author: GORDON, J.,

text:
    Jackson v. Medical College of Pennsylvania Hospital

      Frank M. McClellan, for plaintiff.

      Donald Ladd, for defendants.
    April 22, 1998
   GORDON, J.,

This is a medical malpractice action that arose as a result of the alleged delayed diagnosis and surgery of the plaintiff’s decedent.

This case was brought by the plaintiff, Robert S. Jackson, on behalf of the estate of his late wife, Aven S. Jackson. The plaintiff as administrator sought damages from the defendants, The Medical College of Pennsylvania, Michelle Battistini M.D., Deurward Hughes M.D., and Thomas Santera M.D. Both a wrongful death and survival action were instituted against the defendants.

This litigation was predicated on the following facts: On December 15, 1992, the decedent, Aven Jackson, who was 46 years of age at the time, entered MCP for an elective hysterectomy to be performed by Dr. Battistini. Following the surgery, no complications developed the first two days. On the third day postoperative, Mrs. Jackson began to experience abdominal pain and fever. This condition continued until the sixth postoperative day. Dr. Battistini and the physicians attending to Mrs. Jackson diagnosed her condition as a bowel obstruction.

On the sixth day after surgery, Dr. Battistini performed abdominal surgery on the decedent to determine the nature of the problem. She was assisted during this operation by Dr. Hughes, who was the chief of the department of obstetrics and gynecology at MCP. The surgery showed that the problem was not a bowel obstruction, but instead a portion of the bowel had herniated through a membrane that covers the abdominal organs. Dr. Battistini reinserted the bowel into the abdomen and called Dr. Santera, a general surgeon, for consultation.

After performing a Doppler test on the bowel, Dr. Santera concluded that the bowel was viable. Based on the assessment that it was viable, the doctors did not perform a resection of it during this surgery.

When there was no improvement in Mrs. Jackson’s condition after 24 hours, another abdominal surgical procedure was necessitated. At this time, Dr. Santera determined that approximately six feet of small bowel was not viable and performed a resectioning of affected portion. Mrs. Jackson subsequently underwent four more operations. After six operations, her condition did not improve and she succumbed on January 12, 1993 of system failure, approximately 28 days after the original surgery.

The plaintiff contends that his wife’s death was due to the negligence of the named defendant doctors, other physicians, and nurses who attended Mrs. Jackson while she was a patient at MCP. He bases this theory on the assertion that there was an unreasonable delay in diagnosing the mechanical bowel obstruction, and when it was discovered, the physicians failed to resect it in a timely manner. The plaintiff presented the testimony of two board-certified general surgeons, Dr. Theodore Bitsack and Dr. Theodore Struhl, to support his propositions.

On March 25, 1997, after a trial before this court and a jury, the jury found the defendants MCP and Battistini negligent and returned a verdict in favor of the plaintiff against them. Hughes and Santera were found not liable. The jury found Battistini 60 percent liable and MCP 40 percent liable. Damages were awarded in the amount of $750,000. The two defendants found culpable filed a timely post-trial motion requesting a new trial or in the alternative judgment notwithstanding the verdict.

In requesting j.n.o.v. or new trial, the defendants have averred that:

(1) Over the defendants’ objection, this court erred when it allowed the plaintiff’s experts to give unqualified testimony and render an opinion as to the standard of care for a board-certified gynecologist;

(2) This court erred by allowing the testimony of the plaintiff’s experts to go beyond the scope of their reports;

(3) This court committed error by not providing instructions to the jury on the different schools of thought doctrine;

(4) This court erred by not instructing the jury to reduce future damages to present worth; and

(5) The plaintiff’s experts did not provide opinions with the required level of medical certainty.

The defendants’ post-trial motion was denied.

In reviewing the request for a new trial, the court must determine if the verdict is so contrary to the weight of the evidence that it “shocks one’s sense of justice” or results in a miscarriage of justice. See e.g., Thompson v. City of Philadelphia, 507 Pa. 592, 493 A.2d 669 (1985). Such a determination is always within the discretion of the trial judge and is reviewable only where there is an abuse of discretion. See e.g., Sacco v. City of Scranton, 115 Pa. Commw. 512, 540 A.2d 1370 (1988); Myers v. Gold, 211 Pa. Super. 66, 419 A.2d 663 (1980); Macina v. McAdams, 280 Pa. Super. 115, 421 A.2d 432 (1980).

Judgment n.o. v. will only be granted when the moving party is entitled to judgment as a matter of law or because the evidence is such that no two reasonable minds could disagree. Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992). The facts must be considered in a light most favorable to the verdict winner, in this case the plaintiff. Moure, supra. Because this court is, in a sense, intruding upon the province of the jury, we will review the entire record to determine if there exists a serious injustice. Hilbert v. Katz, 309 Pa. Super. 466, 455 A.2d 704 (1983).

I. EXPERTS QUALIFIED TO OPINE ON THE STANDARD OF CARE

In medical malpractice cases, expert testimony is required to determine the standard of care in assessing whether there was negligence by the defendant doctor or hospital. The defendants aver that such testimony must be presented by an expert in the particular field or specialty of the defendant doctor in order to fully assess whether the proper standard was met. Dr. Battistini is a board-certified gynecologist and obstetrician, whereas plaintiff’s expert, Dr. Bitsack, is a general surgeon who has not performed gynecological surgery since the early 1970s.

The defendants aver that although Dr. Bitsack was only offered as an expert in general surgery, this court allowed his expert opinions regarding the standard of care of an obstetrician. Additionally, the second expert, Dr. Struhl, is also not board certified in gynecology. Therefore, the defendants state, he should not have been permitted to testify as to the standard of care of Dr. Battistini.

The defendants refer this court to a series of case law which provides that experts should not be permitted to testify as to the standard of care for a medical procedure which falls outside their areas of specialization. See Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 485 A.2d 408 (1984); Harris v. Campbell, 409 P.2d 67 (Ariz. App. 1965); Sweeney v. Blue Anchor Beverage Co., 325 Pa. 216, 189 A. 331 (1937).

The defendants, however, construe the treatment of Mrs. Jackson too narrowly. The question was whether the experts had a reasonable pretension to specialized knowledge with respect to the issue before the court or jury. McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 533 A.2d 436 (1987). This court held in the affirmative. A portion of Mrs. Jackson’s treatment, for which the plaintiff’s experts provided an opinion, was the care of a patient believed to have an obstructed bowel and a herniated bowel. The expert testimony does not address the gynecological procedure for which Mrs. Jackson initially consulted Dr. Battistini.

The cases cited by the defendants for support each involves an expert testifying beyond his or her area of specialized knowledge. This is what the defendants allege was the case with the plaintiff’s experts. This court disagrees. Dr. Bitsack and Dr. Struhl were not called to give opinion testimony regarding the standard of care for obstetrics or gynecology. They were, however, fully qualified, and did so testify, as to the standard of care provided after the medical team suspected that Mrs. Jackson had a possible bowel obstruction and herniated bowel.

Both Dr. Bitsack and Dr. Struhl were qualified in training and expertise to the level necessary to clarify for the jury those concepts not generally within the reach of the layperson, and to further render an opinion as to the general standard of care for the treatment of bowel obstruction and herniation.

In Chanthavong v. Tran, 452 Pa. Super. 378, 682 A.2d 334 (1996), the Superior Court reviewed the law regarding qualifications of expert witnesses. The test to be applied is whether the witness “has any reasonable pretension to specialized knowledge on the subject under investigation. If he does, he may testify and the weight to be given to such testimony is for the trier of fact to determine.” 452 Pa. Super. at 385, 682 A.2d at 338 (citing Commonwealth v. Gonzalez, 519 Pa. 116, 128, 546 A.2d 26, 31 (1988)); see also, Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974); Moodie v. Westinghouse Electric Corp., 361 Pa. 493, 501, 80 A.2d 734, 738 (1951). In Chanthavong, the plaintiff suffered severe back injuries as a result of a motor vehicle accident. In order to show there were serious noneconomic damages, the plaintiff offered the testimony of his family doctor, Dr. Bell, as an expert general practitioner. The trial court found that Dr. Bell was not qualified to express an opinion regarding whether treatment would be required from reviewing the CAT scan or the situation of the discs at a particular point on the spine; and that an orthopedist would be better suited to testify as to such matters. The Superior Court, in overturning the trial judge, stated that experts in one area of medicine may be found to be qualified to address other areas of specialization where the specialties overlap in practice. The court noted that Dr. Bell was a board-certified general practitioner who had been practicing medicine for 16 years and had regularly used CAT scan reports in the course of his practice. As a result, the Superior Court ruled:

“Due to Dr. Bell’s training and experience, we conclude that he had a ‘reasonable pretension to specialized knowledge’ in the use of CAT scan reports to diagnose and treat patients. The combination of his training and experience with patients who have sustained personal injuries, qualified him to aid the jury in its deliberations.” Chanthavong, 452 Pa. Super. at 387, 682 A.2d at 338.

The question before the jury in this case was whether Dr. Battistini and the other defendants were negligent in diagnosing and treating an obstructed bowel condition after the hysterectomy. In the present case, Dr. Bitsack is aboard-certified general surgeon licensed since 1945, who testified that he has operated on patients with bowel problems approximately once per week. Dr. Struhl had been practicing as a general surgeon for over 40 years, and related that he diagnosed and treated hundreds of bowel obstructions during his career. Dr. Struhl also testified he held privileges in gynecology for over 40 years, although he was not board certified in that specialty. He testified he gained these privileges prior to the establishment of the Board of Obstetrics and Gynecology, and said he had performed numerous hysterectomies, and cared for patients during the postoperative recovery period. He also informed the jury that he served on several medical boards.

Given the liberal standards applied for qualifying an expert, and Drs. Bitsack’s and Struhl’s training and education, both could aid the jury in its deliberations. Neither doctor inferred that the hysterectomy itself nor any of the GYN-specific treatment was below acceptable standards. In determining the standard of care required for postoperative treatment by any physician who suspects a partially or fully obstructed bowel, an expert in the field of general surgery is in a position to provide an opinion in line with the court’s ruling in Chanthavong, supra.

II. EXPERT TESTIMONY NOT BEYOND THE SCOPE OF REPORTS

The defendants further aver that both experts testified beyond the scope of their reports in violation of the Pennsylvania Rules of Civil Procedure 4003.5.

Specifically, Dr. Bitsack testified at trial that there were several things Dr. Battistini neglected to do, which should have been part of the standard of care. Yet, these specific assertions were not part of the expert report. The defendants state that these new allegations caught them at an unfair and prejudicial surprise.

The defendants point us to Augustine by Augustine v. Delgado, 332 Pa. Super. 194, 481 A.2d 319 (1984) where the court stated that protecting against unfair surprise of facts and substance of an expert’s testimony is the basis for the pretrial report. The defendants argue that because the outcome of the case may have been dependent on the testimony of the experts, it was unfair and prejudicial to allow an expert to testify beyond that which the adversary was prepared to answer based on lack of notice. See also, Takes v. Metropolitan Edison Co., 440 Pa. Super. 101, 655 A.2d 138 (1995); Pascale v. Hechinger Co. of PA, 426 Pa. Super. 426, 627 A.2d 750 (1993); Jones v. Constantino, 429 Pa. Super. 73, 631 A.2d 1289 (1993).

The question is not simply whether the testimony goes beyond that which is explicitly stated in the expert’s report, but whether the testimony goes beyond that which the defendants should have reasonably anticipated, or whether the testimony was, in fact, prejudicial. The report of Dr. Bitsack opined that Dr. Battistini and the medical team violated the standard of care because of their unreasonable delay in diagnosing the herniated bowel, and secondly because of their decision not to resect that portion of the bowel once it was discovered. This opinion was made on a general level, not regarding the specifics of any of the processes that, if carried out, would have avoided the delay.

Over objection, Dr. Bitsack testified as to his opinion of the postoperative diagnosis of Mrs. Jackson thusly:

“A. Well, if you get a patient with a questionable situation, gynecologic operation, and no evidence to make you think that the problem is related to the gynecologic surgery in the pelvis, then you better get perhaps an opinion, a second opinion, with regard to this problem. And that’s where I would be critical. Instead of calling another member of her department, the better thing to do is to call a member of the general surgical department. An experienced person in that regard would certainly be able to offer a more authoritative opinion.
[Defense counsel]: Objection as to scope, Your Honor, of the report.
Court: I’m sorry?
[Defense counsel]: Objection and move to strike with respect to that testimony as it is not — there is nothing in the report that says that.
Court: Overruled. The report reasonably puts you on notice.
[Defense counsel]: I understand. Note my objection.
Court: Overruled.
[Defense counsel]: Thank you.
Q: Doctor, would you refer to the report which is now exhibit 4 on page 6 of the report, the last full paragraph and just quickly read that to yourself and I ask you if that reflects the opinion that you formulated in connection with the care rendered in this case by Dr. Battistini? . . .
A: I agree with that.
Q: And is that still your opinion today, sir?
A: It is, sir.
Q: Would you read that paragraph to the jury?
A: ‘The initial delay in reaching a conclusion as to the nature of the obstructive small bowel and, secondly, the failure to resect the questionable six-foot segment of involved bowel led to the picture of sepsis and all of its unfortunate consequences and the ultimate demise of the patient. At the time of the exploration following the pelvic surgery, had the decision been made to resect the bowel, I think that it is reasonable to assume that the patient would not have the complications that she had.’ ”

This court, relying on the rulings of Chanthavong, supra, overruled the objection because the report of Dr. Bitsack was a general one of negligence by delay, and his testimony was not beyond the scope of the report, but merely illuminated what he meant by unreasonable delay.

There was no prejudice to the defendants in that they were able to rebut the opinions of Dr. Bitsack and Dr. Struhl with opposing testimony by their expert witnesses.

The defendants exclaim that Dr. Bitsack went beyond his expert reports when he testified as follows:

(1) Dr. Battistini should have called a general surgical consult prior to the first post-hysterectomy surgery of December 21;

(2) Dr. Battistini should have ordered a CAT scan;

(3) Dr. Battistini should have ordered a CT x-ray;

(4) Dr. Battistini should have performed an abdominal ultrasound; and

(5) Dr. Battistini should have ordered a barium swallow test.

Through testimony of their own experts, the defendants presented evidence to counter these assertions.

The level of testimony offered by the plaintiff’s experts did not exceed the boundaries tolerated by the Pennsylvania courts and was not so different in kind from the report to warrant a new trial. In determining whether to admit expert testimony into evidence, a trial judge has wide discretion and will not be reversed unless there has been a clear abuse of discretion. Greer v. Bryant, 423 Pa. Super. 608, 621 A.2d 999 (1993).

Pennsylvania courts have consistently provided that experts can expand on and amplify their reports so long as they do not proffer a new theory or present trial testimony inconsistent with the scope of their reports. See e.g., Chanthavong v. Tran, supra; Beverly v. Kensington Hospital, 29 Phila. 533 (1995); Greer v. Bryant, 423 Pa. Super. 608, 621 A.2d 999 (1993); Dible v. Vagley, 417 Pa. Super. 302, 612 A.2d 493 (1992).

Also, the policy behind Pa.R.C.P. 4003.5 is to prevent unfair surprise. The objective is to allow the adverse party an opportunity for meaningful response. The courts have held that there are no definite rules for determining whether the testimony exceeds the fair scope of the report, but must be reviewed on a case by case basis. Wilkes-Barre Iron & Wire Works Inc. v. Pargas of Wilkes-Barre Inc., 348 Pa. Super. 285, 502 A.2d 210 (1985). In Beverly, supra, the court noted that the testimony of the expert had “merely provided support for the conclusions set forth in his report.” Id. at 544. In Millard v. Nagle, 402 Pa. Super. 376, 587 A.2d 10 (1991), the Superior Court stated that in deciding whether testimony is within the scope of the report, accent is on the word fair. The court stated, “ ‘[f]air’ scope contemplates a reasonable explanation and even an enlargement of the expert’s written words.” Id. at 404, 587 A.2d at 23 (quoting Wilkes-Barre Iron & Wire Works v. Pargas of Wilkes-Barre, 348 Pa. Super. 285, 290, 502 A.2d 210, 212-13 (1985). Further, where an expert report was written in absolute language, adverse counsel should have anticipated that the expert’s trial testimony would expand on his report. See Greer, supra. The question is whether the adversary was misled as to the nature of the appropriate response or whether the adverse party was prevented from preparing a meaningful response. Beverly, supra.

The defendant cites as support Takes v. Metropolitan Edison Co., supra; Jones v. Constantino, supra; and Wilkes-Barre Iron & Wire Works, supra, inter alia. Each of these cases can be distinguished from the case sub judice in that the experts in those cases were not simply explaining the particulars of their conclusions in the report, but offering a new theory of liability. In Takes, for example, the interrogatory presented to the defendant’s expert specifically asked for a description of any tests or experiments to which the expert would testify. The expert listed no tests, but simply discussed Mr. Takes’ adherence to the predetermined work plan and steps he could have taken. Under those circumstances, the court ruled he could not later testify about a capacitor’s rattle and hum, because it amounted to a test or experiment.

In Jones, a doctor’s expert report claimed in a general manner that there was no negligence, but the report gave no theory as to how the hepatic duct was cut, only that the injury was “unavoidable and promptly discovered. . . .” Later in trial testimony, the expert said the accident was likely caused by traction. Both the trial judge and the Superior Court took exception to this expanded testimony because the pretrial report failed to apprise the opposing party of the basis for the expert’s ultimate conclusion.

In Wilkes-Barre, the expert’s report discussed the need for a protective collar around a propane tank, and concluded that if one had been present, the accident would not have happened. At trial, the expert testified that the cylinder was defective because it lacked a permanently welded on protective collar, introducing a new theory of defect. The difference is that the opposing party was prepared to present testimony that the cylinder was not defective when it was delivered to the plaintiff because it had a detachable collar (which could have been removed by the plaintiff). The court held that had the opposing party known that the expert would testify that only a permanent collar would make the product safe, he would have prepared a different rebuttal.

In each of the cases cited above, the adversary was given an indication that the theory or testimony would take one road by the report, but verged off onto another unanticipated course during trial testimony. This is what the courts have held to be unfair surprise because it did not allow the opponent to properly prepare a response. That does not mean, however, that the expert report must point out every detail of a theory. In Jackson v. Robinson and City of Philadelphia, 21 Phila. 432 (1990), the court stated that an expert’s report does not have to mention every piece of evidence relied upon in reaching his conclusion.

In the present case, the defendants were put on notice of the plaintiff’s theory against them, namely failure to diagnose the obstructed bowel within a reasonable period of time, and failure to resect a portion of nonviable bowel. As the court stated in Beverly v. Kensington Hospital, supra at 547, “if the defendants felt that [the] pretrial report did not provide them with adequate notice of how [the expert] would testify, they should have conducted more extensive discovery.” Likewise, in the present case, if the report by the plaintiff’s experts did not provide them with as much specificity as they would have liked, the defendants should have submitted additional interrogatories.

It is reasonable to expect that if the expert states in his report that there was unreasonable delay in diagnosis, he may, at trial, state with specificity how the diagnosis could have been expedited.

In Chanthavong, supra, the court had a somewhat similar analysis. The plaintiff’s expert submitted a report which concluded a herniated disc. The theory of the plaintiff’s case was that the plaintiff had suffered a serious injury as result of the accident. The trial court disallowed the expert to testify about the type of pain and suffering caused by such an injury. Upon reversal, the Superior Court ruled that the trial court had abused its discretion by not allowing the expert to testify more specifically about his conclusions in the report. The court stated “it naturally followed that appellant would attempt to establish not only the fact that he had sustained an injury, but also the effects thereof. We cannot see how [the expert’s] testimony would have surprised appellee or prevented him from preparing a meaningful response.” Id. at 389, 682 A.2d at 340.

We adopt this logic and apply these principles to the case at bar.

III. CONSTITUTIONAL DUE PROCESS

Defendants argue that allowing the experts to testify beyond the scope of their reports violated their right to procedural due process. Specifically, because of a lack of notice as to the nature of the plaintiff’s position and testimony, there was a denial of an opportunity to defend against such evidence and, hence, a constructive lack of due process. The defendant cites as support Mulleme v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 865 (1950); Memphis Light, Gas & Water Div. v. Craft, 436 U.S. 1 (1978); and First Eastern Bank v. The Campstead Inc., 432 Pa. Super. 241, 637 A.2d 1364 (1994).

Notice and the right to be heard is premised on the concept that a party to litigation should be informed of the pending action and the information necessary for that party to present objections and rebuttals. Pennsylvania Coal Mining Association v. Insurance Department, 471 Pa. 437, 370 A.2d 685 (1977). What, however, the defendants proffer is akin to revealing the entire opposing party’s case, both substance and tone, so that they may properly prepare to answer or object. The protections of due process do not travel this far. The determination of the sufficiency of the evidence may be regulated without denying due process. 7A P.L.E. Constitutional Law §319 (1980). Furthermore, even in those cases where the expert had testified beyond the scope of his report, rendering the decision error, the courts have held that an erroneous decision does not deprive one of due process where the parties have been fully heard. East Crossroads Center Inc. v. Mellon-Stuart Co., 245 F. Supp. 191 (1965).

IV. DIFFERENT SCHOOLS OF THOUGHT DOCTRINE

The defendants next aver that it was reversible error not to include a charge on the different schools of thought doctrine regarding medical malpractice, as they requested. Specifically, the defendants allege that this court’s lack of instructions regarding treatments in which competent medical authority is divided prejudiced the defendants because enough instruction was not given as to the minority school of thought. Tobash v. Jones, 419 Pa. 205, 213 A.2d 588 (1965). The defendant requested the following jury charge:

“A physician may rightfully choose to practice his profession in accordance with a school of thought which differs in its concepts and procedures from another school of thought. Even though the school that he follows is a minority one, he will not be deemed negligent or practicing improperly, so long as it is advocated by a considerable number of reasonable medical experts.”

The instructions given by this court were:

“Medical practitioners are not required to exercise the highest possible degree of care and skill, but only that average degree of skill and care possessed by other physicians in their field of practice.
“A physician must base his professional decisions on his knowledge, skill and study and consideration of the particular case.
“In some instances there may be more than one method of treatment for a particular condition. You are instructed that where more than one method of treatment is recognized in a profession, it is not negligence in and of itself for a physician to adopt one of the alternative methods.” (N.T. 3/21/97, pp. 19-20.)

It is not necessary for the trial court to follow the standard instructions or to deliver the specific instructions supplied by a party as long as the court fairly and accurately informs the jury of the relevant legal theories and the law when the instructions are read as a whole. See Butler v. Kiwi S.A., 412 Pa. Super. 591, 604 A.2d 270 (1992).

In order to set aside a jury’s verdict or grant a new trial based on the jury charge, the instructions must be harmful to the complaining party. Jistarri v. Nappi, 378 Pa. Super. 583, 549 A.2d 210 (1988). The jury was instructed that when there is more than one method of treatment recognized in a profession, it is not negligence for a physician to adopt one of those methods.

After reviewing the record, and the charge as a whole, we are of the opinion that we instructed properly. The jury was told that it was not negligence in and of itself for a physician to adopt a particular mode of treatment when there are alternative methods of treatment. This conformed to the evidence that the jury heard. No “majority” versus a “minority” view was presented to the fact-finder.

The question put to the witnesses involved whether there were “two schools of thought” in regard to the diagnosis and treatment of a bowel obstruction postoperatively. The jury was informed that there are. Neither counsel explored with the experts what purports to be a “majority” rule or a “minority” standard for the diagnosing and treating of such a condition. Since this concept was never placed before the jury, we believe it would have been misleading and confusing to charge as requested by the defendants. Ergo, the instruction as given was proper in light of the evidence presented is this area.

V. REDUCTION OF DAMAGES TO PRESENT WORTH

Next, the defendants aver that despite the ruling by the Pennsylvania Supreme Court in Kaczkowski v. Bolubasz, 491 Pa. 561, 421 A.2d 1027 (1980), regarding the use of a total offset method for determining future lost earnings, this court committed reversible error because the Pennsylvania Supreme Court’s ruling is based on inaccurate economic theory and contrary to that of other jurisdictions.

The total offset method has been used by the Pennsylvania courts ever since our Supreme Court’s ruling in 1980, when it determined that the best approach for determining accurate wage loss was to not discount the award to its present value. Kaczkowski, supra. The defendant must have some basis other than the method used by other jurisdictions before this court will ignore a mandate by our highest appellate court.

It has long been the standard in Pennsylvania to adhere to the principles of stare decisis unless it is completely contrary to contemporary ideals or current law and serves only to perpetuate errors. Mayle v. Pennsylvania Department of Highways, 479 Pa. 384, 388 A.2d 709 (1978). When a majority of the Pennsylvania Supreme Court members participate in a decision, the rulings in that matter, unless dicta, are binding precedent on the lower courts of this Commonwealth. Commonwealth v. Mason, 456 Pa. 602, 322 A.2d 357 (1974).

The fact that other states use a different offset formula does not mean that the formula used by Pennsylvania is economically unsound or that its use by lower courts subjects litigants to such an injustice that stare decisis should be ignored.

VI. TESTIFYING TO REASONABLE MEDICAL CERTAINTY

Lastly, defendants have averred that they are entitled to j.n.o.v. because the plaintiff’s expert testimony did not meet the level of medical certainty required and therefore the jury’s verdict was against the weight of the evidence.

Testifying with the required level of certainty need not be expressed in the precise language enunciated by the courts. Testimony must prove to a reasonable medical certainty that, in the expert’s professional opinion, the injury was caused by the alleged act. See e.g., Jackson v. Robinson and City of Philadelphia, 21 Phila. 432 (1990); Kravinsky v. Glover, 263 Pa. Super. 8, 396 A.2d 1349 (1979). The expert’s testimony should be reviewed in its entirety to determine if the standard was met. Kravinsky, supra. The plaintiff’s expert testimony clearly expressed that delay in diagnosis and resectioning of the bowel was the cause of decedent’s death. The plaintiff met his burden on this issue by a clear preponderance of the evidence.

Based on all the foregoing reasons, defendants’ post-trial request for a new trial or j.n.o.v. was denied.


source: Caselaw Access Project

author: SCOTT, J.,

license: Public Domain

text:
    Gelzinis v. Hoffman Graphics Inc.

      C.P. of Bucks County,
    no. 96-00806-14-2.

      Vincent A. Guama, for plaintiff.

      John S. Thome Jr., for defendant.
    October 6, 1998
   SCOTT, J.,

Marilyn Gelzinis, plaintiff, has filed post-trial motions following a $3,000 jury verdict in her favor. For the reasons discussed below, we deny these post-trial motions.

This trial involved a claim for personal injuries arising out of an automobile accident that occurred on February 25, 1994. The plaintiff was stopped for traffic when the automobile she was driving was struck in the rear by an automobile operated by John H. Hoffman III and owned by Hoffman Graphics Inc., collectively, defendant. The negligence of the defendant was not contested at trial. Plaintiff sought damages principally for neck and back problems and carpal tunnel syndrome.

Plaintiff’s post-trial motions are as follows:

(1) The verdict in favor of the plaintiff was so inadequate that the court should order a new trial.

(2) The court erred in granting defendant’s points for charge covering mitigation of damages.

(3) The failure to charge the jury with certain of plaintiff’s points for charge on issue of pre-existing injuries was an error of law.

We will discuss each of these points below.

1. The Verdict Was So Inadequate As To Require a New Trial

Although the defendant’s negligence was conceded at trial, there was a dispute as to the cause and extent of the damages claimed by plaintiff. Plaintiff’s first doctor visit was four days after the accident. She was treated for complaints of neck and back pain, and pain in her arms and legs. Dr. George Weber, her family doctor, testified to a diagnosis of cervical and lumbar sprain and strain. He also eventually diagnosed her with bilateral carpal tunnel syndrome. It was also the opinion of plaintiff’s medical expert, Dr. Aron Wahrman, that the plaintiff had carpal tunnel syndrome and that it was a result of the auto accident.

The defense medical expert, Dr. John Taras, expressed the opinion that plaintiff did not have carpal tunnel syndrome. He called her condition bilateral subjective hand pain. (Defendant’s exhibit 3, p. 30.) Dr. Taras testified that her condition was not the result of the accident but possibly caused by other factors such as the fact that she is in her fifties, her occupation as a bookkeeper and her obesity.

At the time of trial, the plaintiff testified that she remained symptomatic in her back and both hands and was unable to do certain activities of daily living. However, she did not miss any work as a result of the accident. Rather, at the time of the accident, she was working part-time and six months later switched to full-time. Further, on cross-examination, plaintiff acknowledged prior treatment for a stiff neck. (N.T., p. 31.) The plaintiff also had lower back dysfunction/spasms about a year prior to the accident for which Dr. Weber ordered x-rays. (Exhibit P-4, pp. 59-60.) Dr. Weber discovered the spasms during his examination of her stiff neck although the plaintiff never mentioned to him that she had any problems with her lower back. (N.T., p. 34.) In addition, as discussed below, there was an issue of plaintiff’s conduct in not mitigating any damages due to the carpal tunnel syndrome.

When a verdict is grossly inadequate, the grant of a new trial is proper. Kiser v. Schulte, 538 Pa. 219, 648 A.2d 1 (1994). In addition, a court can grant a new trial when the jury verdict is so contrary to the evidence that it shocks one’s sense of justice. Neison v. Hines, 539 Pa. 516, 653 A. 2d 634 (1995), quoting Kiser. Since causation and extent of damages were disputed at trial, we cannot say that the jury award of $3,000 was grossly inadequate or shocked our sense of justice.

2. The Court Erred in Giving Defendant’s Point for Charge on Mitigation of Damages

Plaintiff argues that since defendant did not plead mitigation of damages as an affirmative defense, that he was precluded from having this charge given to the jury. In general, mitigation of damages is an affirmative defense that must be pled. Koppers Co. v. Aetna Casualty and Surety Co., 98 F.3d 1440 (3d Cir. 1996).

However, in this case, a mitigation question was not apparent until considerably after the defendant had filed his answer and new matter in March 1996. The plaintiff’s first visit to Dr. Wahrman was in April 1996 and he issued his report in November 1997. In his report, Dr. Wahrman made reference to both cortisone injections and surgery as possible treatments for the plaintiff but that she had not agreed. Further, at Dr. Wahrman’s trial deposition on June 8, 1998 (exhibit P-6), plaintiff’s counsel asked Dr. Wahrman a series of questions on direct, dealing with the treatment recommendations. (Exhibit P-6, pp. 30-36.) Plaintiff testified at trial that she did not wear a wrist brace for the amount of time prescribed (N.T., p. 37); she did not take cortisone injections in her wrists as recommended (N.T., p. 38); and that she did not have the carpal tunnel release surgery as suggested by Dr. Wahrman. (N.T., p. 38.)

Defendant made a motion to amend the pleadings at trial to include the mitigation defense. This motion was granted. (N.T., p. 94.) This amendment merely conformed the pleadings to the evidence presented at trial and was proper. Newcomer v. Civil Service Commission of Fairchance Borough, 100 Pa. Commw. 559, 515 A.2d 108 (1986).

The evidence presented in this case required instruction to the jury as to how to evaluate the issue of mitigation. Accordingly, this post-trial motion is denied.

3. The Failure To Use Plaintiff’s Suggested Points for Charge on Issue of Pre-existing Injuries Was Error of Law

The plaintiff contends that the court erred in not granting plaintiff’s points for charge numbers 17, 20, 21 and 22 regarding pre-existing injuries. Instead, the court read Pennsylvania Suggested Standard Civil Jury Instruction 6.23 which addressed pre-existing injuries. The plaintiff’s counsel admitted that the standard instruction covered the issue, “just not to the extent I’d like, but I understand.” (N.T., pp. 82-83.)

Counsel was unable to articulate a particular concept in his proposed points for charge that was not covered in the standard instruction. (N.T., p. 82.) We found that the standard charge sufficiently covered the law regarding pre-existing injuries.

Accordingly, this post-trial motion is denied.

For the above reasons, we deny the plaintiff’s post-trial motions and enter the attached order.

ORDER

And now, October 6, 1998, the post-trial motions filed on behalf of the plaintiff are denied and dismissed.


author: PRATT, J.,

text:
    New Castle Industries Inc. v. Behm

      C.P. of Lawrence County,
    no. 40219 of 1996, EQ.

      Arthur J. Schwab and Stanley J. Parker, for plaintiff.

      Michael J. Betts and Charles W. Garbett, for defendants.
    December 23, 1998
   PRATT, J.,

The underlying dispute between the plaintiff and the defendants arises out of the defendants’ access to certain confidential information of the plaintiff. Defendant Jay Behm was employed by plaintiff as a sales engineer, from June 15, 1992 until his voluntary resignation on October 2, 1995. During his employment, defendant Jay Behm made sales calls on existing and potential customers to solicit orders and promote the products of the plaintiff. Defendant Jennifer B. Behm began working for the plaintiff, on an independent contractor basis, as a computer consultant on August 6, 1992 and ended her relationship on July 21, 1995. Both defendants had possession of, or access to, various trade secrets and customer information, which was the confidential property of plaintiff.

PROCEDURAL HISTORY

The plaintiff initiated its cause of action by a complaint in equity on June 13, 1996, seeking to enjoin the defendants from the unlawful conversion and misuse of the plaintiff’s trade secrets and other confidential information and defendants’ tortious interference with the plaintiff’s existing and prospective business relations and unfair competition; and, seeking relief from a civil conspiracy to commit these acts. The plaintiff also sought replevin relief regarding its confidential customer and trade secret information which was in the defendants’ possession. Simultaneously with the filing of its complaint, and in response to a motion by plaintiff, entitled “motion for order of court directing preservation of documents, software and things by defendants” (motion to preserve), but without notice to defendants, the court entered an order, dated June 13, 1996. The order directed that the defendants preserve, maintain, and protect in their present state from destruction, modification or alteration, each and any of the documents, software and things described in plaintiff’s “request for production of documents, software and things,” previously served upon the defendants, which were in the possession, custody or control of the defendants, pending disposition of the plaintiff’s complaint in equity. The court further ordered that it would conduct a hearing of the motion to preserve at the same time of the hearing of plaintiff’s motion for expedited discovery, scheduled for June 21, 1996. On June 13, 1996, the defendants were properly served with plaintiff’s complaint and various other pleadings, as well as the plaintiff’s motion to preserve and ensuing order of court, dated June 13, 1996.

On June 21, 1996, as scheduled, the court heard arguments of the plaintiff’s motion for expedited discovery and, by appropriate order, established a discovery schedule, which included inspection and examination of the defendants’ computers, hardware and software, by Price Waterhouse on behalf of the plaintiff. Following the inspection on June 24, 1996, and the taking of the depositions of the defendants on June 27, 1996, the plaintiff filed its “motion for discovery sanctions and petition for adjudication of civil contempt for violation of order directing preservation of documents, software and things” (motion for sanctions and contempt), alleging that the defendants violated the court’s June 13, 1996 order by deleting the subject files from their computer after they were appropriately served with notice of the court’s order of June 13, 1996.

Subsequent to a full evidentiary hearing on May 23, 1997, the court issued an order on December 30, 1997, granting the plaintiff’s motion for sanctions and contempt, and adjudicating the defendants in indirect civil contempt of court. The court found that the defendants had intentionally and willfully violated the court’s June 13, 1996 order by deleting files from their computer’s memory containing the plaintiff’s confidential business information and discarding a “hard copy” thereof printed from the defendants’ computer’s memory. As discovery sanctions, the court ordered the defendants to pay the plaintiff a fine of $50,000. Plaintiff’s costs, and reasonable attorney’s and expert fees incurred by the plaintiff, due to the defendants’ noncompliance with the court’s order of June 13, 1996, were also imposed.

On January 27, 1998, the court granted defendants’ motion to stay time for appeal and stayed the time for appeal of the court’s contempt order of December 30, 1997, until such time as the court could dispose of defendants’ objections to the amount plaintiff claimed for attorney’s and expert fees and costs.

After a hearing, the court, by its June 23, 1998 order, awarded the plaintiff $25,000 as reasonable attorney’s and expert fees and costs generated by the plaintiff in prosecuting its motion for sanctions and contempt. The defendants, thereafter, filed a timely notice of appeal from this court’s December 30,1997 and June 23,1998 orders and a concise statement of matters complained of on appeal. This opinion is issued in satisfaction of Pa.R.A.P. 1925(a).

DISCUSSION

The court will first address those objectives raised by defendants regarding the court’s contempt order of December 30, 1997, and then those issues relevant to the court’s order of June 23, 1998, awarding plaintiff reasonable attorney’s and expert fees, and costs.

I.

Civil Contempt

The purpose of a proceeding for indirect civil contempt is remedial, and sanctions may be imposed to either coerce the defendant into compliance or compensate the complainant for losses sustained as a result of the defendant’s actions. Township of South Fayette v. The Boys’ Home, 31 Pa. Commw. 254, 263, 376 A.2d 663, 667 (1977). In determining whether to adjudicate a defendant in indirect civil contempt, the court need only resolve whether the defendant, with prior notice, intentionally and willfully violated an order of the court. East Caln Township v. Carter, 440 Pa. 607, 611, 269 A.2d 703, 705 (1970). It is under the umbrella of this standard that this court, in the instant case, must review the defendants’ objections regarding the court’s December 30, 1997 order adjudicating defendants in indirect civil contempt of court.

A.

The defendants assert that paragraph 3 of the court’s December 30, 1997 contempt order was erroneous, as the court should have granted the defendants’ oral motion in the nature of an involuntary compulsory nonsuit (motion for compulsory nonsuit) at the close of the plaintiff’s case. The standard of review for the entry of a compulsory nonsuit is well settled:

“[A compulsory nonsuit] is proper only if the fact-finder, viewing all of the evidence in favor of the plaintiff could not reasonably conclude that the essential elements of a cause of action have been established. When a nonsuit is entered, the lack of evidence to sustain the action must be so clear that it admits no room for fair and reasonable disagreement. A compulsory nonsuit can only be granted in cases where it is clear that a cause of action has not been established and the plaintiff must be given the benefit of all favorable evidence along with all reasonable inferences of fact arising from the evidence, resolving any conflict in favor of the plaintiff. The fact-finder, however, cannot be permitted to reach a decision on the basis of speculation or conjecture.” Shannon v. McNulty, 718 A.2d 828, 829-30 (Pa. Super. 1998). See also, Smith v. Grab, 705 A.2d 894 (Pa. Super. 1997); Joyce v. Boulevard Physical Therapy and Rehabilitation Center, 694 A.2d 648 (Pa. Super. 1997); Bridle v. West Allegheny Hospital, 406 Pa. Super. 572, 594 A.2d 766 (1991).

In the instant case, it would have been error for the court to grant the defendants’ motion for compulsory nonsuit at the close of the plaintiff’s case in view of the evidence presented by plaintiff.

First, the plaintiff presented credible expert testimony from witness Lawrence Ranallo, a partner at Price Waterhouse. After being qualified as an expert in the areas of corporate financial recovery and corporate finance, Ranallo testified that he was retained by the plaintiff to inspect the defendants’ computers in preparation for the present litigation. Notes of testimony, May 23,1997, p. 7. He revealed that 16 files had been deleted from the defendants’ computer, of which 10 were retrieved in readable form; six of the files were permanently lost. N.T. May 23, 1997, pp. 32-33. Ranallo also stated that he examined the readable files, and they contained information belonging to the plaintiff, such as customer lists, addresses, and technical information that described products and specific applications associated with the customers listed. N.T. May 23, 1997, p. 33. Printed copies of the retrieved files were admitted as plaintiff’s exhibits 6 through 13. N.T. May 23, 1997, p. 36.

Next, the plaintiff introduced the deposition testimony of defendant Jennifer B. Behm. Her testimony showed that the data contained in plaintiff’s exhibits 6 through 13 were typed into defendants’ computer by Judy Brooks, defendant Jennifer B. Behm’s mother. N.T. May 23, 1997, p. 76. Defendant Jennifer B. Behm further stated that she assisted defendant Jay Behm, her husband, in deleting the data from their computer on June 13,1996, the day they were served notice of this court’s June 13, 1996 order, directing them to preserve any information associated with this lawsuit. N.T. May 23, 1997, p. 78. The plaintiff also introduced an affidavit of defendant Jay Behm, wherein Behm stated he destroyed a printout of the data deleted from the computer. N.T. May 23, 1997, p. 82.

Finally, the plaintiff introduced the testimony of James D. Frankland Jr., president of plaintiff New Castle Industries Inc. Frankland testified that the information retrieved by Price Waterhouse from the defendants’ computer for the purposes of this litigation contained customer order and job numbers from New Castle Industries’ Gold Mine database program. N.T. May 23,1997, p. 125. Frankland further states that there were hundreds of examples of information specific to New Castle Industries contained in the retrieved data and that the defendants were not authorized to possess this information. N.T. May 23, 1997, pp. 129-30.

Clearly, if this evidence is accepted as true and viewed in a light favorable to the plaintiff, together with all reasonable inferences to be drawn therefrom, it must be concluded that the essential elements for indirect civil contempt were established. By this court’s June 13,1996 order, the defendants were directed to preserve and maintain certain documents, software and things, which were in their possession and control pending final disposition of plaintiff’s cause of action. If the testimony of Ranallo, the depositions of the defendants, defendant Jay Behm’s affidavit, and the testimony of Frankland are accepted as true, then the evidence shows that defendants intentionally and willfully deleted files from their computer memory containing the plaintiff’s business information in direct contravention of this court’s order of June 13, 1996. Therefore, with the plaintiff establishing the essential elements of indirect civil contempt, denying defendants’ motion for compulsory nonsuit was proper.

B.

The defendants also complain that there was insufficient evidence to support the court’s findings in paragraph 4 of its contempt order of December 30, 1997, regarding whether the defendants intentionally and willfully violated this court’s June 13, 1996 order. Additionally, the defendants complain that the court’s adjudication of the defendants in indirect civil contempt in paragraph 5 of its December 30, 1997 order was not supported by the evidence to satisfy the elements of indirect civil contempt.

It is the exclusive province of the fact-finder to determine the credibility of witnesses and the weight to be given to testimony and other evidence. Keating v. Belcher, 384 Pa. 129, 132, 119 A.2d 535, 537 (1956). In order for the fact-finder’s verdict to be against the weight of the evidence, it must be so contrary to the evidence as to shock one’s sense of justice. Ditz v. Marshall, 259 Pa. Super. 31, 35, 393 A.2d 701, 703 (1978). Certainly, if the court in this case accepted as true the testimony and evidence presented by the plaintiff, as discussed above in conjunction with the defendants’ motion for compulsory nonsuit, the court could reasonably find the defendants in indirect civil contempt, as the adjudication was amply supported by sufficient evidence.

II.

Discovery Sanctions

The imposition of discovery sanctions is largely within the discretion of the trial court, and the court is required to select a punishment which “fits the crime.” Brunetti v. SEPTA, 329 Pa. Super. 477, 481, 478 A.2d 889, 891 (1984). The appropriateness of sanctions is determined by the assessment of four factors: “(1) the prejudice caused to the opposing party and whether the prejudice can be cured; (2) the defaulting party’s willfulness or bad faith in failing to comply with the discovery order; (3) the number of discovery violations; and (4) the importance of the precluded evidence in light of the failure.” Hein v. Hein, 717 A.2d 1053, 1056 (Pa. Super. 1998).

The defendants argue that there was insufficient basis to support the court’s award of discovery sanctions in paragraph 6 of its December 30, 1997 order, there was no legal basis for discovery sanctions, and that the amount of the sanctions was improper and not supported by the evidence or law.

In analyzing the imposition of sanctions in this case, the court first must decide the extent of the prejudice to the plaintiff and whether this can be cured. By deliberately destroying materials vital to the plaintiff’s cause of action, the defendants placed beyond the reach of the plaintiff a substantial amount of evidence that was critical and relevant to proving the averments of the plaintiff’s complaint. As indicated above, in discussing Ranallo’s testimony, there were six computer files that could not be retrieved by the plaintiff’s expert. This evidence has been forever lost, and this prejudice to the plaintiff cannot be cured. The court finds that the actions of the defendants precipitated the plaintiff’s withdrawal of its substantive claims against the defendants.

Secondly, the court must examine the defaulting party’s willfulness or bad faith in failing to comply with the discovery order. As reviewed above, the testimony established that the defendants intentionally and willfully deleted the information from their computer the day they were served with notice of the court’s order to protect and preserve the information related to the litigation. There can be no behavior so brazen and deliberate as these actions.

Lastly, the court must consider the number of discovery violations and the importance of the precluded evidence in determining whether sanctions were appropriate. The number of violations is not so determinative in this case as the importance of the precluded evidence. The destruction of the evidence in violation of this court’s order seriously and irreparably damaged the plaintiff’s case against the defendants, to the extent that plaintiff eventually withdrew its substantive claims in their lawsuit.

After accessing the appropriate factors and the court’s determinations that the defendants must be held accountable for their actions and that the plaintiff must be compensated for its loss of a viable cause of action, the sanctions imposed against the defendants were reasonable and proper. The severity and irreparable nature of the defendants’ actions led to the imposition of sanctions in the amount of $50,000, as well as reasonable expert and attorney’s fees and costs. The court believes this is a just and reasonable result in consideration of the defendants’ egregious conduct.

III.

Attorney’s and Expert Fees and Costs

An award of attorney’s fees, expert fees, and costs is a matter within the discretion of the trial court and will not be reversed where the conduct of a party during the pendency of a matter is dilatory, obdurate, or vexatious. American Mutual Liability Insurance Co. v. Zion & Klein P.A., 339 Pa. Super. 475, 477, 489 A.2d 259, 260 (1985). The defendants here contend that there was no competent evidence presented to the court to support the award or amount of attorney’s fees as set forth in paragraph 2 of the court’s order of June 23, 1998. Certainly, the testimony and other evidence discussed in reference to the defendants’ other contentions warranted the award of discovery sanctions and attorney’s and expert fees, and costs in consideration of the defendants’ scandalous and deviant conduct. The court conducted a full hearing to consider the amount and reasonableness of the attorney’s fees, expert fees, and costs on March 31, 1998. The plaintiff introduced documented evidence and testimony as to the specific amounts of the fees and costs. Thereafter, the court awarded the plaintiff the sum of $25,000, which was a substantial reduction from the amount requested by the plaintiff. Therefore, the defendants’ contention that the award of these fees and costs was not proper or unsupported has no merit.

IV.

The defendants’ final two assignments of error are baffling to the court. Initially, the defendants contend that the court’s orders of December 30, 1997 and June 23,1998 were without legal foundation, given plaintiff’s withdrawal of all of its substantive claims in its complaint and the showing that none of the information in defendants’ possession was legally protectable. The withdrawal of plaintiff’s underlying substantive claims was directly related to the destruction of the relevant evidence by the defendants, and whether the plaintiff would have prevailed on the claims concerning the protectability of this information is irrelevant to determining whether the defendants intentionally and willfully violated an order of this court and, therefore, should be held in contempt. Thus, this. argument is rejected.

The defendants’ final contention is that the court’s orders of December 30,1997 and June 23,1998 imposed fines upon the defendants without affording the procedural safeguards to which they are entitled under the legal standards for adjudicating contempt, the criminal law and the United States and Pennsylvania constitutions. The defendants give no further elaboration on this statement, so the court can only surmise its meaning.

The legal standard for adjudicating indirect civil contempt, as discussed at length herein, has been satisfied. The criminal law has no application to this matter, as it was an action for civil contempt, not criminal contempt. The court can only infer that the procedural safeguards to which the defendants refer under the United States and Pennsylvania constitutions are included in the broad doctrine of procedural due process. Procedural due process is a flexible concept requiring individual protections to be determined on a case-by-case basis; however, the essential requisites are notice and a meaningful opportunity to be heard. See PennDOT v. Clayton, 546 Pa. 342, 684 A.2d 1060 (1996); Fiore v. Commonwealth, Board of Finance and Revenue, 534 Pa. 511, 633 A.2d 1111 (1993); Soja v. Pennsylvania State Police, 500 Pa. 188, 455 A.2d 613 (1982). The defendants in this case were certainly provided adequate and proper notice and a meaningful opportunity to be heard. The court held two hearings of these matters, and the defendants were presented with ample opportunity to present their case. Defendants’ final contention is, consequently, wholly groundless.

For all the foregoing reasons, this court concludes that its orders of December 30, 1997 and June 23, 1998 were proper and should be affirmed.

ORDER

The court directs that the attached opinion shall be filed of record, and the prothonotary is directed to transmit the complete record to the Superior Court forthwith.


author: LAVELLE, P.J.,

text:
    Gerhard v. Welker
    C.P. of Carbon County,
    nos. 95-1184 and 95-1794.

      Cynthia S. Ray, for Gerhards.

      Frank R. Cori, for Welkers.

      July 1, 1997-
   LAVELLE, P.J.,

PROCEDURAL BACKGROUND

The above actions arise out of a dispute over the distribution of insurance proceeds which were paid to the parties as a result of a fire that occurred at 125 Mahanoy Street, Tamaqua, Schuylkill County, Pennsylvania, on March 6, 1995.

At the core of the dispute is an agreement of sale dated December 15,1993, in which William H. Gerhard and Donna M. Gerhard, his wife, were the sellers, and Timothy J. Welker and Heather A. Welker, his wife, were the buyers of the Tamaqua property.

The lawsuit filed by Gerhards to 95-1184 claims that Welkers materially breached the agreement. Welkers denied breaching the contract, and counterclaimed, seeking the insurance proceeds less the balance due on the agreement. Welkers also filed the instant declaratory judgment action, asking this court to interpret the insurance clause in the agreement.

We consolidated the cases for trial.

By order dated October 10,1996, this court bifurcated Gerhards’ breach of contract claim from the declaratory judgment action. We certified to a Carbon County Arbitration Board the question whether a breach of contract had occurred, and held in abeyance the declaratory judgment action and Welkers’ counterclaim until final resolution of the breach of contract claim.

On November 27, 1996, the arbitration board determined that Welkers had not committed a material breach of the agreement. No appeal was taken from that award.

FACTS OF THE CASE

The parties have stipulated to the facts as follows:

(1) At all times relevant hereto, Gerhards were the record owners of the subject premises which are located at 125 Mahanoy Street, Schuylkill County, Pennsylvania.

(2) On or about December 15, 1993, the parties entered into an agreement for the sale of the subject premises whereby Gerhards agreed to sell said property to Welkers.

(3) The agreement had been prepared by the attorney for Gerhards for use in a prior similar transaction and was tailored by Gerhards for use in the Welker transaction.

(4) The agreement was entered into and signed at the home of Gerhards in Carbon County, Pennsylvania, on December 15, 1993.

(5) At the time the agreement was signed, Welkers paid a down payment of $2,000 to Gerhards in accordance with the terms of the agreement.

(6) On or about February 4, 1994, Welkers were named as additional insureds on an insurance policy with the Farmers Insurance Company, policy no. DW791488, on which Gerhards were named as insureds.

(7) All insurance premiums on policy no. DW791488 were paid by Welkers directly to Farmers Insurance Company.

(8) On or about March 6, 1995, the subject premises was completely destroyed by fire.

(9) At the time the property was destroyed by fire, Welkers were in possession of said property.

(10) At the time of the fire, Welkers had made a total of 14 payments of $219.56 each, under the contract.

(11) Pursuant to the amortization schedule (attached to pleadings), the amount paid on principal as of the date the premises were destroyed totaled $948.92.

(12) Of the 14 payments of $219.56, and pursuant to the amortization schedule attached to the respondents’ pleadings, $2,124.92 of those payments represented interest on the loan due the petitioners.

(13) As of February 1995, the loan balance owed to Gerhards, as per the amortization schedule, was $14,050.93.

(14) As a result of the aforementioned fire loss, insurance proceeds in the amount of $36,000 were paid by Farmers to the parties jointly, and Security Savings, the mortgagee bank.

(15) The agreement of December 15, 1993 provides on page two as follows: “and it is hereby further agreed by and between the parties that the buyers shall keep all buildings now standing and hereafter erected upon said premises insured for the benefits of the sellers and the buyers, as their interest may appear in a sum no less than the total of all sums due hereon.”

DISCUSSION

Initially, we note that declaratory judgment is an appropriate remedy when “a case presents antagonistic claims, indicating imminent and inevitable litigation.” American Council of Life Insurance v. Foster, 134 Pa. Commw. 634, 640, 580 A.2d 448, 451 (1990). There is no question in this case that we have a controversy that is ripe for judicial decision. Its resolution will avoid further litigation between the parties.

The controversy here involves an interpretation of the language of the agreement of sale, which provided for the purchase of the Tamaqua property on a partial payment basis.

Our decision in this matter is circumscribed by several well-settled contract principles. In interpreting a contract, a court’s primary consideration is the intent of the parties. O’Farrell v. Steel City Piping Co., 266 Pa. Super. 219, 403 A.2d 1319 (1978). When a written contract is clear and unambiguous, its meaning must be determined by its contents alone. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Pennsylvania’s law of contracts requires courts to give legal effect to the plain meaning of what is written in contracts. Ruzzi v. Butler Petroleum Co., 527 Pa. 1, 588 A.2d 1 (1991).

The pertinent clause in the sales agreement is as follows:

“And it is further agreed by and between said parties that the buyers shall keep all buildings now standing and hereafter erected upon the said premises insured for the benefit of the sellers and the buyers, as their interest may appear in a sum no less than the total of all sums due hereon. . . .” (emphasis added)

The phrase, “as their interests may appear,” and its various iterations, have been interpreted to mean that “the parties are entitled to various shares in the proceeds, if they are entitled to any proceeds at all.” Campbell v. Royal Indemnity Co. of New York, 256 Pa. Super. 312, 316 n.5, 389 A.2d 1139, 1142 n.5 (1978), citing Keeton, Insurance Law, 174-83 (1971). The fact that the phrase has been included in other cases with no explanatory verbiage attests to its clear and unequivocal meaning. Hagan Lumber Co. v. Duryea School District, 277 Pa. 345, 121 A. 107 (1923); Chestnut Corp. v. Bankers Bond and Mortgage Co., 395 Pa. 153, 149 A.2d 48 (1959); Giacobetti v. Insurance Placement Facility of Pennsylvania, 500 Pa. 447, 457 A.2d 853 (1983).

The plain meaning of the language in controversy is that Welkers obligated themselves to insure the Tamaqua property against fire loss and protect the Gerhards’ interest to the extent of at least the balance due on the agreement of sale.

By executing the agreement and undertaking this duty to insure, certain rights accrue by law to the Welkers. These rights are spelled out in Pennsylvania’s time-honored doctrine of equitable conversion.

Under the doctrine of equitable conversion, a contract for the sale of real estate transfers equitable title to the vendee, who bears the risk of any harm to the property, other than that caused by the vendor, which occurs between the execution of the contract and final settlement. Because the vendee must pay the full contract price whatever the condition of the property, our case law has long held that, although a vendor is legally entitled to recover the proceeds of his insurance policy if the property is destroyed, the vendor’s equitable entitlement to the proceeds extends only to the unpaid balance of the purchase price; any excess is deemed to be held ‘in trust’ for the vendee. See e.g., Dubin Paper Co. v. Insurance Co. of North America, 361 Pa. 68, 63 A.2d 85, 89 (1949); Insurance Co. v. Updegraff, 21 Pa. 513 (1853).” Partrick & Wilkins Co. v. Reliance Insurance Co., 500 Pa. 399, 403-404, 456 A.2d 1348, 1351 (1983). See also, Vogel v. Northern Assurance Co., 219 F.2d 409, 412 (1955).

Courts have imposed such a constructive trust as an equitable remedy to prevent unjust enrichment which would result if a seller were permitted to retain both the full contract price and indemnification for a loss which had to be borne by the buyer. Id. at 404, 456 A.2d at 1351.

Applying this doctrine when Gerhards agreed to sell and Welkers agreed to buy the Tamaqua property, Welkers became the equitable owners. The right to any increase in the value of the property or any benefits accruing to the property after the execution of the agreement belonged to the Welkers. They also were bound to pay the purchase price to Gerhards no matter what happened to the property and were responsible for any loss that occurred.

To protect against the loss of their purchase price to fire damage, Gerhards required Welkers to pay the premium on their fire insurance policy. Gerhards had determined that the value of their property for fire insurance purposes was $36,000, and the premium was established on that valuation. Welkers, of course, were simultaneously protecting their own equitable interest from loss by paying the premium.

The destruction of the Tamaqua property by fire on or about March 6, 1995 did not abort Gerhards’ right to the balance of the purchase price. Nor did it deprive Welkers’ right to obtain legal title to the Tamaqua property and the benefits of the insurance policy which they paid for.

The “interests” of the parties in the insurance proceeds are determined then by what insurable interests the parties had in the real estate on the date of the fire loss. Gerhards had the right to what was owed them on the agreement of sale. Welkers were entitled to the insurable value of their interests less the balance of the purchase price.

Therefore, Gerhards, as constructive trustees, are legally entitled to obtain the $36,000 representing the proceeds of the fire insurance policy. They are entitled to deduct from those proceeds what they bargained for in the contract of sale — the unpaid balance of the purchase price, $14,050.93. The excess, $21,949.07, is deemed to be held “in trust” for Welkers, and they are obliged to deliver such excess to Welkers.

When they receive the balance of the purchase price from the insurance proceeds, under the terms of the agreement of sale, Gerhards must deliver a deed to the Tamaqua property to Welkers.

For the forgoing reasons, we enter the following

ORDER

Andnow July 1,1997, it is hereby ordered and decreed that defendants, Timothy J. Welker and Heather A. Welker, his wife, are hereby declared to be entitled to $21,949.07 of the $36,000 proceeds obtained from Farmers Insurance policy no. DW791488.


author: MOTTO, J.,

text:
    Weingartner v. Weingartner

      C.P. of Lawrence County,
    no. 10218 of 1995, C.A.

      Norman J. Barilla, for plaintiff.

      George James, for defendant.
    June 19, 1995
   MOTTO, J.,

This custody action was initiated on February 28, 1995 by the plaintiff, Douglas C. Weingartner, a Lawrence County resident, for the custody of his son, Trevor Douglas Weingartner. The defendant, Sherry A. Weingartner, a Beaver County resident, subsequently filed preliminary objections on April 18, 1995, objecting to the jurisdiction of this court to hear this custody dispute. A hearing on the defendant’s preliminary objections was held on May 8, 1995.

The parties to this action were divorced in the Court of Common Pleas of Beaver County, Pennsylvania on or about October 20,1992. As part of the parties’ no-fault divorce, a consent decree was entered by the Honorable Peter O. Steege. Aside from the filing of the divorce complaint with its ancillary custody claim, and the entry of the no-fault consensual decree, no formal litigation of issues was conducted, in Beaver County or elsewhere.

During the course of the parties’ marriage, two children were bom, to wit: Trevor Douglas Weingartner, bom May 17, 1988 and Asia Ann Weingartner, bom March 13, 1990. As part of the parties’ October 10, 1992 no-fault consent divorce decree, defendant herein was awarded legal and physical custody of the parties’ minor children, subject to various periods of partial custody awarded to the plaintiff herein. Soon after the parties arrived at this agreement, it became apparent to defendant that she was unable to adequately care for both children, due to her living arrangements with her mother. As a result, the plaintiff and defendant negotiated a resolution wherein the parties’ daughter Asia Ann would live with defendant/mother while the son Trevor Douglas would reside with the plaintiff/father. In addition, each parent enjoys the weekend with both children on an alternating basis. This has been the prevailing living arrangement since May 2, 1993. This arrangement was not reduced to court order.

The issue now before this court is whether, in light of the Beaver County divorce proceeding, ancillary custody claim, and no-fault consent decree, the Court of Common Pleas of Lawrence County has jurisdiction to hear plaintiff’s complaint to confirm custody.

The Uniform Child Custody Jurisdiction Act, 23 Pa.C.S. §5341 et seq., governs this court’s determination of the issue. The general purposes of the Act mandate:

“That litigation concerning the custody of a child takes place ordinarily in the state with which the child and his family have the closest connection and where significant evidence concerning his care, protection, training, and personal relationships is most readily available, and that courts of the Commonwealth decline the exercise of jurisdiction when the child and his family have a closer connection with another state.” 23 Pa.C.S. §5342(a)(3). See also, Aldridge v. Aldridge, 326 Pa. Super. 49, 473 A.2d 602 (1984); Commonwealth ex rel. Earl R. D. v. Linda H. S., 297 Pa. Super. 78, 443 A.2d 307 (1982).

The Uniform Child Custody Jurisdiction’s application to intrastate disputes is codified in 23 Pa.C.S. §5364. Pursuant to this section “the provision of (the Act) allocating jurisdiction and functions between and among courts of different states shall also allocate jurisdiction and functions between and among the Courts of Common Pleas of this Commonwealth.” 23 Pa.C.S. §5363. “ ‘Home state,’ therefore is to be read as ‘home county.’” Brady v. Brady, 25 D.&C.3d 196 (1982).

Section 5344(a) of the Act provided the basis for “home state” and “best interests” jurisdiction over custody disputes:

“(a) General rules — A court of this Commonwealth which is competent to decide child custody matters has jurisdiction to make a child custody determination by initial or modification decree if:
“(1) This Commonwealth:
“(i) is the home state of the child at the time of the commencement of the proceedings; or
“(ii) had been the home state of the child within six months before commencement of the proceeding and the child is absent from the Commonwealth because of the removal or retention by a person claiming his custody or for other reasons, and a parent or person acting as a parent continues to live in this Commonwealth.
“(2) It is in the best interest of the child that a court of the Commonwealth assume jurisdiction because:
“(i) the child and his parents, or the child and at least one contestant, have a significant connection with the Commonwealth; and
“(ii) there is available in this Commonwealth substantial evidence concerning the present and future care, protection, training and personal relationships of the child . . . .” 23 Pa.C.S. §5344.

From the language of section 5344 of the UCCJA, it is clear that the Act contemplates situations of concurrent jurisdiction in more than one state/county. As an example, a child may have “significant contacts” with one county, while his “home county,” as defined within the Act, may be a different county altogether.

Presently, it is likewise clear that the two counties, Lawrence and Beaver, have competing interests involving the jurisdiction to hear this case. It is clear that the home county of each child is different. At the time of the parties’ separation and divorce, Beaver County was the home county of both children. However, in May 1993, the defendant transferred physical “possession” of the parties’ minor son to the plaintiff and Lawrence County while the minor daughter remained with defendant in Beaver County. Thus, for the past two years, Lawrence County has been home county for son, while Beaver County is home county for daughter. Son’s only remaining connections with Beaver County are his mother and sister’s residence, his maternal grandmother’s residence, his alternate weekend visits thereto, and the 3-year-old custody “decree” entered there. Conversely, son has resided in Lawrence County in excess of two years. He attends school, church and Sunday school classes in Lawrence County.

Accordingly, in addition to Lawrence County being his home county, the son also appears to have the requisite “significant contacts” with this county to satisfy the second jurisdictional test.

The defendant, however, argues that regardless of home county or significant contact jurisdiction, the entry of the previous decree in Beaver County vests continuing jurisdiction there. The defendant desires the court to interpret “commencement of the proceedings” as found in 23 Pa.C.S. §5344(a)(l)(i) to be limited solely to the original proceedings held in a child custody case. Following this argument, since Beaver County was the home county at the time of the original consent decree, the defendant would request that Beaver County retain jurisdiction over all parties, arguably for all time. The court finds this interpretation incorrect and inconsistent to the purposes of the Act outlined above. The defendant’s argument, if accepted, would permit a county to continue to assert jurisdiction over a child long after the child had become a bona fide domiciliary of another county and where the second county could assert valid interests in the welfare of the child. The court deduces that the better way to avoid jurisdictional competition and conflicts is to interpret “commencement of the proceedings,” to mean any particular proceeding that may be brought to establish or modify custody and not limiting the phrase to the initial hearing or petition for custody. This interpretation clearly renders jurisdiction over plaintiff’s complaint to confirm custody, here, in the Court of Common Pleas of Lawrence County.

The defendant had argued that the father “by acceding to the custody in the (mother) by agreed court order in (Beaver County), also placed the custody issue under the (continuing) jurisdiction of (that) court.” Hattoum v. Hattoum, 295 Pa. Super. 169, 178, 441 A.2d 403, 407 (1982). However, as recognized by the Superior Court in Hattoum “the entrance of an order in a particular jurisdiction is a factor, but certainly not the only factor” to finally determine a jurisdiction issue. Id. The present case is factually akin to the type hypothesized by Hattoum in which the “forum of parental choice for an initial order was not presently substantially connected with the lives of the children.” Id.

To the extent that this case could be considered one wherein simultaneous proceedings are pending in Lawrence and Beaver Counties, the court procedure would be governed by section 5347 of the Act. In such an instance the court would be required “to communicate with the court in which the other proceeding is pending to the end that the issue may be litigated in the more appropriate forum____”23 Pa.C.S. §5347(c). The court has communicated with the Court of Common Pleas of Beaver County, as evidenced by the attached letter of the Honorable Peter O. Steege, and both courts believe Lawrence County to be the more appropriate forum for litigation of the plaintiff’s complaint to confirm custody.

Accordingly, the preliminary objections to the plaintiff’s complaint shall be dismissed in accordance with the attached order.

ORDER

And now, June 19, 1995, this case having been heard upon defendant’s preliminary objections to the plaintiff’s complaint to confirm custody, with plaintiff, Douglas C. Weingartner appearing with counsel, Norman J. Barilla, Esquire and defendant, Sherry A. Weingartner appearing with counsel, George James, Esquire; upon hearing the evidence, reviewing the record, hearing arguments of counsel and communicating with the Court of Common Pleas of Beaver County; it is hereby ordered, adjudged and decreed as follows: Lawrence County has jurisdiction to hear this matter and is an appropriate and convenient forum and this court hereby retains jurisdiction of this matter, the defendant’s preliminary objections to the plaintiff’s complaint are therefore dismissed.


author: KENNEDY, J.,

text:
    Black-Dienes v. Markey

      C.P. of York County,
    no. 97-SU-05795-01.

      Douglas R. Bare, for plaintiffs.

      Rolf Kroll, for defendant.
    February 8, 1999
   KENNEDY, J.,

The lawsuit underlying this motion arose out of an automobile accident involving vehicles driven by Mr. Dienes and Mr. Markey. Plaintiffs claim that Ms. Black-Dienes, a front-seat passenger in her husband’s vehicle, suffered a variety of mental and physical injuries as a result of the accident. In the course of discovery, defendant requested that Ms. Black-Dienes submit to an independent medical examination. In response to defendant’s request, plaintiffs’ counsel wrote a letter demanding “the right to be present during any insurance company medical examination.” Defendant then filed a motion seeking to compel Ms. Black-Dienes to submit to an IME without counsel or any other representative present. This court denied defendant’s motion on June 17, 1998.

Ms. Black-Dienes submitted to an IME on October 14, 1998, accompanied by Beverly Purcell-Church, a representative from plaintiffs’ counsel’s office. Following the IME, defendant’s counsel sought to depose Ms. Purcell-Church. Plaintiffs’ counsel refused the request, and the matter is now before this court on defendant’s motion to compel the deposition of Ms. Purcell-Church.

Defendant argues that Ms. Purcell-Church is a fact witness to the IME and was present primarily for the purpose of gathering information for cross-examination of the doctor who performed the exam. Plaintiffs argue that Ms. Purcell-Church is not expected to be called as a witness at trial and, as such, falls within the protection of Pa.R.C.P. 4003.5(a)(3).

The mere fact that a witness is not expected to be called at trial is not enough to invoke the protection of Rule 4003.5(a)(3). In order for the rule to apply, the witness (1) must be an expert, (2) the witness must have been retained or specially employed in anticipation of litigation or preparation for trial, and (3) the party who hired the witness must not expect to call her at trial.

Without addressing the issue of whether Ms. Purcell-Church would qualify as an expert, plaintiffs are not entitled to the protection of Rule 4003.5(a)(3) because Ms. Purcell-Church was not “retained or specially employed ... in anticipation of litigation or preparation for trial.” Instead, Ms. Purcell-Church is a certified paralegal and registered nurse employed in plaintiffs’ counsel’s office. The explanatory note to Rule 4003.5 makes it clear that subsection (a)(3) does not apply to a party’s employee. Likewise, it seems that Rule 4003.5(a)(3) operates to prevent a party’s attorney from employing an individual to investigate clients’ claims and then designating that person as an expert in order to avoid otherwise permissible discovery.

Plaintiffs argue that the recently enacted amendment to Pa.R.C.P. 4010 militates against granting defendant’s motion. New subsection (a)(4)(i), which became effective July 1, 1998, gives the person subject to an IME the right to have counsel or other representative present during the examination. Prior to the enactment of the new subsection, the decision of whether to allow a party’s counsel or other representative to be present during an examination was a matter within the discretion of the court. See e.g., Bewley v. Crouse, 4 D.&C.4th 535 (1989); Harding v. Sears, Roebuck & Co., 47 D.&C.3d 591 (1987). The enactment of subsection (a)(4)(i) has removed the trial court’s discretion, i.e., a party’s attorney or other representative’s presence is now a matter of right.

Plaintiffs argue, and we agree, that subsection (a)(4)(i) is intended to offer protection to a party subject to an IME. However, nothing in the text of the rule or the explanatory comment thereto suggests that the amendment was intended to alter any of the other rules governing discovery.

Although plaintiffs cannot invoke the protection of Rule 4003.5(a)(3) in respect to Ms. Purcell-Church, they are not without protection. Defendant’s discovery in this matter is subject to Pa.R.C.P. 4003.3. Pursuant to that rule, trial preparation materials of a party’s attorney are protected from discovery where mental impressions, conclusions, opinions, memoranda, notes or summaries, legal research, or legal theories are involved. Case law has given the same work-product protection to paralegals. See Brant v. Turnamian, 9 D.&C.4th 216 (1991).

This matter is somewhat analogous to the issue addressed in Curry v. Fayette County Housing Authority, 49 D.&C.3d 66 (1988). In Curry, the court held that comments made by a third party to a litigant in the presence of the litigant’s attorney were not protected as work product under Rule 4003.3. However, the court noted that the comments would not be discoverable if they had been made by her representative and dealt with mental impressions or evaluations. In this matter, the things that Ms. Purcell-Church heard and saw at the IME are not work product. However, any opinion or evaluation based on those observations clearly qualifies as work product under Rule 4003.3.

Defendant argues that the deposition of Ms. Purcell-Church is necessary because she may be called as a witness to impeach the doctor who performed the IME. Defendant envisions a situation in which Ms. Purcell-Church would be called to testify about her factual observations concerning the conduct of the examination. For example, she may testify that the doctor did not ask the questions he claims he did in taking the patient’s history, that he incorrectly reported Ms. Black-Dienes’ responses to questions asked, or that he did not perform some of the tests he claims to have performed. Defendant points to plaintiffs’ counsel’s unwillingness to stipulate that Ms. Purcell-Church will not be called as a witness as a cause for concern.

Although we feel that defendant’s concerns may never be realized, we agree that the scope of discovery outlined in Pa.R.C.P. 4003.1 applies to Ms. Purcell-Church’s observations during the IME because her testimony can potentially be offered to attack the defendant’s expert testimony regarding the extent of Ms. Black-Dienes’ injuries. Although we will grant defendant’s motion, we emphasize that the full protection of Rule 4003.3 applies to Ms. Purcell-Church. Therefore, defendant’s discovery efforts directed to Ms. Purcell-Church are strictly limited to her factual observations of the IME.

ORDER

And now, February 8, 1999, defendant’s motion to compel discovery is granted. It is further ordered that defendant’s discovery relating to Ms. Purcell-Church shall be strictly limited to her factual observations of the October 14,1998 independent medical examination of Susan Black-Dienes.

      . Apparently, the doctor defendant hired to perform the IME had a policy of not allowing plaintiffs’ counsel to attend examinations.

      . Defendant’s motion was filed prior to the effective date of Pa.R.C.P. 4010(a)(4)(i), which gives the person to be examined the right to have counsel or other representative present during the examination.

      . Ms. Purcell-Church is a certified paralegal and registered nurse.

      . The rule provides, in pertinent part, “[a] party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial.”

      . According to the note, “[a] regular employe of a party who may have collected facts, prepared reports and rendered opinions, and who may qualify as an expert, is not covered by this subsection and has no immunity from discovery, simply because the party elects not to call him at trial. He is not an ‘expert’ within the meaning of the rule; he is simply a witness, an employe of a party.”


author: GARB, P.J.,

text:
    Atkinson v. Snyder

      C.P. of Bucks County,
    no. 97-4278-05-2.

      Josephine Carabello Patti, for plaintiff.

      Marissa Boyers, for defendants.
    April 15, 1999
   GARB, P.J.,

This is a negligence case arising from a motor vehicle accident which occurred on or about September 28, 1996 at 1:30 p.m. at or about the ramp from Route 213 to southbound U.S. Route 1, in Bensalem Township, Bucks County, Pennsylvania. The accident occurred when the vehicle driven by defendant, James Snyder, and owned by defendant, Kathleen Snyder, collided with the rear of a vehicle operated by the plaintiff which was stopped at a stop sign. The complaint alleges that defendant, James Snyder, was negligent in the operation of the motor vehicle, and that Kathleen Snyder is liable on the theory of negligent entrustment. Pleadings and discovery are completed. Both defendants have moved for partial summary judgment on the grounds that plaintiff has failed to reach the threshold permitting non-economic recovery pursuant to his limited tort insurance policy. Partial summary judgment will be granted for defendants.

Section 1705(a)(1) of the Motor Vehicle Financial Responsibility Law provides that, each insurer shall notify each insured of the latter’s right to choose the limited or full tort option with a premium benefit for the choice of limited tort. The notice, as mandated by the Act, provides that it shall state that under the limited tort option, the insured may seek recovery for all medical and out-of-pocket expenses, but not for pain and suffering or other nonmonetary damages unless the injuries suffered fall within the definition of “serious injury.” Section 1705(d) provides that each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law, but “unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss . . . .” (emphasis added)

In view of the fact that plaintiff has admittedly chosen the limited tort option, the question for disposition is whether, on this record, plaintiff has demonstrated that he suffered “serious injury” in the context of a summary judgment analysis.

Dodson v. Elvey, 445 Pa. Super. 479, 665 A.2d 1223 (1995), allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996) held, inter alia, that the resolution of whether a limited tort plaintiff has sustained “serious injury” is one for the court to be made in advance of trial, not an issue for the jury, and may be determined when there is an adequate record by summary judgment. Regardless of whether Dodson v. Elvey, supra, can be construed to have decided that the issue of serious injury is always one of law for the court, pretrial, that issue has now been set to rest by our Supreme Court in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998) which held that the issue of determination of “serious injury” may be determined by summary judgment by the application of traditional summary judgment principles. That court held that the traditional summary judgment standard is to be followed, that the threshold determination was not to be made routinely by a trial judge court, but rather, must be left to a jury, “unless reasonable minds could not differ on the issue of whether a serious injury had been sustained.” Washington v. Baxter, 553 Pa. at 446-47, 719 A.2d at 740. Therefore, in the context of summary judgment principles, the court must determine initially (1) whether the plaintiff as moving party has established that he or she has suffered serious impairment of a bodily function; (2) whether the defendant, as moving party, has established that the plaintiff has not suffered serious impairment of a bodily function; or (3) whether there remains a genuine issue of material fact for the jury to decide. Curran v. Children’s Service Center Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990), allocatur denied, 526 Pa. 648, 585 A.2d 468 (1991). As stated more succinctly in Washington v. Baxter, supra, whether “reasonable minds could not differ on the issue of whether a serious injury had been sustained.”

In addressing the question of whether there is a serious impairment of body function, the court in Dodson, supra, adopted the standard established in Michigan in virtually identical language, and as explicated in Di-Franco v. Pickard, 427 Mich. 32, 398 N.W.2d 896 (1986). In that regard, in footnote 11, the Supreme Court in Washington v. Baxter affirmed Dodson in adopting the DiFranco standard. The court in DiFranco v. Pickard, supra, sets forth that standard as follows:

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) what body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) was the impairment of body function serious?
“The focus on these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent and permanency of an impairment ... In determining whether the impairment was serious, several factors must be considered: the extent of the impairment, the particular body function impaired, the length of time the impairment lasted, the treatment required to correct the impairment and any other relevant factors. An impairment need not be permanent to be serious.” 427 Mich, at 39, 398 N.W.2d at 901.

An impairment involves more than the injury itself. The consequences of the injury must involve a serious impact for an extended period of time on a plaintiff’s life. Dodson v. Elvey, supra, citing Oswin v. Shaw, 129 NJ. 290, 609 A.2d 415 (1992). It must interfere substantially with the plaintiff’s normal activities and not impose only a mild or slight limitation. Dodson v. Elvey, supra, citing Licari v. Elliott, 57 N.Y.2d 230, 455 N.Y.S.2d 570, 441 N.E.2d 1088 (1982). See also, McClung v. Breneman, 700 A.2d 495 (Pa. Super. 1997) and Leonelli v. McMullen, 700 A.2d 525 (Pa. Super.1997), which, once again, adopted the factors to be considered by our courts as set forth in DiFranco v. Pickard.

A co-worker of the plaintiff arrived at the scene of the accident shortly after its occurrence. Although an ambulance had arrived, plaintiff declined to utilize it to the hospital, but rather was driven to the hospital emergency ward at St. Mary’s Hospital by a co-worker. His vehicle was driven from the scene by another coworker. In the accident, the plaintiff hit his head on the crossbar which did not result in a cut, but rather, a bump, bruise and black eyes. His left arm was sore. At the emergency room, his complaints were dizziness, seeing rings and spots, a ringing in his ears, disorientation and soreness. No other part of his body than his head and arm hurt at that time. In the hospital, they x-rayed his neck and head and released him the same day. He was driven home by his wife.

Plaintiff went to see his family doctor, llene DiGregorio, on September 30, a couple of days after the accident. At that time, his complaints were dizziness, ringing in his ears, soreness in his lower back, stiffness and headaches. The doctor prescribed medication and therapy in the form of physical manipulation, heating pads, and electronic stimulation. The therapy was administered at her office. He returned on three different occasions for that treatment. He took the medication only briefly.

Plaintiff then went to Dr. Ronald D. Abraham D.O. on a referral by his lawyer. At that time, he was not unhappy with the care he received from Dr. DiGregorio. He began to see Dr. Abraham on October 4. He prescribed medication, in fact a few different medications, each for a brief period of time, which were discontinued by the plaintiff because he did not like the way they made him feel. Dr. Abraham likewise prescribed physical therapy. The physical therapy consisted of heating pads, electronic stimulation and an exercise stretching routine. Initially, he got the physical therapy five times a week and then three days a week up to February of 1997.

The dizziness gradually abated after a period of time, and at the time of his deposition on September 17, 1997, he still experienced ringing in his ears once or twice a week for approximately 20 minutes each. At that time, he was still getting headaches three or four times a week, or sometimes, five times a week. He took aspirin and Excedrin for the headaches which sometimes worked. He still experienced neck pain and back pain with the neck pain decreasing but the back pain increasing. He first started experiencing the lower back pain shortly after the accident and it has progressively gotten worse.

Dr. Abraham recommended a CAT scan and bone scan, at which time a bulging disc was discovered. At the time of the deposition, plaintiff was no longer being treated.

At the time of the accident, the plaintiff was employed by the United States Postal Service and had been for approximately nine years.. He was supervisor of customer services. He supervised approximately 110 employees. He missed approximately four weeks of work as the result of the accident. At the time of the deposition, he was unable to move large parcels and felt discomfort in riding in the back of a vehicle on inspection routes if they were extended. He still experienced pain and stiffness in his lower back, but was able to perform all other functions at work.

The plaintiff had routinely participated in gymnasium activities involving weightlifting. At the time of the deposition, although he was unable to do some of the things he had previously done, he was still able to “work out” three times per week. He complained that he was not able to frolic with his 4-year-old son in all of the ways he had previously, but was still able to pick him up and play with him. Otherwise, it appeared that he suffered no further disabilities.

Based upon the foregoing, we are satisfied that the defendants have established that the plaintiff cannot reach the threshold to permit recovery for noneconomic losses. In reviewing this entire record, and the totality of it, we are satisfied that there is no issue regarding “serious impairment of body function” for a jury to decide because reasonable minds could not differ on the issue of whether a “serious injury” had been sustained. It was not. Washington v. Baxter, supra. On that basis, there is no issue of material fact to be decided in this case, Curran v. Children’s Service Center Inc., supra, and, therefore, partial summary judgment must be granted for the defendants.

ORDER

And now, to wit, April 15, 1999, it is hereby ordered that partial summary judgment is entered for the defendants and against the plaintiff for all claims of non-economic loss.

      . 75 Pa.C.S. §1701.

      . The Supreme Court, in Washington v. Baxter, affirmed the grant of summary judgment by the trial court.