author: WRIGHT JR., Member,

text:
    Office of Disciplinary Counsel v. McCarrin
    Disciplinary Board Docket no. 164 D.B. 2000.
   To the Honorable Chief Justice and Justices of the Supreme Court in Pennsylvania:

March 8, 2006

WRIGHT JR., Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On December 28,2000, by order of the Supreme Court of Pennsylvania, Michael W. McCarrin was placed on temporary suspension from the practice of law and the matter was referred to the Disciplinary Board. On July 15,2003, Office of Disciplinary Counsel filed a petition for discipline against respondent. The petition charged respondent with professional misconduct arising out of his conviction of the crimes of mail fraud, money laundering and aiding and abetting. Respondent filed an answer to petition for discipline on October 1, 2003. On October 21,2003, respondent filed a motion for temporary stay of proceedings. Petitioner filed a response on October 30, 2003. By order of the board chair dated November 21, 2003, the board granted respondent’s motion and continued the disciplinary proceeding until respondent was released from prison.

On April 5, 2005, a disciplinary hearing was held before a District II Hearing Committee comprised of Chair Steven A. Bergstein, Esquire, and Members Mary Ann Rossi, Esquire, and Thomas M. Golden, Esquire. Respondent appeared pro se.

Following the submission of briefs by the parties, the Hearing Committee filed a report on September 30,2005 and recommended that respondent be suspended for five years with credit from November 30,2001.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting on February 1, 2006.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is situated at Suite 1400, 200 North Third Street, Harrisburg PA 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Michael W. McCarrin, was born in 1949 and was admitted to practice law in the Commonwealth of Pennsylvania in 1978.

(3) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania. He has no prior record of discipline.

(4) In 1989 respondent moved to Media in Delaware County and worked as a sole practitioner doing personal injury work and some defense work.

(5) In 1991, Klaus Reinke, president and general manager of Potamkin automobile dealerships, moved into respondent’s neighborhood and through the growth of that relationship Potamkin became one of respondent’s clients.

(6) From 1991 through 1996, respondent handled legal affairs for Potamkin and Mr. Reinke.

(7) In 1994 respondent incorporated GKA Inc. to perform surveys concerning customer satisfaction with the sales and service of Potamkin’s dealerships.

(8) Respondent listed himself as president and sole shareholder of GKA. Inc., listed members of his family as GKA Inc.’s corporate officers, listed his Media residence as GKAInc.’s corporate office, maintained a GKA Inc. bank account at PNC Bank, and operated GKA Inc. from his Media law office.

(9) The manner in which respondent formed and operated GKA concealed the fact and extent of the involvement of Klaus Reinke and his wife, Alice Reinke, and their financial interest in GKA.

(10) The customer satisfaction surveys were a vehicle to improve customer satisfaction by having the dealership, through GKA, contact the customer and resolve any issues with the vehicle or service so that when the manufacturer completed its own interview of the customer, the dealership would rate high enough to earn bonuses from the manufacturer.

(11) On August 17,1999, the United States Attorney’s Office for the Eastern District of Pennsylvania filed an indictment in the matter of United States of America v. Klaus Reinke, Michael McCarrin, Anthony Solano, charging respondent with violations of the federal crimes code as follows: title 18 U.S.C. §1341 (mail fraud), title 18 U.S.C. §1956 (laundering of monetary instruments), title 18 U.S.C. §1957 (engaging in monetary transactions in property derived from specific unlawful activity), and title 18 U.S.C. §1952 (interstate travel in aid of racketeering).

(12) By jury verdict dated February 25,2000, respondent was found guilty of nine counts of mail fraud and two counts of engaging in monetary transactions in property derived from unlawful activity and was acquitted of all other counts in the indictment.

(13) The jury found that respondent engaged in a scheme to defraud Potamkin of its intangible right to honest services and to obtain money and property by means of false and fraudulent pretenses, representations and promises.

(14) The jury found that respondent used GKAto conduct customer satisfaction surveys of only Potamkin customers for approximately $50 per survey — more than 10 times the rate normally charged for such surveys — and secretly diverted a portion of the proceeds to Klaus Reinke by issuing checks disguised as “marketing services” payment to Alice Reinke, who performed no services for GKA and who was falsely listed as earning consulting fees for “marketing.”

(15) The jury found that respondent billed Potamkin more than $461,928 between August 1994 and March 1996, for customer satisfaction surveys performed by GKA and concealed Klaus Reinke’s role in GKA. from the majority shareholders of Potamkin.

(16) The jury found that respondent attempted to obtain an additional $17,650 for customer satisfaction surveys, which Potamkin refused to pay after Mr. Reinke left as Potamkin’s general manager.

(17) The jury found that although agents of GKA, operating from respondent’s law office, earned nominal hourly fees, totaling approximately $26,504, respondent and Klaus Reinke collected approximately $392,069 in GKA proceeds, which they divided among respondent, Klaus Reinke and Alice Reinke.

(18) The jury found that respondent caused GKA to bill Potamkin for some customer surveys that were incomplete or were never performed because GKA did not have an address or telephone number for the customer or had been unable to reach the customer and obtain a response to the survey questions.

(19) The jury found that respondent arranged for Potamkin to pay GKA’s invoices, and demanded that Potamkin employees promptly issue GKA payments to respondent, who then distributed approximately $179,334 to Mr. Reinke in the form of “marketing services” payments to Mrs. Reinke.

(20) The jury found respondent kept approximately $212,735 in GKA’s proceeds in the form of checks payable to himself, or checks from GKA to finance respondent’s personal expenses, including the following: private school tuition for his children; life insurance premiums; furniture for his personal residence; a cruise through the rivers of France; personal credit card expenses; mortgage payments for his brother-in-law; federal income tax payments for himself and his wife; and for starting an automobile liquidating business controlled by respondent and his family members.

(21) The jury found that from September 1994 through July 1995, respondent and Klaus Reinke intentionally devised a scheme and executed the scheme by using the U.S. mail to send 11 checks totaling $108,678.68 from respondent’s law office to Mrs. Reinke (which represented Mr. Reinke’s share of GKA proceeds).

(22) The jury found that respondent periodically issued “draws” payable to himself from the proceeds of GKA.

(23) The jury found that respondent knowingly engaged in, and aided, abetted and caused, a monetary transaction affecting interstate commerce in criminally derived property of a value greater than $10,000.

(24) On October 19, 2000, the Honorable James T. Giles sentenced respondent to 24 months imprisonment, supervised parole for a term of two years, upon release from prison, restitution in the amount of $414,028, imposed jointly and severally with Mr. Reinke, to Lloyds of London, forfeiture in the amount of $31,289 to the United States, and a special assessment in the amount of $550.

(25) On October 27, 2000, respondent filed a direct appeal of his conviction.

(26) In January 2002, the United States Court of Appeals for the Third Circuit entered an opinion, affirming the judgment of conviction of the district court and remanding the case to district court for re-sentencing on restitution.

(27) In July 2002, after a hearing, Judge Giles reduced the restitution from $414,028 to $50,000.

(28) Respondent appealed Judge Giles’ July 2002 amended restitution order.

(29) In December 2002, the Third Circuit affirmed Judge Giles’ July 2002 amended restitution order and entered an opinion finding that the district court had properly balanced the amount of restitution, the amount of loss to the victim, and respondent’s ability to pay the full amount or part of it, present assets, present capability, as well as respondent’s future ability to pay.

(30) In January 2003, the Third Circuit entered an opinion denying respondent’s petition for rehearing.

(31) Respondent petitioned the United States Supreme Court for certiorari.

(32) In October 2003, the United States Supreme Court denied the petition.

(33) In November 2003, respondent began his incarceration.

(34) By order dated December 28,2000, the Supreme Court of Pennsylvania placed respondent on temporary suspension from the practice of law.

(35) While serving his prison sentence, respondent requested, and the Disciplinary Board granted, respondent’s request for a stay of proceedings until respondent was no longer incarcerated.

(36) In May 2005, respondent was successful in having the amount of his restitution reduced to $18,000 as a settlement with Potamkin’s insurer, Lloyds of London.

(37) Respondent paid $18,000 on June 3, 2005.

(38) In November 2005, respondent was released from incarceration.

(39) At his criminal trial and at the disciplinary hearing, respondent denied that he intentionally entered a scheme to defraud Potamkin.

(40) At his criminal trial and the disciplinary hearing, respondent testified that he did not agree to enter into a corrupt agreement with Klaus Reinke.

(41) Respondent testified that he was solicited by Alice Reinke to set up a company that seemed to respondent to be a legitimate corporate interest and seemed worthwhile.

(42) Respondent testified at the disciplinary hearing that he “got involved in this because I was supportive of the Potamkin sales effort generally because [the] sales effort generated legal fees for me. It brought thousands of people in there.” (N.T. 118.)

(43) Respondent saw GKA more as a money making vehicle for himself as opposed to his helping a client carry forward an idea.

(44) Respondent’s testimony that the venture seemed legitimate is not credible.

(45) Respondent’s contention that he innocently believed that his payments to Alice Reinke were justified where direct payments to Klaus Reinke would not have been justified is not credible.

(46) Respondent’s contention that he was a “fall guy” for Klaus Reinke is not credible; as an attorney, respondent should have known that Klaus Reinke was acting in violation of his fiduciary duty to Potamkin by participating in the profits of GKA Inc.

(47) Respondent did not demonstrate sincere remorse at the disciplinary hearing and demonstrated a lack of appreciation of the ethical issues that were involved in his dealing with Klaus Reinke and GKA Inc.

(48) At the conclusion of the disciplinary hearing, respondent testified as to what he was sorry for was:

“Well, first of all, before I came into this, I had about a million and-a-half dollars in assets, and now I owe $485,000 and I filed bankruptcy. I mean, my family was used to a really nice level of convenience. They went on vacations two times a year, they went to private school. My wife worked at the International French School and had lunch and champagne in the afternoon and now she’s in a dungeon at Drew Elementary School with a totally different group of people. You know, there are people being arrested for using baseball bats and scissors and knives, and I’m responsible for that and I’m sorry for that. I did that. I was able to do certain things that were good, but — prior to the time I got involved in this, but I am responsible for all of this. It was bad judgment on my part.” (N.T. 108-109.)

(49) Five character witnesses testified on behalf of respondent.

(50) Nelson Kardos, Michael O’Connor, Esquire, Harold Sparkler, Atiko Muttu, and John McCarrin testified to respondent’s good reputation in the community for honesty and truthfulness.

(51) Respondent served with the military police in Viet Nam in 1967. While there, he participated in the rescue of a soldier who had been trapped underneath a car in a rice paddy. Respondent received a National Defense Medal and an Army Commendation Medal. Respondent was honorably discharged.

(52) Respondent was active in the community prior to his conviction.

(53) Subsequent to his release from prison, respondent obtained full-time employment at the Philadelphia Inquirer newspaper in the mailroom.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) Pa.R.D.E. 203(b)(1) — Conviction of a serious crime constitutes an independent basis for discipline.

(2) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on his fitness as a lawyer.

IV. DISCUSSION

Where a disciplinary proceeding is predicated on an attorney’s conviction of a serious crime, the issue is whether the attorney’s character, as shown by his conduct, makes the attorney unfit to practice law from the standpoint of protecting the public and the courts. Office of Disciplinary Counsel v. Casety, 511 Pa. 177, 512 A.2d 607 (1986). The board must give serious consideration to the events surrounding the conviction to determine the impact of the conviction on the appropriate measure of discipline to be imposed. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982).

Respondent was convicted of nine counts of mail fraud and two counts of money laundering. His conduct with regard to GKA Inc. and the payments from Potamkin constitutes a serious breach of ethics and a troubling lack of insight. Respondent’s conduct lasted for approximately two years; it resulted in a payment of $461,000 from Potamkin to GKA Inc., from which respondent realized a gain of at least $212,735. Respondent used his law office to perpetrate the illegal scheme.

Respondent was indicted for causing GKAInc. to perform customer surveys at $50 each, which was 10 times above the typical amount charged for such a survey, and for making payments to Klaus Reinke by paying his wife, Alice Reinke, for marketing services which Mrs. Reinke did not perform. Respondent exercised poor judgment, which he admits. His judgment was clouded by the promise of easy money and the perception of the power and influence wielded by Klaus Reinke. Respondent’s expression of sorrow centers on the personal financial consequences of his action, rather than real remorse for engaging in criminal and unethical activities.

In determining discipline, the Board and the Supreme Court look to prior decisions in similar cases in the interest of consistency so that similar misconduct is not punished in radically different ways. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). It is appropriate to consider aggravating and mitigating factors in determining discipline. The court has imposed sanctions ranging from a three-year suspension up to disbarment for conviction of mail fraud.

In the matter of Office of Disciplinary Counsel v. Anonymous No. 21 D.B. 1996, 174 Disciplinary Docket no. 3 (Pa. May 7, 1997), the respondent received a three-year suspension for a conviction of two counts of mail fraud. The respondent engaged in a scheme of submitting false medical reports to insurance companies. The purpose of the scheme was to inflate the insurance claim and receive more money from the insurance companies than was warranted. The respondent expressed limited remorse for his actions, concentrating on the embarrassment to his family. A four-year suspension was imposed in the matter of In re Anonymous No. 20 D.B. 81, 35 D.&C.3d 202 (1985). That matter involved a respondent who was convicted of 13 counts of mail fraud and one count of conspiracy arising out of the submission of false claims to insurance companies to effectuate larger settlements for personal injury clients. In contrast to the above cited matter, this respondent expressed true remorse and had an impressive record of community activity both before and after his conviction.

The court did not hesitate to enter a five-year suspension for a single count of mail fraud, where the attorney had also suborned the perjury of his mother before a grand jury. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999). The court entered a five-year suspension in the matter of Office of Disciplinary Counsel v. Chung, 548 Pa. 108, 695 A.2d 405 (1997). Mr. Chung was convicted of three counts of mail fraud after he engaged in a scheme of submitting false financial information on 30 occasions in order to obtain loans for his clients.

Likewise, disbarment has been imposed in egregious cases, such as in the matter of Office of Disciplinary Counsel v. Tumini, 499 Pa. 284, 453 A.2d 310 (1982). Mr. Tumini was disbarred for money laundering, bribing a public official, false swearing and perjury. Mr. Tumini demonstrated a fundamentally dishonest approach to the practice of law and the conduct of his professional relationships. He perjured himself before a grand jury and only recanted the perjured testimony under direct threat of a criminal indictment.

Here, respondent has expressed limited remorse, but does acknowledge that his conduct was grievous. He did make restitution. Respondent enjoys a good reputation and is of good character. He served with distinction in the military and received an honorable discharge. He served his prison sentence. His conduct, while intentional, does not rise to the same level of deceit and duplicity evidenced by Mr. Tumini. Considering all of the circumstances in light of the criminal conduct, the board is persuaded that disbarment is not warranted. The board recommends a suspension of five years, retroactive to December 28, 2000, the date of respondent’s temporary suspension.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Michael W. McCarrin, be suspended from the practice of law for a period of five years retroactive to December 28, 2000.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Mr. Brown recused himself from the proceeding.

ORDER

And now, May 25, 2006, upon consideration of the report and recommendations of the Disciplinary Board dated March 8, 2006, it is hereby ordered that Michael W. McCarrin be and he is suspended from the bar of this Commonwealth for a period of five years retroactive to December 28, 2000.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: MAZZONI, J,

license: Public Domain

text:
    Prizm Asset Management Company v. Moosic Borough Planning Commission

      C.P. of Lackawanna County,
    no. 2005 CIV 3513.

      John G. Dean, for petitioners.

      Christopher Powell, for respondent Moosic Borough Planning Commission.

      John J. Brazil, for intervenor Moosic Borough.

      DavidK. Brown, for intervenor Dickinson.

      William P. Jones, for intervenor Hemingway.
    February 3, 2006
   MAZZONI, J,

I. INTRODUCTION

What is before this court is a petition for “Permission to appeal nunc pro tunc” filed on September 1, 2005 by petitioners Prizm Asset Management Company, Preit Services Ltd. and Diann Van Louvender. This petition seeks review of respondent Moosic Borough Planning Commission’s conditional approval of a land use application submitted by Hemingway Development Limited Partnership. The application submitted to the Planning Commission sought approval for the development of a retail store complex referred to as “The Shoppes at Montage.”

Hemingway and Dickinson Development Partnership, both of whom claim ownership interests in whole or in part in the subject land, filed notices of intervention on September 30,2005. The Borough of Moosic, who claims that the Planning Commission is a body of the Borough, also filed a notice of intervention of September 30,2005.

The respondent Moosic Borough Planning Commission and the intervenors filed timely answers and new matter to the subject petition. Furthermore, the Planning Commission and the intervenors filed, on October 24, 2005, a “joint motion to quash land use appeal.” The petition for permission to appeal and the motion to quash were heard on November 3,2005. The parties elected to argue their respective positions relying upon their briefs, exhibits in support thereof, and the certified record. Accordingly, the arguments advanced by all parties will be addressed in this memorandum and order.

II. PROCEDURAL HISTORY/FACTUAL ALLEGATIONS

In their petition, the petitioners/objectors (Prizm, Preit and Van Louvender) claim that on June 15, 2005, the Moosic Borough Planning Commission granted conditional approval to Hemingway for a retail development, commonly referred to as “The Shoppes at Montage.” The development is intended to be constructed on the Montage Mountain area, within the Borough of Moosic, Lackawanna County, Pennsylvania. The petitioners claim that the land development plan submitted by Hemingway wrongfully represents that the entire project is contained within the permissible “Plan Development Zone” (PDZ). The petitioners claim that Hemingway’s submission is in error and that approximately 60 percent of this proposed project is within Moosic Borough’s Conservation Zone (C-N zone), a zone which does not permit construction of the proposed project. (See paras. 5-9 of petition.)

The petition further states that the petitioners first learned of the aforementioned irregularity or error “in connection with an August 11,2005 hearing before the Pennsylvania Department of Environmental Protection ....” (See para. 14 of petition.) Although the petition is silent as to the exact date, an affidavit of James W. Walsh, vice-president of Prizm, states that Prizm learned of the error on August 3,2005. (See exhibit 2 attached to petitioner’s brief in opposition to motion to quash.) Petitioners further claim that they retained Mr. Terrance J. Ostrowski PE. of the engineering firm of Borton-Lawson, who confirmed that 59 percent of the project site is in the C-N zone. (See affidavit of Ostrowski, attached as exhibit 1 to petitioner’s brief in opposition to motion to quash.)

Acknowledging that the requested appeal was untimely filed, petitioners claim that they are entitled to relief because an administrative official, as well as the Planning Commission, committed fraud by acting ignorantly, negligently, or wrongfully “in failing to identify the apparent inaccuracies and misrepresentations in Hemingway’s plan ....” (See paras. 15,16,17 of petition.)

The respondents/intervenors, in their answer and new matter, deny all of the above allegations contained in the subject petition. More specifically, the respondents/intervenors claim that the Planning Commission issued its approval on February 23,2005. Furthermore, they maintain that the subject project is entirely within the PDZ zone and the application filed in connection with the subject approval is accurate. (See paras. 5-9 of answer and new matter.) In addition to same, and under the heading of new matter, the respondents/intervenors raise issues of timeliness of appeal as well as standing both of which are more comprehensively addressed in the motion to quash.

The respondents/intervenors filed a joint motion to quash. Among the claims raised therein, the motion states that the petitioners’ requested relief should be denied because the appeal is untimely and there exists no extraordinary circumstances to permit the granting of an appeal nunc pro tunc. Furthermore, the respondents/intervenors also claim that the petitioners are not aggrieved parties and accordingly, lack the necessary standing. On the issue of standing, the petitioners, in their brief in opposition, assert that they do have the requested standing. Prizm, who manages The Steamtown Mall located in the City of Scranton, asserts that Prizm and The Steamtown Mall will “suffer substantial economic damages” through the anticipated loss of its tenants base. (See exhibit 2 to petitioner’s brief in opposition.) Likewise, Preit, which has some association with the Wyoming Valley Mall located in Wilkes-Barre Township, Luzerne County, Pennsylvania and The Viewmont Mall located in Dickson City, Lackawanna County, Pennsylvania, also claims a similar economic hardship if the development is permitted to proceed. (See exhibit 7 to petitioner’s brief in opposition.)

Petitioner Van Louvender also submitted an affidavit in which she asserts that she is a “taxpayer, homeowner, and resident of the Borough of Moosic.” In addition thereto, she claims that her standing is further supported by her desire to “preserve the natural, scenic, recreational, and aesthetic values of the land sought to be developed for ‘The Shoppes at Montage’.” (See Van Louvender affidavit attached as exhibit 6 to petitioner’s brief in opposition.)

III. ISSUES

Whether the petitioners are entitled to appeal the Borough of Moosic Planning Commission’s decision?

IV. STANDARD/SCOPE OF REVIEW

The scope of judicial review in a land use appeal where the trial court has not taken any additional evidence is limited to a determination of whether the zoning hearing board and/or the planning commission committed an error of law or abused its discretion. Stassi v. Ransom Township Zoning Hearing Board, 54 D.&C.4th 303 (Lacka. Cty., 2001); Phillips v. Zoning Hearing Board of Montour Township, 116 A.2d 341, 342 n.2 (Pa. Commw. 2001); World School House Residences Limited Partnership v. Zoning Hearing Board of the City of Scranton, 102 Lacka. Jur. 14, 18 (2000), aff’d, 777 A.2d 544 (Pa. Commw. 2001). A governing body abuses its discretion if its findings are not supported by substantial evidence. Ruf v. Buckingham Township, 765 A.2d 1166, 1168 n.2 (Pa. Commw. 2001); City of Scranton v. Zoning Hearing Board of City of Scranton, 101 Lacka. Jur. 159, 161 (1999), aff’d, 767 A.2d 33 (Pa. Commw. 2000). “Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cardamone v. Whitpain Township Zoning Hearing Board, 771 A.2d 103, 104 (Pa. Commw. 2001); Glynn v. Zoning Hearing Board of Dickson City, 101 Lacka. Jur. 145, 151 (1999). Furthermore, when a zoning appeal presents a question of law, the scope of appellate review is plenary. Cranberry Park Associates v. Cranberry Township Zoning Blearing Board, 561 Pa. 456, 751 A.2d 165, 166 n.4 (2000).

An appeal taken out of time (nunc pro tunc) is permitted when the party seeking relief demonstrates that the delay was caused by extraordinary circumstances involving fraud, its equivalent, or a breakdown in the court’s operation due to the default of its officers. Dickson Estate, 443 Pa. 303, 279 A.2d 39 (1971).

V. DISCUSSION

A. Timeliness of Appeal

The appeal in the instant action is appropriately characterized as a “land use appeal” and is accordingly guided by the Pennsylvania Municipalities Planning Code, 53 PS. §10101 et seq. All appeals from land use decisions “shall be taken to the court of common pleas ... within 30 days within entry of the decision____” 53 PS. § 11002-A.

Generally speaking, the court has no power to extend the period for taking appeals except in very limited circumstances. An appeal taken out of time (nunc pro tunc) is permitted, however, when the party seeking relief demonstrates that the delay was caused by extraordinary circumstances involving fraud, its equivalent, or some breakdown in the court’s operation due to the default of its officers. Dixon Estate, 443 Pa. 303, 279 A.2d 39 (1971); West Penn Power Company v. Goddard, 460 Pa. 551, 333 A.2d 909 (1975); Weiman by Trahey v. City of Philadlephia, 129 Pa. Commw. 25, 564 A.2d 557 (1989), app. after remand, 163 Pa. Commw. 672, 641 A.2d 730 (1994). The equivalent of fraud essentially means “the ignorant, negligent, or wrongful acts of a court or [an] administrative official which misled an aggrieved party to his detriment.” In re Appeal of Girolamo, 49 Pa. Commw. 159, 164, 410 A.2d 940 (1980).

From a reading of the parties’ submissions, there appears to be a conflict as to when the Planning Commission issued its conditional approval. Petitioners maintain that the conditional approval was given on June 15, 2005. As support for their position, the petitioners rely upon a letter dated June 15, 2005 from the Moosic Borough Planning Commission Secretary Joseph Dente to a Mr. Anderson, Director of Development. (See exhibit A attached to petition.) Conversely, the respondents/intervenors claim that the Planning Commission’s approval was granted on February 23,2005. The exhibits and certified record submitted however, tend to favor the respondents/intervenors’ assessment.

Irrespective of which date one ascribes to the grant of approval, there is no question that petitioners’ appeal was filed out of time.

The petitioners’ claim that the fraud, or otherwise wrongful conduct, involved the Planning Commission’s approval of a development plan which was allegedly riddled with “misrepresentations and inaccuracies.” (See para. 6 of petition.) More specifically, petitioners assert that the plan, as submitted, wrongfully represents that the entire project is in the Moosic Borough Plan Development Zone (PDZ), a zone that would allow retail use under the appropriate zoning ordinances. Petitioners claim that 60 percent of the proposed site lies within the Moosic Borough’s Conservation Zone (C-N zone) which does not permit such development.

Although the petition is silent as to the exact date that the petitioners became aware of the alleged error, the petition does state that it was discovered in preparation for or in connection with an August 11, 2005 hearing before the Pennsylvania Department of Environmental Protection. (See para. 14 of petition.) One James M. Walsh (vice-president of Prizm), in his affidavit dated October 28, 2005, stated that on August 3,2005, he became aware that this project or parts thereof may be in a C-N zone. (See para. 11 of Walsh affidavit attached as exhibit 2 to petitioner’s brief in opposition.) One Richard Ziegler (development director for Preit Services), in his affidavit dated November 1, 2005, stated sometime after August 3, 2005, Preit learned of the alleged error. (See para. 4 of Ziegler affidavit attached as exhibit 3 to petitioner’s brief in opposition.)

A Mr. Terrance J. Ostrowski, a registered professional engineer for the engineering firm of Borton-Lawson, was retained by Prizm and Preit and submitted an affidavit dated October 31, 2005. (See exhibit 1 attached to petitioner’s brief in opposition.) In his affidavit, Ostrowski states that in preparation for the August 11, 2005 DEP hearing, he acquired the Moosic Borough’s zoning map and the developer’s map to determine if the zoning lines were correct. He made the necessary adjustments as to scales and scanned the map into a special software package. Upon conclusion of the process, he concluded that 59 percent of “The Shoppes at Montage” site lies within the C-N zone, and accordingly, the developers’ plans were in error.

The petitioners principally rely upon the cases of Grand Central Sanitary Landfill Inc. v. Zoning Hearing Board of Plainfield Township, 155 Pa. Commw. 273, 625 A.2d 115 (1993) and In re Appeal of Girolamo, 49 Pa. Commw. 159, 410 A.2d 940 (1980). In Grand Central (an appeal from a zoning hearing board decision), adjacent property owners complained to the township zoning officer that the landfill was conducting its operation in violation of the 500-foot setback provision in the township zoning ordinances. The zoning officer concluded that Grand Central was in fact operating outside of the 500-foot setback but also determined that the landfill operation was a pre-existing, nonconforming use. The objectors appealed this decision to the zoning hearing board which affirmed the zoning officer’s decision. A timely appeal was not taken.

Sometime later, the objectors discovered that the testimony of a Grand Central representative was false and accordingly, the objectors filed a motion for reconsideration with the zoning hearing board. Upon reconsideration, the board concluded that there were misrepresentations advanced and accordingly, there were mistakes of fact made by the board regarding the landfill’s preexisting, nonconforming use. The board reversed its decision and concluded that the adjacent tract was not a pre-existing, nonconforming use and was subject to the 500-foot setback. From this decision, Grand Central took a timely appeal to the court of common pleas. The lower court found that the board had no jurisdiction over the reconsideration after it rendered its final order because it does not have the power to reconsider its decisions. The objectors appealed the trial court’s decision.

Upon review, the Commonwealth Court concluded that the MPC did not confer the power of reconsideration upon zoning hearing boards. Relying upon Appeal of Girolamo, supra, and in affirming the lower court’s opinion, the Commonwealth Court held that the objectors should have filed a petition nunc pro tunc. The court further noted:

“In that petition they could have alleged fraud, a legitimate basis for . . . nunc pro tunc petition, . . . and if the court found such allegations to be true it could have vacated the board’s decision and then taken testimony on the merits or remanded the case for the board to do so.” Grand Central, supra at 279, 625 A.2d at 119.

In Appeal of Girolamo, supra, the municipality granted a permit to allow an expansion of a nonconforming use. The landowner who owned a grocery store applied for a permit to expand his current use. The notices sent to interested parties stated that the applicant intended to convert the premises into additional grocery store space. No objections were lodged and the permit was granted. Renovations were made and, contrary to the application, the applicant opened a restaurant on the premises. Almost three months after the permit was granted, the owner of an adjacent property filed an appeal with the court of common pleas. The landowner/applicant moved to quash the appeal as being untimely. The trial court denied the motion to quash and reversed the board and revoked the permit.

On appeal, the Commonwealth Court affirmed the lower court’s decision. The Commonwealth Court found that the applicant had set forth in his application misleading information that was “tantamount to fraud.” Because the adjacent landowner was not aware of the ultimate use until sometime after the renovations were made, the trial court had the power to extend the 30-day period. The trial court extended the 30-day period starting from the time the objector discovered the impermissible use.

It is interesting to note that in Girolamo, the appellate court took issue with the trial court’s liberal extension of time. The Commonwealth Court found it somewhat incredible that the objector discovered the impermissible use at the time that the restaurant opened and not before. Not willing to disturb the lower court’s finding, the Commonwealth Court held that “even where fraud is present, a late appeal must be filed within a reasonable time after the fraud is discovered.” Appeal of Girolamo, supra at 166, 410 A.2d at 944.

The cases cited by the petitioners and referenced herein bear little resemblance to the case at bar. In Grand Central, supra, it was readily apparent and undisputed that the parcel in question was not a pre-existing, nonconforming use. The complainant merely searched “land use filings and DER records” which reflected that the use was not as represented. Grand Central, supra at 276, 625 A.2d at 117. In Appeal of Girolamo, it was apparent that once the restaurant opened, the landowner’s use conflicted with the application and the notices that were forwarded to interested parties. Accordingly, in Grand Central, supra and Appeal of Girolamo, supra, there were blatant and undisputable misrepresentations which triggered petitioners’ untimely appeal.

In the case at bar, and except for conclusionary allegations in the petition, there is little to support a claim for fraud on the part of the developer and/or the administrative officials of the Borough of Moosic. This court recognizes that Moosic Borough’s zoning map does not specifically reference definitive surveyed lines defining the precise dimensions of the respective zones. Nonetheless, it is apparent that Mr. Durkin diligently referenced not only all of the available maps including preexisting approved subdivision submissions, he also relied upon his knowledge of the area and the accompanying geographic topography.

In his deposition and in response to questions inquiring about the basis of his conclusion, Mr. Durkin testified as follows:

“So I, myself, and the secretary of the planning commission, Borough of Moosic, arrived at the same decision that we had earlier, that it was well within the PDZ zone by familiarity with the area, the topography and the fact that we had both been there many times, being that the PDZ zone was way up over the hill and the conservation zone was at the bottom. I was satisfied, as I had been before, that it was,, in its entirety, in the PDZ zone and a distance from the CN.” (See Durkin depo. pp. 38-39.)

Principally, the petitioners rely upon Mr. Terrance J. Ostrowski’s affidavit as support for the existence of fraud and/or misrepresentation. There is no evidence to support that Mr. Ostrowski is more familiar with the zoned areas in question than Mr. Durkin. Secondly, Mr. Ostrowski relied almost exclusively upon a software package whose accuracy and reliability in the profession is simply not addressed in any of the submissions. Without supporting data on the “overlay process” used, this court is not willing to rely upon this software package to substantiate a claim of fraud or misrepresentation on the part of the administrative borough officials or the developer. It is apparent to this court that the Planning Commission and the Zoning Officer performed their due diligence to otherwise conclude that the project is within the appropriate zone.

Lastly, this court is compelled to address the timeliness of this appeal as it relates to the date of the Planning Commission’s decision. The minutes of the Borough of Moosic Planning Commission’s meeting of February 23, 2005 reflect that the Planning Commission unanimously granted “preliminary and final approval for the proposed ‘The Shoppes at Montage’ ” with attending conditions. Furthermore, the minutes reflect that counsel for petitioners (Attorney John Dean) was present and “spoke about the negative economic impact the project would have on existing retailers in the area.” (See exhibit 19 to certified record.)

Despite the aforementioned historical background, the petitioners claim that the Planning Commission granted approval on June 15,2005. Petitioners’ assertion is predicated on a Planning Commission letter dated June 15, 2005, authored by Joseph Dente, Secretary, directed to Mr. J.R. Anderson, Director of Development. (See exhibit A attached to petition.) A review of this letter simply corroborates the aforementioned history. This letter, in pertinent part, states as follows:

“At the meeting of the Moosic Borough Planning Commission held on February 23, 2005 preliminary/final approval of the land development plan was unanimously granted for The Shoppes at Montage located on Glenmaura National Boulevard based on the following conditions

As indicated herein, the time period within which an objector has to appeal a planning commission’s decision is guided by section 1002-A of the MPC. The intent of section 1002-A, as interpreted by appellate courts, was “to begin that period when the municipality’s decision process has been finalized with sufficient clarity that any party aggrieved by the decision can evaluate whether or not to appeal.” Peterson v. Amity Township Board of Supervisors, 804 A.2d 723, 728 (Pa. Commw. 2002). In Peterson, the Commonwealth Court held that “an oral approval by the board meets the standard” and further noted,

“Moreover, causing the appeal time to be triggered by expiration of the time for delivery of a written decision is problematic. First, a written decision is served on the applicant, not the objecting neighbor.... In addition, an applicant may extend the time within which the board must reduce its oral approval to writing, or waive the requirement altogether. In this circumstance, an aggrieved objector would be left to guess when his appeal time has begun to run or, worse, the time might never begin to run at all. Accordingly, we hold that the formal vote of the municipality to approve a subdivision plan begins the 30-day period within which an aggrieved objector must appeal, at least to the extent the objector has actual or constructive notice of the decision.” Id. at 728.

Accordingly, in the case at bar, the appeal period began to run on the night of the Planning Commission’s oral approval, to wit, February 23, 2005 and the petitioners/objectors, through counsel, had timely notice of same.

The petitioners, in this case, through counsel, were aware of the Planning Commission’s decision on February 23, 2005. By the petitioner’s own admission, it was not until August 3,2005, in preparation for an EFIB hearing, that their suspicions were aroused. Neither the respondent nor the intervenors attempted to conceal any of their actions. The same methodology and documents used by Mr. Ostrowski in August 2005 were available to the petitioners in February and March 2005. (emphasis added) To grant an untimely appeal in this case would unjustly provide precedential authority to other untimely filed objections requesting relief predicated upon conclusionary claims of fraud and/or misrepresentation. This court is not willing to circumvent the clear language of the MPC and accompanying appellate authority. With the exception of extraordinary circumstances, municipal bodies, applicants, and objectors are entitled to rely upon the black letter of the MPC, the clear language of the MPC and the court’s corresponding enforcement of same. To do otherwise would simply dilute the MPC to a meaningless compilation of regulations and/or recommendations.

Accordingly, and assuming there does exist viable allegations of fraud which this court rejects, this court concludes that the petitioners simply failed to file their appeal within a reasonable time after the alleged misrepresentations should have been discovered. Appeal of Girolamo, supra.

B. Standing

In general, an appeal from a zoning decision may be taken by any person aggrieved by the decision. See Cablevision — Division of Sammons Communications Inc. v. The Zoning Hearing Board of City of Easton, 13 Pa. Commw. 232, 320 A.2d 388 (1974), overruled on other grounds; Miller v. Upper Allen Township Zoning Hearing Board, 112 Pa. Commw. 274, 535 A.2d 1195 (1987); 53 P.S. §1107. A “person aggrieved” must have a direct interest in the subject matter of the litigation, which interest must be adversely affected by the challenged action. Cablevision at 235, 320 A.2d at 390. Moreover, the person’s interest must be substantial, immediate or direct, and not a remote consequence of the judgment. Id. The objector can be an abutting property owner or an owner in the immediate vicinity as long as the objector falls within the definition of an aggrieved person as set forth above. See In re The Appeal of Farmland Industries Inc., 109 Pa. Commw. 304, 531 A.2d 79 (1987).

With respect to Prizm and Preit, it is alleged that each has standing based on the direct and adverse pecuniary impact of the Planning Commission’s decision. Particularly, both parties assert that each will “lose critical tenants and a readily foreseeable percentage of their revenue” because of the Planning Commission’s approval of the intervenor’s project. (See petitioner’s brief, p. 10.) Like the objector in In re Farmland, supra, petitioner’s argument is misplaced and insufficient to establish standing. In In re Farmland, the objector opposed a zoning variance granted to a competitor, Stop-n-Go (appellee), which was located approximately one-half mile from the objector’s place of business. In concluding that the objector lacked standing to appeal the zoning decision, the court held that the objector was not a person aggrieved because its interest was not substantial and immediate in that, like here, the zoning decision had no effect on the objector’s property. Id. at 314, 531 A.2d at 83. Instead, the court reasoned that the objector was impermissibly using the appeal process to impede the location of a competitor in its trading area. Id. at 314-15, 531 A.2d at 84. This idea of competitive harm has consistently been held not to confer the aggrieved party standing in zoning cases. Id.; Nernberg v. City of Pittsburgh, 153 Pa. Commw. 219, 226, 620 A.2d 692, 696 (1993) (holding that the possibility of competition, i.e., competitive harm, is not sufficient to confer an aggrieved party standing in a zoning case).

Next, the petitioner also contends that, as in the case of Application of El Rancho Grande Inc., 496 Pa. 496, 437 A.2d 1150 (1981), standing is present because the petitioners are possibly the only persons financially affected enough to be able and/or willing to mount an appeal [that] would be “vigorous and reliable” representations of the public interest. (See petitioner’s brief, pp. 11-12.) Again, we find petitioner’s reliance upon El Rancho to be misplaced.

In Application of El Rancho, supra, the standing issue before that court did not pertain to a zoning case, but rather a statutory violation of the Liquor Control Board. Specifically, the court held that because the competition’s economic injury was so “inextricably intertwined” with the goals of the liquor code to restrain the sale of liquor, not promote it, that standing would be conferred upon the competitors to challenge the board’s issuance of a liquor license in excess of the prescribed statutory quota. Set Application of El Rancho, supra at 508, 437 A.2d at 1155. Here, as previously mentioned, the case at bar concerns standing in zoning/landuse cases. In fact, the court in Nernberg, in distinguishing El Rancho, stated that the zoning ordinance, unlike the liquor code, is not part of a regulatory scheme to protect against competitive injury and thus competition is not the kind of direct injury which gives rise to standing in zoning cases. See Nernberg, supra at 227, 620 A.2d at 696. Therefore, we conclude that El Rancho is inapplicable to the facts of the instant case.

Having determined that petitioners Prizm and Preit cannot rely upon economic harm to achieve standing to file an appeal from the Planning Commission’s decision, we turn now to the standing of petitioner, Diann Van Louvender.

In reviewing petitioner’s brief, it is alleged that standing is conferred upon Ms. Van Louvender because, as a resident of Moosic, she can challenge a land use decision that will impact on conservation-zoned land so designated to protect the natural and scenic value of her community. (See petitioner’s brief, p. 9.) In support of her claim for standing, Ms. Van Louvender submitted an affidavit, the particulars of which are as follows:

“Affidavit of Diann Van Louvender

“I, Diann Van Louvender, hereby duly sworn, depose and state:

“(1) I am a taxpayer, homeowner and resident of the Borough of Moosic;

“(2) I am currently not employed and was last employed at the now defunct Techneglas plant which was located in Jenkins Township, Luzerne County, Pennsylvania.

“(3) My home is located at 618 Boise Street, Moosic Borough, Pennsylvania.

“(4) I believe that the land that is to be used for the proposed Shoppes at Montage development is, at least in part, properly zoned as a conservation zone.

“(5) I believe that Moosic Borough’s Planning Commission illegally approved the Shoppes at Montage development because it lies within an area zoned for conservation development.

“(6) My interest in the illegal decision of the Moosic Borough Planning Commission is direct, immediate, and substantial.

“(7) Specifically, I want to preserve the natural, scenic, recreational and aesthetic values of the land sought to be developed for Shoppes at Montage.

“(8) Moosic’s conservation zone as properly delineated will preserve the values I hold dear.

“I make the foregoing statements knowingly, truthfully and under penalty of perjury.

“/s/Diann Van Louvender” (See exhibit 6 to petitioner’s brief.)

Although the record is silent on the issue, it was asserted at argument that Ms. Van Louvender’s residence is approximately two miles from the subject property. In further support of her position, petitioner contends that, since the Commonwealth’s Constitution “gives people the right to the preservation of natural, scenic, historic, and aesthetic values of the environment, that residents of a municipality have standing when the municipality fails to uphold its ordinances designed to preserve and conserve such areas.” (See petitioner’s brief, p. 9.) In support of her position, petitioner relies upon White v. Township of Upper St. Clair, 799 A.2d 188 (Pa. Commw. 2002).

This court finds White v. Township of Upper St. Clair, supra, to be factually remote from the case at bar. In White, residents of the township brought an action seeking declaratory and injunctive relief challenging the construction of a 350-foot high communications tower in a public park which was conveyed to the township under deed. The deed conveyed to the township limited the use of the subject property to recreation, conservation, and historic purposes. The conveyance and acceptance of the deed constituted a clear dedication to the purposes specified therein and the residents of the community, as taxpayers therein, had standing to contest any infringement on the use of the public park. In essence, the court held that the objectors had standing to enforce the terms of a deed dedication of public land.

Conversely, the respondents/intervenors rely upon the Commonwealth Court case of Application of Rouse & Associates Ship Road Land Limited Partnership, 161 Pa. Commw. 52, 636 A.2d 231 (1993). In Application of Rouse, the developer, Rouse & Assoc., submitted a preliminary subdivision and land development plan with East Whiteland Township. Over the objections of interested residents of the municipality as well as wildlife/ conservation organizations, the developer was granted preliminary approval of the subdivision plan. An appeal was taken to the trial court. The trial court dismissed the objectors’ appeal for a variety of reasons, one of which was standing.

“After the withdrawal of the resident objectors, the remaining objectors do not own any property that will be affected by the subdivision plan, but merely assert that the waterways they seek to protect and utilize for recreational purposes will be adversely affected by the planned sewage treatment method. The remaining objectors’ interest in the decision is not sufficiently immediate, substantial, or direct because they assert only an abstract potential injury to their recreational activities. As such, the remaining objectors’ interest in appealing the supervisors’ decision is simply too tenuous to confer standing upon them.” Id. at 58-59, 636 A.2d at 235. (emphasis in original) (citations omitted)

In assessing the respective positions of the respective parties, we feel that the case at bar is more analogous to the case of Application of Rouse, supra. From a literal reading of her affidavit, Ms. Van Louvender’s claim of standing is one predicated upon her interest in preserving, in its entirety, those lands which have been zoned CN. Unlike White, supra, there is no claim that the subject land within this conservation zone is public land and correspondingly, there is no legitimate claim or right to use the same for recreational purposes or otherwise. Because of the lack of proximity to the subject site, there is no direct or indirect harm claimed by Ms. Van Louvender to her property interest. Her interests in maintaining the scenic nature of the environment is indistinguishable from those of the general public irrespective of residence or boundaries. The law requires that in order for one to be “aggrieved,” the objectors’ interests in the decision must be sufficiently immediate, substantial, and/or direct and not a remote consequence thereof. Although her concerns are well-intended, Ms. Van Louvender’s interest as expressed in her affidavit falls short of the applicable standard. To hold otherwise would be validating a standing claim that has no parameters or boundaries,

ORDER

And now February 3, 2006, upon consideration of petitioners’ request for nunc pro tunc relief, respondents/ intervenors’ motion to quash, briefs in support of and in opposition thereto, as well as argument of counsel, it is hereby ordered and decreed as follows:

(1) With regard to the issue of standing, respondents/ intervenors’ motion to quash is hereby granted;

(2) Notwithstanding the above, and with regard to the issues of timeliness and existence of extraordinary circumstances concerning petitioners’ request for nunc pro tunc relief, respondents/intervenors’ joint motion to quash land use appeal is hereby granted. For reasons recited in this court’s foregoing memorandum, petitioners’ petition for nunc pro tunc relief is hereby denied.

      . Hemingway claims that the subject application was submitted by Hemingway in its capacity as a general partner of Dickinson Development Partnership. (See para. 5 of Hemingway’s answer to petition.) Dickinson claims to be a general partnership and Hemingway is claimed to be a general partner of Dickinson. (See paras. 24 and 25 of Hemingway’s answer and new matter to petition.)

      . In addition to the parties’ submissions and attached exhibits, the parties agreed to submit and did submit to the court the discovery deposition of Moosic Borough Zoning Officer James P. Durkin, said deposition dated September 3, 2005. This deposition was taken by counsel for the objectors in the Pennsylvania Environmental Hearing Board adjudication.

      . It is important to note that the same petitioners raised the same “zoning claim” at a hearing before the Pennsylvania Environmental Hearing Board in early October 2005 regarding a request for supersedeas relating to DEP’s grant of a NPDES permit. In an opinion and order dated October 24, 2005, the Environmental Hearing Board dismissed the petitioner’s zoning claim. Acknowledging that the zoning lines are difficult to pinpoint with accuracy, the board found Mr. Ostrowski’s methodology “skeptical.” Furthermore, the board found Moosic Borough’s Zoning Officer’s testimony to be credible and further found that his testimony supports the conclusion that “the entire project site is within the Plan Development Zone.” (See pages 9,10 of Hearing Board’s opinion attached to respondents’/intervenors’ brief in support of motion.)

      . The Zoning Officer, in part, also relied upon his knowledge and review of previous approved minor subdivision plans of Hemingway Development dated 8/31/2004 and revised 9/2/2004. (See Durkin depo. pp. 40-43.)

      . The subject park consisted of 200 acres which had remained undeveloped and consisted of rolling hills, forest, meadows and wetlands traversed by hiking trails. It served as a reserve for wild flora and fauna. The township’s conservation plan designated the park for recreational purposes and further recited the township’s commitment to preserve open space.


author: COX, J,

text:
    Pennington v. Lawrence County Family Medicine Inc.

      C.P. of Lawrence County,
    no. 10543 of 2003.

      Susan M. Papa and Daniel S. Soom, for plaintiff.

      Gayle L. Godfrey, for defendants Jameson Memorial Hospital and Jameson Health System.
    February 28, 2007

      . Hereinafter, defendants will be referred to as Jameson.

   COX, J,

Before this court for disposition is defendants Jameson Memorial Hospital and Jameson Health System’s motion for partial summary judgment. Each party has filed briefs in support of their respective position and on January 29, 2007, oral argument was held on the motion. Based on the evidence presented, this court makes the following findings of fact:

I. FACTUAL BACKGROUND

This case arises out of the death of Delbert Joseph Pennington. Plaintiff submitted to this court an expert report published by Dr. William F. Miser to support her claims against all defendants. In this report, Dr. Miser describes, inter alia, sporadic treatment provided by Jameson Emergency Room over a two-year period for abdominal discomfort and chest pain. The hospital records illustrate that during this treatment, Jameson provided decedent with antacid and pain reliever, and then advised him to receive follow-up treatment from his family physicians, Dr. David Shober and Dr. Stephen Ritz. On May 15,2001, decedent suffered cardiac arrest from which he did not recover, and was pronounced dead at the former St. Francis Hospital, located in New Castle, Pennsylvania, at 2:20 p.m. Based on Dr. Miser’s review of the treatment records, he opined with a high degree of medical certainty that Dr. Shober and Dr. Ritz were negligent in their care of decedent. However, in his conclusion, Dr. Miser does not criticize any of the treatment provided by defendant Jameson.

In a deposition of Dr. Shober, he stated that he was a staff member at Jameson Hospital from 1995 until the present time. However, there are no facts presented to this court that suggests he treated decedent in that capacity during the relevant time in which plaintiff’s claim rests. Nor do any facts suggest Dr. Ritz ever treated decedent as a staff member of Jameson. All treatment rendered by the doctors was in their capacity as decedent’s family physicians.

II. SUMMARY JUDGMENT

Summary judgment is a procedural tool utilized to dispose of cases in which no genuine issue of material fact remains in dispute. Ertel v. Patriot-News Company, 544 Pa. 93, 674 A.2d 1038 (1996), reargument denied (1996), certiorari denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). Only after all relevant pleadings have closed and it is established that there exists “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” is summary judgment properly granted. Grossman v. Barke, 868 A.2d 561, 566 (Pa. Super. 2005), citing Morningstar v. Hallett, 858 A.2d 125 (Pa. Super. 2004). A material fact is one that directly affects the outcome of the case. See Gerrow v. Shincor Silicones Inc., 756 A.2d 697 (Pa. Super. 2000); see also, Kuney v. Benjamin Franklin Clinic, 751 A.2d 662 (Pa. Super 2000).

When determining whether summary judgment is appropriate, the court must view the record in the light most favorable to the non-moving party. Dean v. PennDOT, 561 Pa. 503, 508, 751 A.2d 1130, 1132 (2000). However, the non-moving party cannot rely solely on its pleadings. George Stash & Sons v. New Holland Credit Company, 905 A.2d 541, 542-43 (Pa. Super. 2006). Rather, he or she has a responsibility to respond to a motion for summary judgment and demonstrate through specific facts that a genuine issue of material fact remains in dispute for trial. Phaff v. Gerner, 451 Pa. 146, 149-50, 303 A.2d 826, 829 (1973); DeSantis v. Frick Company, 745 A.2d 624 (Pa. Super. 1999); see also, Johnson v. Harris, 419 Pa. Super 541, 549, 615 A.2d 771, 775 (1992) (citations omitted) (stating that it is the non-moving party’s duty “to show that a genuine issue of fact exists by affidavit or otherwise.”).

Failure to respond appropriately allows the court, in its discretion, to enter summary judgment in favor of the moving party. Stoutmire v. GE, 68 D.&C.4th 519, 522 (Mercer Cty. 2004).

Based on the forthcoming analysis, this court is of the opinion that plaintiff, the non-moving party, has failed to establish that a genuine issue of material fact remains in dispute as to plaintiff’s theories of liability against Jameson Memorial Hospital and Jameson Health System. Accordingly, this court grants defendants’ motion for partial summary judgment.

III. THEORIES OF LIABILITY

To establish a cause of action sounding in negligence, a plaintiff must establish:

“(1) a duty or obligation recognized by the law that requires an actor to conform his actions to a standard of conduct for the protection of others against unreasonable risks;

“(2) failure on the part of the defendant to conform to that standard of conduct, i.e., a breach of duty;

“(3) a reasonably close causal connection between the breach of duty and the injury sustained; and

“(4) actual loss or damages that result from the breach.” Rauch v. Mike-Mayer, 783 A.2d 815, 824 n.8 (Pa. Super. 2001). (citations omitted)

“The mere fact that an accident has occurred does not entitle the injured person to a verdict. ... A plaintiff must show that the defendant owed a duty of care, and that this duty was breached.” Id. In the case at bar, the plaintiff asserts three theories under which Jameson may be held liable:

a. Respondeat Superior

In Tonsic v. Wagner, 458 Pa. 246, 329 A.2d 497 (1974), the Pennsylvania Supreme Court expressed that a hospital may be found liable for the negligent acts of a doctor on the theory of respondeat superior. Under this doctrine, a hospital’s negligence is not predicated on direct liability, but rather based on the negligent acts of a third-party employee. Thus, a hospital may be held liable for the negligent acts of a staff member if such acts are committed within the course and scope of the staff member’s employment. See Valles v. Albert Einstein Medical Center, 569 Pa. 542, 551, 805 A.2d 1232, 1237 (2002), citing Lunn v. Boyd, 403 Pa. 231, 169 A.2d 103 (1961).

The first issue that must be resolved is whether an employee of Jameson performed any of the negligent acts that were the proximate cause of decedent’s death. The Supreme Court provided numerous factors to analyze when determining whether a person is an employee:

“(1) Control of the manner work is to be done;

“(2) responsibility for result only;

“(3) terms of agreement between the parties;

“(4) the nature of the work or occupation;

“(5) skill required for performance;

“(6) whether one employed is engaged in a distinct occupation or business;

“(7) which party supplies the tools;

“(8) whether payment is by the time or by the job;

“(9) whether work is part of the regular business of the employer;

“(10) [whether] there is a right to terminate the employment at any time.” Id. at 552, 805 A.2d at 1237-38, quoting Shafer v. State Employes’Retirement Board, 548 Pa. 320, 696 A.2d 1186 (1997).

However, no factor is “absolutely dispositive of a person’s status as an employee, and each case must be determined on its own facts.” Valles at 552, 805 A.2d at 1238, quoting Budzichowski v. Bell Telephone Co. of Pennsylvania, 503 Pa. 160, 164, 469 A.2d 111, 113 (1983).

In the instant case, there is no evidence that persuades this court to believe Dr. Shober or Dr. Ritz were employees or servants of Jameson. Rather, the facts clearly demonstrate that decedent received treatment from emergency room personnel at Jameson and then advised to obtain follow-up treatment from his family physicians, Dr. Shober and Dr. Ritz. (emphasis added) Even though Dr. Shober testified at his deposition that he was a staff member at Jameson, he was not acting in this capacity while providing the relevant medical care. Medical records clearly evince that the treatment Dr. Shober provided to decedent occurred in his personal office, which was located outside of the hospital’s walls. Further, plaintiff did not present evidence suggesting Jameson recommended or instructed Dr. Shober on the type of treatment decedent required.

Moreover, the mere fact that Dr. Ritz provided medical care to decedent during his hospitalization does not support a finding of an employer-employee relationship between this doctor and defendant Jameson. Quite contrary, Dr. Miser’s report indicates that Dr. Ritz, a col league of Dr. Shober, was decedent’s admitting physician. (emphasis added) Dr. Miser makes no reference that would suggest Dr. Ritz acted in the capacity of the hospital. Although Dr. Ritz was referred to as the admitting physician at Jameson, this is a function that can be performed by any private physician with admitting privileges at the hospital. Additionally, the record is again absent of any evidence suggesting Jameson controlled the treatment provided by Dr. Ritz. Rather, this court finds that Jameson, being only one of two hospitals in the area, merely provided a bed and medical equipment for Dr. Ritz to utilize during the hospitalization of his patient. The language used by Dr. Miser, referring to Dr. Ritz as Dr. Shober’s colleague, further convinces this court that Dr. Ritz was acting as decedent’s family physician and not a hospital employee.

In conclusion, this court finds that an employer-employee relationship did not exist between defendant Jameson and defendants Dr. Shober and Dr. Ritz. Thus, this court rejects plaintiff’s theory of liability against defendant Jameson on the basis of respondeat superior.

b. Corporate Liability

In Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), the Pennsylvania Supreme Court adopted the doctrine of corporate liability against hospitals. To establish corporate negligence, the plaintiff must demonstrate that the hospital failed “to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital.” Id. at 339, 591 A.2d at 707. “This theory of liability creates a nondelegable duty which the hospital owes directly to the patient.” Id. The duty of care owed by a hospital to a patient brought into its emergency room is set forth by Restatement (Second) of Torts §323 (1965), which states:

“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability... for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

“(a) his failure to exercise such care increases the risk of such harm, or

“(b) the harm is suffered because of the other’s reliance upon the undertaking.” Id. at 340, 591 A.2d at 708, citing Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 475 A.2d 1314(1984).

The Supreme Court identified four duties to which a hospital is held: “(1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment ...; (2) a duty to select and retain only competent physicians . . . ; (3) a duty to oversee all persons who practice medicine within its walls as to patient care ...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Id. at 339-40, 591 A.2d at 707. (citations omitted) Failure to uphold the proper standard of care allows an injured party to establish a direct cause of action under the corporate liability doctrine against the hospital, without regard to the negligence of a third party such as a doctor or nurse. Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581, 585 (1997), citing Moser v. Heistand, 545 Pa. 554, 558, 681 A.2d 1322, 1325 (1996).

To establish a prima facie case of corporate negligence, the plaintiff must establish all of the following:

“(1) the hospital acted in deviation from the standard of care;

“(2) the hospital had actual or constructive notice of the defects or procedures which created the harm; and

“(3) that the conduct was a substantial factor in bringing about the harm.” Rauch, supra, 783 A.2d 815, 827, citing Thompson, supra at 339-40, 591 A.2d at 707-708. In demonstrating that the hospital deviated from an acceptable standard of care, the plaintiff must demonstrate through expert testimony that the hospital’s action or non-action “deviated from an accepted standard of care and the deviation was a substantial factor in causing harm to the plaintiff” before a claim of corporate negligence will be found to have merit. Welsh at 514, 698 A.2d at 585. The Supreme Court does not require the expert to use specific language when expressing his opinion, but rather requires the courts to focus on the substance of the testimony. Id., citing Mitzelfelt v. Kamrin, 526 Pa. 54, 584 A.2d 888 (1990).

In the case at bar, plaintiff’s complaint alleges that Jameson knew or should have known that defendant physicians were unqualified to diagnose and treat decedent for the conditions he presented. To support this claim, plaintiff produced an expert report created by Dr. Miser. In this report, Dr. Miser discusses the relevant treatment history provided by Jameson and Drs. Shober and Ritz. Upon evaluation of this treatment, Dr. Miser concluded to a high degree of medical certainty that both Dr. Shober and Dr. Ritz were negligent in the treatment they provided, but does not suggest that the treatment provided by the Jameson Emergency Room was faulty in any way. Rather, Dr. Miser clearly stated that it was Dr. Shober’s duty to consider a cardiac etiology in light of the symptoms decedent was complaining of and the results of the electrocardiograms performed by the staff at Jameson. Furthermore, Dr. Shober did not provide treatment to decedent at Jameson, but rather at his personal office. Therefore, Jameson did not owe decedent a duty to supervise the treatment Dr. Shober provided.

Dr. Miser was critical of the treatment provided by Dr. Ritz during decedent’s hospitalization for pancreatitis. Although an argument can be made that Jameson failed in its duty to oversee the treatment provided by Dr. Ritz within the walls of its facility in this instance, there is no evidence to support this contention. As Justice Castille pointed out in his dissenting opinion in Welsh, supra, “[a] prima facie case for [a] claim of corporate liability involves a showing that a hospital employee had a duty to recognize and report abnormalities in the treatment of a patient, that the hospital employee should have informed the attending physician of the abnormality and that the hospital employee should have informed the hospital of the abnormality when the attending physician failed to act so that the hospital could have taken corrective action.” Welsh at 517, 698 A.2d at 587. Dr. Miser did not suggest that the acts of the hospital fell below acceptable medical standards, nor did Dr. Miser criticize any Jameson staff member for failure to report Dr. Ritz’s decision to discharge decedent. Rather, Dr. Miser was critical of Dr. Ritz, the attending physician, for imprudently discharging decedent. Dr. Miser adamantly insists that it was Dr. Ritz’s duty to ensure that any health issues were resolved prior to discharging decedent. Plaintiff failed to set forth any specific facts suggesting decedent’s condition at the time of discharge warranted any type of interference by staff members at Jameson.

Even assuming arguendo that Jameson breached its duty to oversee Dr. Ritz while treating a patient within its facility, plaintiff failed to establish any facts demonstrating this negligence was the proximate cause of decedent’s death. Again, Dr. Miser’s opinion suggests that, had Dr. Ritz and Dr. Shober been more prudent in treating decedent, his death may have been prevented. However, Dr. Miser does not advocate that the death would have been prevented had the hospital taken on the impractical task of monitoring all treatment provided by independent physicians within the walls of its hospital. Therefore, this court is of the opinion that plaintiff failed to establish a prima facie case against Jameson on the theory of corporate liability.

c. Ostensible Agency Liability

Generally, a hospital is not liable for negligent acts of an independent contractor physician. Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870 (1984). However, the Superior Court recognized that vicarious liability might attach to a hospital under the ostensible agency theory. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). The ostensible agency theory is set forth in Restatement (Second) of Torts §429, which states:

“One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”

The court identified two justifying factors for applying the ostensible agency theory in situations where an independent contractor physician causes harm for which the hospital remains liable. Id. at 368, 430 A.2d at 649. First, the court recognized that a patient does not enter a hospital with the expectation that an individual doctor will provide medical care, but rather looks to the institution. Id. Second, if a hospital “holds out” the physician as an employee, the ostensible agency doctrine will apply. Id. at 369, 430 A.2d at 649.

In Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980), plaintiff decedent was admitted into the hospital after arriving at the emergency room for a severe nosebleed. After admittance, decedent became combative, and the treating physician administered a series of drugs in an attempt to calm him. Subsequently, decedent suffered cardiac arrest and died. The Superior Court found that the hospital was liable under the ostensible agency doctrine. In arriving at this conclusion, the court found that a jury could plausibly conclude that decedent looked to the hospital for treatment and not the treating physician due to the fact that decedent entered the hospital via the emergency room and the treating physician examined him in the capacity of a staff physician and not a personal physician.

In Simmons v. St. Clair Memorial Hospital, 332 Pa. Super. 444, 481 A.2d 870 (1984), the Superior Court again determined that a hospital was liable for the negligent acts of a doctor under the ostensible agency doctrine. In this case, decedent committed suicide while a patient in the psychiatric ward of St. Clair Hospital. Dr. Wright, the physician in charge, first encountered decedent when he was admitted to the hospital via the emergency room and Dr. Wright was the “on-call” physician. Additionally, decedent’s parents were informed that Dr. Wright was the head of the psychiatric department and that he was “qualified” to provide the treatment decedent required. Based on these facts, the Superior Court determined that the jury could have concluded that the hospital “held out” the doctor as its employee. Consequently, the hospital was liable for the negligent acts of the doctor under the ostensible agency doctrine.

Unlike Capan and Simmons, this court finds that not enough evidence was presented to allow the ostensible agency doctrine to be applicable to the case at bar. First, at the time of decedent’s death, unlike the decedents in Capan and Simmons, he was not a patient at the hospital. Although decedent was hospitalized at Jameson only a few days before his death, his hospitalization was for treatment of pancreatitis, not a heart condition. Further, decedent was not introduced to the physicians via the hospital. Rather, as previously stated, Dr. Shober and Dr. Ritz were decedent’s family physicians. The mere fact that Dr. Shober was a staff member at the hospital and Dr. Ritz was the admitting physician when decedent was treated for pancreatitis does not provide justification to claim that decedent looked to the institution for the medical care he received. The facts clearly demonstrate that decedent received treatment from Dr. Shober at his personal office, not the hospital. Thus, this court concludes that the hospital cannot be held liable for the alleged negligent acts of Dr. Shober under the ostensible agency doctrine.

Additionally, although Dr. Miser was critical of the care Dr. Ritz provided while decedent was hospitalized at Jameson for pancreatitis, no evidence supports a contention that Jameson “held out” Dr. Ritz as an employee. No facts presented to this court indicate that the relationship between decedent and Dr. Ritz was established at the hospital. Rather, it is well established that Dr. Ritz was decedent’s family physician, illustrating that decedent and Dr. Ritz had an ongoing relationship prior to his hospitalization. Thus, this court finds that decedent would have looked to the individual physician and not the hospital for medical care.

Consequently, this court finds that plaintiff failed to establish that there exists any material fact which would support the contention that Jameson is liable under the ostensible agency doctrine.

IV. CONCLUSION

Based on the foregoing analysis, this court holds that plaintiff has failed to establish a case of negligence based upon any theory against these defendants. Accordingly, this court grants defendants’ motion for partial summary judgment.

ORDER

Now, February 28, 2007, this case being before the court for oral argument on January 29,2007, on the motion for partial summary judgment filed by the defendant, Jameson Memorial Hospital and Jameson Health System, with both parties appearing through their counsel, the plaintiff, Arlene Pennington, individually and as administratrix of the estate of Delbert Joseph Pennington, represented through counsel, Susan M. Papa, Esquire and the defendants, Jameson Memorial Hospital and Jameson Health System, represented through their counsel, Gayle L. Godfrey, Esquire and after consideration of the oral argument and briefs presented and submitted by both counsel, and after a complete and thorough review of the applicable record, the court enters the following order and it is hereby ordered, adjudged and decreed as follows:

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

(2) Summary judgment is entered in favor of the defendants, Jameson Memorial Hospital and Jameson Health System and against the plaintiff, Arlene Pennington, individually and as administratrix of the estate of Delbert Joseph Pennington on the claims of professional malpractice negligence only and not on any other claims raised by the plaintiff.

(3) The prothonotary is directed to serve a copy of this order of court upon counsel of record, Susan M. Papa, Esquire and Gayle L. Godfrey, Esquire.

      . Plaintiff has raised claims of negligence against these defendants on the basis of (1) respondeat superior, (2) ostensible agent, and (3) corporate liability. Also, plaintiff has based a claim of liability against these defendants on the basis of improper record keeping. The motion now before this court is only directed toward the professional negligence theories.

      . If “the matter under investigation is so simple, and the lack of skill or want of care so obvious as to be within the range of ordinary experience and comprehension of even nonprofessional persons,” expert testimony is not required. Welsh, supra, quoting Chandler v. Cook, 438 Pa. 447, 451 n. 1, 265 A.2d 794, 796 n.1 (1970). However, this court finds that the facts of this case do not plainly demonstrate negligence on behalf of the hospital, and expert testimony is required to support plaintiff’s claim.

      . “A holding out occurs ‘when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees,’ ” Pancoast v. Northeastern Hospital, 24 Phila. 26, 28 (C.P. Philadelphia 1992), quoting Capan v. Divine Providence Hospital, 287 Pa. Super 364, 370, 430 A.2d 647, 649 (1980). (emphasis in original)

      . To further support this conclusion, this court again references Dr. Miser’s expert report, referring to Dr. Ritz as Dr. Shober’s colleague and the admitting family physician.


author: SMITH, J.,

text:
    Dorsett v. J.J. White Inc.

      C.P. of Philadelphia County,
    April Term 2004,
    no. 8729.

      R. Thomas Price, for plaintiff.

      Robert J. Siegel and William McGovern, for defendant J.J. White.

      Joseph F. Vanhorn Jr., for defendant Sunoco.
    January 24, 2007
   SMITH, J.,

This is a civil action for personal injuries that plaintiff claimed arose from an automobile accident that occurred on November 12, 2002. The action was tried before this court and a jury beginning May 24, 2005. On June 2, 2005 the jury returned a verdict finding defendant J.J. White negligent, but concluding that the defendant J.J. White’s negligence was not a factual cause of plaintiff’s injury.

This appeal followed.

FACTS

Plaintiff, a 37-year-old male, was a construction laborer employed by a company identified as Construction Turnaround Services (CTS). Plaintiff was employed to chip paint from inside petroleum tanks located on the grounds of Sunoco Oil Company in South Philadelphia. Plaintiff was a member of laborers Local 332 and the chipping job was identified as “the 868 project.” (N.T. 5-25-05, 1-5.) Because the tanks were centrally located on the Sunoco property, plaintiff and other workers drove their cars to a perimeter parking lot and rode on a subcontractor’s truck to the work area. According to plaintiff’s evidence, the truck on which he was riding just before his injury was owned by defendant J.J. White. J.J. White, however, denied ownership in pleadings and during evidence at trial.

On November 12,2002, while riding on the aforementioned truck, plaintiff fell from the cargo area in the rear of the vehicle and sustained the injuries complained of in this action. On the date of the incident, co-worker Gregory Brown testified that it was raining and that after clocking out at approximately 5:15 p.m., he and the plaintiff boarded the truck, described as a cargo van. The rear of the truck was filled with workers and there was no place to sit. During the ride, plaintiff fell from the vehicle, hit the ground and rolled over. The witnesses recalled seeing blood on the plaintiff’s hands and that he appeared to “be in shock.” The plaintiff was taken from the scene to the hospital in an ambulance. (N.T. 5-25-05, 11-19.)

DISCUSSION

Following deliberations, the jury returned a verdict finding the defendant J.J. White negligent. The trial evidence included facts that defendant White routinely left keys in vehicles which were used by workers to transport laborers from the parking lot to the work site. The actual driver on the date of plaintiff’s injury was not identified. The jury, however, in a specific interrogatory on the verdict sheet found that defendant White’s negligence was not a factual cause of plaintiff’s injury.

In post-trial motions, plaintiff essentially makes a weight of evidence argument to the effect that the jury verdict was such that it shocked the conscience and should be set aside in light of the uncontradicted evidence produced at trial. The trial evidence included facts that plaintiff incurred the sum of $19,396.70 in medical expenses and $42,694 in lost wages. Plaintiff argues that the above evidence combined with the uncontradicted expert testimony of his expert Dr. Bowden on medical causation entitled him to a new trial in light of the jury’s findings. Campagna v. Rogan, 829 A.2d 322, 327 (Pa. Super. 2003).

The defendant responded that plaintiff waived his right to challenge the jury finding of no factual cause because his initial challenge was premised upon the theory that the jury unlawfully ignored the uncontradicted evidence on damages and not factual cause. The court rejected the defendant’s waiver argument. Plaintiff filed post verdict motion within 10 days as required by Pa.R.C.P. 221 and the issues of the jury verdict were sufficiently described therein to avoid any waiver.

Nonetheless, plaintiff’s post trial motions were properly denied because plaintiff’s argument ignores evidence that the jury heard, from which it might have reasonably concluded that the driver of the vehicle from which plaintiff fell was someone other than a J.J. White employee. In addition, plaintiff’s action in boarding an overcrowded vehicle might have been viewed by the jury as a “factual cause” for his injury. The decision reached by the jury was not so contrary to the evidence as to shock one’s conscience. To the contrary, based upon the evidence the finding of negligence without factual cause was within the jury’s purview based on the trial evidence. Davis v. Mullen, 565 Pa. 386, 773 A.2d 764 (2001).

For the above reasons the judgment of this court should be affirmed.


author: WETTICK, J.,

text:
    Wuerl v. TEDCO Construction Corp.

      C.P. of Allegheny County,
    no. GD04-021328.

      Joseph Bosick and Mark T. Caloyer, for plaintiff.

      Douglas C. LaSota and Edward Yurcon, for defendant TEDCO Construction Corp.

      Avrum Levicoff and Joshua N. Perlman, for defendant Elmhurst Corporation, t/d/b/a The Elmhurst Group, and Fifth & Craig Street L.P.

      Rochelle Koerbel, Thomas Birris, and Stuart Sostmann, for defendant Douglass Pile Co. Inc.

      Mark Reilly, for additional defendant Noralco Corp.

      Robert J. Burnett and Ann B. Graff, for additional defendant Construction Engineering Consultants Inc.

      Robert A. Arcovio, Gary L. Balint, and Stephen P Plonski, for non-party Church Mutual Insurance Company.
    July 20, 2006
   WETTICK, J.,

Elmhurst Coiporation’s motion to compel directed at Church Mutual Insurance Company is the subject of this opinion and order of court.

This lawsuit was filed on September 7,2004. Plaintiff alleges that defendants’ construction activities at a construction site across the street from plaintiff’s property caused structural damage to St. Paul Cathedral and other buildings.

At the time of the incident, the buildings on plaintiff’s property were covered by insurance furnished by Church Mutual Insurance Company. After receiving notice of the damage, Church hired WJE (an engineering firm) to inspect plaintiff’s properties and issue a report. WJE prepared its initial report on September 8, 2004 after conducting an inspection of plaintiff’s properties on August 20, 2004.

I.

Elmhurst seeks a court order compelling Church Mutual to produce this report. Church Mutual contends that the report is protected by Pa.R.C.P. 4003.5(a)(3), which provides that a party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial, and who is not expected to be called as a witness. However, this provision does not apply. Rule 4003.5(a)(3) protects only facts and opinions held by an expert who has been retained “by another party.” The expert whose report is sought was not retained by any party to this litigation. Instead, the expert was retained by plaintiff’s insurance company.

Church contends that a report prepared at Church’s request should be treated as a report prepared for plaintiff; Church should be characterized as a representative of plaintiff, employing an expert on plaintiff’s behalf for purposes of litigation which plaintiff was expected to commence against third parties. This is a mischaracterization. Church hired WJE to protect its interests. These interests do not necessarily coincide with plaintiff’s interests because of the possibility of a dispute between plaintiff and Church as to what is covered by insurance and the amount of money the insurance company should pay.

In this case, the record shows that there was a potential coverage dispute at the time WJE was inspecting the property for purposes of issuing a report to Church. See, for example, an August 23,2004 letter to Robert Gebhardt (Church Mutual senior property adjuster) from Marsh USA (plaintiff’s adjuster) stating that based on an August 12, 2002 conference call, “we understand that you will be forwarding to this office, a copy of a reservation of rights letter, which is being directed to Messers Stewart and Zielinski at the diocese.” Elmhurst’s motion to compel, exhibit E at CM00247. Also see an August 12,2004 e-mail from WJE which states: “We understand that the Archdiocese of Pittsburgh intends to make a claim on damage to St. Paul Cathedral in Pittsburgh due to vibrations from pile driving from adjacent construction. We also understand that they have their own engineer and contractor in place and are investigating areas of potential damage.” Elmhurst’s motion to compel, exhibit E at CM00001.

In this case, I need not decide whether there would be merit to an argument that Church’s report is protected under Rule 4003.5(a)(3) because it was prepared in anticipation of litigation with plaintiff. Church has characterized itself as plaintiff’s representative and has never claimed that it retained WJE in anticipation of litigation with plaintiff. In addition, it is not clear that this court would recognize a claim that the report was made in anticipation of litigation with plaintiff. See Wolf v. Old Guard Mutual Insurance Company, 47 D.&C.3d 218, 221-22 (Cumberland Cty. 1987), where the court ruled that an expert has not been retained “in anticipation of litigation or preparation for trial” within the meaning of Rule 4003.5(a)(3) until the insurance company has made the decision not to make payment under the policy; “where an investigation was conducted as an aid in determining whether or not payment should be made, it is not conducted in anticipation of a lawsuit.” Also see Bair Estate v. Harrisburg Hunters and Anglers Association, 5 D.&C.4th 545 (Dauphin Cty. 1990).

For these reasons, Elmhurst’s motion to compel production of an unredacted report of WJE is granted.

II.

Elmhurst’s motion also seeks unredacted reports of York Claims Services Inc., an outside adjuster that monitored the parish’s alleged damages in this litigation for Church. These reports are not reports of an expert. Church contends that portions of these reports are protected under Pa.R.C.R 4003.3, which governs trial preparation material. With respect to the representative of a party other than a party’s attorney, Rule 4003.3 provides that “discovery shall not include disclosure of mental impressions, conclusions, or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” However, this rule protects only such disclosures prepared in anticipation of litigation or trial.

It is questionable whether these reports were prepared “in anticipation of litigation or trial” within the meaning of Rule 4003.3 because Church is not a party to any litigation and plaintiff has not filed a claim with Church. See Wolf v. Old Guard Mutual Insurance Company, supra.

However, even assuming that these reports of York Claim Services Inc. are deemed to have been prepared in anticipation of litigation between plaintiff and Church, I have ruled that Rule 4003.3’s protections apply only to the litigation of a claim for which the impressions, conclusions, and opinions were made (i.e., a claim by plaintiff against Church). Mueller v. Nationwide Mutual Insurance Co., 144 Pitt.LJ. 395, 31 D.&C.4th 23 (1996); Little v. Allstate Insurance Company, 128 Pitt.L.J. 428, 16 D.&C.3d 110 (1980). Also see Yablonski v. Stephens, 40 D.&C.4th 504, 507 (Huntingdon Cty. 1998); Yohe v. Nationwide Mutual Life Insurance Co., 7 D.&C.4th 300 (York Cty. 1990).

For these reasons, Elmhurst’s motion to compel production of unredacted reports of York Claims Services Inc. is granted.

III.

Elmhurst’s motion to compel production of unredacted e-mails, withheld solely on the ground of relevancy, is granted because there is no description of the contents of what was withheld which would enable Elmhurst or this court to review these objections.

ORDER

On July 20, 2006, it is hereby ordered that within 20 days, Church Mutual Insurance Company shall produce the documents described in the opinion accompanying this order of court.

      . There is no evidence that plaintiff expects to call as witnesses at the trial of these proceedings the persons who prepared the report on behalf of WJE.

      . Church is not a party to this litigation because it has not made any payments to plaintiff for any property damage that plaintiff seeks to recover from defendants.

      . The fact situation in this case is very different from the fact situation in which a defendant’s insurer has assumed responsibility for plaintiff’s claims against that defendant.