author: WETTICK JR., A.J.,

text:
    Belan v. Ward

      C.P. of Allegheny County,
    no. GD02-10738.

      David M. Landay, for plaintiff.

      John T. Pión and S. Manoj Jegasothy, for defendants.
    August 3, 2004
   WETTICK JR., A.J.,

The subject of this opinion and order of court is plaintiff’s motion to compel a treating physician, who has been sued for professional negligence, to answer questions at his or her discovery deposition relating to whether the treatment provided to the plaintiff met an accepted standard of professional care.

It is the position of plaintiff’s counsel that, as long as there is any possibility that the treating physician may offer expert testimony at trial on the quality of care the patient received, counsel may fully question the treating physician about this matter. According to plaintiff, the defendant should have a choice: the defendant shall fully respond to deposition inquiries relevant to the standard of care, including information that may enhance counsel’s ability to cross-examine the witness, or the defendant shall place on the record that he or she will not be offering any expert testimony as to the standard of care.

Defendant, on the other hand, contends that the scope of the deposition should be limited to information concerning the physician’s treatment of the plaintiff. Pa.R.C.R 4003.5(a) bars discovery of expert testimony other than interrogatories to obtain the identity of each person whom the other party expects to call as an expert at trial, a description of the substance of the facts and opinions to which this expert is expected to testify, and a summary of the grounds for each opinion. The treating physician should enjoy the same protections as any other expert witness, at least until defense counsel identifies the treating physician as an expert witness who will present testimony on the standard of care. Prior to the decision being made that the treating physician will offer such expert testimony, questions relating to the standard of care directed to this witness are irrelevant.

My ruling on plaintiff’s motion to compel is based on my opinion in Feyes v. Gehl, 134 Pitts. L.J. 55 (1985), addressing the scope of a deposition of a treating physician, and subsequent appellate court case law addressing issues that I considered in Feyes.

I begin by discussing what is not involved in this discovery dispute.

The defendant-physician does not question the portion of my opinion in Feyes discussing questions relating to the treatment which a treating physician provided: A treating physician must provide any facts, conclusions, and opinions that would be based in any way on information that he or she may have gained as a treating physician. Also, the discovery rules require an expert witness with first-hand knowledge of the relevant facts to provide detailed factual and opinion testimony that is not required of a specially-retained expert.

Plaintiff does not challenge the portion of my opinion in Feyes which states that Pa.R.C.P. 4011(b) bars discovery requests directed to a defendant-physician relating to whether the care and treatment met accepted professional standards if there is no possibility that the treating physician will be offering any testimony at trial on this matter. Through his motion to compel, plaintiff’s counsel only seeks to extend the scope of the deposition to the scope of any testimony that the treating physician may offer at trial.

What is involved in this discovery dispute is limited to whether the treating physician should be permitted to object to discovery regarding the standard of care until counsel for the treating physician determines whether the treating physician will be offering expert testimony on this subject at trial.

Defendant supports his position that discovery should not involve the standard of care by citing the portion of my opinion in Feyes v. Gehl, which extended Rule 4003.5(a)’s protections and obligations to a treating physician as to testimony relating to whether the treatment met an accepted standard of care. My opinion assumed that evolving case law would bar a treating physician from offering standard-of-care testimony at trial unless he or she had filed an expert report which met the requirements of Rule 4003.5(a).

In 1987, in Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987), the Superior Court ruled that the testimony a treating physician may offer at trial is not governed by Rule 4003.5(a). In that case, the trial court permitted the treating physician to testify as to the standard of care, even though he had not been identified during discovery as one of the experts the defense expected to call at trial. The plaintiff sought a new trial because of the defendant’s failure to meet the provisions of Rule 4003.5, which require a party, in response to interrogatories, to identify each witness whom the party intends to call as an expert witness at trial and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of each. The Superior Court mled that the requirements of Rule 4003.5 do not apply to a party to the litigation because the rule applies only to discovery of facts known and opinions held by an expert acquired or developed in anticipation of litigation. Since the protections of Rule 4003.5 do not apply to a party expert, the “litigant can probe the expert knowledge and opinions of his or her opponent before trial by more direct and comprehensive means than those .. . afforded by Rule 4003.5. The ability to discover the potential expert testimony of a party witness, either by propounding written interrogatories or by taking oral or written depositions, is fettered only by the general limitations that apply to all discovery.” Id. at 471, 530 A.2d at 107. The court further stated that if a treating physician may not invoke the protection of Rule 4003.5 to avoid full discovery of his expert knowledge, the plaintiff cannot invoke the sanctions of Rule 4003.5 to punish the treating physician for noncompliance. Id. at 473, 530 A.2d at 108.

Subsequent appellate court opinions continue to follow Neal by Neal. Recently, in Katz v. St. Mary Hospital, 816 A.2d 1125 (Pa. Super. 2003), the plaintiffs contended that the trial court erred in permitting the defendant-physician to render medical opinions when he failed to disclose such opinions in response to a pretrial order requiring the defendant to answer expert witness interrogatories. The court, citing Neal by Neal, held that the opinions proffered at trial fell outside the scope of Rule 4003.5. Thus, the defendant had not violated the discovery rules. In a footnote, the court stated that the plaintiffs cannot contend that they were prejudiced because they were free to explore this defendant’s opinion through written interrogatories under Pa.R.C.P. 4005, written interrogatories to a party, or a deposition under Pa.R.C.P. 4007.1. Id. at 1128 n.2.

On the basis of Neal by Neal and its progeny, I find that there is no merit to defendant’s position that he is to be treated in the same manner as any other expert witness with respect to expert testimony on the standard of care.

Finally, I find no merit to defendant’s position that the discovery permitted by Neal by Neal of an expert party who may testify as an expert at trial should occur only after defendant’s counsel has made a decision that the defendant will offer expert testimony at trial. Neal by Neal and its progeny do not restrict the discovery of this witness to the production of an expert report. The Superior Court opinions expressly provide for the use of any discovery tool, including depositions. The proposal of defendant’s counsel that a treating physician attend a second deposition to offer testimony as to the standard of care, once he or she has made the decision to testify as an expert, would impose an unreasonable burden on the other parties to the litigation.

SUMMARY

Under the Rules of Civil Procedure governing discovery, a treating physician is required to provide any facts, conclusions, and opinions that would be based in any way on actions taken and decisions and observations made as a treating physician. A treating physician must answer any questions relating to whether the medical treatment provided to the plaintiff met an accepted standard of care unless the treating physician has stated on the record that at trial he or she will not personally be offering any expert testimony on this issue. Discovery of a treating physician who has stated on the record that he or she will not personally be offering any testimony relating to the standard of care shall not include questions relevant only to the standard of care.

For these reasons, I enter the following order of court:

ORDER

On August 3,2004, it is hereby ordered that plaintiff’s motion to compel is granted and defendant, W. Timothy Ward M.D., shall answer questions relating to the standard of care unless within 20 days his counsel files a stipulation that Dr. Ward will not personally be offering any testimony at trial on the issue of the standard of care.

      . At oral argument, plaintiff’s counsel advised me that counsel for the treating physician had not sought to limit discovery relating to the physician’s treatment of plaintiff.


source: Caselaw Access Project

author: VALASEK, J.,

license: Public Domain

text:
    Wynkoop v. Luke

      C.P. of Armstrong County,
    no. 1999-0142-Civil.

      Cynthia Danel, for plaintiff.

      Thomas Lonich, for defendant Luke

      Robert McDermott, for the Commonwealth.
    June 11, 2004
   VALASEK, J.,

This case arises from a single-vehicle accident which occurred when plaintiffs’ vehicle was struck by a 90-foot high dead tree which uprooted and fell from an adjacent hillside onto a two-lane road, State Route 28/66. The plaintiffs, husband and wife, were injured, and their 13-year-old son, Cory Wynkoop, was killed as a result of the accident. The tree which fell was located on land owned by the co-defendant, Gloria Luke, about 15 feet beyond the edge of PennDOT’s right-of-way, on a rather steep but traversable slope. Plaintiffs brought personal injury actions on their own behalf and wrongful death and survival actions in connection with the death of their son. They sued PennDOT in negligence, alleging that it permitted a dead tree to stand adjacent to a public highway, failed to warn motorists of the dead tree, failed to inspect, failed to remove the dead tree, and failed to have the adjacent landowner remove the tree. Plaintiffs also sued Luke in negligence, alleging, among other things, that she had failed to properly inspect the area for dangerous conditions, failed to discover the dangerous condition, and permitted a dangerous condition to exist by “failing to remove the dangerous, rotten, diseased, decayed or dead tree” from an unstable, rocky slope when she knew or should have known of imminent danger to the traveling public because nearby trees in a similar condition had previously fallen onto the road. Both defendants have filed motions for summary judgment.

THE COMMONWEALTH’S MOTION FOR SUMMARY JUDGMENT

The court has read and re-read the report of Dr. Ray R. Hicks Jr. and the addendum thereto. That portion of the addendum concerning his calculation of the drip-line arguably is based on a sleight-of-hand use of statistics. Further, he never directly states an opinion concerning the slant of the tree trunk. Nonetheless, the last paragraph of the addendum is sufficient (barely) to establish some overhang. Since Dr. Hicks also states that “roots of trees . . . typically extend to and beyond the aerial drip-line,” there is sufficient (barely) evidence to establish that the fallen tree’s root system extended into the soil beneath the surface of the right-of-way.

However, the fact that some tree limbs may have overhung the highway right-of-way (not the paved portion) and the fact that some of the tree’s roots may have penetrated the soil beneath the right-of-way (not the paved portion) are, taken together, simply insufficient to make the case fall within the “real property/highway” exception to sovereign immunity found at 42 Pa.C.S. §8522(b)(4). This subsection sets forth an exception to the general rule that the Commonwealth is immune from tort liability, and it reads as follows:

“(4) Commonwealth real estate, highways and sidewalks. — A dangerous condition of Commonwealth agency real estate and sidewalks, including Commonwealth-owned real property, leaseholds in the possession of a Commonwealth agency and Commonwealth-owned real property leased by a Commonwealth agency to private persons, and highways under the jurisdiction of a Commonwealth agency, except conditions described in paragraph (5).” 42Pa.C.S. §8522(b)(4). (emphasis added)

For the exception to immunity to apply, the injury must be caused by a condition of government realty itself, deriving from, or having realty as its source. Marker v. PennDOT, 677 A.2d 345 (Pa. Commw. 1996). In the instant case, it was not the condition of the government realty itself which caused Cory Wynkoop’s death. This ruling is in accord with the often stated general rule that statutory exceptions to governmental immunity must be strictly construed. Finn v. City of Philadelphia, 541 Pa. 596, 664 A.2d 1342(1995).

Lastly, this ruling dovetails perfectly with section 410 of the State Highway Law (36 P.S. §670-410), which permits the Department of Transportation “to trim and cut away any trees . . . growing on adjacent property in so far as they overhang or encroach upon the legal right-of-way of any state highway.” This statute clearly gives the Commonwealth a right but creates no duty to trim. Nothing in the statute magically makes the Commonwealth the “owner” of an encroaching tree.

LUKE’S MOTION FOR SUMMARY JUDGMENT

Defendant Luke urges the court to apply the principle enunciated in section 363(1) of the Restatement (Second) of Torts, which reads as follows:

“(1) Except as stated in subsection (2), neither a possessor of land, nor a vendor, lessor, or other transferor, is liable for physical harm caused to others outside of the land by a natural condition of the land.”

Luke points out that the evidence unequivocally establishes that the dead tree and the reasons for its falling can all properly be labeled a “natural condition” of her land. The court agrees that the record unequivocally establishes these things collectively to be a “natural condition” of Luke’s 59-acre tract.

The court notes that section 364 of the Restatement (Second) of Torts would impose liability upon a landowner to others outside the land “for physical harm caused by... [an] artificial condition on the land, which the possessor realizes or should realize will involve an unreasonable risk of harm . . . .” Thus, the Restatement draws a sharp distinction between natural and artificial conditions.

Plaintiffs, in opposition to defendant Luke’s motion for summary judgment, assert that Pennsylvania’s appellate courts have rejected any distinction between natural conditions and artificial conditions. Plaintiffs cite Harvey v. Hensen, 299 Pa. Super. 474, 445 A.2d 1228 (1982), in support of their position. In Harvey, plaintiff was injured in an automobile wreck allegedly caused by a line-of-sight obstruction at an intersection. The obstruction was comprised of vegetation on defendant’s land. The Harvey opinion conclusively suggests that the vegetation was regarded by plaintiff Harvey herself and by the Superior Court as an “artificial condition,” despite the “finding” of the trial court that it was a “natural condition.”

Despite the Superior Court’s regarding Harvey as involving an “artificial condition,” it nonetheless opined that “[t]he distinction [between artificial and natural conditions made by sections 363 and 364 of the Restatement] appears to be arbitrary at best.” 299 Pa. Super, at 481, 445 A.2d at 1231.

Plaintiffs also rely upon Barker v. Brown, 236 Pa. Super. 75, 80-81, 340 A.2d 566 (1975). In that case, plaintiff Barker had a home in a residential neighborhood and the tree of his neighbor, defendant Brown, toppled onto his lot, causing property damage. The Superior Court opined:

“A tree growing in an urban or residential setting does not have the same relation to surrounding land as a tree located in a rural setting. That tree, once growing in the midst of a forest, is no longer the same ‘natural object’ when a city ... or residential areas are developed in proximity to it. Specifically the relatively minor expenditures in time and money that it will take to inspect and secure trees in a developed or residential area is not large when compared with the increased danger and potential for damages represented by the fall of such a tree.”

In the instant matter, the court is extremely reluctant to hold that the distinction between artificial and natural conditions is to be completely ignored; that the principle of liability enunciated in section 364 be extended to natural conditions; and that the principle of non-liability for natural conditions enunciated by section 363(1) be abolished entirely. To so hold would impose a duty upon all landowners to inspect their properties for dangerous natural conditions and either warn of or remedy them. Such a duty would necessarily not be limited to trees, but would include such things as springs, ponds, creeks, lakes, snow and ice formations, rock formations, soil conditions, etc., all of which conceivably can cause harm outside the land itself. The duty could be extraordinarily burdensome and impractical to perform in many cases.

This does not mean, however, that the court is unwilling to state defendant Luke was under a duty of care to protect motorists traveling on the highway abutting her land. The Superior Court certainly has not hesitated to find a duty in tree/vegetation cases, as evidenced by Harvey and Barker, cited above. In addition, section 363(2) of the Restatement (Second) of Torts reads as follows:

“(2) A possessor of land in an urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway.”

Although subsection (2) explicitly applies to urban land, a caveat to section 363 states

“The institute expresses no opinion as to whether the rule stated in subsection (2) may not apply to the possessor of land in a rural area.”

In view of appellate case law recited above, it can safely be said that the Superior Court is not emphasizing distinctions between artificial and natural conditions or between urban and rural areas. Although we have already expressed our reservation about entirely abrogating the distinction between artificial and natural, we are far less hesitant to abrogate the distinction between urban and rural areas referred to in subsection (2) and the caveat.

The urban/rural dichotomy certainly was once a shorthand way of distinguishing between busy urban thoroughfares and sleepy country roads. Today, many rural roadways accommodate very high volumes of traffic.

The record in this case contains evidence that, on an average, more than 5,600 motor vehicles per day travelled past the site where defendant Luke’s tree crushed the Wynkoop car — a rate of nearly one vehicle every 15 seconds. Taking into account the likely fact that the road is little used between midnight and 5 a.m., the daytime stream of traffic would be even higher. If, as indeed happened, a tree from Luke’s land would fall upon the highway, the chance that it will cause serious harm to a motorist is substantial.

Accordingly, the court holds that a possessor of land in a non-urban area is subject to liability to persons using a public highway for physical harm resulting from his failure to exercise reasonable care to prevent an unreasonable risk of harm arising from the condition of trees on the land near the highway. As in all negligence cases, the amount of care required by the law must be in keeping with the degree of danger involved.

An appropriate order will be entered concerning both motions.

ORDER

And now, June 11, 2004, it is hereby ordered as follows:

(1) the motion for summary judgment filed by defendant Gloria Luke is denied;

(2) the motion for summary judgment filed by defendant PennDOT is granted and judgment is hereby entered in favor of said defendant on all of plaintiffs’ claims.


author: CULLEN, J.,

text:
    Saris v. Charles

      C.P. of Lancaster County,
    no. CI-03-00859.

      Stephen E. Geduldig, for plaintiff.

      John M. Sofilka, for defendant.
    June 9, 2004
   CULLEN, J.,

Before the court for disposition is the motion of defendant, E. Gregory Charles, t/d/b/a Charles’ Laundry, for summary judgment on the claim brought against him by plaintiff, Janeen R. Saris. Plaintiff seeks to recover for injuries she claims she sustained when she slipped on ice on defendant’s property and fell. For the reasons set forth below, defendant’s motion will be granted.

Plaintiff commenced this action on January 31, 2003. In her complaint, plaintiff alleges that on January 20, 2002, she was leaving defendant’s laundromat through a back entrance when she slipped on ice on the steps and fell, sustaining personal injuries.

Defendant filed an answer denying any liability.

On December 15, 2003, defendant filed his motion for summary judgment and a supporting brief. The basis of defendant’s motion is that plaintiff cannot establish the elements of her cause of action in view of the “hills and ridges” doctrine.

Plaintiff filed a response to the motion for summary judgment and a brief on January 9, 2004.

At the request of counsel, the court heard oral arguments on the motion. The matter is now ready for disposition.

DISCUSSION

Pursuant to Rule 1035.2 of the Pennsylvania Rules of Civil Procedure, after the pleadings are closed any party may move for summary judgment where (1) there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) after completion of discovery, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury. Pa.R.C.P. 1035.2.

“A proper grant of summary judgment depends upon an evidentiary record that either (1) shows the material facts are undisputed or (2) contains insufficient evidence of facts to make out a prima facie cause of action or defense and, therefore, there is no issue to be submitted to the jury.” McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 941 (Pa. Super. 1998). (citation omitted) “If the non-moving party fails to come forward with sufficient evidence to establish or contest a material issue to the case, the moving party is entitled to judgment as a matter of law.” Id. at 940 (citing Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996)).

The court must view the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 615 A.2d 303 (1992).

On January 20, 2002, plaintiff drove to defendant’s laundromat to do laundry. (Deposition of Janeen R. Saris, October 10, 2003, pp. 18-19, 43-44.) It had snowed the night before and plaintiff’s roommate cleared the snow off her vehicle. Id. at 20. Plaintiff further testified:

“Q. How were the roads?
“A. Wet.
“Q. How were the sidewalks, if you know, generally?
“A. Unclear. They were wet as well, but there was snow on a lot of them. A lot of people hadn’t gotten to their sidewalks.
“Q. It is fair to say that you observed that the conditions, the prevailing conditions in Lancaster that morning were everything was generally snow covered?
“A. Yes.
“Q. Did you have to exercise care when you were driving because of the road conditions?
“A. Yes.
“Q. More care than if the roads were dry?
“A. Yes.
“Q. Did you have to exercise more care when you were walking?
“A. Yes....
“Q. So, is it fair to say that before you got to the laundromat, you were aware that things were generally slippery in the Lancaster community?
“A. Yes.” Id. at 21-22.
Plaintiff arrived at the laundromat at approximately 9:50 a.m. Id. at 24. The sidewalk was still snow covered. Id. at 25. Approximately 10 a.m., plaintiff left the laundromat to get a cup of coffee. Id. at 27. At the outside rear steps, plaintiff slipped at the top of the steps, skidded, lost her balance and fell. Id. at 30, 33, 37-39. The rear steps were covered with snow and there were foot marks in the snow. Id. at 28,31. Before going down the steps, plaintiff knew they would be slippery. Id. at 32, 46. When she slipped, plaintiff’s body moved the snow and she was able to see a smooth ice spot about the size of a dinner plate. Id. at 34-35.

As a result of the fall, plaintiff sustained injuries to her right knee, left elbow and left shoulder. Id. at 13.

Defendant is responsible for removing snow from the sidewalks at the laundromat. (Deposition of E. Gregory Charles, October 10, 2003, p. 7.) Defendant went to the laundromat to shovel snow at approximately 9 a.m. on January 20, 2002. Id. at 7-8. At approximately 10 a.m., defendant was shoveling the sidewalk. Id. at 11. By that time, he had already cleared the back steps. Id. at 12.

Defendant claims he is entitled to judgment in his favor because plaintiff is unable to establish the elements of her cause of action. Specifically, defendant argues that the law does not impose liability for generally slippery conditions and that, in order to prevail, plaintiff must show that the property owner allowed the ice and snow to unreasonably accumulate in ridges or elevations. Morin v. Traveler’s Rest Motel Inc., 704 A.2d 1085, 1087 (Pa. Super. 1997) (citing Harmotta v. Bender, 411 Pa. Super. 371, 601 A.2d 837 (1992)).

The doctrine of “hills and ridges” provides: “that an owner or occupier of land is not liable for general slippery conditions, for to require that one’s walks be always free of ice and snow would be to impose an impossible burden in view of the climatic conditions in this hemisphere. Snow and ice upon a pavement create merely transient danger, and the only duty upon the property owner or tenant is to act within a reasonable time after notice to remove it when it is in a dangerous condition.” Gilligan v. Villanova University, 401 Pa. Super. 113, 116, 584 A.2d 1005, 1007 (1991).

A prerequisite to the application of the “hills and ridges” doctrine is a finding of generally slippery conditions as opposed to isolated icy patches. Morin v. Traveler’s Rest Motel, 704 A.2d 1085 (Pa. Super. 1997). Based on plaintiff’s statements in her deposition, there is no basis to dispute that generally slippery conditions existed at the time of her fall. It had snowed the previous night, Saturday, and plaintiff went to defendant’s laundromat early the following morning.

The “hills and ridges” doctrine applies with equal force to both public and private spaces. See Wentz v. Pennswood Apartments, 359 Pa. Super. 1, 518 A.2d 314 (1986). (Appellate courts of this Commonwealth apply the doctrine of “hills and ridges” not only to persons injured from falling on ice-covered public walks or parking areas, but to situations in which business invitees have fallen on ice-covered private parking areas and walks as well.)

In order to recover for a fall on an ice- or snow-covered sidewalk, a plaintiff must prove (1) that snow and ice had accumulated on the sidewalk in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians traveling thereon; (2) that the property owner had notice, either actual or constructive, of the existence of such condition; and (3) that it was the dangerous accumulation of snow and ice which caused the plaintiff to fall. Heasley v. Carter Lumber, 843 A.2d 1274 (Pa. Super. 2004).

Plaintiff alleges that she fell on a patch of ice on the back stairs of defendant’s business. However, accepting all of her testimony as true, she admits that the stairs were snow covered and that the ice on which she claims to have slipped was smooth. She also knew the stairs would likely be slippery before she ventured out the back door. When asked about the general conditions of the sidewalks in Lancaster at the time, plaintiff responded that they were unclear and wet, and there was snow on a lot of them as “a lot of people hadn’t gotten to their sidewalks.” Plaintiff also agreed that everything was generally snow covered that morning, as it had snowed the night before.

Plaintiff has failed to point to any facts which would establish that snow and ice had accumulated on the stairs in ridges or elevations of such size and character as to unreasonably obstruct travel and constitute a danger to pedestrians.

In an attempt to avoid the application of the “hills and ridges” doctrine, plaintiff argues that defendant is liable under a general theory of negligence.

Plaintiff cites to the Restatement (Second) of Torts §324Ato assert a claim of negligence. However, section 324A is based on a theory of negligence applicable when one renders services to another and harm results to a third person as a result of the actor’s negligence. See Waddell v. Bowers, 415 Pa. Super. 469, 609 A.2d 847 (1992). In the present case, plaintiff is asserting that defendant owed a duty directly to her. Therefore, the court believes that Restatement (Second) of Torts §323 is the more applicable section.

Restatement (Second) of Torts §323 provides:

“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 to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if his failure to exercise such care increases the risk of such harm, or the harm is suffered because of the other’s reliance upon the undertaking.” Restatement (Second) of Torts §323. (emphasis added)

Because defendant claims to have cleared the steps prior to 10 a.m. when plaintiff states she fell, plaintiff contends that a jury must decide whether defendant had exercised reasonable care.

In ruling on a motion for summary judgment, the court must view the evidence in the light most favorable to the non-moving party. Thus, in this case, plaintiff would have the court disregard her testimony and accept that of defendant in order to determine that a jury question exists. Plaintiff testified that the steps were snow covered at the time she fell. She now asserts a theory of negligence based on defendant’s version of events which directly contradicts her own testimony.

Even if the court were to accept defendant’s testimony as true, plaintiff still would not prevail.

In Morin v. Traveler’s Rest Motel, 704 A.2d 1085 (Pa. Super. 1997), the court dealt with a similar claim of negligence based on Restatement (Second) of Torts §323. In Morin, the court specifically held that the defendant was not liable when the plaintiff fell in a parking lot which the defendant had partially salted because there was no evidence to show that the defendant’s activities actually increased the natural hazards of the ice, nor was there any evidence tending to demonstrate that the plaintiff relied upon the defendant’s snow removal attempts. Id.

In this case, as in Morin, there is no evidence that any effort made by defendant to remove snow from the steps increased the natural hazard of the snow or ice, nor is there any evidence that plaintiff relied on defendant’s clearing the steps. On the contrary, plaintiff’s testimony effectively precludes any such reliance. Accordingly, the evidence could not sustain a finding that defendant violated any duty owed to plaintiff in this respect.

Based upon its review of the record and the arguments of counsel, the court concludes that there is no genuine issue of material fact with respect to plaintiff’s claim against defendant which must be resolved at trial, and that defendant is entitled to judgment as a matter of law.

Accordingly, the court enters the following:

ORDER

And now, June 9, 2004, upon consideration of the motion of defendant, E. Gregory Charles, t/d/b/a Charles’ Laundry, for summary judgment and the response of plaintiff, Janeen R. Saris, it is ordered that the motion is granted.


author: FORNELLI, P.J.,

text:
    Milly v. Joseph J. Conti Ltd.

      C.P. of Mercer County,
    no. 2001-0857.

      John E. Quinn, for plaintiffs.

      Robert J. Marino, for defendants.
    July 8, 2004
   FORNELLI, P.J.,

The matter for disposition is before the court on defendant’s amended motion for summary judgment. For the reasons set forth hereafter, it will be granted.

This civil action arose as follows:

On October 16, 1997, Julia A. Milly, plaintiff-wife, had an ectopic tubal pregnancy. Shortly thereafter, plaintiff-wife began to complain of persistent abdominal pain that occurred approximately one hour after eating, with diarrhea and multiple loose bowel movements per day. Plaintiff-wife sought treatment from Joseph M. Micchia Jr. D.O., who prescribed Levbid during a visit on October 16, 1997, and Hyoscyamine during another visit on November 5,1997. Micchia informed plaintiff-wife that her diagnosed condition was irritable bowel syndrome. Plaintiff-wife was again diagnosed with irritable bowel syndrome by Charles E. D’Auria M.D. during a visit on May 18, 1998.

By March 11, 1999, plaintiff-wife’s symptoms had continued to worsen. On March 11, 1999, plaintiff-wife visited Doctor Sharon Miller D.O. and, on or about March 20,1999, plaintiff-wife was diagnosed with, and laboratory tests confirmed, the presence of adenocarcinoma in the rectum.

Plaintiffs filed this action alleging causes of action against (1) defendant, Joseph J. Conti D.O. Ltd., Conti Ltd., for negligence through the negligence of its agents, servants or employees, including the defendant doctors; (2) Joseph M. Micchia Jr. D.O. and Charles E. D’Auria M.D.; and (3) Joseph J. Conti D.O. Ltd., Joseph M. Micchia Jr. D.O. and Charles E. D’Auria M.D. for loss of consortium.

Specifically, plaintiff-wife contends that as a result of the defendants’ failure to properly examine, test and diagnose plaintiff-wife, her condition worsened and was allowed to progress to a Stage III lesion. As a result of the progression, plaintiff-wife was required to undergo more invasive procedures and increased chemotherapy; the possibility of recurrence increased; the cancer spread to plaintiff-wife’s lymph nodes and serosa; and plaintiff-wife became sterile and continued to experience pain and suffering.

Defendant D’Auria filed a motion for summary judgment on February 13, 2004. At the time the motion was filed, the only expert report provided by plaintiffs’ counsel was that of Thomas P. Wein M.D., dated September 10, 2003. Prior to argument on the motion for summary judgment, plaintiffs’ counsel provided a second report of Doctor Wein, dated February 15, 2004. Following argument, this court issued an order, dated March 1,2004, permitting the deposition of Dr. Wein.

After the deposition of Dr. Wein was taken, defendant D’Auria filed the instant amended motion for summary judgment contending that as a matter of law, Dr. Wein is not competent or qualified to testify concerning matters relating to the plaintiff-wife’s cancer, survival rate or related matters. Furthermore, defendant D’Auria argues that as a matter of law, Dr. Wein’s testimony concerning causation is insufficient.

The standard to be utilized in addressing a motion for summary judgment is set forth by Pennsylvania Rule of Civil Procedure 1035.2 which provides:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

The moving party has the burden of proving the nonexistence of any genuine issue of fact based upon the pleadings, depositions, answers to interrogatories, admissions on file, affidavits, and reports signed by an expert that would, if filed, comply with Rule 4003.5 (a)(1). Pa.R.C.R 1035.1.

The non-moving party “must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Company, 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Q. 512, 136 L.Ed.2d 401 (1996). The court must “resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. . . . Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law.” Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 471, 684 A.2d 137, 140 (1996) (citations omitted), alloc. denied, 548 Pa. 628, 693 A.2d 967 (1997) (citing Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 98-99, 644 A.2d 1251, 1254 (1994)).

Summary judgment is appropriate under Pa.R.C.P. 1035.2 in a medical malpractice action where the plaintiff fails to identify expert medical evidence essential to establish a prima facie claim after relevant discovery is completed. See Wolloch v. Aiken, 572 Pa. 335, 815 A.2d 594, 598 (2002).

Defendant’s motion for summary judgment is premised on two grounds: (1) as a matter of law, Dr. Wein is not competent or qualified to testify concerning matters relating to the plaintiff’s cancer, plaintiff’s survival rate and related matters under the MCARE Act, 40 P.S. §1303.512; and (2) as a matter of law, Dr. Wein’s testimony concerning causation is insufficient. In support of its argument, defendant cites the deposition testimony of Dr. Wein, as well as the reports furnished by Dr. Wein on September 10, 2003 and February 15, 2004. In his September 10, 2003 report, Dr. Wein stated:

“After examining the medical records ... , it strikes me that Mrs. Milly should have been more aggressively evaluated for her GI complaints which dated from October 1997. I find that although a colonoscopy may not have been required early on, it certainly should have been ordered when she continued to have persistent symptoms, and saw Dr. D’Auria in May 1998. In the case of Julia Milly, this is even more important given the family history of colon cancer, specifically Mrs. Milly’s father’s death at age 62 from this disease.
“I believe that colon cancer should have been suspected and evaluated for at a much earlier stage in Mrs. Milly’s medical evaluation. If the cancer had been found nearly a year earlier than it was diagnosed, the likelihood of any less invasive tumor with less nodal involvement would have been probable.” (Exhibit 1 — defendant D’Auria’s amended motion for summary judgment.)

In his February 15, 2004 report, Dr. Wein stated:

“Based upon my review of Julia Milly’s medical records it is my opinion within a reasonable degree of medical certainty, that Dr. Micchia and Dr. D’Auria did not meet the standard of care in pursuing the evaluation of Mrs. Milly’s gastrointestinal symptoms. Although Mrs. Milly’s symptoms were somewhat nonspecific and could certainly be confused with those of irritable bowel syndrome, or other colorectal problems ... it does not appear that either Dr. Micchia or Dr. D’Auria did a thorough evaluation in the office. There is no evidence that a thorough family history was obtained, which would certainly have revealed the presence of colon cancer in Mrs. Milly’s father, who died at the age of 62 of that disease. This historical fact by itself would raise one’s index of suspicion for colorectal cancer and would certainly require a more aggressive approach to looking for a neoplasm. I also note that during her four visits to her primary care physicians, a digital rectal examination should have been performed routinely as part of her office evaluation. This may well have given some earlier indication that an abnormality was present and have led to earlier diagnosis and treatment of her tumor. It should also be noted that although with the initial visits in October and November a single stool specimen was sent for occult blood testing, there was never another testing done for occult blood. Had additional stool specimens been [sent] for occult blood testing, or had the stool been tested at the time of a digital rectal examination, a positive result may have also led to earlier colonoscopy and finding of her rectal cancer. Finally, I feel the physicians erred in this case by not sending the patient for a colonoscopy sooner, especially given the family history and the persistence of her symptoms of abnormal bowel habits. While a colonoscopy ordered in October and November may have been premature, certainly by May of 1998, with persistence of her symptoms, some form of colorectal imaging should have been obtained. The delay in the diagnosis of Mrs. Milly’s colorectal cancer may have resulted in her being diagnosed at a more advanced stage of the disease, thus resulting in a different treatment regimen. While the surgical procedure may not have been altered, Mrs. Milly may not have been required to undergo the six-month postoperative chemotherapy. Also, if her tumor had been diagnosed at an earlier stage, the prognosis long-term would be more favorable. ... In conclusion, ... Dr. Micchia and Dr. D’Auria failed to obtain the appropriate evaluation of Julia Milly’s symptoms in a timely manor [sic manner] by not doing a digital rectal examination and by not ordering an earlier colonoscopy when the patient’s clinical presentation warranted doing so. This delay in treatment has decreased the patient’s long-term chance of the most favorable outcome from her rectal cancer.” (Exhibit 2 — defendant D’Auria’s amended motion for summary judgment.)

During deposition, Dr. Wein was questioned regarding the reports furnished in this matter concerning Mrs. Milly’s treatment and diagnosis. Dr. Wein testified that he is board certified in internal medicine and geriatrics; he has an adult general medical practice; he is not an oncologist, nor a pathologist; and that other than education in medical school, he has no further background in these areas. (Wein depo., pp. 5-6.) In response to questioning regarding the reports prepared by Dr. Wein in this case, Dr. Wein testified that: “it would be my opinion that if this diagnosis had been made a year before, . . . , that it is quite conceivable that, had the cancer been discovered at that time, there would not have been regional lymph node involvement, and the stage would have been either a stage one or a stage two which would have raised the issue as to whether or not chemotherapy postoperatively would have been necessary.... My personal experience would be that, if that had not been present, if the lymph nodes in the — had not been involved, that surgical resection at that time could possibly have been the end of the treatment.” (Wein depo., pp. 11-12.)

Dr. Wein indicated that he did not attempt to review the slides in this case to make the determination and there was nothing in the records that indicated whether Mrs. Milly had cancer in 1997 and 1998, or if she did at what stage it was. (Wein depo., p. 13.) Dr. Wein indicated that there was no way of knowing what treatment would have been required if a diagnosis had been made earlier . . . that it would be a “hypothesis” on his part. (Wein depo., p. 14.) Dr. Wein indicated that the delay in treatment decreased the patient’s long-term chance of the most favorable outcome from the rectal cancer. (Wein depo., p. 14.) The basis for Dr. Wein’s opinion was based on statistical information obtained by Dr. Wein that indicates: “people with rectal cancer diagnosed in either stage one or stage two will have a survival rate that will variant [sic vary], depending on the stage of the diagnosis, from 75 to 100 percent. People with stage three rectal cancer usually are in the prognostic five-year survival range of 35 to 55 — 65 percent....” (Wein depo., p. 14.)

Dr. Wein confirmed that, in his opinion, a digital examination should have been performed. (Wein depo., p. 24.) The basis for Dr. Wein’s opinion was that: “the symptoms that the patient was having were gastrointestinal in nature. She was complaining of abdominal pain and change in her bowel habits. It’s been my training and my experience that a digital rectal exam is part of a system exam for that particular problem.” (Wein depo., pp. 24-25.)

When questioned as to whether he had any reason to believe that a mass would have been detected had a digital examination been done, Dr. Wein replied “I can’t answer that. I would be — it would be conjecture to say that it would have been diagnosed initially, but it may have been. There may have been some abnormality felt.” (Wein depo., pp. 25-26.)

Dr. Wein was questioned regarding occult blood testing. Dr. Wein indicated that occult blood testing was done following the November 1997 visit. . . and the results were negative. (Wein depo., pp. 28-29.) Dr. Wein stated that he was familiar with the American Cancer Society guidelines for occult blood testing and that as one form of testing, fecal occult blood testing is recommended yearly after 50. (Wein depo., p. 29.)

Dr. Wein was questioned as to whether he had an opinion, to a reasonable degree of medical certainty, whether a digital rectal examination done by Dr. Micchia on those dates would have detected a mass in the rectum consistent with cancer. Dr. Wein testified “I think that’s also conjecture.” (Wein depo., p. 44.) Dr. Wein was also questioned, with respect to detection of possible irregularities, as to whether he would agree that during the patient’s visit to Dr. D’Auria it would also be conjecture whether any irregularities would have been detected in the digital exam. Dr. Wein testified “yes” (indicating it would also be conjecture). (Wein depo., p. 49.)

As a general rule, no person shall be competent to offer an expert medical opinion in a medical professional liability action against a physician unless that person possesses sufficient education, training, knowledge and experience to provide credible, competent testimony and fulfills the additional qualifications set forth in this section as applicable. 40 Pa.C.S. § 1303.512(a). An expert testifying on a medical matter, including the standard of care, risks and alternatives, causation and the nature and extent of the injury, must (1) possess an unrestricted physician’s license to practice medicine in any state or the District of Columbia; and (2) be engaged in or retired within the previous five years from active clinical practice or teaching. 40 Pa.C.S. §1303 .512(b). The court may waive these requirements for an expert on a matter other than the standard of care if the court determines that the expert is otherwise competent to testify about medical or scientific issues by virtue of education, training or experience. 40 Pa.C.S. §1303.512(b).

In addition to these requirements, an expert testifying as to a physician’s standard of care also must (1) be substantially familiar with the applicable standard of care for the specific care at issue as of the time of the alleged breach of the standard of care; (2) practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue; and (3) in the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board. 40 Pa.C.S. § 1303.512(c).

A court may waive the same subspecialty requirement for an expert testifying on the standard of care for the diagnosis or treatment of a condition if the court determines that (1) the expert is trained in the diagnosis or treatment of the condition, as applicable; and (2) the defendant physician provided care for that condition and such care was not within the physician’s specialty or competence. 40 Pa.C.S. § 1303.512(d). Furthermore, a court may waive the same subspecialty and board certification requirements for an expert testifying as to a standard of care if the court determines that the expert possesses sufficient training, experience and knowledge to provide the testimony as a result of active involvement in, or full-time teaching of medicine in, the applicable subspecialty or a related field of medicine within the previous five-year time period. 40 Pa.C.S. § 1303.512(e).

As Dr. Wein is not an oncologist or pathologist and has no further background in these areas, Dr. Wein is not competent or qualified under 40 PS. §1303.512 of the MCARE Act to render an opinion regarding whether plaintiff-wife’s cancer would have been detected at an earlier stage; what stage it would have been; the treatment that would have been required had cancer been detected earlier; or the survival rate and related matters.

Even if Dr. Wein was viewed as competent to render an opinion under the MCARE Act, he has not provided, by his reports or testimony, a causal connection between defendants’ alleged negligence and plaintiff-wife’s cancer. Plaintiffs have produced no competent evidence that plaintiff-wife ever had cancer at the time defendants treated her or if so, that it was detectable by defendants or effected by defendants’ actions or inaction.

Hence this order:

ORDER

And now, July 8, 2004, it is hereby ordered and decreed that defendant’s amended motion for summary judgment is granted and judgment is hereby entered in favor of Charles E. D’Auria M.D. and Joseph J. Conti Ltd.


author: TETI, Vice-Chair,

text:
    In the Matter of Schofield

      Disciplinary Board Docket no. 25 D.B. 1997.
    March 23, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TETI, Vice-Chair,

Pursuant to Rule 218(c)(5) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for reinstatement.

I. HISTORY OF PROCEEDINGS

On June 20, 2002, petitioner, Frederick S. Schofield III, filed a petition for reinstatement to the bar of the Supreme Court of Pennsylvania. Petitioner was disbarred by order of the Supreme Court dated February 24,1997.

A reinstatement hearing was held on January 15,2003, before Hearing Committee 2.06 comprised of Chair Joseph R. D’Annunzio, Esquire, and Members Anton H. Rosenthal, Esquire, and James J. Byrne, Esquire. Petitioner was represented by James C. Schwartzman, Esquire.

The Hearing Committee filed a report on August 5, 2003, and recommended that the petition for reinstatement be granted.

No briefs on exceptions were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of November 19, 2003.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner was bom in 1948 and was admitted to the practice of law in Pennsylvania in 1976. He currently resides at 43 West Ferry Street, New Hope, PA 18938. His current business address is 1955 Street Road, Bensalem, PA 18938.

(2) Beginning in 1978 and continuing until his disbarment, petitioner was employed as a solo practitioner in New Jersey.

(3) Between July 1995 and July 1996, petitioner settled personal injury cases for six clients. In each of these client matters, petitioner drew the amount of his contingency fee from his trust account before the settlement funds had actually cleared or been received in the account.

(4) In one instance the fee was drawn two days early, in another it was drawn four weeks early. Typically, it was drawn two to three weeks early.

(5) Petitioner’s actions came to light when a check drawn from his trust account was returned for insufficient funds in August 1996. This triggered an audit by the State of New Jersey, which examined all records and found a total of six instances when petitioner had advanced his attorney fees before settlement checks had cleared in the account.

(6) The New Jersey audit found no wrongdoing other than the six instances in which petitioner had drawn attorneys fees prematurely.

(7) Petitioner cooperated fully in the audit.

(8) No client was injured as a result of petitioner’s actions. Each of the clients received all funds to which they were entitled prior to the audit that discovered the improper advances.

(9) As a result of these actions, petitioner was disbarred on consent from the practice of law in the State of New Jersey by order of the Supreme Court of New Jersey dated September 25, 1996.

(10) Following his disbarment in New Jersey, and by way of reciprocal discipline, petitioner was disbarred from the practice of law in the Commonwealth of Pennsylvania by order of the Supreme Court of Pennsylvania dated February 24, 1997.

(11) During the period of his disbarment, petitioner has written and promoted three novels and screenplays, formed a corporate publishing venture, and has had literary agents working on his behalf. The books were eventually published and sold in certain areas of the country.

(12) Beginning in January 2002 and continuing to the present, petitioner has been employed as a licensed real estate salesperson and has worked on a commission basis. Petitioner is associated with Long & Foster Real Estate in Yardley, Pennsylvania.

(13) Petitioner received a Pennsylvania Notary Public appointment in March 2002.

(14) Petitioner has an outstanding debt to the Internal Revenue Service in the amount of $26,500.

(15) Petitioner is a recovering alcoholic. At the time of the events that led to his disbarment, petitioner was at the height of his active alcoholism and was having periods of blackouts.

(16) In May 1996, petitioner began treating with a physician who specialized in alcohol and drug abuse. However, at that time, the treatment did not resolve his alcoholism.

(17) Eventually, petitioner began attending Alcoholics Anonymous meetings. As he began to work through the 12 steps of AA, he came to recognize the fact of his alcoholism, and thereafter became a regular participant in AA meetings.

(18) Petitioner consulted counsel regarding the possibility of reinstatement to the Bar of Pennsylvania. He began treatment with Richard Limoges M.D., a recognized expert in treating alcoholism. Dr. Limoges introduced petitioner to the Philadelphia chapter of Lawyers Concerned for Lawyers (LCL). Within a week, petitioner became an active participant in LCL.

(19) Petitioner currently attends AA meetings, as well as meetings of the Trenton, New Jersey chapter of LCL. He attends three to four support meetings per week.

(20) In June 2002, petitioner voluntarily entered into a sobriety monitor program. Pursuant to that program, petitioner has met regularly with his sobriety monitor, who is responsible for determining whether petitioner has maintained his sobriety.

(21) Petitioner’s sobriety monitor has concluded that petitioner has at all times remained faithful to his objectives and has performed his obligations under the program contract.

(22) At the time of the reinstatement hearing, petitioner had been sober for approximately two years.

(23) Petitioner volunteers as a speaker at LCL programs and CLE programs organized by LCL.

(24) Petitioner has demonstrated sincere remorse for his misconduct. He testified convincingly of the shame he brought to his family.

(25) Petitioner has recognized his wrongdoing and takes full responsibility for his actions.

(26) If reinstated, petitioner hopes to practice criminal and real estate law in Bucks County, Pennsylvania. He intends to devote a portion of his practice to rendering pro bono services to persons in need.

(27) Petitioner fulfilled his continuing legal education requirements for reinstatement. He reads the advance sheets and other law related journals. He occasionally assists other attorneys in putting together briefs or motion responses.

(28) Petitioner devotes significant time to civic and community activities. He volunteers for the Bucks County Library System, and is an active member of the Rotary Club and the Veterans of Foreign Wars, among other activities.

(29) Six character witnesses testified at the reinstatement hearing. These witnesses testified that petitioner enjoys a strong reputation in the community as a truthful, honest, and law-abiding person who has demonstrated sincere remorse for his past actions.

(30) Petitioner offered a number of letters from attorneys who support petitioner’s reinstatement.

(31) Office of Disciplinary Counsel did not object to petitioner’s reinstatement.

III. CONCLUSIONS OF LAW

(1) The misconduct for which petitioner was disbarred is not so egregious as to preclude immediate consideration of his petition for reinstatement.

(2) Petitioner has demonstrated, with clear and convincing evidence, that he possesses the moral qualifications, competency and learning in the law necessary to practice law in the Commonwealth of Pennsylvania.

(3) Petitioner’s resumption of the practice of law will not be detrimental to the integrity of the bar nor subversive of the interests of the public.

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for reinstatement filed by Frederick S. Schofield III. Petitioner was disbarred on February 24, 1997, by order of the Supreme Court of Pennsylvania. This disbarment was reciprocal discipline based on petitioner’s disbarment on consent from the practice of law in New Jersey on September 25, 1996.

Petitioner’s request for reinstatement to the bar after disbarment is initially governed by the standard set forth by the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Keller, 509 Pa. 573, 506 A.2d 872 (1986). As a threshold matter, the board must determine whether petitioner has demonstrated that his breach of trust was not so egregious that it precludes him from reinstatement.

Petitioner’s disbarment in New Jersey was based on his actions over a one-year period involving six clients. Petitioner settled personal injury cases for each of these clients and drew the amount of his contingency fee from his trust account before the settlement funds had actually been cleared, or had been received, in the account. Petitioner’s actions were discovered when a check from his trust account was returned for insufficient funds. This triggered an audit by the State of New Jersey, which examined all of petitioner’s records and found a total of six instances of misconduct. Petitioner cooperated fully in the audit and consented to be disbarred.

While petitioner may not seek reinstatement in the State of New Jersey pursuant to that jurisdiction’s disciplinary rules, he is permitted to seek reinstatement in Pennsylvania, as this jurisdiction’s rules do not mandate an identical discipline. Pa.R.D.E. 216. Upon review of the underlying offense and the case law, the board concludes that petitioner’s misconduct is not so egregious as to preclude petitioner from reinstatement. Petitioner committed irregularities in disbursing funds from his escrow account. No clients were harmed as a result of his actions, and each client promptly received all settlement funds due and owing. Petitioner did not engage in conversion of funds. Indeed, the court has reinstated attorneys who have engaged in more egregious behavior than petitioner, such as those attorneys who convert client or law firm funds to their own use. Matter of Costigan, 541 Pa. 459, 664 A.2d 518 (1995).

Having concluded that petitioner’s misconduct is not so egregious as to preclude the board from considering his petition for reinstatement, the board must now determine whether petitioner has met his burden of proving by clear and convincing evidence that his resumption of the practice of law at this time would not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest, and that he has the moral qualifications, competency and learning in the law required for admission to practice law in Pennsylvania. Pa.R.D.E. 218(c)(3)(i). In order to make this determination, the board must consider the amount of time that has passed since petitioner was disbarred, as well as his efforts at rehabilitation. In re Verlin, 557 Pa. 47, 731 A.2d 600 (1999).

Petitioner has been without a license to practice law in Pennsylvania for approximately seven years. This is a lengthy period of time in light of his underlying misconduct, and is sufficient to dissipate the taint of petitioner’s misconduct on the integrity of the bar and the public interest. The uncontroverted evidence presented at the hearing clearly and convincingly demonstrates that during these seven years, petitioner has worked to rehabilitate himself.

Petitioner confronted his issues with alcoholism and is now sober. He sought psychological treatment and joined Alcoholics Anonymous and Lawyers Concerned for Lawyers. He received his realtor’s license and an appointment as a Notary Public. Petitioner has an excellent record of civic service. He presented numerous character witnesses who spoke convincingly of petitioner’s steps to overcome his alcoholism and to transform his life. These witnesses described petitioner as an honest person who has sincere remorse for his past actions, and who poses no threat to the legal community or the public if reinstated.

Petitioner fulfilled his requirements for continuing legal education, and he regularly reads the advance sheets, the Legal Intelligencer, the PA Law Weekly, and other legal journals in an effort to apprise himself of the current state of the law.

Petitioner testified credibly of his remorse for his actions, expressing great regret for the embarrassment and shame he caused his family. If reinstated, petitioner hopes to practice criminal and real estate law in the Bucks County area.

Considering all of these facts, the board is persuaded that petitioner has demonstrated that he has engaged in a qualitative period of rehabilitation during his disbarment. Petitioner has met his burden of proving that he has the moral qualifications, learning and competence to practice law, and his resumption of the practice of law will not have a detrimental impact on the integrity and standing of the bar, the administration of justice, or the public interest. The board recommends that the petition for reinstatement be granted.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that petitioner, Frederick S. Schofield III, be reinstated to the practice of law in this Commonwealth.

The board further recommends that, pursuant to Rule 218(e), Pa.R.D.E., petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement.

ORDER

And now, June 29, 2004, upon consideration of the report and recommendations of the Disciplinary Board of the Supreme Court of Pennsylvania dated March 23, 2004, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: KUNSELMAN, P.J.,

text:
    Harris v. Sangodeyi

      C.P. of Beaver County,
    no. 11339 of 2003.

      Jean A. Manifesto, for plaintiff.

      Robert A. Weinke imer, for defendant, Aliquippa Community Hospital.
    September 3, 2004
   KUNSELMAN, P.J.,

— This medical malpractice case is before the court on the motion of the defendant, Aliquippa Community Hospital, for partial judgment on the pleadings. The motion is founded upon the plaintiff’s failure to timely file a certificate of merit as to individual nurses. Certificates of merit as to the individual nurses were filed on behalf of the plaintiff six days after the motion for partial judgment on the pleadings was filed. Prior thereto, the plaintiff had timely filed a certificate of merit as to the hospital which certified that “the claim that this defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard and an appropriate licensed professional has supplied a written statement to the undersigned that there is a basis to conclude that the care, skill or knowledge exercised or exhibited by the other licensed professionals in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about harm[.]” Motion for partial judgment on the pleadings, exhibit A.

We were informed by counsel for the hospital at oral argument that this certificate of merit precluded the filing of a praecipe for judgment of non pros under Pa.R.C.P. 1042.6 and so the hospital proceeded with its motion for partial judgment on the pleadings. We shall deny the motion. Our reasons follow.

At the outset, we observe that a motion for judgment on the pleadings is governed by Pa.R.C.P. 1034. That rule authorizes any party to move for judgment on the pleadings after the pleadings are closed. (Rule 1034(a).) The court then is authorized to enter such judgment or order as shall be appropriate on the pleadings. (Rule 1034(b).) Subdivision (b) thus authorizes a partial judgment on the pleadings when, for example, the defendant’s answer unequivocally and unqualifiedly admits that a portion of a claim is due, Kappe Associates Inc. v. Aetna Casualty and Surety Company, 234 Pa. Super. 627, 341 A.2d 516 (1975), or where the defendant’s answer to part of a claim is inadequate. Jeffrey Structures Inc. v. Grimaldi, 186 Pa. Super. 437, 142 A.2d 378 (1958).

However, a motion for judgment on the pleadings is similar to a demurrer and may be entered only where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Kosor v. Harleysville Mutual Insurance Company, 407 Pa. Super. 68, 71, 595 A.2d 128, 129 (1991). In ruling on such a motion, we may consider only the pleadings and any documents properly attached thereto. Parish v. Horn, 768 A.2d 1214, 1215 n.1 (Pa. Commw. 2001), affirmed, 569 Pa. 46, 800 A.2d 294 (2002); Mellon Bank N.A. v. Na tional Union Insurance Company of Pittsburgh, 768 A.2d 865, 870 (Pa. Super. 2001); Del Quadro v. City of Philadelphia, 293 Pa. Super. 173, 176-77, 437 A.2d 1262, 1263 (1981).

In the case at bar, we have examined the averments of the plaintiff’s complaint as to the hospital and find that the plaintiff has alleged facts that, if proven, establish a cause of action against the hospital based upon its own negligence and that of its nurse employees. A certificate of merit required by Pa.R.C.P. 1042.3 is not part of the pleadings and so the failure to timely file a certificate of merit cannot be the basis upon which to enter judgment on the pleadings.

Moreover, since certificates of merit were filed prior to any praecipe for judgment of non pros, it would appear that the hospital is no longer entitled to seek such a judgment. Note to Pa.R.C.P. 1042.6; Helfrick v. UPMC Shadyside Hospital, 64 D.&C.4th 129 (Allegheny Cty. 2003).

For the foregoing reasons, we shall dismiss the hospital’s motion for partial summary judgment. An appropriate order is attached.

ORDER

For the reasons set forth in the attached opinion, the motion for partial summary judgment filed on behalf of the defendant, Aliquippa Community Hospital, is dismissed.