2d at 219. Through Incollingo and its progeny, Pennsylvania courts have repeatedly declined to impose strict liability on prescription drug manufacturers. See Hahn, supra; Coyle, supra; Baldino, supra; Incollingo, supra; Rosci, supra; Leibowitz, supra. Our courts have emphasized this guiding principle by repeatedly ruling that, in such cases, the manufacturers’ duty runs not to the patient but to the physician. See Incollingo, 444 Pa. at 288, 282 A.2d at 220. Lineberger has not provided, nor have we found, any Pennsylvania cases where the heeding presumption has been applied to failure to warn cases involving prescription drugs. Therefore, Line-berger’s argument that she is entitled to a presumption that she would have heeded a warning of the risk of valvular heart disease, had Wyeth provided one, and refused to take the diet drugs, flies in the face of Pennsylvania jurisprudence and thus fails.

Lineberger cites two cases from other jurisdictions, specifically, Thom v. Bristol-Myers Squibb Co., 353 F.3d 848 (10th Cir. 2003) and DeLuryea v. Winthrop Lab., 697 F.2d 222 (8th Cir. 1983). See plaintiff’s response to Wyeth’s motion for summary judgment, p. 7, n.l. According to Lineberger, Thom represents “the vast majority of jurisdictions” which permit a heeding presumption. See id. As noted supra, in Pennsylvania, only in a strict liability action is a heeding presumption applicable. In Pennsylvania the heeding presumption has never been applied to a negligence case, such as the instant case.

In the DeLuryea case, which espouses a weakened version of the learned intermediary doctrine, the Eighth Circuit asserts that the failure to introduce testimony of the prescribing doctor was not fatal to the plaintiff’s case on the issue of proximate cause. See DeLuryea, 697 F.2d at 225.

In Pennsylvania, we do not have a weakened version of the learned intermediary doctrine, but, rather, our courts have strictly interpreted that doctrine, enforcing a policy which has been designed to protect manufacturers of prescription drugs from liability. See Incollingo, supra; Demmler, supra. Moreover, in Pennsylvania, the prescribing doctor must testify that, had he received a different warning, he would have altered his prescribing habits. See Demmler, supra.

Lineberger finally argues that the conduct of Wyeth’s “detail men” nullified the warnings or gave her doctor a false sense of safety in the absence of a warning. Line-berger’s argument presents no issue for two reasons: (1) the basis of plaintiff’s claim is that no warning regarding valvular heart injury was ever provided by Wyeth, thus it could not be nullified, and (2) it is evident from Dr. Lafferty’s testimony that Wyeth’s “detail men” had no effect on his decisions to prescribe the diet drugs. In fact, Dr. Lafferty’s testimony revealed that, although he spoke to a sales representative regarding Redux, he had no specific recollection of what was discussed. See Lafferty deposition, 2/15/05, pp. 129-31, plaintiff’s exhibit 2.

III. CONCLUSION

For the foregoing reasons, this court concludes that Lineberger cannot establish that Wyeth’s alleged failure to warn of the risk of valvular heart disease was the proximate cause of her injuries. Therefore, summary judgment was warranted and this court’s order should be affirmed.

      . This opinion will address this court’s reasons for granting summary judgment in defendants’ favor, notwithstanding its finding that Lineberger has failed to preserve any issue for appellate review. See Kanter v. Epstein, 866 A.2d 394, 400 (Pa. Super. 2004) (“a concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent to no concise statement at all.”) (quoting Commonwealth v. Dowling, 778 A.2d 683, 686-87 (Pa.Super. 2001)).

      . Dr. Lafferty’s affidavit, which corroborates his deposition testimony, was in fact submitted to this court by plaintiff Lineberger in her response to Wyeth’s motion.