source: Caselaw Access Project

author: BONAVITACOLA, S.J.,

license: Public Domain

text:
    Donohue v. State Farm Mutual Insurance Company

      Joseph P. Stanton, for plaintiffs.

      Brett Messinger, for defendant.
    August 2, 2005
   BONAVITACOLA, S.J.,

INTRODUCTION

The sole issue presented by this declaratory judgment action is whether the plaintiffs are bound by the apparent election of plaintiff John Donohue, the first named insured under the automobile insurance policy herein at issue, to reduce his underinsured motorist liability coverage from $50,000 per person/$ 100,000 per incident (the “first-party” coverage limits he selected) to $15,000 per person/$30,000 per incident.

On August 27, 1996, plaintiff Joan Donahue, daughter of John and Claire Donahue, was involved in an automobile accident and sustained significant injuries. With State Farm’s consent, she settled with the other driver involved in the accident for his policy limits, $25,000, and then made a claim against State Farm for under-insured motorist benefits under the terms of her parents’ State Farm policy.

The policy then insured two vehicles, and — because the Donohues had elected to “stack” the underinsured motorist coverage — State Farm paid double the stated policy limit, or $30,000, to Joan Donahue. The plaintiffs then filed this declaratory judgment action in an effort to “reform” their policy, to raise the underinsured motorist coverage limit to $50,000, which — after stacking— would have made another $70,000 of benefits available to Joan Donahue.

This case was previously tried, without a jury, by my former colleague, the Honorable Gene Cohen, who directed a verdict for the defendant, but then awarded a new trial and recused himself. The matter was then reassigned to me.

I conducted a non-jury trial on November 15, 2004, following which I directed a verdict for the defendant. The plaintiff filed a timely post-trial motion, which I denied by order dated March 17,2005. Due to a technical malfunction, my staff was unable to telecopy the order to the plaintiff’s attorney, and for some reason no hard copy was mailed.1 therefore entered a new order, identical to the previous one, on April 28,2005, and this timely appeal followed.

DISCUSSION

Ordinarily, insurers are required to provide under-insured motorist coverage to an insured in the same amount as the “first-party” coverage purchased by the insured. 75 P.S. §1731. An insured may request (in writing), and an insurer may provide (upon such written request), underinsured motorist coverage in an amount less than that of the first-party benefits available under the policy of insurance. 75 P.S. §1734.

In order for such a “sign-down” of coverage to be effective, the insured must first be given notice of the availability of the higher limits. Lewis v. Erie Insurance Exchange, 568 Pa. 105, 793 A.2d 143 (2002), quoting with approval, National Union Fire Insurance Company v. Irex Corp., 713 A.2d 1145 (Pa. Super. 1998).

If it is shown that a named insured has received the “Important Notice” set forth in 75 P.S. §1791, “it shall be presumed that the insured has been advised of the benefits and limits” of insurance coverages available for purchase as required by Lewis and Irex.

The election of the first named insured is binding on all other persons insured under the same policy. Kimball v. Cigna Insurance Company, 443 Pa. Super. 143, 660 A.2d 1386 (1995).

There is no dispute that John Donahue acknowledged receipt of an important notice (in the form then prescribed by section 1791) on June 8, 1988, or that, on the same date, he executed a “sign-down” form requesting lower uninsured and underinsured motorist coverages on his State Farm policy, also in the form then required by law.

There is also no dispute that Mr. Donahue executed another “sign-down” form in 1994, when he added the Dodge Omni that was involved in the accident to the policy, and that he again did so in 1999 — three years after his daughter’s accident.

Section 1791 specifically states that the “Important Notice” is required only “upon application for [the] original policy ....” The notice need not be given again every time that coverage is changed.

Furthermore, 75 P.S. §1731(c.l), added in 1990, provides that “[a]ny person who executes a waiver [of uninsured or underinsured coverage] shall be precluded from claiming liability of any person based upon inadequate information.” The plaintiffs thus cannot avoid the effect of the waivers that Mr. Donahue signed, by arguing that he was not provided with sufficient information to fairly evaluate his options, or by claiming that he did not read or did not understand the waiver forms. Kline v. Old Guard Insurance Company, 820 A.2d 783 (Pa. Super. 2003).

Finally, there is no dispute that Mr. Donahue paid renewal premiums on his State Farm policy for a number of years before the accident occurred. Under the law, payment of a renewal premium constitutes acknowledgmerit of receipt of the information contained in the “Important Notice,” and of the coverages selected under the policy. 75 P.S. §§1791, 1791.1.

CONCLUSION

The plaintiffs are bound by Mr. Donahue’s election, and there is no basis upon which that election may be set aside.

For the foregoing reasons, my decision must be affirmed.

      . The defendant contends that “reformation” is not an available remedy under the facts of this case; terms aside, it is clear that I could have relieved the plaintiffs of the consequences of their apparent election, had the facts supported doing so.

      . When the question arose, it was clear from the electronic receipt generated by the telecopier machine in my chambers that the order had not been transmitted.

      . At that time, the two coverages were treated as one.

      . There is no need to address the other issues raised by the plaintiffs’ post-trial motion; it is beyond reasonable dispute that the microfilmed copies of the policy forms were properly admitted into evidence, regardless of whether or not the “law of the case” doctrine applied, and the opinion in Blood v. Old Guard Insurance Company, cited at length by the plaintiffs, has since been withdrawn and the case is scheduled for reargument in September 2005.


author: SHEPPARD JR., J,

text:
    Resource America Inc. v. Certain Underwriting Members of Lloyd’s Subscribing to Policy No. ***/********

      Steven A. Arbittier, for plaintiffs.

      Jonathan Dryer and Patrick K. Carey, for defendant.
    February 25, 2005
   SHEPPARD JR., J,

This court previously considered cross-motions for summary judgment and entered an order granting summary judgment for plaintiffs and against defendant on Count I for breach of contract, and dismissing the remaining counts of the complaint (the prior order). Plaintiffs now move for judgment to be entered on their breach of contract claim in the amount of $1,914,955, plus pre- and post-judgment interest at the statutory rate.

The amount plaintiffs request is equal to that portion of the $7 million settlement of the underlying class litigation that remains unfunded after plaintiffs’ primary and first excess insurers paid the limits of their policies. Lloyd’s was plaintiffs’ second excess carrier, and the court held it liable (within the limits of its $4 million excess policy) to contribute to the settlement.

Lloyd’s objects to plaintiffs’ proposed judgment amount on several grounds, none of which have merit. First, Lloyd’s claims that it should not have to provide coverage for the settlement because plaintiffs never paid any portion of the settlement amount and, therefore, the settlement does not constitute a “loss” covered by the policy. Lloyd’s relies heavily upon a 30-year-old case in which our Supreme Court held, with respect to an indemnity agreement between two governmental entities, that:

“Where the indemnity is against liability there is a right of recovery as soon as liability is incurred; where it is against loss by reason of a liability there is no right of recovery until a loss occurs.” Coleman v. Bradford, 415 Pa. 557, 559-60, 204 A.2d 260, 261 (1964). (emphasis in original)

However, a mere two years later, the same court held just the opposite with respect to insurance contracts when it found that requiring the insured to pay a judgment before he could assert a claim against his recalcitrant insurer “would be to impair the usefulness of insurance for the poor man.” Gray v. Nationwide Mutual Insurance Co., 422 Pa. 500, 506, 223 A.2d 8, 10 (1966). This distinction between contracts of indemnity and contracts of insurance continues to be recognized by the courts in Pennsylvania:

“The insured left to fend for himself should be able to negotiate a settlement which will protect his interests. If the injured party cannot acquire the right to bring suit against the insurer, he will not be willing to enter into such a settlement agreement. The injured party likewise would be hampered by a prepayment rule, for as was stated in Gray if the insured is insolvent there would be no need for the insurance company to act, if the only cause of action available requires payment of a judgment before it is actionable.” Barr v. General Accident Group Insurance Co., 360 Pa. Super. 334, 341, 520 A.2d 485, 488 (1987).

Therefore, when the plaintiffs entered into the settlement, they suffered a loss for which they are entitled to coverage from Lloyd’s.

Lloyd’s second argument questions the adequacy of the proofs submitted by plaintiffs in support of the amount claimed. Basically, the two-tiered settlement contains a promise that plaintiffs will pay the class $7 million if plaintiffs are able to obtain coverage from Lloyd’s, but plaintiffs will pay the class only $6 million if no coverage exists. The court held in the prior order that Lloyd’s is required to provide coverage, so under the terms of the settlement, plaintiffs, or more accurately their insurers, must pay the class $7 million.

As in-house counsel for plaintiffs has attested, plaintiffs’ primary and first excess carriers paid $5,085,005 towards the settlement, but at that point their coverage was exhausted. $7 million minus $5,085,005 is $1,914,995. Therefore, the court finds that plaintiffs have proffered sufficient proof that that they are entitled to the sum certain of $1,914,995 from Lloyd’s.

Lastly, Lloyd’s contests whether plaintiffs are entitled to receive pre-judgment interest on the insurance proceeds that Lloyd’s improperly refused to pay.

“(1) If the breach [of contract] consists of a failure to pay a definite sum in money or to render a performance with fixed or ascertainable monetary value, interest is recoverable from the time for performance on the amount due less all deductions to which the party in breach is entitled.

“(2) In any other case, such interest may be allowed as justice requires on the amount that would have been just compensation had it been paid when performance was due.” Restatement (Second) Contracts §354 (1981).

Lloyd’s breach of its insurance contract with plaintiffs occurred on November 30,2001, when it refused to give its consent to, and refused to pay its ascertainable portion of, the settlement. Therefore, plaintiffs are entitled to interest on the judgment amount from that date.

CONCLUSION

For these reasons, plaintiffs’ motion for assessment of damages on Count I of the complaint is granted.

ORDER

And now, February 25, 2005, upon consideration of plaintiffs’ motion for assessment of damages, the defendant’s response, the briefs in support and opposition, all other matters of record, after a conference, and in accord with the opinion being filed contemporaneously with this order, it is ordered that the motion is granted. Judgment is entered for plaintiffs and against defendant on Count I of the complaint in the amount of $ 1,914,955, plus pre-judgment interest at the statutory rate of 6 percent per annum from November 30,2001, to the date of entry of this order. It is further ordered that plaintiffs are entitled to post-judgment interest at the statutory rate of 6 percent per annum from the date of entry of this order until the judgment is paid in full.

      . For purposes of this opinion, the court incorporates those defined terms and legal conclusions reached in the prior order.

      . In addition to three new arguments that Lloyd’s raises in opposition to the present motion, Lloyd’s also attempts to re-argue its claim that the two-tiered settlement of the underlying class action was improper. For the reasons set forth in the prior order, this court rejects this argument.

      . The same seven justices heard both cases. However, the chief justice, who wrote the opinion in Coleman, dissented without opinion in Gray.

      . By submitting a sworn statement to the court, in-house counsel has put himself under penalty of perjury for any m isstatement as to the amount that the other insurers paid. Furthermore, as an attorney, he is well aware that he has a duty of candor to the court. Therefore, the court sees no reason to distrust his statements, and they serve as sufficient proof of the judgment amount requested by plaintiffs.

      . The legal fees that plaintiffs incurred in defending the underlying class action were paid by their primary insurer, which explains why the amount of the settlement covered by the primary and first excess insurer was less than the full $6 million in coverage for which those two insurers were liable.

      . Although Lloyd’s makes much of the fact that plaintiffs are still accruing damages in the form of legal fees incurred in prosecuting this action, plaintiffs have not requested reimbursement for such damages from Lloyd’s. Instead, under the terms of the settlement, they will receive reimbursement for half of such fees out of the judgment proceeds awarded in this action.


author: GRINE, J.,

text:
    Ivicic v. Best Buy Inc.

      John R. Miller and Julia R. Cronin, for plaintiffs.

      Trisha A. Zaken, for defendants.

      Michael A. Boomsma, for additional defendant.
    January 6, 2006
   GRINE, J.,

Presently before this court is the motion for summary judgment of additional defendant Glenn O. Hawbaker Inc. against plaintiffs Joyce S. Ivicic and Charles J. Ivicic. Also before the court is the motion for summaiy judgment of defendants Best Buy Inc. and V-M A.S.C. Limited Partnership against additional defendant. A hearing was held on the matter on October 26, 2005.

Plaintiffs initiated this action against defendants by filing a complaint on or about October 8,2003. Thereafter, defendants filed a praecipe for writ to j oin additional defendant and subsequently filed a joinder complaint on or about March 5, 2004. In their complaint, plaintiffs allege that plaintiff-wife was injured on November 9, 2001, when she tripped on uneven pavement in the parking lot of the Best Buy store in State College, Centre County, Pennsylvania. Specifically, plaintiffs allege, “as the plaintiffs exited the Best Buy store and walked across the macadam parking lot toward their vehicle, plaintiff Joyce S. Ivicic encountered a hidden uneven surface on the parking lot, which caused her to trip, stumble and fall, resulting in serious and permanent injuries[.]” Complaint 10/8/03, p. 2, ¶5. Plaintiffs further allege that the “uneven surface of the parking lot consisted of a 2-3 inch drop from the finished coat of macadam to an unpaved area which contained only a sub-base.” Id. at ¶6. Plaintiff-wife claims she has suffered numerous injuries as a result of the fall, including injuries to her right hip, leg, knee, foot and ankle. Id. at ¶10. Plaintiff-husband has claims for loss of consortium. See generally, complaint 10/8/03.

Additional defendant contends that the parking lot does not pose an unreasonable risk to pedestrians. Specifically, to the extent that any elevation exists between the finished and unfinished portions of the parking lot, additional defendant argues that this alleged “defect” is trivial and insufficient to allow plaintiffs to recover.

Pursuant to Pennsylvania Rule of Civil Procedure 1035.2, “[ajfter 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: (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The purpose of this rule is to “eliminate cases prior to trial where a party cannot make out a claim or a defense after relevant discovery has been completed.” See Miller v. Sacred Heart Hospital, 753 A.2d 829, 833 (Pa. Super. 2000). Further, under subparagraph (2) of this rule, summary judgment is proper where the record 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 a jury. See Note to Pa.R.C.P. 1035.2.

In order to proceed on their complaint, plaintiffs must first establish facts sufficient to establish a prima facie case of negligence. Rauch v. Mike-Mayer, 783 A.2d 815, 823-24 (Pa. Super. 2001); Note to Pa.R.C.P. 1035.2. In order to establish the elements of a prima facie case of negligence, the plaintiffs must present evidence from which ajury could infer: (1) that defendants had an ordinary duty of care toward them; (2) that defendants breached this duty; (3) that the breach was the actual cause and a substantial factor in any of plaintiffs’ injuries; and (4) that the plaintiffs suffered compensable harm.

The duty of a landowner toward a third party entering the land depends upon whether the entrant is a trespasser, licensee, or invitee. Updyke v. BP Oil Company, 717 A.2d 546, 549 (Pa. Super. 1998). A “business visitor,” who falls under the category of an invitee, is an individual who enters the property of another upon invitation for a purpose directly or indirectly connected with business dealings with the owner of the land. Id. As a business visitor, a greater standard of care is owed; in fact, “[t]he duty owed to a business invitee is the highest duty owed to an entrant upon land.” Emge v. Hago sky, 712 A.2d 315, 317 (Pa. Super. 1998). (citation omitted) Under this duty, “the landowner is under an affirmative duty to protect [business visitors] not only against known dangers but also against those which might be discovered with reasonable care.” Id.

In proving a breach of duty owed to plaintiffs as business invitees upon defendants’ property, defendants argue that plaintiffs must establish that the drop from the finished coat of macadam to the unpaved area which contained only a sub-base is more than a “mere defect.” See Bosack v. Pittsburgh Railways Company, 410 Pa. 558, 189 A.2d 877 (1963) (holding that a depression or an irregularity on a street may be so trivial to impose liability upon the owner or possessor of that property).

In Breskin v. 535 Fifth Avenue, 381 Pa. 461, 113 A.2d 316 (1955), the Pennsylvania Supreme Court held: “[w]hat constitutes a defect sufficient to render the property owner liable must be determined in the light of the circumstances of the particular case, and ‘except where the defect is obviously trivial, that question must be submitted to the jury.’ ‘An elevation, depression or irregularity in a sidewalk may be so trivial that the court, as a matter of law, is bound to hold that there was no negligence in permitting it to exist. But there is a shadow zone where such question must be submitted to a jury whose duty it is to take into account all the circumstances.’... No definite or mathematical rule can be laid down as to the depth or size of a sidewalk depression necessary to convict an owner of premises of negligence in permitting its continued existence.” Breskin, 381 Pa. 461, 463-64, 113 A.2d 316, 318 (1955). (internal citations omitted)

The circumstances examined by the court should include, but are not limited to, amount of travel, actual location of the defect, type of material with which the pavement or walk is constructed, and nature of the irregularity. Emmey v. Stanley Co. of America, 139 Pa. Super. 69, 72, 10 A.2d 795, 797 (1940). Importantly, “ ‘The law does not require that sidewalks shall be as free of defects, imperfections, irregularities, unevennesses, etc. as the floors of buildings, a reasonably safe condition is all that is necessary. ’ ” Id., 139 Pa. Super, at 74, 10 A.2d at 798, quoting German v. McKeesport City, 137 Pa. Super. 41, 48, 8 A.2d 437, 440 (1939). (emphasis added)

In several Pennsylvania Supreme Court cases, the defective condition of a sidewalk has been considered so slight or trivial as not to afford a basis for a finding of negligence or a failure to maintain the sidewalk in a reasonably safe manner, where the defective condition was caused by: (1) a ridge between or a difference in elevation of adjoining sidewalk blocks (see Burns v. City of Bradford, 137 Pa. 361, 20 A. 997 (1891)); or (2) holes, depressions, breaks, cracks, or elevations in general. See McGlinn v. City of Philadelphia, 322 Pa. 478, 186 A. 747 (1936). In those cases, the depressions or irregularities were found to be so slight that “the [court] properly held that the evidence was insufficient to submit the question of negligence to the jury.” Emmey v. Stanley Co. of America, 139 Pa. Super. 69, 73, 10 A.2d 795, 797 (1940).

In Cline v. Statler, 34 D.&C.4th 289 (1997), the Adams County Court of Common Pleas held, after examining the same case law as cited above, that the duty of a party in defendants’ situation “[does] not extend to making [a] sidewalk perfectly level or to remedy trivial defects.” Id., 34 D.&C.4th at 291. (citations omitted) The Common Pleas Court further held that the facts collected in the cases of Bosack v. Pittsburgh Railways Co., 410 Pa. 558, 189 A.2d 877 (1963) and German v. McKeesport City, 137 Pa. Super. 41, 8 A.2d 437 (1939) “reflect holdings that slight variations in grades will not, as a matter of law, sustain an action in negligence.” Cline, 34 D.&C.4th 289, 291 (1997).

At her deposition, plaintiff-wife testified that she went to defendants’ store at approximately 5 p.m. on November 9,2001, with her husband and grandson for the grand opening of the store. Plaintiffs purchased a DVD player, and plaintiff-wife exited the store, carrying the DVD player box in front of her at waist level. Plaintiffs both testified that neither one of them observed the discrepancy between the heights of the macadam before plaintiff-wife fell. Defendants were aware of the defect, as additional defendant was asked to leave a portion of defendants’ parking lot without a top of macadam due to anticipated wear and tear on the lot due to other construction projects on the lot adjoining defendants’ store.

The facts of this case tend to show that there was an uneven surface, an approximate one- to three-inch drop from a finished coat of macadam to an unpaved area which contained a sub-base, in defendants’ parking lot on the evening of November 9, 2001. The uneven surface appears to be located to the left front of the parking lot, just outside the main entrance to defendants’ store. The length of the pavement joint delineating between the finished macadam and unfinished sub-base is approximately a little more than the width of two cars, side-by-side.

Although the sub-base was technically an unfinished area in that it had not yet been covered with a top coat of macadam, it was nonetheless a paved area, smooth and free of any cracks, stones, or loose pieces. Thus, the only defect plaintiffs could possibly complain of is the one-three inch drop from the finished macadam to the sub-base. After carefully examining the facts and circumstances regarding plaintiffs’ alleged injuries, this court finds that discrepancies of this kind are far more common, and therefore forseeable, on a sidewalk or roadway than on other surfaces, e.g., a flight of stairs. The kind of “defect” found in the parking lot of defendants’ property is the kind of condition that could be classified as a minor imperfection, that is, one reasonably anticipated on a traveled surface.

Likewise, this court finds that the standard and rationale delineated by the Supreme Court, Superior Court, and followed by the Courts of Common Pleas regarding slight variations in grades of sidewalks is similar and, therefore, applicable in cases involving slight variations in grades of parking lots. See Burns, 137 Pa. 361, 20 A. 997 (1891); McGlinn, 322 Pa. 478, 186 A. 747 (1936); German, 137 Pa. Super. 41, 8 A.2d 437 (1939); Cline, 34 D.&C.4th 289 (1997).

Here, photographs of the height difference between the finished portion and the sub-base show only a small deviation in levels. Other than the fact that the two sections do not meet on precisely the same plane, the parking lot is in good condition; there are no holes, breaks, cracks, or any other imperfections in the macadam portion or sub-base. As such, this court finds that defendants provided a reasonably safe parking lot surface to potential customers on the night of its grand opening on November 9, 2001. Further, considering the nature of the defect and its location, this court finds that the height difference found in the pavement between the macadam surface and the sub-base is trivial, and that the slight variation in grade will not sustain an action in negligence by plaintiffs against defendants.

ORDER

And now, January 6,2006, after a hearing on the matter and a review of additional defendant’s motion for summary judgment, defendants’ motion for summary judgment, plaintiffs’ response to motion for summary judgment of additional defendant, plaintiffs’ response to motion for summary judgment of defendants, additional defendant’s answer to defendants’ motion for summary judgment and brief in opposition to defendants’ motion for summary judgment, additional defendant’s supplement to motion for summary judgment, plaintiffs’ briefs in opposition to motions for summary judgment of additional defendant and defendants, and additional defendant’s second supplement to motion for summary judgment, it is hereby ordered and decreed that additional defendant’s motion for summary judgment against plaintiffs is granted, and defendants’ motion for summary judgment against additional defendant is denied.

It is further ordered that plaintiffs’ complaint is dismissed, with prejudice.

It is further ordered, as additional defendant’s motion for summary judgment is granted, defendants’ motion for summary judgment against additional defendant is hereby determined to be moot, and, therefore, denied.


author: PEREZOUS, J,

text:
    Gatchell v. Waltman

      David J. Alexander, for plaintiff.

      Michael W. Wagman, for defendant.
    January 25, 2006
   PEREZOUS, J,

Presently before the court is the motion for summary judgment filed by the defendant, Winifred R. Waltman, deceased, by and through Jerry R. Gatchell, administrator of the estate of Winifred R. Waltman. The defendant contends that he is entitled to summary judgment because the plaintiff, Cheryl Gatchell, cannot establish the elements of a negligence claim. Specifically, the defendant argues that the Dead Man’s Act, 42 Pa.C.S. §5930, precludes any testimony by the plaintiff, and that she is unable to establish any of the elements necessary to prove a prima facie case of negligence. In response, the plaintiff argues that Jeffrey Gatchell is not precluded from testifying under the Dead Man’s Act since he is no longer a party to the action, and presents an affidavit containing a brief description of his proposed testimony. For the following reasons, this court denies the defendant’s motion.

According to the plaintiff, she injured herself when she slipped and fell on an accumulation of snow or ice while she was walking on a sidewalk. The property is located at 932 Lititz Avenue in Lancaster, Pennsylvania and was owned by her father-in-law, Winifred R. Walt-man. Mr. Waltman passed away on September 8, 2003, prior to the institution of this lawsuit. The complaint in this matter was filed on January 8, 2004. The plaintiff asserted a premises liability claim as a social invitee against the defendant. The defendant filed an answer with new matter on February 9,2004, and the plaintiff filed a timely reply to new matter on February 13,2004. After a period of discovery, the defendant filed the present motion on October 6, 2005.

It is well settled in this Commonwealth that summary judgment is proper only when the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits demonstrate that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2. Under the Pennsylvania Rules of Civil Procedure there are two situations in which a summaiy judgment motion is permissible:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) Whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) If, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2(a).

Along with this standard, the Rule also sets forth the requirements for a response to a motion for summary judgment:

“The adverse parly may not rest upon the mere allegations or denials of the pleadings, but must file a response within 30 days after service of a motion identifying:

“(1) One or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or

“(2) Evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Id.

Generally, the moving party has the burden of proving that no genuine issue of material fact exists. Ertel v. Patriot-News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1041 (1996). In determining whether summary judgment is appropriate, the court must review the evidentiary record in a light most favorable to the non-moving party, and that party will be given all reasonable inferences created by that evidence. Bethlehem Steel Corp. v. MATX Inc., 703 A.2d 39, 41 (Pa. Super. 1997). In other words, any doubt must be resolved against the party seeking summary judgment, and it should only be granted in cases that are free and clear of doubt. Davis v. Pennzoil Co., 438 Pa. 194, 202, 264 A.2d 597, 601 (1970).

Viewing the record in a light most favorable to the plaintiff, this court must deny the defendant’s motion. While the Dead Man’s Act precludes the plaintiff from testifying, it does not preclude the testimony of her husband, who is no longer a party to the lawsuit. The Act states, in pertinent part: “[i]n any civil action or proceeding, where any party to a thing or contract in action is dead... and his right thereto or therein has passed... to a party on the record who represents his interests in the subject in controversy, neither any surviving nor remaining party to such thing or contract, nor any other person whose interest shall be adverse to the said right of such deceased... shall be a competent witness to any matter occurring before the death of said party.” 42 Pa.C.S. §5930.

Thus, the plaintiff’s interest in the outcome of the litigation is adverse to that of the decedent’s, and she cannot testify against the defendant. Nevertheless, her husband is permitted to testify. As the Pennsylvania Supreme Court has stated, “spouses of an interested party to a transaction with a decedent may not be barred from testifying [based upon the Dead Man’s Act] on the basis of marital status alone.” Estate of Grossman, 486 Pa. 460, 474, 406 A.2d 726, 733 (1979).

Even with the proposed testimony of the husband, however, the defendant argues that the plaintiff cannot carry her burden of proof. Specifically, he mentions that the record lacks any evidence establishing the nature and scope of Mr. Gatchell’s testimony, and states that the plaintiff may not merely assert that his testimony is sufficient for the claim to go forward. He contends that there must be evidence, in the record, showing that a genuine issue of material fact exists with respect to the elements of the negligence claim. As the Pennsylvania Rules of Civil Procedure provide, moreover, a response to a motion for summary judgment must contain “[ejvidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Pa.R.C.P. 1035.2(a).

In the present case, the plaintiff has established such facts. As the affidavit attached to the plaintiff’s sur reply to the defendant’s reply brief in support of the motion for summary judgment points out, Mr. Gatchell will testify that he was with the plaintiff on the decedent’s property at the time of the accident. He witnessed her slip and fall on an accumulation of uncleared ice, and observed that ice to be two inches thick in places. He will further testify as to the injuries suffered by the plaintiff. Viewing the record in a light most favorable to the plaintiff, then, the proposed testimony presents a genuine issue of material fact and this court is unable to grant the defendant’s motion for summary judgment.

Accordingly, the court enters the following:

ORDER

And now, January 25, 2006, upon consideration of defendant’s motion for summary judgment, together with the briefs and supporting papers filed by the parties, it is hereby ordered that defendant’s motion is denied.

      . In response to the defendant’s motion for summary judgment, plaintiff Jeffrey Gatchell withdrew his claim for loss of consortium, which was styled as Count II in the initial complaint.


author: MINORA, L,

text:
    National Grange Mutual Fire Insurance Company v. Walsh

      C. Scott Rybny, for plaintiff.

      Joseph G. Ferguson and David F. Chuff, for defendants.
    December 29, 2005
   MINORA, L,

I. INTRODUCTION

Currently before the court are two matters which we will dispose of in this consolidated memorandum and order. The first is the plaintiff’s preliminary objections to defendants’ amended answer, new matter and counterclaim. The second is plaintiff’s motion to sever and stay defendants’ counterclaim. Both of these filings took place on May 27, 2004.

Other unrelated discovery issues wound their way through our appellate courts. Eventually, the record was returned to the trial court, allowing us to be in a position to resolve the outstanding preliminary objections and motion to sever and stay mentioned above.

Looking at the facts in the light most favorable to the non-moving party reveals that this case arises out of an incident that occurred on or about December 8,2002, at a rental property owned by Conrad and Cyndi Walsh. The property is a two-story residential property located at 728 Alder Street in Scranton, Pennsylvania. Both Mr. and Mrs. Walsh are lifelong residents of the Scranton/Wilkes-Barre area who now reside in Avoca, Pennsylvania. Mr. Walsh originally grew up in the home and later purchased the property from his parents. Mr. and Mrs. Walsh lived in the first floor apartment after they were married in 1993 until they moved to their present location in Avoca, Pennsylvania. After moving out of the first floor apartment, the Walshes rented the first floor until September 1999. The second floor apartment remained unoccupied while Mr. Walsh renovated the second floor apartment.

On or about December 8,2002, a water pipe froze and broke on the second floor of the property causing significant damages to the premises. The heating system for the premises is a gas fired hot water boiler system. The property was unoccupied at the time of the incident, although the first floor apartment was ready for occupation and had a “For Rent” sign in the window. The second floor apartment was not ready to be rented at the time of the incident because Mr. Walsh was in the process of renovating it.

Prior to the incident, on Sunday, December 1,2002, Mr. Walsh had visited the property to check on the premises and to turn the heat up in the building. On Wednesday, December 4, 2002, Mr. Walsh again visited the premises to check the water level in the boiler. Mr. Walsh discovered that the boiler had not used any water and that the pilot light was not lit. Immediately, Mr. Walsh contacted a plumber to have the boiler inspected and repaired. He arranged to meet the plumber the next day, December 5,2002.

Unfortunately, the area was hit with a major snowstorm on that Thursday and the plumber postponed the appointment to the next day, Friday, December 6,2002. The plumber again cancelled his appointment for the next day because his wife had a baby. Mr. Walsh tried calling other plumbers to inspect the boiler, but all he contacted were too busy to meet with him.

On Monday, December 9, 2002, before he could get the boiler inspected, Mr. Walsh received a telephone message from a Mr. Fisher, who lives next door to the rental property, indicating that water was leaking into Mr. Fisher’s home and seemed to be coming from Mr. Walsh’s rental property. Mr. Walsh immediately went to the premises to inspect the property and discovered extensive water damages throughout the premises caused by the broken pipe. Mr. Walsh shut off the water supply, but could do no more because it was late and dark and he was afraid to use anything electrical because of all the standing water. He again called his plumber and arranged to meet the plumber at the premises the next day.

On Tuesday, December 10,2002, Mr. Walsh met with the plumber at the premises. The plumber inspected the boiler and determined that there was no gas service coming in from the main gas line in the street. That same day, Mr. Walsh called National Grange to report the loss. Mr. Walsh was advised that someone from National Grange would be in touch with him the next day.

On December 11, 2002, Mr. Walsh returned to the premises to clean up the water damage and to try to dry out the property. When he arrived there, he discovered a tag from PG Energy hanging on the front door handle (dated December 11,2002, tag no. 52 0546) with a handwritten message indicting “check RDG on the inside meter.” Mr. Walsh tried calling PG Energy when he returned home, but the offices were closed.

The next day, December 12, 2002, Mr. Walsh called PG Energy and spoke with a Mr. Warner who indicated that PG Energy was concerned because Mr. Walsh’s gas usage seemed to be down. Mr. Walsh then informed Mr. Warner that he had no gas service and told Mr. Warner about the damage to his property. He also requested that gas service be restored to the premises immediately. Mr. Warner then told Mr. Walsh that PG Energy disconnected the gas to his property sometime in October 2002, along with several other properties on the same block of Alder Street, in order to change the meters on the houses from indoor meters to outdoor meters.

From October 2002, through and including December 2002, Mr. Walsh continued to receive bills from PG Energy for gas service to the premises, which were sent to his Avoca residence address. All bills were timely paid in full. From October 2002 to December 12, 2002, PG Energy never notified the Walshes that the gas service to the Alder Street property had been disconnected.

On December 12, 2002, a representative of PG Energy restored gas service to the property. On that same day, Mr. Walsh had the heating system inspected by the plumber who determined that the boiler was in good working condition.

In the meantime, Mr. Walsh still had not received a response to his December 10, 2002 telephone call to National Grange to report the loss. Having not heard from his insurance company for over a month, Mr. Walsh secured legal counsel to try to get National Grange to respond to his claim. By letter dated January 21,2003, Mr. Walsh’s counsel wrote to Thomas M. VanBerkel, President of National Grange, requesting that someone attend to Mr. Walsh’s claim. National Grange responded by letter dated January 28,2003, indicating that coverage was not being afforded under the policy. However, no one from National Grange had previously communicated that fact to Mr. and Mrs. Walsh. Later, a “Naomi” from National Grange’s Adjuster Center called Mr. Walsh to assure him that his loss would be covered and that he would be hearing from an adjuster very soon.

Mr. Walsh finally did meet with National Grange’s adjuster on February 4, 2003, almost two months after the incident. Instead of adjusting the loss, National Grange made the Walshes submit to oral examinations.

National Grange ultimately chose not to cover the Walsh’s loss and instead chose to sue its insureds by filing the instant declaratory judgment complaint. The defendants filed an answer, new matter and counterclaim, which included counts for declaratory judgment, breach of contract and statutory bad faith. National Grange filed preliminary objections claiming, inter alia, that defendants’ answer was untimely and that the defendants could not seek attorneys’ fees under a breach of contract claim. Defendants filed an amended answer, new matter and counterclaim removing their request for attorneys’ fees with respect to their breach of contract claim. National Grange again filed these current preliminary objections seeking to strike defendants’ new matter and counterclaims as untimely as well as raising a demurrer against defendants’ breach of contract and bad faith claims.

In addition to the preliminary objections to defendants’ amended answer, new matter and counterclaim, the plaintiff filed a motion to sever and stay defendants’ counterclaims for breach of contract and bad faith until the declaratory judgment issues are resolved.

All of these issues were argued before the undersigned on November 9, 2004.

At that time, the undersigned indicated at argument court that the issue of timeliness was a non-issue as the court always stresses substance over form and that we would determine the remaining preliminary objections on the merits of the pleadings as National Grange could not demonstrate any prejudice by defendant’s alleged untimely filing. Moreover, it is in our discretion to do so. See Peters Creek Sanitary Authority v. Welch, 545 Pa. 309, 681 A.2d 167 (1996).

The remaining preliminary objections and motion to stay and sever have been thoroughly briefed, though their disposition was delayed by the official court record being in our appellate court system on those aforementioned unrelated discovery issues.

With the file having been returned to the trial court, the record is now ripe for the disposition of the outstanding preliminary objection issues and motion to stay and sever issues, which we will address below.

II. ISSUES

(A) Should plaintiff’s demurrer to defendants’ counterclaim for breach of contract be granted or overruled?

(B) Should plaintiff’s demurrer to defendants’ counterclaim for statutory bad faith be granted or overruled?

(C) Should plaintiff’s motion to sever and stay defendants’ counterclaims until plaintiff’s declaratory judgment action is resolved be granted or denied?

III. DISCUSSION

The General Standards for a Demurrer Under Pa.R. C.P 1028(a) (4)

In reviewing preliminary objections in the nature of a demurrer, a court must accept as true all well-pleaded facts that are material and relevant, as well as any reasonable inferences deducible therefrom. Commonwealth v. Percudani, 825 A.2d 743, 745 (Pa. Commw. 2003); Werner v. Plater-Zyberk, 799 A.2d 776 (Pa. Super. 2002), appeal denied, 569 Pa. 722, 806 A.2d 862 (2002).

The question presented on demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible. Werner v. Plater-Zyberk, supra. Moreover, preliminary objections in the nature of a demurrer which would dismiss a cause of action should only be granted where the case is clear and free from doubt. Werner v. Plater-Zyberk, supra.

Finally, any doubt at all must be resolved by refusing to grant the demurrer. Werner v. Plater-Zyberk, supra.

With those principles in mind, we can now examine the plaintiff’s specific grounds for a demurrer.

A. Should Plaintiff’s Demurrer to Defendants’ Counterclaim for Breach of Contract Be Granted or Overruled?

Plaintiff’s demurrer to defendants’ counterclaim for breach of contract is misguided. The plaintiff seems to argue that because they filed a declaratory judgment action against their insureds that this, in and of itself, would not support a breach of contract action by the insureds against its insurer. (See an unreported decision Allstate Insurance Company v. Kenney, 2003 WL 22345683 (E.D. Pa. 2003).)

However, defendants base their breach of contract claims not solely on the plaintiff filing a declaratory judgment action against its insureds, but on their entire course of conduct in handling its contractual duties.

First, we note that to establish a cause of action for breach of contract, the counterclaim plaintiff must show:

“(1) the existence of a contract, including its essential terms;

“(2) a breach of duty imposed by the contract; and

“(3) damages as a result of the breach.” Williams v. Nationwide Mutual Insurance Company, 750 A.2d 881, 884 (Pa. Super. 2000).

In the case at hand, defendants have clearly pled the existence of the Dwelling Insurance Policy at issue and its essential terms which obligated the plaintiff to cover the subject losses. They clearly pled their losses and the duty of the plaintiff to cover said losses. Moreover, they clearly pled the property damage and monetary losses caused by plaintiff’s refusal to cover said losses. (See defendants’ answer, new matter and counterclaim paragraphs 111-118 and paragraph 120.)

Therefore, since we must accept defendants’ well pleaded facts as true (see Commonwealth v. Percudani, supra) and defendants’ counterclaim sets forth the essential elements of a breach of contract action, plaintiff’s demurrer to Count II (breach of contract) of defendants’ counterclaim will be overruled, dismissed and denied.

B. Should Plaintiff’s Demurrer to Defendants’ Counterclaim for Statutory Bad Faith Be Granted or Overruled?

Again, the defendants do not base their Count III bad faith claim solely or merely on plaintiff’s decision to file a declaratory judgment action against its insureds.

Defendants’ bad faith claim is also based upon the plaintiff’s failure and refusal to cooperate with its insured, its failure to return telephone calls and inquiries, its failure and refusal to send an adjuster to inspect the property in a timely manner, and its failure to respond to their insureds without intervention of counsel even though one of its representatives told the defendants that the claim would be covered and they would be fully compensated for their loss. (See defendants’ answer, new matter and counterclaim, paragraphs 84-94, 122-123.)

Such a course of conduct could support an action for bad faith, if proven, independent of the issue of the plaintiff filing a declaratory judgment action against its insureds.

We note that the Pennsylvania Bad Faith Statute provides that:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

“(1) Award interest on the amount of the claim from the date the claim was made by the insured in an amount equal to the prime rate of interest plus 3 percent.

“(2) Award punitive damages against the insurer.

“(3) Assess court costs and attorneys fees against the insurer.” 42 Pa.C.S. §8371.

We also note that bad faith claims are fact-specific and depend on the conduct of the insurer vis-a-vis its insured. Williams v. Nationwide Mutual Insurance Company, 750 A.2d 881, 887 (Pa. Super. 2000).

Under Pennsylvania law, “bad faith” is a frivolous or unfounded refusal to pay, lack of investigation into the facts, or a failure to communicate with the insured. Frog, Switch & Manufacturing Company Inc. v. Travelers Insurance Company, 193 F.3d 742 (3d Cir. 1999).

Moreover, bad faith is actionable regardless of whether it occurs before, during or after litigation. O ’Donnell ex rel. Mitro v. Allstate Insurance Co., 734 A.2d 901 (Pa. Super. 1999); W.V. Realty Inc. v. Northern Insurance Company, 334 F.3d 306 (3d Cir. 2003).

So when you read defendants’ counterclaim Count III bad faith claim as a whole, it certainly could support a claim under 42 Pa.C.S. §8371.

Therefore, plaintiff’s demurrer to defendants’ counterclaim for statutory bad faith (Count III) will be overruled, dismissed and denied.

C. Should Plaintiff’s Motion To Sever and Stay Defendants’ Counterclaim Until Plaintiff’s Declaratory Judgment Action Is Resolved Be Granted or Denied?

Pa.R.C.P. 213(b) states that: “the court, in furtherance of convenience or to avoid prejudice, MAY, on its motion or on motion of any party, order a separate trial of any cause of action, claim or counterclaim, set-off, or cross-suit, or of any separate issue, or of any number of causes of action, claims counterclaims, set-offs, cross-suits or issues.”

We note that a trial court’s decision on whether or not to bifurcate or sever is left to its unfettered discretion and will not be disturbed absent an abuse of discretion. Santarlas v. Leaseway Motorcar Transport Co., 456 Pa. Super. 34, 40, 689 A.2d 311, 314 (1997); Grigsby v. Kane, 250 F. Supp.2d 453 (M.D. Pa. 2003).

Moreover, separate trials should not be allowed where prejudice is not likely to result from a joint trial. Feld v. Merriam, 314 Pa. Super. 414, 461 A.2d 225 (1983), reversed on other grounds, 506 Pa. 383, 485 A.2d 742 (1984).

Ultimately, the rights of all parties must be balanced. See Agate v. Dunleavy, 398 Pa. 26, 156 A.2d 530 (1959).

In the case at hand, plaintiff’s declaratory judgment action and defendant’s counterclaim for breach of contract and bad faith all stem from the same operative set of facts. To hold two trials would be a waste of the court’s resources.

Since this will be a non-jury trial before a judge, the court would be in a good position to control the flow of evidence without attendant jury instructions. Also, items of proof and order of presentation could easily be controlled in a non-jury setting and confusion of a jury with evidentiary issues, burden of proof issues and the like would not exist. Moreover, discovery issues and presentation of evidence are far less likely to result in the confusion that could occur with a jury.

In any event, if the plaintiff prevails on its declaratory judgment claim, there will obviously be no finding for the defendants on their breach of contract and bad faith claims.

Therefore, in balancing all issues, including judicial economy and lack of real prejudice to the plaintiff insurer, we will exercise our discretion and deny plaintiff’s motion to sever and stay defendants’ counterclaim pending resolution of plaintiff’s declaratory judgment action.

A comprehensive order consistent with this memorandum follows.

ORDER

And now to wit, December 29, 2005, upon due consideration of plaintiff’s remaining preliminary objections to defendants’ amended answer, new matter and counterclaim, and also upon due consideration of plaintiff’s motion to sever and stay defendants’ counterclaims, and giving due consideration to the able verbal and written arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed that:

(1) All of the plaintiff’s remaining preliminary objections to defendants’ amended answer, new matter and counterclaim are overruled, dismissed and denied.

(2) Plaintiff’s motion to sever and stay defendants’ counterclaim is denied.


author: JOHNSON, J.,

text:
    Nudge v. Geiger

      Roy A. Manwaring II, for plaintiff.

      Jody A. Mooney, for defendant.
    December 21, 2005
   JOHNSON, J.,

Before the court for consideration is the plaintiff’s motion for post-trial relief filed by the plaintiff on July 21, 2005, as amended on August 30, 2005.

I. PROCEDURAL AND FACTUAL HISTORY

The plaintiff was involved in a motor vehicle accident that occurred on January 11, 2002 (the first accident), just four days prior to the January 15, 2002 motor vehicle accident that is the subject of this case (the subject accident). (N.T. July 14, 2005, at p. 50.) The first accident involved an unknown driver and the plaintiff alleged that she sustained physical injuries as a result of it. (N.T. July 14, 2005, at pp. 51-52.)

In addition, the plaintiff was involved in a third motor vehicle accident that occurred only minutes after the subject accident when she moved her motor vehicle to the other side of the street after the subject accident and was then struck by another motor vehicle (the third accident). (N.T. July 14,2005, at pp. 62-64.) The plaintiff does not recall if she exchanged information with the driver in the third accident. (N.T. July 14, 2005, at p. 64.)

The plaintiff filed a complaint against the defendant alleging negligence arising out of the subject accident. The plaintiff claims that she sustained injuries to her back and thoracic spine as a result of the subject accident.

A juiy trial was held on this matter on July 14-15,2005. The defendant stipulated to liability for the accident.

The court instructed the jury, in conformity with the Pennsylvania Suggested Standard Jury Instructions (PSSJI), that: they were to decide “what injury, if any, did the plaintiff sustain that was caused by the accident” (N.T. July 14, 2005, at p. 28; PSSJI); that “a witness who was false in one part of his or her testimony may be distrusted in others” (N.T. July 15, 2005, at p. 152; PSSJI); that they were entitled to accept or reject the testimony of the experts (N.T. July 15, 2005, at p. 155; PSSJI); that the opinion of an expert only has value when the jury accepts the facts on which it is based (N.T. July 15, 2005, at p. 155; PSSJI); and that the jury needed to evaluate the facts relied upon by the expert when examining the expert’s opinion (N.T. July 15,2005, atpp. 155-56; PSSJI). The plaintiff did not object to any of the jury instructions given to the jury in this matter. (N.T. July 15, 2005, atp. 173.)

The first question on the verdict slip was, “[w]as the negligence of the defendant a factual cause in bringing harm to the plaintiff?” (N.T. July 15, 2005, at p. 166.) The plaintiff never objected to the verdict slip or to the jury being asked to decide the issue of causation. (N.T. July 15, 2005, atpp. 138-39, 166, 173.)

After deliberation, the jury returned a verdict on behalf of the defendant, finding that none of the plaintiff’s injuries were caused by the defendant’s negligence.

The plaintiff filed a motion for post-trial relief on July 21, 2005, as amended on August 30,2005. Procedurally, the plaintiff’s July 21, 2005 motion was defective. The plaintiff failed to identify any portions of the record to be transcribed. Pennsylvania Rule of Civil Procedure 227.3 provides that: “all post-trial motions shall contain a request that a portion of the record be transcribed in order to enable the court to dispose of the motion — If no portion is indicated, the transcription of the record shall be deemed unnecessary to the disposition of the motion.”

However, the plaintiff amended the July 21, 2005 motion on August 30, 2005, and requested that portions of the record be transcribed, as her motion could not be decided without reviewing the record. Although August 30, 2005, was beyond the 30-day deadline for the filing of a post-trial motion in this case, Pa.RC.P. 126 gives the court the discretion to “disregard any error or defect of procedure which does not affect the substantial rights of the parties.” Additionally, the law favors deciding cases and issues on their merits, rather than on procedural deficiencies. Therefore, because the plaintiff amended her motion only to request the transcription of a portion of the record, the court exercised its discretion to decide that motion on substantive grounds rather than to dismiss it for this particular procedural deficiency. On November 15, 2005, the court granted the plaintiff’s motion for post-trial relief and ordered a new trial on the issue of damages only.

On November 28, 2005, the defendant filed the motion of defendant Heather Geiger for reconsideration of order of court dated November 15, 2005. The plaintiff responded thereto on December 8, 2005. On December 14,2005, the court granted said motion for reconsideration in a footnoted order that advised the parties that the court would reconsider the plaintiff’s motion for post-trial relief filed on July 21, 2005. In considering the defendant’s motion for reconsideration, the court made a further review of the applicable case law and determined that a deeper analysis of the issue than it had performed originally was warranted.

II. PARTIES’ ARGUMENTS

The plaintiff argues that because the three expert witnesses who testified in this case agree that the plaintiff sustained a large disc protrusion at Tl 0-11 as a direct and proximate result of the defendant’s negligence, the jury erred as a matter of law in failing to find that the negligence of the defendant was a factual cause in bringing about any harm to the plaintiff, as such a finding was against the weight of the evidence.

The defendant argues that, because the experts based their opinions, in part, on subjective information provided by the plaintiff, the jury was free to disregard the expert testimony if it did not find the plaintiff credible.

III. APPLICABLE LAW

The decision whether to grant a new trial lies within the sound discretion of the trial court. Clark v. Philadelphia College of Osteopathic Medicine, 693 A.2d 202, 204 (Pa. Super. 1997). “Anew trial should be granted if the judge finds that an injustice has been done.” Colosimo v. Pennsylvania Electric Company, 513 Pa. 155, 163, 518 A.2d 1206, 1210 (1986). A court has a duty to grant a new trial if it determines that the judicial process has effected a serious injustice, as where there has been an error of law or where the verdict is against the clear weight of the evidence. Austin v. Ridge, 435 Pa. 1, 5-6, 255 A.2d 123, 125 (1969).

“Where there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find the defendant’s negligence was not a substantial factor in bringing about at least some of the plaintiff’s injuries .... Such a verdict is contrary to the weight of the evidence adduced at trial.” Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002). (citations omitted)

However, applicable Pennsylvania law also provides that a jury, as the finder of fact, is entitled to believe all, some or none of the evidence presented. Martin v. Evans, 551 Pa. 496, 505, 711 A.2d 458, 463 (1998). Importantly, if a jury disbelieves the facts on which an expert’s opinions were made, the jury is free to disregard that testimony. Commonwealth v. Rounds, 518 Pa. 204, 209, 542 A.2d 997, 999 (1988).

IV. ANALYSIS OF THE CASE AT BAR

a. The Plaintiff

In the case at bar, exactly which of the three accidents caused which injuries and the plaintiff’s credibility came into question. During direct examination, the plaintiff was asked to describe her health prior to the first accident. (N.T. July 14, 2005, at p. 48.) The plaintiff testified, as follows:

“I had perfect health prior to the accidents. I was going to the gym approximately four times a week, lifting weights, doing aerobics, doing a lot of cardiographic [sic] activity. Elliptical runner. All of that.” (N.T. July 14,2005, at p. 48.)

The plaintiff further testified that she had physical restrictions and problems as a result of the first accident, which are completely unrelated to the claim brought against the defendant. (N.T. July 14,2005, atpp. 52-53.)

During direct examination, the plaintiff told the jury that she sustained injuries to her neck, right shoulder and right arm due to the first accident. (N.T. July 14,2005, at p. 52.) On cross-examination, the plaintiff conceded that, in prior deposition testimony, she acknowledged that she also had pain in her upper back as a result of the first accident. (N.T. July 14, 2005, at pp. 79-80.) Additionally, the plaintiff testified that, at the time of the trial in this matter, she did not consider herself fully recovered from the injuries she sustained in the first accident. (N.T. July 14, 2005, at p. 73.)

At the trial in this matter, the plaintiff testified that she cannot hike or ski, and she requires assistance from her family with carrying things, due to the subject accident. (N.T. July 14, 2005, at p. 75.) However, she then was impeached with sworn deposition testimony she gave in January 2004. In the January 2004 deposition, the plaintiff was asked, “Now with regards to any injuries that you attribute to the first accident [first accident] as opposed to the second accident [subject accident], what impact has that had on your daily activities?” (N.T. July 14, 2005, at p. 106.) In response, the plaintiff stated that she used to hike, ski and play with her children, but that all of these activities were severely limited as a result of the first accident. (N.T. July 14, 2005, at pp. 105-106.)

Finally, although the plaintiff had denied any prior medical treatment to her back and/or thoracic area on direct examination, on cross-examination, she testified that she had prior back treatment due to a broken tailbone and an injuiy when she was knocked down by some running children (unrelated to any of the three accidents), although it was not to the thoracic disc. (N.T. July 14, 2005, at pp. 49 and 98.)

Clearly, portions of the plaintiff’s testimony, such as these examples, could have called the plaintiff’s credibility into question in the minds of the jurors. Therefore, if the jury decided not to believe the plaintiff, and if the experts based their conclusions on her subjective statements, under Pennsylvania law, the jury was free to disregard the experts’ conclusions.

b. The Experts

In the case at bar, each of the three expert witnesses presented testified, within a reasonable degree of medical or chiropractic certainty, that the subject accident was the cause of the plaintiff’s herniated disc protrusion at T10-11. However, each of the experts relied, at least in part, on subjective information provided by the plaintiff.

The plaintiff’s expert witness, Chiropractor Mary Rutkowksi, testified that, based on the history she obtained from the plaintiff her physical examination of the plaintiff, her review of Dr. Mauthe’s medical records and after reviewing various reports and diagnostic studies that were performed on the plaintiff, the plaintiff suffered from a herniated disc at Tl0-11 as a result of the subject accident. (N.T. July 14,2005 atp. 149.) (emphasis added)

Additionally, the plaintiff’s second expert witness, Dr. Robert W. Mauthe, testified that, based on the history he took, his review of the plaintiff’s medical records, his examinations of the plaintiff over a two-year period, his review of diagnostic studies, and taking into account the plaintiff’s past history, the plaintiff suffered a protrusion of the disc at Tl 0-11 as a direct result of the trauma she sustained from the subject accident. (N.T. July 15,2005, atpp. 16-17.) (emphasis added)

Finally, and most importantly, the defendant’s expert witness, Dr. Barry Berger, testified that after listening to the plaintiff’s subjective complaints, his physical examination of the plaintiff, his review of MRI films and all medical records, the plaintiff most likely suffered from her disc protrusion at Tl0-11 due to the subject accident and he felt the T10-11 disc protrusion probably was in part responsible for the complaints of pain the plaintiff had following the subject accident. (N.T. July 15, 2005, atp. 103.) (emphasis added)

Dr. Berger testified, for example, that, “[t]he initial portion of the time we spent together was a history, in which I asked Ms. Nudge, to the best of her ability, [to] recall the events which led to her being in my office that day.” (N.T. July 15,2005, atp. 87.) Dr. Berger later confirmed that his opinion was based in part on listening to the plaintiff’s subjective complaints. (N.T. July 15,2005, atp. 103.)

The plaintiff advised Dr. Berger that she was in shock over the trauma of the two motor vehicle accidents that had occurred on January 15, 2002 (the subject accident and the third accident); however, she attributed the pain she experienced more to the subject accident rather than to the third accident, which happened only minutes later when she moved her vehicle to the other side of the street after the subject accident and she was struck by another vehicle. (N.T. July 15, 2005, at pp. 90, 91-92.) Importantly, Dr. Berger was asked if he was able to determine whether the plaintiff sustained injuries in the third accident. Dr. Berger testified that it was not clear whether the plaintiff could have sustained some of the injuries she alleges were caused by the subject accident as a result of the third accident as follows:

“Again, I don’t know. It was hard for me to glean from her just, you know, what exactly transpired. It was only a few minutes between accidents . . . .” (N.T., July 15, 2005, atp. 103.)

The testimony of all three of the experts, including, significantly, that of the defense expert, Dr. Berger, demonstrates that each of them relied on subjective information provided by the plaintiff in reaching their conclusions.

V. CONCLUSION

Therefore, the court finds that, although all three experts opine that the plaintiff probably suffered some injury from the subject accident, because the jury was free to disbelieve any or all of the experts’ opinions if it did not believe the facts on which those opinions were based, the verdict is not against the clear weight of the evidence and, therefore, plaintiff’s motion for post-trial relief is denied.

ORDER

And now, December 21,2005, upon consideration of the plaintiff’s motion for post-trial relief filed on July 21, 2005, and the plaintiff’s amended motion for post-trial relief filed on August 30,2005, and the defendant’s responses thereto and after argument, it is hereby ordered that the plaintiff’s motion for post-trial relief filed on July 21,2005, and as amended August 30,2005, is hereby denied for the reasons set forth in the accompanying opinion.

      . On December 14, 2005, the court granted the motion of defendant, Heather Geiger, for reconsideration of order of court dated November 15, 2005 filed by the defendant on November 28, 2005.


author: GEORGE, J,

text:
    Beeler v. Beeler-Rosensteel

      Paul Minnich, for plaintiff.

      Art Becker, for defendant.
    December 13, 2005
   GEORGE, J,

This matter comes before the court on the defendant’s motion to enforce settlement agreement. After testimony taken during a hearing held on November 18, 2005, this matter is ripe for disposition.

The history of this litigation begins on June 9, 1999, when Robert Beeler filed a complaint in divorce and for equitable distribution against his wife, Sandra Beeler (Rosensteel). The contentious nature of this litigation became apparent on June 7,2000, when Rosensteel filed a petition to prevent dissipation of the marital assets. The dispute over the marital assets apparently resolved itself temporarily with the parties entering into a property separation agreement and consenting to divorce. By decree entered December 29, 2000, the parties were divorced. By that same order, the property settlement agreement was incorporated, but not merged into the divorce decree.

Unfortunately, the parties’ divorce did not permanently resolve this dispute. On July 17, 2001, Rosensteel filed a petition for special relief claiming that Beeler breached the property separation agreement. A hearing on the petition was promptly scheduled; however, the parties, through counsel, requested that the hearing be continued at the call of either party to allow the parties the opportunity to negotiate a settlement. It is unclear from the record as to whether the issues raised by the petition were resolved. Nevertheless, on June 11, 2002, Rosensteel filed a second petition for special relief, once again alleging breach of the property separation agreement. A truce was reached on November 14,2002, when the parties entered a stipulation, confirmed by order of court, which addressed the issues raised.

This truce was short-lived, however, when on May 8, 2003, Rosensteel filed a third petition for special relief seeking the court to direct Beeler to make payment pursuant to the previous agreement and to answer certain interrogatories concerning documentation related to the enforcement of the original property separation agreement. A conference between the parties was promptly conducted by the Honorable Judge Robert Bigham, which resulted in the scheduling of a hearing. Prior to the hearing, the parties resolved the dispute, once again, and entered a stipulated order on August 13, 2003.

Unfortunately, the litigation continued when Rosensteel filed a petition for contempt on May 31,2005, claiming that Beeler violated the various orders of court previously entered in this matter. On June 27, 2005, Beeler filed an answer and new matter to the petition for contempt. Rosensteel responded on July 15, 2005, by filing a document titled “Defendant’s Reply to New Matter and New Matter.” In an effort to control the escalating litigation, Judge Bigham scheduled a hearing for July 18,2005. This attempt was short-lived when on the date of the hearing, Rosensteel filed a motion in limine seeking to preclude the presentation of certain evidence by Beeler.

The proceeding held on July 18, 2005, generated an order of court scheduling a hearing for July 29, 2005. The order also addressed the scheduling of the other issues recently raised by Rosensteel.

At the commencement of the hearing on July 29,2005, Judge Bigham offered the parties an opportunity to continue negotiations toward a comprehensive settlement of the issues. After a recess of approximately four and a half hours, the parties returned before Judge Bigham and entered a discussion on the record, which resulted in the cancellation of further proceedings that day. Thereafter, on August 17, 2005, the court conducted a telephone conference with counsel that was placed on the record. However, the parties were unable to subsequently reduce these discussions to a written settlement agreement, and settlement was not consummated.

In an attempt to resolve the impasse, Judge Bigham scheduled a conference on September 1, 2005. Despite Judge Bigham’s herculean effort to end the litigation, the dispute continued. On September 20, 2005, Rosensteel filed another petition for contempt alleging that Beeler violated the stipulated order allegedly entered into on July 29, 2005. On that same date, Judge Bigham recused himself on the basis that the petition involved the interpretation of discussions in which he had participated. Thereafter, a contempt hearing was scheduled before this Judge on October 21, 2005.

After reviewing the record, and before the commencement of the hearing on the contempt petition, I noted that the July 29, 2005 discussions, while conducted on the record, were not reduced to a court order. Accordingly, the petition for contempt was dismissed without a hearing because there was no specific court order to enforce.

Following the dismissal of the contempt petition, Rosensteel filed a motion to enforce settlement agreement on October 27, 2005. In that motion, Rosensteel claims that during the proceeding before Judge Bigham on July 29,2005, the parties reached a settlement agreement resolving all outstanding issues between the parties. Rosensteel further alleges that the agreement was further defined and confirmed during discussions before Judge Bigham on August 17, 2005. She now asks this court to enforce the terms of that agreement. Beeler, on the other hand, argues that settlement was never achieved and the discussions constituted nothing more than settlement attempts. Thus, the issue before the court is whether the July 29, 2005 and August 17, 2005 discussions evidence an enforceable agreement between the parties.

Our Supreme Court has recognized that the “enforceability of settlement agreements is governed by [the general] principles of contract law.” Mazzella v. Koken, 559 Pa. 216, 224, 739 A.2d 531, 536 (1999). Therefore, “[t]o be enforceable, a settlement agreement must possess all of the elements of a valid contract.” Id. It is essential to the enforceability of a settlement agreement that “the minds of the parties should meet upon all the terms as well as the subject-matter of the [agreement].” Onyx Oils and Resins Inc. v. Moss, 361 Pa. 416, 420, 80 A.2d 815, 817 (1951). Accordingly, a settlement agreement will be enforced where the parties have agreed to all the material terms of the bargain. Mazzella, 739 A.2d at 537. On the other hand, an agreement is unenforceable where “there exists ‘ambiguities and undetermined matters which render a settlement agreement impossible to understand and enforce ... 1” Id. (quoting Miller v. Clay Township, 124 Pa. Commw. 252, 256, 555 A.2d 972, 974 (1989)).

Although the court accepted testimony on whether an agreement existed, the court also has the benefit of transcripts of the discussions that Rosensteel claims form the basis of the agreement. The July 29, 2005 transcript indicates that at the beginning of the proceedings, Judge Bigham advised each of the parties that they were going to place “this on the record.” He further indicated that at the conclusion of their discussions, he would confirm whether each of the parties agreed. Thereafter, Rosensteel’s counsel outlined the following:

“(1) Robert Beeler agrees to pay to Sandra Rosensteel the sum of $500,000 payable as follows: $100,000 within 14 days of today; $150,000 on or before December 15, 2005; $140,000 on or before July 15,2006; $110,000 on or before December 30, 2006.

“(2) As security for these payments, Robert Beeler agrees to sign four judgment notes, one for each payment, payable on demand after the date referenced in 1 above. Interest will accrue at a rate of 6 percent after the date referenced in 1 above....

“(3) After each payment is made, Sandra will return the original note to Mr. Beeler....

“(4) Within five days counsel for [Rosensteel] will prepare and send to counsel for Mr. Beeler a comprehensive settlement agreement and four judgment notes for review and signature. This agreement will contain the following additional terms and/or contingencies:

“(a) Sandra agrees to release Robert Beeler, Beeler Box, Beeler name, Atlas Container Corporation and each of Atlas’ subsidiaries and Peter Sentinary from any — , and their accountants and lawyers from any and all liability of any nature whatsoever... .

“(b) Robert Beeler, Beeler Box, Atlas Container, and all their subsidiaries, Peter Sentinary, Paul Sentinary agree to release Sandra and her accountants and lawyers from any and all liability in this matter whatsoever.

“(c) Robert Beeler assumes responsibility for and/or liability for tax accounting fees, legal fees, expenses, etc., for Beeler Box and/or Beeler name except for the capital stock franchise tax, which issue is reserved and excepted from this order .... The issue of how the loss will be taken is also excepted and reserved from this order.” July 29, 2005 Transcript, pp. 3-6.

Following the foregoing discussion, Rosensteel’s counsel represented that Rosensteel would, as part of the agreement, withdraw their request for sanctions and reimbursement of legal fees and endorse any stock certificates owned by Rosensteel to Beeler and/or Beeler Box Company and/or Beeler Name Company. The parties also confirmed that the court would retain jurisdiction over the agreement and that Pennsylvania law would apply.

The court’s effort to define the parameters of the agreement is apparent when the court asked the parties whether there was “anything else” at the end of the foregoing discussion. In response, Beeler’s counsel indicated “we are agreed that you said four separate notes, each one to be released as that payment is made.” Thereafter, each party indicated that they accepted the representations made to the court.

When the parties conducted the telephone conference on August 17, 2005, the transcript reveals preliminary discussion concerned the meaning of “judgment notes” as previously discussed during the July meeting. It appears, prior to the phone conference, that Beeler was objecting to a confession of judgment clause in the notes. A reading of the entire transcript from August 17,2005, indicates, however, that the parties previously understood that the notes from Beeler to Rosensteel would contain confession of judgment clauses.

Accordingly, this issue resolved itself.

The August 17,2005 conference also revealed the crux of the current dispute. Despite the unequivocal language of the July 29, 2005 discussion, Beeler subsequently desired that the written agreement reflect that payments be made to Rosensteel from the Beeler Name Corporation and/or Atlas Corporation rather than from Beeler. During discussion concerning this issue, concerns were expressed involving the timing of the first payment to Rosensteel as it related to the dissolution of the Beeler Box Corporation. Although an agreement was generally reached concerning the timing issue, the issue as to who would make the payments to Rosensteel remained in dispute.

After a thorough review of the transcripts in this matter, as well as considering the testimony presented at the hearing, I am convinced that the parties reached a valid contract on July 29,2005. The specificity of that discussion clearly reflects agreement concerning all material terms of the settlement. In fact, the discussion was so thorough that the parties agreed to reserve two subject areas for further discussion. The agreement sets forth a specific amount of payment, specific dates of payment, interest provisions and other indications of a detailed agreement. The agreement further sets forth an unambiguous description of the person to whom payments would be made to and from, as well as releases of a number of specifically identified entities. Both parties affirmed the terms. In fact, evidence at the hearing established that pursuant to the discussions, Beeler executed and delivered notes to Rosensteel in amounts identical to the amounts discussed on July 29, 2005.

I find nothing vague or ambiguous about the terms of the agreement reached during the July 29, 2005 discussion. The fact that the agreement was never reduced to writing is immaterial. Pennsylvania law has long recognized that the “inability of the parties to an oral agreement to reduce such agreement to writing after several attempts does not necessarily preclude a finding that the oral agreement was enforceable.” Mazzella, 739 A.2d at 536, citing Woodbridge v. Hall, 366 Pa. 46, 48, 76 A.2d 205, 206 (1950).

I further find that Beeler’s claim that he did not understand the meaning of judgment note as including a confession of judgment clause is nothing more than a red herring. As mentioned above, during the August 17,2005 phone conference, Beeler’s counsel acknowledged as much. Indeed, the term “judgment note” is a term of art and defined by Black’s Law Dictionary as a “promissory note... embodying an authorization to an attorney, or to a designated attorney, or to the holder, or the clerk of court, to enter an appearance for the maker and confess a judgment against him for a sum therein named, upon default of payment of the note.” The record in this matter reflects Beeler to be a person well versed in corporate, commercial and business dealings. For him to claim that he misunderstood the meaning of this term is incredible. Moreover, he testified under oath as to his understanding of the meaning of judgment note, which, incidentally, is essentially identical to the definition contained in Black’s Law Dictionary.

At the hearing, Beeler also raised, for the first time, a claim that he did not hear what was being said to Judge Bigham on July 29, 2005, and, thus, did not understand that payments were to be made directly from him to Rosensteel. I am unpersuaded by this argument. A reading of the July 29, 2005 transcript reveals that Beeler actively participated in those discussions. Moreover, the transcript evidences that Beeler had no reservations in speaking up when he was unable to hear the statements made by Rosensteel’s counsel. Thus, it is inconsistent to suggest that he failed to hear the critical terms of the agreement and remained silent. Importantly, at the conclusion of the discussion, Beeler, in response to an inquiry from Judge Bigham, indicated that everything was fine. Therefore, I reject his claim as incredible.

The essence of this dispute is that Beeler entered into an agreement which he subsequently discovered does not inure to his benefit to the extent he may have originally hoped. Entering into a bad agreement, however, is not a legal basis for overturning an agreement or escaping from the liabilities assumed by an agreement. See Mowry v. McWherter, 365 Pa. 232, 238, 74 A.2d 154, 157 (1950) (where parties, sui juris, enter into an unambiguous agreement, with knowledge of the facts, the courts will not relieve them of their contractual obligations because of the questionable wisdom of the bargain). Moreover, a cursory review of the history and record in this matter reveals substantial concessions on the part of Rosensteel as consideration for the agreement reached between the parties. The agreement, therefore, will be enforced.

In styling an enforcement order, I note that all parties have agreed that both would receive tax benefits through the dissolution of the Beeler Name Corporation prior to the initial payment to Rosensteel. This agreement was memorialized by the August 17, 2005 transcript of the telephone conference before Judge Bigham. Accordingly, the dissolution of the Beeler Name Corporation will be ordered.

For the foregoing reasons, the attached order is entered.

ORDER

And now, December 13, 2005, the court further finds that the terms of the settlement agreement are accurately set forth in the settlement agreement prepared by Rosensteel’s counsel and forwarded to Beeler’s counsel by correspondence dated August 2,2005. A copy of said agreement is identified as exhibit C in the defendant’s motion to enforce settlement agreement. Accordingly, it is ordered:

(1) The plaintiff and the defendant are bound by the terms of the settlement agreement attached to the defendant’s motion to enforce settlement agreement as a part of exhibit C with the exception that paragraph la is modified to reflect that the first payment of $100,000 from Robert Beeler to Sandra Beeler shall occur within 24 hours following the dissolution of the Beeler Name Corporation as set forth hereinbelow. The agreement is further modified to reflect that interest of 6 percent on the initial $100,000 payment shall be payable from Robert Beeler to Sandra Rosensteel commencing September 1,2005. Additionally, paragraph lb of that agreement is modified to reflect that the second payment of $150,000 due on or before December 15,2005, shall be due on or before December 27, 2005, rather than December 15, 2005, as set forth in that agreement. Interest payment at the rate of 6 percent shall accrue on that amount on December 27, 2005.

(2) Within 10 days of the date of this order, Robert Beeler shall execute judgment notes to Sandra Rosensteel in the form set forth in exhibit C of the defendant’s motion to enforce settlement agreement. The notes reflecting payments in the amounts of $100,000 and $150,000 shall be modified to reflect the modifications to the settlement agreement set forth in paragraph 1 hereinabove.

(3) Within 14 days ofthe date ofthis order, Robert Beeler shall dissolve the corporation, Beeler Name Corporation. Sandra Rosensteel shall cooperate in executing all documentation necessary to dissolve the corporation.

(4) The terms of the settlement agreement as referenced, set forth and modified hereinabove by this order are incorporated as part of this order. Either party’s failure to strictly comply with the terms of the agreement and this order shall subject that party to sanctions including the finding of contempt.

(5) All pending motions for contempt and/or sanctions are dismissed as withdrawn.

      . During the pendency of this litigation, Sandra Beeler subsequently remarried and is now known as Sandra K. Rosensteel.

      . In order for “a person to be found in civil contempt, the moving party must prove that: (1) the contemnor had notice of the specific order or decree that he disobeyed; (2) the act constituting the violation was volitional; and (3) the contemnor acted with wrongful intent.” Gunther v. Bolus, 853 A.2d 1014, 1017 (Pa. Super. 2004). The specific order “alleged to have been violated ‘must be definite, clear, and specific — leaving no doubt or uncertainty in the mind of the contemnor of the prohibited conduct. ’ ” Id. (quoting Marian Shop Inc. v. Baird, 448 Pa. Super. 52, 56, 670 A.2d 671, 673 (1996)). Importantly, orders which form the basis for civil contempt must be strictly construed with any ambiguities or omissions in the order being construed in favor of the defendant. C.R. by Dunn v. The Travelers, 426 Pa. Super. 92, 100, 626 A.2d 588, 592 (1993).

      . Later discussion included Paul Sentinary in this release.

      . During this conclusory discussion, Judge Bigham also stated “I am positive that the lawyers, after today, still have to go put some paperwork together and do stuff pursuant to what they are going to say. So I expect that to be done in the spirit in which the agreement is entered into here today ....” (emphasis added)

      . At the hearing before this court, Beeler’s testimony indicated that there was no confusion concerning this issue. Specifically, Beeler acknowledged that the notes were intended to mean that the “notes could be placed on his property” if payments were missed.

      . A reading of the transcripts, as well as testimony presented at the hearing to enforce the settlement agreement, revealed that Beeler may obtain tax benefits by having the payments come from third-party corporations, rather than through him directly. Rosensteel’s concern, however, was based upon her future ability to collect the agreed-upon payments. Apparently, there is some indication that the entities from whom Beeler wished payment to be made are suffering financial distress.

      . At the hearing on November 18, 2005, the issues related to the capital stock franchise tax and assignment of the loss have been resolved.


author: EVANS, J,

text:
    Jackson v. Buck

      Brian C. Hall, for plaintiff.

      Michael D. Pipa, for defendant Buck.

      Michael M. Badowski, for defendant Heritage Medical Group.
    December 8, 2005
   EVANS, J,

Defendants Lori Buck and Heritage Medical Group seek summary judgment on the equitable principal of judicial estoppel. In support thereof, defendants aver that certain positions taken by the plaintiff in the matter of Jackson v. Cohen and Pinnacle Health t/d/b/a Harrisburg Hospital, Dauphin County Court of Common Pleas, no. 2698-S-2001, are in direct conflict with the plaintiff’s contentions in the instant case, thereby presenting a bar to this action.

As the parties are aware, this court is extremely familiar with Jackson v. Cohen, which involved a claim by the minor plaintiff, Darianna Jackson, that Dr. Cohen, an obstetrician, negligently failed to deliver the minor plaintiff via emergency caesarian section. Both prior to and throughout trial, plaintiff asserted that an emergency caesarian section was warranted based upon evidence of fetal distress reflected on electronic fetal heart monitoring which took place during Dr. Cohen’s watch in labor and delivery on June 14, 1999. Plaintiff alleged that Dr. Cohen’s failure to recognize the signs of fetal distress and his failure to perform an emergency birth resulted in permanent brain damage to the minor plaintiff.

Jackson v. Cohen was bifurcated and the liability phase of trial commenced on September 27, 2004. At trial, the evidence established that plaintiff’s mother, Cherita Jackson, failed to undergo any prenatal care and in fact, did not advise anyone that she was pregnant at any time before presenting to labor and delivery at Harrisburg Hospital on June 14,1999. Throughout trial, counsel for the minor plaintiff asserted that Cherita’s lack of prenatal care was entirely irrelevant as the neurological damage to the plaintiff occurred solely as a result of the negligence of Dr. Cohen in failing to perform an emergency caesarian section when he knew or should have known that the results of electronic fetal monitoring warranted emergency delivery. In fact, this was the theory of liability argued by plaintiff and all of plaintiff’s experts. The entire case of Jackson v. Cohen was premised on the allegation that the brain injury occurred during labor and delivery as evidenced by fetal monitoring and radiological studies. After a five-day trial, the jury returned a verdict in favor of Dr. Cohen and Pinnacle Health System, d/b/a Harrisburg Hospital. Plaintiff’s post-trial motions were denied and plaintiff’s appeal in that case is currently pending before the Pennsylvania Superior Court.

On August 27, 2004, plaintiff commenced this malpractice action against Lori Buck, a physician’s assistant, and the Colonial Park Family Practice. Ms. Buck examined plaintiff’s mother, Cherita Jackson, during an office visit at the Colonial Park Family Practice, several weeks prior to labor and delivery. In this action, plaintiff alleges that Ms. Buck’s failure to diagnose Cherita Jackson’s pregnancy during an office visit on May 27, 1999, deprived Darianna Jackson of proper pre-natal care. Specifically, plaintiff claims that because Ms. Buck did not detect Cherita’s pregnancy, she did not recommend, order or perform routine prenatal testing and monitoring which could have prevented or reduced the risk of Darianna’s neurological injury. At first blush, plaintiff’s position appears to be inconsistent with both the facts and theories advanced in Jackson v. Cohen. Accordingly, defendants assert that the concept of judicial estoppel serves as a bar to the present action.

The doctrine of judicial estoppel was first articulated by the United States Court of Appeals for the Third Circuit in Scarano v. Central R. Co. of New Jersey, 203 F.2d 510, 513 (3d Cir. 1953), which stated “a party may be precluded by a prior position taken in litigation from later adopting an inconsistent position in the course of a judicial proceeding.” As noted in Scarano, the doctrine of judicial estoppel is distinct from other theories of estoppel and may be applied any time a litigant plays “fast and loose with the courts which has been emphasized as an evil the courts should not tolerate.” Scarano, 203 F.2d at 513.

Since Scarano, judicial estoppel has been discussed and defined in a number of Pennsylvania cases, however, there appears to be a difference of opinion as to whether successful maintenance of the prior inconsistent position is strictly necessary before the doctrine can be applied to bar subsequent litigation. See e.g., Trowbridge v. Scranton Artificial Limb Company, 560 Pa. 640, 747 A.2d 862, 864 (2000) (as a general rule, a party to an action is estopped from assuming a position inconsistent with his or her assertion in a previous action, if his or her contention was successfully maintained); compare In re Pivirotto’s Estate, 251 Pa. 548, 97 A. 80 (1916) (applying judicial estoppel to the wife of a decedent because she helped her children contest her husband’s will, although the will was never avoided).

More recently, our Supreme Court discussed this issue in In re Adoption of S.A.J., 575 Pa. 624, 838 A.2d 616, 620 (2003). Madame Justice Newman wrote the majority opinion of the court in whose opinion five of the other six justices joined. In a lengthy footnote, Justice Newman discussed, “[wjhether successful maintenance of the prior inconsistent position of litigant is strictly necessary to implicate judicial estoppel in every case, or whether success should instead be treated as a factor favoring the doctrine’s application,” concluding that the question did not require definitive resolution in order for the court to reach its holding. Id., 838 A.2d at 620 n.3. Nonetheless, the court specifically applied the Trowbridge test to determine if judicial estoppel had been appropriately applied in the case before it. The test as stated by the Supreme Court in In re Adoption of S.A.J. was as follows:

“(1) Did appellant assume an ‘inconsistent’ position in 2000 when he claimed he was the natural father, after denying paternity in 1990; and

“(2) Was his contention ‘successfully maintained?’ ” Id., 575 Pa. at 633, 838 A.2d at 621.

Here, it is undisputed that at the trial of Jackson v. Cohen, plaintiff’s contentions as to the medical negligence of Dr. Cohen were not accepted by the jury. Specifically, the jury rejected plaintiff’s contention that Dr. Cohen had been negligent and had failed to meet the appropriate standard of care in his provision of medical services. Based upon the Supreme Court’s discussion in In re S.A.J. and its reliance on Trowbridge, we find that “successful maintenance” must be established before plaintiff will be precluded from adopting an inconsistent position in the course of this latter judicial proceeding.

We acknowledge that plaintiff’s theories of liability appear inconsistent and conflicting. In the first action, plaintiff repeatedly advanced the position that the delay in delivery by caesarian section was the sole cause of her harm, arguing that prenatal events did not in any way cause or contribute to the injuries. In the present case, plaintiff alleges that had defendant Buck properly detected Cherita’s pregnancy and made the appropriate recommendations for prenatal care and testing, “Darianna’s neurologic injury could have been prevented and/or the risk of neurologic injury would have been lower.” (Complaint at paragraph 12.) Nevertheless, plaintiff asserts that Ms. Buck and the defendants in Jackson v. Cohen were under independent, separable duties of care to act and neither of them did so. Accordingly, plaintiff maintains that her legal positions in the two cases are not directly at odds, as the duties of care are of independent origin.

While there is some disagreement as to whether judicial estoppel should only foreclose successfully-maintained positions and successful litigants, this court believes that inherent in the doctrine of judicial estoppel is previous successful use of a position. See e.g., In re Estate of Bullotta, 575 Pa. 587, 838 A.2d 594 (2003); Associated Hospital Service of Philadelphia v. Pustilnik, 497 Pa. 221, 439 A.2d 1149 (1981). Accordingly, we find the doctrine to be inapplicable in the present case because plaintiff’s legal theory as to causation of her injuries was not successfully maintained. Moreover, we accept plaintiff’s assertion that, although the theories of causation appear inconsistent, they do not present the type of clear conflict which has justified application of the doctrine in other instances. See Ligon v. Middletown Area School District, 136 Pa. Commw. 566, 584 A.2d 376 (1990). Therefore, we entered the following:

ORDER

AND NOW, December 8, 2005, upon consideration of defendants’ motions for summary judgment, plaintiff’s response thereto and for the reasons stated in the accompanying opinion, the motions for summary judgment are denied.

      . Pursuant to a stipulation of the parties, filed on May 11, 2005, the Heritage Medical Group was substituted as a defendant in this matter in place of Colonial Park Family Practice.

      . On September 13, 2004, approximately two weeks prior to the scheduled trial in Jackson v. Cohen, plaintiff filed a motion to consolidate these cases and the motion was denied. The court’s failure to permit consolidation is one of the issues currently pending before the Superior Court in the appeal of Jackson v. Cohen. The basis for the trial court’s refusal to consolidate these cases was thoroughly discussed in a post-trial opinion issued on February 8, 2005.

      . Further, we note that because the jury found Dr. Cohen was not negligent, no verdict was rendered on the issue of causation. Arguably, as there was no final adjudication of this issue, the doctrine of judicial estoppel is inapplicable. See e.g., In re Estate of Bullotta, 575 Pa. 587, 838 A.2d 594 (2003). Moreover, we note that In re Estate of Bullotta was decided by the Supreme Court on the same date as In re S.A.J. with Justice Eakin writing for the majority. Both the majority and concurring opinions reference the “successful maintenance” element of judicial estoppel.