author: MOTT, J.,

text:
    Miller v. Northern Tier Career Center

      C.P. of Bradford County,
    no. 99CV000458.

      Peter G. Loftus, for plaintiff.

      Roberta Binder Heath, for defendant.
    September 11, 2000
   MOTT, J.,

Terry L. Miller, the plaintiff, initiated this action by filing a complaint on January 11,2000. The defendants, Northern Tier Career Center, Vicky E. Dinelli, and Walter A. Becker, filed preliminary objections to the complaint on January 25, 2000.

The facts of this case are as follows: The plaintiff was hired on July 29,1996, by the Northern Tier Career Center, an educational institution, as a substitute custodian, and continues in that position today. The defendant Becker is the director of the Northern Tier Career Center, and the defendant Dinelli is an administrative assistant at the center. On March 20, 1998, Chuck Murphy, one of the plaintiff’s co-workers allegedly pumped settled sludge and waste water into an effluent drain, and, as a result, the waste products were dumped directly into the Susquehanna River. On that same day, the plaintiff allegedly reported the pumping of the waste products to the defendant Becker. The plaintiff asserts that he informed the defendant Becker that pumping the waste products into the river was illegal. The plaintiff also avers that Chuck Murphy was not a certified sewage treatment plant operator at the time the waste products were pumped into the river. On May 22, 1998, the plaintiff was certified by the Pennsylvania Department of Environmental Protection (DEP) as a sewer treatment plant operator. On June 9, 1998, the plaintiff allegedly forwarded a request in writing to the defendant Becker, seeking an adjustment in his job title and in his hourly wage. The plaintiff’s job title has not been changed, and he avers that he is entitled to such an adjustment. The plaintiff avers that because he reported the pumping of the waste products into the river, he has not received the adjustment in his job title, and has been subjected to a hostile and harassing working environment by the defendants.

In Count I of the complaint, the plaintiff alleges, relying upon the Whistleblower Law of December 12,1986, P.L. 1559, no. 169, section 1 et seq., as amended, 43 P.S. §1421 et seq., that the defendants retaliated against him for reporting the pumping of the waste products into the river. In Count II, the plaintiff alleges that the defendants violated what he calls the “Privacy Act.”

The defendants’ preliminary objections include a motion to strike the claim for punitive damages contained in Count I of the complaint. This motion will be granted.

“Section 1425 of the Whistleblower Law provides that a court may order ‘reinstatement of the employee, the payment of back wages, full reinstatement of fringe benefits and seniority rights, actual damages or any combination of these remedies.’ Furthermore, a court ‘may also award the complainant all or a portion of the costs of litigation, including reasonable attorney fees and witness fees.’ Finally, under section 1426 of the Whistle-blower Law, a ‘person who, under color of an employee’s authority, violates this act shall be liable for a civil fine of not more than $500 and, under certain circumstances, suspended from public service.’ Nowhere among these remedies does the Whistleblower Law mention punitive damages. Nor does this omission appear to be an oversight on the part of the General Assembly. The statute sets forth a comprehensive list of available remedies, ranging from back wages and reinstatement to damages and attorney’s fees to civil fines and suspension. Such a detailed list of remedies suggests that the General Assembly carefully considered the relief it deemed appropriate and set forth in the statute an exhaustive list of remedies it thought necessary or desirable to achieve the statute’s purposes. Furthermore, the General Assembly did not include punitive damages among this list, but instead chose to use the phrase ‘actual damages,’ which generally connotes compensatory damages. Moreover, it seems rather implausible that a General Assembly contemplating ‘actual damages’ would simply overlook the possibility that punitive damages (or treble damages or some other variant) could also be added to the mix. Thus, the omission of punitive damages from sections 1425 and 1426 [leads to the conclusion] that the General Assembly deliberately chose not to extend this remedy to plaintiffs under the Whistleblower Law. Moreover, a contrary result would conflict with the directions of both the General Assembly and the Pennsylvania Supreme Court that statutory remedies must generally be construed as exclusive. See 1 [Pa.C.S. §1504] (Tn all cases where a remedy is provided... by any statute, the directions of the statute shall be strictly construed, and no penalty shall be inflicted, or anything done agreeably to the common law, in such cases, further than shall be necessary for carrying such statute into effect.’); In re 1632 A. Broad St., 372 Pa. 557, 94 A.2d 772, 773 (1953) (when a statute provides a remedy by which a right may be enforced, no other remedy than that afforded by the statute can be used) (quoting Derry Township School District v. Barnett Coal Co., 332 Pa. 174, 2 A.2d 758, 760 (1938)). Thus,... punitive damages are not an available remedy under the Whistleblower Law.” Rankin v. City of Philadelphia, 963 F. Supp. 463, 478-79 (E.D. Pa. 1997). Thus, the plaintiff’s claim for punitive damages will be stricken.

The defendants’ preliminary objections also include a motion to strike the plaintiff’s demand for a jury trial on Count I of the complaint. There is no provision for a jury trial in the Whistleblower Law. Wilhelm v. Borough of Braddock, 28 D.&C.4th 211, 213 (1996); Clark v. Lancaster City Housing Authority, 14 D.&C.4th 411, 412-13 (1992); 43 P.S. §1421 et seq. We also emphasize that we have located no Pennsylvania appellate case which holds that a plaintiff has a right to a jury trial under that law. Normally, “jury trials are not available in proceedings created by statute unless the statute so provides, or unless the proceeding has a basis in common law.” In re: Albert C. Friedman, 72 Pa. Commw. 274, 283, 457 A.2d 983, 988 (1983); see also, Murphy v. Cartex Corporation, 311 Pa. Super. 181, 192, 546 A.2d 1217, 1222 (1988). Therefore, the motion to strike will be granted, and the plaintiff’s demand for a jury trial on Count I of the complaint will be stricken.

The defendants’ preliminary objections also include a motion for a more specific pleading relating to Count I of the complaint. We agree that the plaintiff has failed to set forth with specificity the exact nature of the retaliatory conduct he is attempting to allege and when it occurred. As a result, the motion will be granted. The plaintiff must clarify these ambiguities in any future complaint. Pa.R.C.P. 1028(a)(3).

The defendants’ preliminary objections also include a demurrer pursuant to Pa.R.C.P. 1028(a)(4). The defendants ask the Court to strike paragraph 17 of the complaint because it constitutes only an allegation of possible future retaliation. We agree. The averments contained in paragraph 17 are insufficiently pleaded. We cannot even determine from the phraseology of the paragraph just what the plaintiff alleges the defendant Becker did. Did he simply inform the plaintiff that the school may close the sewer plant, in which case, the demurrer may be well-founded, or did he inform the plaintiff of that and that if that happened the plaintiff would be terminated rather than the person in maintenance, in which case the demurrer may not be well-founded? Exactly what retaliatory conduct on the part of the defendants is the plaintiff alleging in this paragraph? Therefore, the demurrer will be sustained.

The defendants’ preliminary objections also include a motion for a more specific pleading relating to Count II of the complaint. Pa.R.C.P. 1028(a)(3). The plaintiff states in his brief that Count II sets forth a cause of action under either 5 U.S.C. §552(b) or 12 U.S.C. §3401 et seq. However, 5 U.S.C. §552(b) pertains to open meetings, and 12 U.S.C. §3401 et seq. pertains to financial institutions. A brief perusal of Count II of the complaint demonstrates that the plaintiff has failed to set forth, with specificity, material facts sufficient to support a cause of action for invasion of privacy under either of these federal statutes. Moreover, Count II of the complaint could be construed as attempting to assert more than one cause of action, without ever specifying one. Each separate cause of action must be stated in a separate count setting forth only that cause of action. Pa.R.C.P. 1020(a). Each count must state the specific facts supporting the claim asserted in that count, and each count must state the basis on which the plaintiff asserts liability against the defendants. As a result we will grant the motion for a more specific pleading.

Finally, the defendants’ preliminary objections also include a demurrer to Count II of the complaint. The defendants assert that the plaintiff has failed to furnish facts sufficient to sustain the claim for punitive damages made in Count II. We agree. The plaintiff has provided no facts which would demonstrate that the defendants’ conduct was outrageous. Schecter v. Watkins, 395 Pa. Super. 363, 383-84, 577 A.2d 585, 595 (1990). Hence, the demurrer will be sustained.

Accordingly, we enter the following:

ORDER

And now, September 11, 2000, in accord with the memorandum opinion filed this date, the defendants’ preliminary objections are sustained, and the plaintiff’s complaint is dismissed. The plaintiff shall have 20 days from the date of this order to file an amended complaint, consistent with today’s opinion.


source: Caselaw Access Project

author: STALLONE, J.,

license: Public Domain

text:
    Sell v. Bechtelsville Community Rod & Gun Club
    C.P. of Berks County,
    no. 6011 Equity 1990.

      Lawrence Sager, for plaintiffs.

      John A. Fielding III, for defendant.
    June 22, 2000
   STALLONE, J.,

This is an equity action involving a claim for private nuisance arising out of the ownership and operation of a shooting range by the defendant, the Bechtelsville Community Rod & Gun Club. The plaintiffs, Curtis H. Sell and Shirley M. Sell, live in a single family residence located immediately adjacent to the shooting range.

On April 30, 1993, which was the date scheduled for a non-jury trial on the merits of the Sells’ private nuisance claim, but before the trial actually began, the parties informed this court that they had reached a settlement. At that time, they orally placed the terms of their settlement on the record and thereafter memorialized it in the form of a written “consent decree” which was signed by counsel for the parties and made an order of court on June 7, 1993. The consent decree reads as follows:

“And now, June 7,1993, with the plaintiffs, Curtis H. and Shirley M. Sell and defendant, Bechtelsville Community Rod & Gun Club having reached agreement on a resolution of this matter the court enters the following consent decree.

“(1) Club shall use the rifle and pistol range for target shooting only on the following schedule:

“(A) From 10 a.m. to 7 p.m. each day of the year except Sundays;

“(B) Sundays from 12 noon to 6 p.m.;

“(C) On request of club, Sells may consent in writing to expand the hours to accommodate special circumstances such as shoots or competitions to be held on the rifle pistol range.

“(2) On not more than [sic] two Sundays per calendar year during the months of July and August, the range may be closed at Sells’ request to accommodate outdoor picnics or family gatherings on Sells’ property. Sells must provide at least 45 days written notice to the club president of the Sundays they wish to close the range.

“(3) Sells acknowledge and the court so orders that use of the rifle and pistol range during the schedule set forth above is not and shall not be deemed a violation of the existing zoning ordinance or a nuisance, public or private. Sells shall not make any claim, take any action, or support any action by anyone else, inconsistent with this paragraph.

“(4) Sells shall purchase and deliver that [sic] their sole cost and expense a row of trees to be planted on the club property in the area between the shooting pavilion and the Sells ’ existing home. The trees will be of such size that the club shall be able to plant them without special tools and/or equipment. Sells shall also purchase and deliver at their sole cost and expense acoustic material to be installed in the roof of the shooting pavilion.

“(5) The club shall plant the trees purchased by Sells and shall install the acoustic materials purchased by Sells in the shooting pavilion. The installation of the acoustic material shall not require any structural additions or alterations of any kind, shall not require special equipment nor shall it impair or limit the use of the shooting pavilion as the same has been used heretofore.

“(6) The club shall take reasonable steps to preserve and maintain the trees and the acoustic material.

“However, should any of the trees be damaged, destroyed or die, or should the acoustic material be damaged, club’s sole responsibility shall be to replant any replacement trees or reinstall the acoustic materials after the same have been purchased by Sells at Sells’ sole cost and expense.

“(7) Should any club member violate the shooting times set forth in this order, Sells shall report said violation to the officers of the club and provide such identification of the violator as Sells can obtain (for instance license plate numbers, names, etc.) and shall report the same to officers of the club. Upon proof of the violation, club shall terminate the membership of the offending member which membership shall not be renewed. Club shall not be deemed in contempt of this court order with regard to violating shooting times unless and until club has been provided with sufficient proof from Sells and after proof of the violation has failed to discharge the offending member and/or members.

“(8) Club activities, other then [sic] use of rifle and pistol range for target shooting, shall not be affected or limited by this order.

“By The Court:

“/s/Stallone

“Albert A. Stallone, Judge”

Four years later, on August 11, 1999, the gun club filed a petition to hold the Sells in contempt of court or, alternatively, vacate this court’s order of June 7, 1993, as a result of their alleged failure to comply with paragraph 4 of the consent decree and also to award counsel fees to the gun club for the costs which it incurred in initiating this contempt proceeding. The Sells thereafter responded to the gun club’s petition by filing a cross-claim for counsel fees, under section 2503(a) of the Judicial Code for what they alleged was obdurate, vexatious and/or bad faith conduct by the gun club in filing the contempt petition.

Thereafter, this court held two days of evidentiary hearings on the gun club’s petition and on both parties’ claims for counsel fees. During the second day of the hearing, this court learned for the first time that the Sells had now complied with paragraph 4 of the consent decree by having delivered the required trees and acoustic material to the gun club six days prior to that second hearing date, which rendered the underlying claim in the gun club’s petition as moot and thereby left us with the need to adjudicate only the parties’ respective claims for counsel fees against each other. This opinion is in disposition of those respective claims.

Under Pennsylvania law, a trial court possesses the inherent power to enforce its own orders and decrees by imposing economic sanctions upon a party for his or her failure to comply with them. Brocker v. Brocker, 429 Pa. 513, 519, 241 A.2d 336, 338 (1968); Jack Rees Nursing & Rehabilitation Services v. Hersperger, 410 Pa. Super. 409, 600 A.2d 207 (1991). However, in order for it to find a party to be in civil contempt of court, the trial court must find that the complaining party is “aggrieved.” Jack Rees Nursing, supra at 414, 600 A.2d at 209 (quoting, inter alia, Brocker v. Brocker, supra). And, in order for a party to be “aggrieved,” that person must be adversely and substantially affected by a violation of a provision in a court order or decree. William Penn Parking Garage Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); ACS Enterprises Inc. v. Norristown Borough Zoning Hearing Board, 659 A.2d 651 (Pa. Commw. 1995).

Although we certainly recognize that the Sells did not deliver the trees and acoustic material until six days before the second hearing date, the fact remains that there is no evidence in the record which shows that the gun club was affected in any adverse or substantial way by the Sells’ failure to comply with this paragraph prior to that date and that, therefore, it was “aggrieved” by their noncompliance. Accordingly, we must deny the gun club’s claim for counsel fees.

Now, as to the Sells’ claim for counsel fees under section 2503(9) of the Judicial Code. Our review of the record leaves us with no doubt that the gun club filed its petition not only in an effort to compel the Sells to comply with paragraph 4 of the consent decree, but also to extract some concessions from them in the form of additional shooting hours for its members beyond those set forth in the consent decree of June 7, 1993. The use of our judicial system to extract something to which a party is not otherwise entitled is exactly the type of conduct which section 2503(9) of the Judicial Code was enacted by the Pennsylvania State Legislature to deal with. If this were an action at law instead of equity, this court would have no hesitancy in granting counsel fees to the Sells.

However, since this is a matter in equity, we believe that the Sells should bear some of the responsibility for the commencement of this contempt proceeding which was due, in part, to their failure to comply with all of the terms and conditions of what they had previously agreed to. Therefore, we decline to award any counsel fees to them as well.

Accordingly, we enter the following attached order.

ORDER

And now, June 22, 2000, it is hereby ordered that:

(1) The defendant’s petition to hold plaintiffs in contempt or, alternatively, vacate this court’s consent decree of June 7, 1993, is denied;

(2) The plaintiffs’ request for counsel fees under title 42, 42 Pa.C.S. §2503(9) (Supp. 2000), is denied; and

(3) The defendant’s request for counsel fees as contained in its petition is denied.

      . All italicized language appearing in this opinion is for emphasis only.

      . The Sells asserted this cross-claim in the new matter which they filed together with an answer to the gun club’s petition.

      . Tide 42, 42 Pa.C.S. §2503(a) (Supp. 2000).


author: REHKAMP, J.,

text:
    Wright v. PennDOT

      C.P. of Perry County,
    no. 99-1105.

      Daniel McGuire, for appellant.

      George Kabusk, for appellee.
    March 29, 2000
   REHKAMP, J.,

The narrow issue in this case is whether or not the appellant has met his burden of proof to refuse a blood test where he has indicated to the technician at the hospital, and previously to the arresting officer, that he is fearful of giving blood because of a prior bad experience with a surgery procedure in which he had to give blood and his veins popped up and his arm swelled up and became black and blue. Does the officer, at that point in time, have the obligation to offer an alternative to a blood test, being either a urine test at the hospital or a breath test, which apparently was not originally offered to the motorist because of technical problems with the Breathalyzer machine in operation in Perry County.

The parties are directed to review the following two cases: Hatalski v. PennDOT, 666 A.2d 386 (Pa. Commw. 1995), and PennDOT v. Wilhelm, 156 Pa. Commw. 24, 626 A.2d 660 (1993). According to the Hatalski decision at page 390 in reference to the Wilhelm decision, the Commonwealth Court stated “We held that where a licensee suffers from a medical condition whose existence, (1) affects the licensee’s ability to perform the test and (2) is not obvious, the licensee is required to inform the officer of the condition so an alternative chemical test that the licensee could perform can be administered. If the officer was not so notified, the licensee is precluded from relying upon any such condition or inability as an affirmative defense to a suspension as a consequence of a test refusal.”

The Wilhelm decision involved an attempt by the driver to perform a Breathalyzer test, which was administered five times but only one adequate breath sample was given on the third attempt. A refusal was noted since there must be two consecutive breath samples given. Wilhelm appealed and stated that prior to taking the Breathalyzer test, he informed the trooper that he had a pulmonary obstruction which prevented him from exhaling sufficiently to perform the test properly. The two troopers testified that the one trooper had specifically asked if he had any medical condition which would prevent him from performing the test and Wilhelm answered only that he had high blood pressure. The trial court there found that Wilhelm’s testimony was credible and granted a continuance so that medical evidence would be presented to the court. The court did not find the medical evidence sufficient to sustain the driver’s burden and found against the driver. However, the standard from these two cases seems to indicate that upon being advised that the motorist cannot perform the test, then there may be some obligation on the officer to provide an alternative test. Certainly a urine test at a hospital could have been performed under the facts of our case.

Upon review of the above two cases, please submit any additional argument you care to make in writing by letter form within 10 days of this date and, upon request of either party through counsel, an argument conference will be scheduled by conference call by the court administrator.


author: FORD,

text:
    Newell v. Giant Food Stores

      C.P. of Lehigh County,
    no. 1998-C-2741.

      Neil E. Durkin, for plaintiffs.

      George B. Fuller Jr., for defendant.
    May 31, 2000
   FORD,

On December 29, 1999, the defendant filed a motion for summary judgment. The defendant argues that the plaintiffs’ evidence lacks essential elements of the cause of action so that, as a matter of law, this case cannot proceed to a jury trial. Plaintiffs dispute this. Oral argument was conducted on April 11, 2000.

The plaintiff, Elizabeth Newell, alleges that she fell in the Giant supermarket on Emmaus Avenue, in Allentown, Lehigh County, Pennsylvania. The fall occurred in the bread aisle of the store. Her allegation is that she slipped on a “squashed grape which had been left on the floor.” Is the evidence sufficient to establish the defendant’s responsibility in negligence for that grape on the floor?

The standards for summary judgment are oft cited, well-known and agreed by the parties. Summary judgment is proper “where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law.” Smitley v. Holiday Rambler Corp., 707 A.2d 520, 525 (Pa. Super. 1998). The moving party has the initial burden of proving that no genuine issue of material fact exists. Id. However, the adverse party may not rest merely upon the allegations or denials in the pleadings, but must file a response within 30 days after service of the motion for summary judgment. Pa.R.C.P. 1035.3(a). The adverse party must identify “evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.” Eaddy v. Hamaty, 694 A.2d 639, 643 (Pa. Super. 1997) (quoting Pa.R.C.P. 1035.3(a)(2)).

The burden of proving that no genuine issue of fact exists rests solely on the moving party. Weiss v. Keystone Mack Sales Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to the non-moving party and “must accept as true all well-pleaded facts in the non-moving party’s pleadings, and give to him or her the benefit of all reasonable inferences to be drawn therefrom.” Jefferson v. State Farm Insurance Co., 380 Pa. Super. 167, 170, 551 A.2d 283, 284 (1988). All doubts as to the existence of a material fact must be resolved against the moving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979).

Summary judgment should only be granted in the “clearest case, where the right is free and clear from doubt.” Pennsylvania Gas & Water Co. v. Nenna and Frain Inc., 320 Pa. Super. 291, 467 A.2d 330 (1983).

The parties agree about the requirements which the law places on a business proprietor in its relationship with a business invitee, for any injuries that the latter may suffer at the proprietor’s business establishment.

Martino v. Great Atlantic & Pacific Tea Co., 419 Pa. 229, 213 A.2d 608 (1965), is a case involving a slip on a grape in a food store. It provides a succinct statement of the law with respect to the obligation of the store owner to the patron:

“An accurate statement of the law of Pennsylvania applicable to the instant situation is set forth in section 343 of the Restatement of Torts as follows: ‘A possessor of land is subject to liability for bodily harm caused to business visitors by a natural or artificial condition thereon if, but only if, he (a) knows, or by the exercise of reasonable care could discover, the condition which, if known to him, he should realize as involving an unreasonable risk to them.’ ...

“Appellant’s burden was to prove that the dangerous condition of appellee’s premises causing the fall resulted from appellee’s negligence; that appellee was aware that grapes and other refuse were on the floor and made no efforts to remove them.” Id. at 233, 213 A.2d at 610. (citation omitted)

To the same effect is Myers v. Penn Traffic Company, 414 Pa. Super. 181, 606 A.2d 926 (1992), yet another slip on a grape (or built-up wax) case. There, the court stated the following:

“It is unquestionable that a store owner owes a duty of care to the patrons of the store. However, the owner of the store is not an insurer of the safety of its customers.... Moreover,

“ ‘the mere existence of a harmful condition in a public place of business, or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of the proprietor’s duty of care to his invitees, nor raises a presumption of negligence.’ ” Id. at 184-85, 626 A.2d at 928. (citations omitted)

The court in Myers then indicated the applicability of Restatement (Second) of Torts §343, noting the requirement that the store owner have actual or constructive notice of a hazardous condition before liability can be imposed on the store owner.

What evidence exists to show that the defendant knew or should have known that there was a grape on the floor of the bread aisle which created an unsafe condition for the plaintiff? Plaintiffs advance three arguments from the record in an attempt to demonstrate notice to the defendant of the dangerous condition. We examine each of these contentions.

Plaintiffs first point to the testimony of the plaintiff, Mrs. Newell. Mrs. Newell testified in deposition that she entered the bread aisle, stopped her cart at the end of the aisle and then proceeded to walk halfway down the aisle. After picking up a loaf of bread, she fell on her way back to the cart. Plaintiffs contend that this is evidence that Mrs. Newell was in the aisle for several minutes. Because Mrs. Newell did not see anyone else place the grape on the bread aisle floor, a jury could determine that the grape must have been present longer than Mrs. Newell was in the aisle. According to plaintiffs, this constitutes prima facie evidence that defendant should have known about the grape on the floor.

We disagree. As a matter of law, this, by itself, does not constitute basis upon which the defendant should have known of the grape on the floor. We do not see how the few minutes that Mrs. Newell spent in the bread aisle before the fall was even arguably sufficient time to place the defendant on notice that a grape was on the floor. In addition to that, the argument invites speculation. It assumes that the offending grape was transported to this aisle by a person. One equally plausible theory is that the grape rolled there from another aisle, perhaps even while Mrs. Newell was pacing the aisle for the bread. In short, the argument of the plaintiffs, that Mrs. Newell’s short stop in the bread aisle somehow constitutes evidence that the defendant should have known about a foreign object as small as a grape, is rejected.

Plaintiffs next point to a statement by Jan Masonheimer, the assistant store manager. Shortly after the accident, Mr. Masonheimer had a discussion with Nancy McCluskey, Mrs. Newell’s daughter. According to Mrs. McCluskey, Mr. Masonheimer told her about “how badly he felt that this had happened and told me (Mrs. McCluskey) that there was absolutely no reason at all for this to occur to anyone since they had an abundance of employees that were supposed to take care of this.”

This is insufficient to establish that the defendant should have known about a dangerous condition created by the grape on the bread aisle floor. This statement, if made, is no more than the opinion of Mr. Masonheimer. He does not profess any knowledge as to how the grape got on the floor or the period of time that it was there. He offers no evidence to establish that the defendant should have known about the existence of a dangerous condition on the bread aisle floor.

Finally, the plaintiffs attempt to invoke what they refer to as a “presumption or inference” that testimony of a certain individual, if called at trial, would be harmful to the defendant. Thus, plaintiffs claim that they are entitled to the use of the “missing witness” rule and that, by this method, they establish the required notice of a dangerous condition.

The defendant was in possession of a floor inspection worksheet which was produced during discovery. It indicates that this supermarket’s floor was inspected at 5:10 p.m. by an employee who initialed the sheet. Plaintiffs state in their brief that defendant is unable to identify the employee who initialed the sheet and who may have performed the inspection. In discovery, plaintiffs’ counsel questioned every identified Giant manager about the identity of the individual who initialed the sheet. No manager was able to name the individual. Thus, neither party will be able to present at trial the person who initialed the worksheet.

Plaintiffs contend that this failure of the defendant to produce the individual who initialed the sheet and who apparently conducted the inspection of the floor entitles the plaintiffs to an inference or presumption jury instruction that the unnamed witness’ testimony, if presented, would be unfavorable to the defendant. The argument is that this unfavorable presumption or inference supplies the necessary notice to the defendant of a dangerous condition which it failed to correct. The argument is flawed.

What plaintiffs seek is the benefit of an inference. The words “presumption” and “inference” have been loosely interchanged in the situation where a party fails to produce or call a witness. There is a difference between a presumption and an inference.

“A presumption is a procedural device which shifts the burden of persuasion or the burden of going forward with the evidence. An inference, on the other hand, is simply a clear, logical, reasonable and natural conclusion which the trier of fact may embrace or reject based on the evidence in the case.” Bixler v. Hoverter, 89 Pa. Commw. 88, 91, 491 A.2d 958, 959 (1985). (citation omitted)

According to the “missing witness” rule, if a party fails to call a witness or present other evidence exclusively within his or her control, the fact-finder may be permitted to draw an adverse inference. This “missing witness” adverse inference applies in both civil and criminal cases. Kovach v. Solomon, 732 A.2d 1 (Pa. Super. 1999).

As to inferences generally, it was stated in Equal Employment Opportunity Commission v. Greyhound Lines Inc., 635 F.2d 188 (3d Cir. 1980) that a legitimate or permissible inference must be deduced as a logical consequence of facts presented in evidence. Id. at 194. (emphasis added)

The problem that the court has with the fashion in which the plaintiffs attempt to use this inference is that the plaintiffs would use it to supply facts which are missing from the record. There is no evidence as to how long the grape was on the floor. There is no evidence of reasonable notice to the defendant of the existence of the grape on the floor as a result of which it should have taken corrective action. It is improper to attempt to use an inference to supply missing facts.

Also, among the other requirements for the application of the “missing witness” inference is that the record must reveal that the uncalled witness was informed and competent. Bayout v. Bayout, 373 Pa. 549, 556, 96 A.2d 876, 879 (1953); Davidson v. Davidson, 191 Pa. Super. 305, 156 A.2d 549 (1959). To the same effect is Commonwealth v. Reina, 186 Pa. Super. 116, 140 A.2d 633 (1958).

Even though the parties do not know the identity of the person who initialed the form, the existence of the form with the 5:10 p.m. entry would probably justify the jury’s concluding that an inspection occurred. Nevertheless, there is nothing in the evidence to establish what this individual saw in the course of such an inspection. Thus, the requirement that the missing witness be informed and competent is clearly lacking.

The “missing witness” rule cannot be used to supply facts where they are absent from the record. Invocation of the rule is inappropriate where there is no showing that the missing witness is informed and competent. Thus, the plaintiffs’ attempt to use this inference is to no avail.

Even the combination of the three avenues pursued by the plaintiffs to defeat the motion for summary judgment is insufficient to establish the notice to the defendant which must be shown. Accordingly, we are compelled to grant the motion for summary judgment and dismiss this case.

ORDER

Now, May 31,2000, after consideration of the motion for summary judgment filed by defendant, the briefs of the attorneys and argument, and for the reasons set forth in the accompanying opinion, it is hereby ordered that the motion for summary judgment is granted. This case is dismissed with prejudice.


author: GRIM,

text:
    Rosse v. Rosse

      C.P. of Berks County,
    no. 6572-95 A.D.

      Lawrence Sager, for plaintiff.

      John A. Boccabella, for defendant.
    July 19,2000
   GRIM,

The case is before the court on defendant’s motions for the mental examination of plaintiff pursuant to Pa.R.C.P. 4010 and for the additional inspection of the former marital domicile for appraisal purposes. Plaintiff filed answers opposing both motions. The court shall address the motion for the mental examination of plaintiff first. The facts are undisputed and are as follows.

The parties were married in December 1977. Plaintiff, Kathie Rosse, Wife, filed for divorce in 1996. She seeks alimony. During the litigation of the support matters Wife presented evidence from Karen K. Carter-Katz, ACSW, and Louisa Lance M.D., that her earning capacity was limited due to the parties’ separation and pending divorce.

Defendant, Frederick Robert Rosse, Husband, filed a motion for a mental examination of Wife by a psychiatrist pursuant to Pa.R.C.P. 4010. Husband also requests copies of all of Wife’s medical records, including the diagnoses, progress notes, treatment, and prognosis from Wife’s psychologist.

In her answer, Wife asserts that a mental evaluation and examination is unnecessary and that Husband fails to set forth “good cause” under Pa.R.C.P. 4010 to compel a mental examination.

The explanatory note — 1978 reads in pertinent part as follows:

“(2) The amendment introduces a specific requirement of ‘good cause shown’ and notice to all parties and to the person to be examined. Actually, this makes no change in present practice. Good cause and notice were implicit in the prior rule, which required a showing that the physical or mental condition was in controversy in the action.....”

Thus, good cause is shown in the instant case because Wife bases her need for alimony on her mental condition and by doing so places her mental condition in controversy. Therefore, the court will grant Husband’s request for the mental examination of Wife.

Husband also requests the medical records, including diagnoses, progress notes, treatment administered, and prognosis of Wife’s ongoing treatment with Ms. CarterKatz and Dr. Lance.

In her answer, Wife asserts the privilege of confidential communications to her therapists under both the Mental Health Procedures Act and the Judicial Code. Husband maintains that a party may waive the privilege by making his mental or emotional condition an element of a claim or defense.

The court first notes that it is uncertain that the MHPA applies in the case sub judice. The MHPA establishes rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons. If Wife received only voluntary outpatient treatment, the MHPA is inapplicable.

Assuming arguendo that Wife’s treatment is covered by MHPA, 50 PS. §7111 governs the confidentiality of records and reads in pertinent part as follows:

“Section 7111. Confidentiality of records

“(a) All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:

“(1) those engaged in providing treatment for the person;

“(2) the county administrator, pursuant to section 110;

“(3) a court in the course of legal proceedings authorized by this act; and

“(4) pursuant to federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a federal agency.”

Clearly, (a)(1), (2), and (4) have no applicability in the instant case. Section 7111(a)(3) is also inapplicable because the court may review the documents only in a MHPA hearing. Thus, the confidentiality of the records is almost inviolate.

However, in Kraus v. Taylor, 710 A.2d 1142 (Pa. Super. 1998), appeal granted, 556 Pa. 257, 727 A.2d 1109 (1999), appeal dismissed as improvidently granted, 560 Pa. 220, 743 A.2d 451 (2000), the Superior Court held that by filing a personal injury lawsuit for permanent injury, the plaintiff impliedly waived the statutory privileges pertaining to the confidentiality of records of treatment in publicly funded mental facilities, confidentiality of records of drug and alcohol abuse treatment, and confidentiality of communications to licensed psychologists, such that the records of his chronic drug and alcohol abuse were admissible. The court reasoned that the General Assembly must have intended the privileges to yield before the state’s compelling interest in seeing that the truth is ascertained in legal proceedings and fairness in the adversary process. Thus, the privilege is waivable under the MHPA.

42 Pa.C.S. §5944 governs confidential communications to psychiatrists or licensed psychologists and reads as follows:

“Section 5944. Confidential communications to psychiatrists or licensed psychologists

“No psychiatrist or person who has been licensed under the Act of March 23,1972 (P.L. 136, no. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.” This statute clearly implies to the case sub judice.

This statute, too, is waivable. Waiver of the psychologist-client privilege may occur where the client places the confidential information at issue in the case. Rost v. State Board of Psychology, 659 A.2d 626 (Pa. Commw. 1995), appeal denied, 543 Pa. 699, 670 A.2d 145 (1995).

The court must decide in the case sub judice if a waiver has occurred.

Wife filed a claim for alimony which is based on her mental condition. Thus, Wife placed her mental health at issue. In addition, at least two of her health care providers presented evidence in the related support action. A miscarriage of justice would result if the court were to allow Wife to assert any privileges regarding confidential communications. The court finds that under the facts of this case Wife waived her rights to do so. Husband accordingly has the right to access Wife’s medical records.

The court believes that the parties resolved Husband’s motion for an additional inspection of the former marital residence for appraisal purposes by an agreement to permit the inspection. Assuming arguendo that it has not been resolved, the court grants the request due to the lack of any valid opposition by Wife.

In accordance with the foregoing opinion, the court enters the following order.

ORDER

And now, July 19, 2000, after consideration of defendant’s motions, plaintiff’s answers thereto, and the briefs, it is hereby ordered as follows:

(1) Plaintiff/Wife is to allow an additional inspection of the former marital domicile by defendant/Husband and any experts whom Husband deems appropriate within 30 days of receipt of this order.

(2) Wife is to submit to a mental examination by Dr. Larry Rotenberg within 30 days of receipt of this order.

(3) Wife is to authorize the release to Husband’s attorney of all the medical information requested in the motion for mental examination pursuant to Pa.R.C.P. 4010 within 30 days of receipt of this order.


author: JAMES, JR.,

text:
    Sola v. Chao
    C.P. of Montour County,
    no. 122 of 2000

      R. Matthew Patch, for plaintiffs.

      Donna L. Rae, for defendant.
    May 25, 2000
   JAMES, JR.,

Plaintiffs filed a complaint at law alleging medical negligence on the part of defendant. Defendant filed two preliminary objections. The first objection was in the form of a “Demurrer/motion to strike all claims for recklessness.” Plaintiff stipulated to strike the allegations of recklessness from the complaint.

The second preliminary objection was a “Motion to strike complaint/alternative motion for more specific pleading” to paragraph 10(A) which alleged the following “act” on the part of defendant: “10(A) failing to perform the excision of the pilonidal cyst in accordance with medically accepted standards for general surgeons Defendant suggests that this allegation of negligence does not comply with the requirement of Pa.R.C.P. 1019(a) that “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” Defendant also contends that the general, nonspecific allegation of paragraph 10(A) leaves defendant “powerless to prevent plaintiff from obtaining leave to amend the complaint to allege new and different theories of negligence after the running of the statute of limitations” under Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). We agree.

Pa.R.C.P. 1019(a) requires that the complaint state “material facts” to support a cause of action. “A cause of action in negligence has been defined as the negligent act or acts which occasioned the injury for which relief is sought.” Reynolds v. Thomas Jefferson University Hospital, 450 Pa. Super. 327, 338, 676 A.2d 1205, 1210 (1996), citing Cox v. Wilkes-Barre Railway Corporation, 334 Pa. 568, 570, 6 A.2d 538, 539 (1939).

In Connor, supra, the Pennsylvania Supreme Court found that general allegations of negligence could be amplified by later amendments to the complaint. However, in order to be more specifically apprised of the act or acts of negligence (as required by Pa.R.C.P. 1019(a)), a party “could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of (appellant’s) complaint.” Connor, 501 Pa. at 311 n.3, 461 A.2d at 602 n.3.

As a result of Connor, defendants are properly concerned about unidentified allegations of negligence arising late in the litigation process flowing out of a general allegation of negligence raised early in the process. Some common pleas courts have been rightly attuned to plaintiffs who have less knowledge than the defendant medical providers about the care and/or treatment provided. While weighing the “practical considerations involved with medical malpractice actions,” one court gave the plaintiff a “reasonable amount of time to conduct discovery,” and then allowed plaintiffs to amend the general allegations in their complaint. Johnson v. Patel, 19 D.&C.4th 305 (Lacka. Cty. 1993).

A common pleas court has upheld allegations of negligence that were “not very specific,” and suggested the “court adopt a rule allowing courts to grant plaintiffs a period of time for discovery prior to the filing of a complaint” to avoid the Connor conundrum. See Rogers v. Soldiers and Sailors Memorial Hospital, 16 D.&C.4th 573 (Tioga Cty. 1991).

There are methods by which a plaintiff could be protected from the trap of after-discovered evidence of a new cause of action. First, filing the claim at a date much earlier than the date of the statute of limitation would allow more time for discovery and, if necessary, amendments to the pleadings. Second, a thorough investigation and analysis of the case prior to filing could eliminate overlooked causes of action. Third, plaintiffs could file a summons and engage in pretrial discovery, if appropriate. See Potts v. Consolidated Rail Corp., 37 D.&C.4th 196 (Allegheny Cty. 1998).

Finally, this court can envision situations where a general allegation of negligence in a complaint could be left open (under limited circumstances) for a reasonable amount of time while discovery proceeds. For example, under a separate petition, a party could ask for a reasonable time to conduct discovery before amending the general allegations of negligence in a complaint where knowledge of material facts is in the exclusive control of an adverse or hostile party. However, there is no such petition before the court, nor does this court encourage the use of such petitions, except where absolutely necessary to prepare a proper complaint.

The issue before this court is whether the allegation of negligence in paragraph 10(A) conforms with Pa.R.C.P. 1019(a). The Pennsylvania appellate courts have said that “while it is not necessary that the complaint identify the specific legal theory of the underlying claim, it must apprise the defendant of the claim being asserted and summarize the essential facts to support the claim.” Estate of Swift v. Northeastern Hospital of Philadelphia, 456 Pa. Super. 330, 337, 690 A.2d 719, 723 (1997).

In a common pleas case similar to ours, the Somerset Common Pleas Court struck paragraphs containing general allegations of negligence. The court acknowledged that the complaint must be read as a whole and that each individual averment at issue must be read in connection with all other parts and averments of the complaint. However, “a physician charged with negligence and unskillfulness in the practice of his profession is entitled to be advised of the specific acts of commission or omission which constitutes the negligence and unskillfulness complained of, so that plaintiff’s proof may be confined to such acts, and so that he may reasonably prepare for his defense.” Boyd v. Somerset Hospital, 24 D.&C.4th 564, 568 (Somerset Cty. 1993), citing Gray v. Oech, 49 D.&C.2d 358 (1970).

After considering the allegation of paragraph 10(A) by itself and in the context of the entire complaint, it is clear that paragraph 10(A) is simply a general allegation of negligence without reference to sufficient material facts. There are no acts of commission or omission specified. Defendant is entitled to be informed of the specific nature of the acts alleged so that he may prepare and present a defense. This paragraph must be stricken, with leave to amend the complaint to include specific acts. The court will provide plaintiffs with additional time to review the matter, conduct further investigation, and to amend the complaint accordingly.

ORDER

And now, May 25, 2000, it is ordered and decreed as follows:

(1) By agreement and stipulation of the parties, defendant’s first preliminary objection in the nature of a demurrer/motion to strike all claims for recklessness is granted. All claims regarding “recklessness” are hereby stricken.

(2) Defendant’s second preliminary objection in the form of a motion for more specific pleading is granted in regard to paragraph 10(A). Paragraph 10(A) is stricken, with leave to amend the complaint with more specificity.

(3) Plaintiffs shall file an amended complaint in accordance with the opinion and this order within 60 days of this date.