author: KENNEDY, J.,

text:
    Mikulas v. Burdette

      C.P. of York County,
    no. 2000-SU-03977.

      Stephen M. Greecher Jr., for plaintiff.

      Michael M. Badowski, Shaun J. Mumford and Daniel L. Grill, for defendants.
    July 12, 2004
   KENNEDY, J.,

This matter is before the court on defendants’ motion to compel discovery of plaintiff’s mental health records filed on May 5, 2004. The court heard oral argument on May 10, 2004, and entered an order reserving decision on the motion at that time. After careful consideration, we are now ready to decide the motion.

PROCEDURAL HISTORY AND FACTS

This is a medical malpractice action. On November 23,1998, defendant Burdette performed a hysterectomy on plaintiff. During the surgery, defendant Nguyen was called in to repair an injury to plaintiff’s bladder. On August 16, 2000, plaintiff filed a complaint against defendants, alleging medical negligence and lack of informed consent. Plaintiff alleges that defendant Burdette perforated, tore or lacerated plaintiff’s bladder in the course of performing the hysterectomy, and that plaintiff’s left ureter was tied off, cut, obstructed or injured during the surgery. Plaintiff is seeking, among other things, damages for loss of life’s pleasures, embarrassment, humiliation, emotional distress and mental anguish.

On May 5, 2004, defendants filed a motion to compel discovery of plaintiff’s mental health records. Plaintiff suffers from bipolar disorder and adult ADD. Defendants assert that they are entitled to plaintiff’s psychiatric records because the injuries and damages claimed by plaintiff may be related to plaintiff’s pre-existing conditions. It is plaintiff’s position that her mental health records are privileged.

DISCUSSION

The psychiatrist/psychologist-patient privilege is contained in 42 Pa.C.S. §5944, which provides in pertinent part:

“No psychiatrist or person who has been licensed ... to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services on behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.”

The privilege is based upon strong public policy and is designed to promote effective treatment and to insulate the client’s private thoughts from public disclosure. Kalenevitch v. Finger, 407 Pa. Super. 431, 595 A.2d 1224 (1991). In addition to the privilege created by section 5944, section 7111 of the Mental Health Procedures Act protects a person’s mental health records from disclosure without that person’s written consent. 50 PS. §7111.

The above privileges are not absolute. They are waived in civil cases when the patient places his or her mental health directly at issue. Rost v. State Board of Psychology, 659 A.2d 626 (Pa. Commw. 1995). Defendants argue that plaintiff has placed her mental health at issue by making claims for loss of life’s pleasures, embarrassment, humiliation, emotional distress and mental anguish. Plaintiff contends that she has not waived the privilege because her claims for emotional distress and mental anguish are limited to the type of mental anguish and emotional distress that ordinarily accompany a personal injury.

Our appellate courts have provided little guidance as to when a plaintiff in a civil suit places his mental condition “at issue.” In the absence of controlling appellate case law, we feel constrained to agree with those trial courts that have held that the privilege is not waived where there is no independent psychological injury and recovery is sought only for the normal pain and suffering damages that commonly accompany personal injury actions. See Fetterhoff v. Zalezak, 34 D.&C.4th 67 (Dauphin Cty. 1996); Topper v. Shatzler, 54 D.&C.4th 554 (Franklin Cty. 2001).

In the instant case, plaintiff has made no claim for an independent psychological injury or for expenses incurred for her mental health treatment. Plaintiff is not claiming that her bipolar disorder, depression or ADD is the result of defendants’ alleged conduct, or that defendants’ conduct aggravated these conditions. Plaintiff is merely seeking recovery for the normal pain and suffering that is typically associated with her type of injury. Therefore, we conclude that plaintiff has not placed her mental health at issue.

Defendants also contend that they are entitled to plaintiff’s mental health records because plaintiff discussed the instant medical malpractice action with her psychiatrists. This argument is without merit. We find no basis for holding that a patient who discusses his feelings with a mental health professional regarding a pending medical malpractice action in which the patient is involved should be penalized by having his mental health treatment records disclosed where there is no other basis for such disclosure.

Accordingly, we hold that defendants are not entitled to discovery of plaintiff’s mental health treatment records.

ORDER

And now, to wit, July 12,2004, upon consideration of defendants’ motion to compel discovery, it is hereby ordered and decreed that defendants’ motion is denied.


source: Caselaw Access Project

author: BLACK, J.,

license: Public Domain

text:
    David A. Klein Real Estate Ltd. v. The Ridings at Brookside Condominium Association

      C.P. of Lehigh County,
    no. 2003-C-679.

      Henry S. Perkin, for plaintiff.

      Steven L. Sugarman, for defendant.
    July 12, 2004
   BLACK, J.,

The plaintiff, David A. Klein Real Estate Ltd., seeks to recover money damages from the defendant, The Ridings at Brookside Condominium Association, for breaching the management agreement between the parties and for publishing defamatory statements about the plaintiff in The Ridings Record, the Association’s newsletter. Presently before the court for disposition is the Association’s motion for partial summary judgment on Count II of the complaint alleging defamation. The Association contends that it enjoys a conditional privilege to publish statements about the plaintiff’s performance as managing agent to its members. It also argues that the newsletter contained mere expressions of opinion and that these statements were truthful and hence are not actionable.

The evidence before the court consists of the complaint and answer; the management agreement; a September 26, 2002 letter terminating the plaintiff’s services; and the allegedly defamatory newsletter. Two depositions have also been submitted for our consideration from Martha A. Westbrook, president of the board of directors of the Association, and from David A. Klein, president of the plaintiff.

For the reasons stated, partial summary judgment is granted in favor of the Association on the defamation claim in Count II.

FACTUAL AND PROCEDURAL BACKGROUND

David A. Klein Real Estate Ltd. is a real estate management corporation. The Association is a non-stock, non-profit corporation whose members are the owners of the 213 condominium units in The Ridings at Brookside Condominium located in the Borough of Macungie, Lehigh County, Pennsylvania. The plaintiff and the Association entered into an agreement on August 24,1999, for the plaintiff to act as the Association’s managing agent.

On Thursday, September 25,2002, the board of directors for the Association met and voted to terminate the plaintiff’s services. The plaintiff was formally terminated on September 25, 2002, by verbal notification and by letter dated September 26, 2002, written by the Association’s attorney. The board identified 10 reasons in support of its decision. These reasons were published in the Association’s September 2002 newsletter, distributed to all condominium owners at The Ridings at Brookside Condominium. The reasons given were as follows:

“(1) Inaccurate and incomplete unit owners directory. Klein Realty has been managing agent for the past 2 1/2 years and Friends have found 85 mistakes in the directory list maintained by David Klein Realty.
“(2) Failure to make regular walk-through inspections of the property.
“(3) Failure to make timely repairs.
“(4) Failure to follow up on rule enforcement.
“(5) Failure to follow through with unit owner communications.
“(6) Failure to help with developer transition.
“(7) Failure to maintain and provide copies of leases.
“(8) Failure to record accurate minutes of meetings.
“(9) Creating a conflict of interest.
“(10) Failure to communicate.” Complaint, exhibit D. (emphasis in original)

In response to his termination, the plaintiff filed a complaint in the instant action on March 14, 2003. In Count I, the plaintiff asserts a claim for breach of the management agreement. In Count II, the plaintiff asserts a cause of action for libel, claiming that the newsletter contained false and misleading statements that amount to libel per se.

The Association acknowledges in its answer that, after terminating the plaintiff, it published the September 2002 newsletter stating the reasons for the plaintiff’s dismissal. However, the Association denies that the statements in the newsletter were defamatory, false or malicious. The Association sets forth three defenses as the basis for its partial summary judgment motion: (1) that it had a conditional privilege to make the statements to its members; (2) that the article in the newsletter contained merely expressions of opinion; and (3) that the statements in the newsletter were truthful.

DISCUSSION

I. Summary Judgment Standard

Summary judgment is warranted after the relevant pleadings are closed under the following circumstances: “(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or (2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

Summary judgment is to be granted only in a case that is clear and free from doubt. Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998). However, where the relevant facts are not in dispute, summary judgment is appropriate. Diamond Energy Inc. v. Pennsylvania Public Utility Commission, 653 A.2d 1360, 1367 (Pa. Commw. 1995).

II. The Libel Cause of Action

The Association’s first argument in support of its partial summary judgment motion rests upon the defense of conditional privilege. A publication is conditionally privileged when “circumstances lead any one of several persons having a common interest in a particular subject matter correctly or reasonably to believe that there is information that another sharing the common interest is entitled to know.” Restatement (Second) of Torts §596.

The Association, as the defendant in the present action, has the burden of proving the “privileged character” of the newsletter. 42 P.S. §8343(a).

The Pennsylvania Superior Court has applied the doctrine of conditional privilege to communications regarding the termination of employment. In Sobel v. Wingard, 366 Pa. Super. 482, 531 A.2d 520 (1987), a high school principal sent a substitute teacher a letter informing her that she was being terminated due to her inability to follow administrative procedures. Copies of the letter were provided to the school’s personnel director and secondary education director. The plaintiff filed a lawsuit against the principal asserting that the letter constituted libel. The court disagreed, holding that employers have an “absolute privilege to publish defamatory matters in notices of employee terminations.” Id. at 487, 531 A.2d at 522. The court noted that the letter related to the plaintiff’s employment and was distributed only to limited personnel.

The letter in Sobel is analogous to the newsletter in the present action. The plaintiff was under contract to provide services to the Association. Therefore, the Association is permitted to publish a notification of the plaintiff’s termination to those individuals with a legitimate interest in knowing about the performance of these services. Condominium unit owners at The Ridings at Brookside Condominium did have a legitimate interest in knowing the identity of their association’s managing agent, as well as the reasons behind a decision to terminate the current agent. The unit owners were entitled to receive this information as a consequence of their ownership of condominium units as well as their payment of Association dues, which were used in part to pay for the plaintiff’s services. Obviously, a failure on the part of the managing agent to perform its duties could directly impact each unit owner.

The newsletter was a proper forum to notify condominium owners of the Association’s decision to terminate the plaintiff. Martha M. Westbrook testified at her deposition that the newsletter was distributed only to condominium unit owners to inform them why the plaintiff’s services were terminated. Furthermore, the scope of the communication was clearly restricted to the reasons for termination, all of which related directly to the plaintiff’s work performance.

Since the Association has satisfied its burden of proving that the publication of the newsletter was protected by a conditional privilege, we must next consider whether the privilege was abused. A privilege cannot be invoked if it was abused.

“The privilege may be abused and its protection lost by the publisher’s knowledge or reckless disregard as to the falsity of the defamatory matter...; by the publication of the defamatory matter for some improper purpose ...; by excessive publication ...; or by the publication of defamatory matter not reasonably believed to be necessary to accomplish the purpose for which the occasion is privileged.” Restatement (Second) of Torts §596, comment (a). See also, Chicarella v. Passant, 343 Pa. Super. 330, 337, 494 A.2d 1109, 1113 (1985).

The plaintiff has the burden of establishing that the privilege was abused. 42 P.S. §8343(b).

Under Pennsylvania Rule of Civil Procedure 1035.2 (2), where a plaintiff responding to a summary judgment motion has the burden of proof on an issue essential to his claim, the plaintiff must produce evidence sufficient to create a jury question on that issue, in order to avoid summary judgment. As the Pennsylvania Supreme Court stated in Ertel v. Patriot-News Co., 544 Pa. 93,100-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996),

“Allowing non-moving parties to avoid summary judgment where they have no evidence to support an issue on which they bear the burden of proof runs contrary to the spirit of rule 1035....
“Thus, we hold that a non-moving party must adduce sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.”

Hence, it is not sufficient to argue, as the plaintiff has done in its brief, that a jury must determine whether (1) the Association acted in good faith, (2) the Association acted negligently, (3) the Association acted with malice or negligence by publishing the newsletter, or (4) the newsletter was not reasonably necessary to accomplish the purpose. The plaintiff merely restates the legal standard for abuse of a conditional privilege. Without any supporting evidence, this is insufficient to sustain the plaintiff’s burden. Rule 1035.2(2) places an affirmative duty on the plaintiff in this case to produce evidence of abuse of the conditional privilege. The plaintiff was required to produce competent evidence sufficient to take its claim of abuse of privilege to a jury.

An examination of the record indicates that the plaintiff has failed to meet this burden. The evidence presented to the court is insufficient for a jury to conclude that the Association abused its conditional privilege by publishing the newsletter. The plaintiff has the burden of proof on this issue, and in the absence of any evidence supporting its claim, partial summary judgment must be granted in favor of the Association.

CONCLUSION

For the reasons stated, we find that the Association had a conditional privilege to publish the grounds for the plaintiff’s termination in its September 2002 newsletter. We also find that the plaintiff has failed to meet its burden of proving an abuse of that privilege. Accordingly, the partial summary judgment motion of the Association is granted as to Count II for libel. Because of this conclusion, it is unnecessary to consider the merits of the Association’s arguments that the newsletter was merely an expression of opinion and was truthful.

ORDER

Now, July 12, 2004, upon consideration of the defendant’s motion for partial summary judgment and the plaintiff’s response thereto, and for the reasons set forth in the accompanying memorandum opinion, it is ordered that the defendant’s motion for partial summary judgment is granted with respect to the claim for libel in Count II of the plaintiff’s complaint. Judgment is entered on this count in favor of the defendant against the plaintiff.

      . Complaint, exhibit A.

      . Complaint, exhibit B.

      . Complaint, exhibit D.

      . Memorandum of law in support of motion for partial summary judgment of defendant, The Ridings at Brookside Condominium Association, exhibit A.

      . Memorandum of law in support of motion for partial summary judgment of defendant, The Ridings at Brookside Condominium Association, exhibit B.

      . Memorandum of law in support of motion for partial summary judgment of defendant, The Ridings at Brookside Condominium Association, exhibit A, pp. 90, 92.


author: WETTICK JR., A.J.,

text:
    Matthews v. Roman Catholic Diocese of Pittsburgh

      C.P. of Allegheny County,
    no. GD04-002366.

      Alan H. Perer and Richard M. Serbia, for plaintiff.

      Joseph W. Selep and William A. Steidle Jr., for defendants.
    August 3, 2004
   WETTICK JR., A.J.,

-Defendants’ motion for judgment on the pleadings seeking dismissal of plaintiff’s complaint on the ground that plaintiff’s claims are barred by the statute of limitations is the subject of this opinion and order of court.

In deciding a motion for judgment on the pleadings, all factual allegations in the pleadings must be construed in a manner most favorable to the party opposing the motion. Thus, the facts set forth in this opinion are based solely on the allegations in plaintiff’s amended complaint. I do not consider the allegations in defendants’ answer and new matter which deny many of the allegations in plaintiff’s complaint.

According to plaintiff’s amended complaint, plaintiff was bom in December 1977. On at least three occasions in 1989, he was sexually abused by Father Wellington, a priest assigned to the church which plaintiff and his family attended.

Plaintiff alleges that prior to the dates on which he was sexually abused, Diocesan officials knew or should have known that Father Wellington had sexually molested other children. However, Diocesan officials continued to permit Father Wellington to serve as a priest whose responsibilities would include having contact with children.

Plaintiff alleges that when stories became known nationally in 2002, he first learned that the Catholic Church, including the Pittsburgh Diocese, had a policy of shielding and protecting known pedophilic priests. Until this information was revealed, he would never have suspected that Diocesan officials would have permitted Father Wellington to continue to serve as a priest in plaintiff’s church once these officials discovered that Father Wellington had a history of sexually molesting children.

This lawsuit does not raise any claims against the Diocese based on the doctrine of respondeat superior. Plaintiff’s claims against the Diocese are based solely on allegations that, after it had notice of allegations and complaints concerning his molesting other children, it allowed Father Wellington to continue to serve as a priest of plaintiff’s church where he would be expected, in this role, to have contact with minor parishioners.

These claims raised against the Diocese are governed by a two-year statute of limitations. Plaintiff recognizes that the lawsuit, which was commenced on February 4, 2004, was not filed within two years after he became an adult. He relies on the discovery rule and the concealment doctrine.

The discovery rule is a judicially created exception to the statute of limitations. It tolls the running of the applicable statute of limitations until the time at which plaintiff knew or reasonably should have known that (1) he had been injured and (2) his injury had been caused by another party’s conduct. Weik v. Estate of Brown, 794 A.2d 907, 909 (Pa. Super. 2002).

Under the discovery rule, the limitations period does not begin to run until it is reasonably possible for a party to discover that he or she has been injured by the act of another. In determining whether to apply the discovery rule to a case, “the court must address the ability of the injured party, exercising reasonable diligence, to know that the party has been injured by the act of another.” Bowe v. Allied Signal Inc., 806 A.2d 435, 439 (Pa. Super. 2002). The party seeking to invoke the discovery rule bears the burden of establishing the inability to know that he or she has been injured by the act of another despite the exercise of reasonable diligence. Reasonable diligence is defined as “a reasonable effort to discover the cause of an injury under the facts and circumstances present in the case.” Cochran v. GAF Corp., 542 Pa. 210, 217, 666 A.2d 245, 249 (1995).

Since the discovery rale’s application involves a factual determination as to whether the plaintiff exercised reasonable diligence in discovering the cause of the injury, ordinarily a jury must decide whether the discovery rale applies. However, whenever reasonable minds would not differ in finding that the plaintiff has failed to exercise reasonable diligence, the court shall decide the matter rather than submit it to a jury. Weik v. Estate of Brown, supra, 794 A.2d at 909.

In this case, until the stories became known nationally in 2002, plaintiff did not make any inquiries or conduct any investigation as to whether the Bishop or other Diocesan officials had information that Father Wellington had sexually molested other youth prior to the incidents in 1989 that are the subject of this lawsuit. It is defendants’ position that I must rale, as a matter of law, that this failure to make any inquiries or conduct any investigation until 2002 bars plaintiff from invoking the discovery rale. Plaintiff, on the other hand, contends that it is for the jury to determine whether, under the facts and circumstances present in this case, his failure to make any inquiries or conduct any investigation constitutes a lack of reasonable diligence in ascertaining the cause of the injury.

There are two grounds for invoking the discovery rale. The first ground is that the existence of the injury was not known and could not have been reasonably ascertained within the limitation period. The second ground is that the plaintiff knew of the injury but, exercising reasonable diligence, did not know the injury was caused by the tortious act of another. This case involves only the second ground. While plaintiff knew of the injury within the limitation period, it is plaintiff’s position that until 2002 he neither knew nor had reason to know that he had been injured by the tortious conduct of the Diocese.

There is no Pennsylvania appellate court case law which provides direction to this court other than the case law’s description of the discovery rule that I have previously summarized. I find no merit to defendants’ contention that their statute of limitations defense is governed by Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997), and Haggart v. Cho, 703 A.2d 522 (Pa. Super. 1997).

In Dalrymple v. Brown, the only issue the court addressed was whether the discovery rule should extend the statute of limitations in a case where the plaintiff claimed that repressed memory of an injury was the cause of the failure to file the action timely. In Dalrymple, the plaintiff sought to invoke the discovery rule by using the first ground for invoking the discovery rule: she could not reasonably have known of her injury until that moment when she recovered her repressed memory. The Pennsylvania Supreme Court ruled that Pennsylvania uses a standard of reasonable diligence as applied to a reasonable person; thus, the discovery rule does not apply where it is the incapacity of the plaintiff which causes the delay in bringing suit.

In Haggart v. Cho, the plaintiff treated with Dr. Cho, a psychiatrist, between January 30,1986 and May 3,1990. Beginning in 1988, Dr. Cho engaged in inappropriate sexual conduct with the plaintiff. In February 1992, the plaintiff sued Dr. Cho and the hospital that referred the plaintiff to Dr. Cho. The trial court, in summary judgment proceedings, dismissed the plaintiff’s complaint on the ground that the plaintiff’s causes of action were barred by the two-year statute of limitations. The plaintiff argued that the discovery rule applied because she did not become aware that Dr. Cho’s conduct was inappropriate treatment which caused her psychological injury until she consulted another therapist in 1991. The Pennsylvania Superior Court ruled that the applicable statute of limitations began to run in March 1988 when, according to the plaintiff’s testimony, the inappropriate physical conduct began and the plaintiff felt something was wrong in her psychotherapeutic relationship. The court, citing Dalrymple, rejected the plaintiff’s contention that she was unable to recognize the true nature of her relationship with Dr. Cho and the harm he had perpetrated on her until her treatment with another therapist.

Neither Dalrymple nor Haggart is applicable to this case. In this case, plaintiff recognized that he had been abused and was aware of the harmful effects of the abuse many years prior to the date that he filed this lawsuit. He seeks to invoke the discovery rule solely on the ground that he was unaware of the Diocese’s role in causing his injuries.

While opinions of other common pleas courts, federal courts, and other state courts are not binding, the parties have cited opinions of these courts favorable to their respective positions in anticipation that I may find the reasoning to be persuasive.

The following three cases, cited by plaintiff, are the most persuasive in support of plaintiff’s position that a jury could find that the discovery rule extended the limitation period to at least March 2004:

In A.L.M. v. Diocese of Allentown, no. 2004-C-78 (Lehigh Cty. 6/24/04), a court en banc considered motions for judgment on the pleadings filed in six cases arising from claims of sexual abuse allegedly perpetrated on the plaintiffs by clergy assigned to the Diocese of Allentown. The alleged incidents occurred between 1965 and 1982. The plaintiffs did not bring suit against the individual priests who allegedly committed the acts of abuse— the plaintiffs acknowledged that any claims against these priests would be barred by the statute of limitations. Instead, they sued the Diocese and the bishops who served the Diocese during and after the incidents of abuse.

Their claims (which are almost identical to the causes of action raised in the present case) relate to the failure to protect the plaintiffs from “predator priests.” The complaints allege that prior to the abuse of the plaintiffs, the Diocese had specific knowledge of the pedophilic tendencies of the offending priests and allowed them to continue to have unsupervised contact with children, including the plaintiffs. The complaints alleged that the plaintiffs did not discover that the defendants were a cause of the abuse before disclosures in 2002, by representatives of the Catholic Church, of sexual misconduct by priests against minors.

The defendants sought dismissal on the ground that each cause of action in the plaintiffs’ complaints was barred by the two-year limitation period for personal injury claims. All of the plaintiffs had reached the age of majority more than two years before they filed the cases before the court.

The plaintiffs raised the same arguments in opposition to the defendants’ motions for judgment on the pleadings based on the statute of limitations that plaintiff is raising in the present case:

“In the cases at issue, the plaintiffs claim that they did not know or have reason to know that the defendants were a cause of their injuries until long after the abuse occurred. The plaintiffs acknowledge that they knew of their injuries at the time of the abuse and that they knew the identities of the individual clerics who abused them. However, they allege that the Diocese and the bishops were a separate cause of their harm, and that they did not know or have reason to know of this cause until 2002, when representatives of the Catholic Church disclosed the church’s role in concealing incidents of sexual misconduct by priests against minors... . The plaintiffs allege that before these disclosures the problem of ongoing sexual abuse within the Diocese of Allentown was concealed by the defendants. Therefore, under the discovery rule, the plaintiffs contend that the statute of limitations did not begin to run until 2002, within two years prior to the filing of these actions.” Id. at 11-12. (emphasis in original)

The court denied the motions for judgment on the pleadings:

“Based on the allegations in the plaintiffs’ pleadings, which we must accept as true at this stage, there remains a factual issue as to when the plaintiffs knew or should have known that the defendants were a cause of their harm. From the pleadings alone we cannot decide this issue. Although the plaintiffs knew of their injuries and of the priests who abused them many years ago, if the plaintiffs’ allegations are correct, a question remains as to when the plaintiffs knew or had reason to know that the defendants were also a cause of their harm.” Id. at 12.

Dandley v. Bishop Guertin High School Inc., no. 02-C-0170 (N.H. Super., S.D. Hillsborough Cty. 9/25/03), was a civil action for damages for sexual abuse committed against the plaintiff by Brother Beaulieu, a member of the Order of the Brothers of the Sacred Heart, and a teacher at Bishop Guertin High School where the plaintiff was a student. The plaintiff alleged that he was sexually abused between 1972 and 1975. The suit was filed in 2002 against Brother Beaulieu, the Order of the Brothers of the Sacred Heart, and Bishop Guertin High School.

The court dismissed the claims against Brother Beaulieu based on the expiration of the statute of limitations; the court ruled that the discovery rule did not apply because the plaintiff was aware of the abuse. However, the court reached the opposite conclusion with respect to the plaintiff’s claims against the institutional defendants. The court said that a cause of action against these defendants would arise if they possessed prior knowledge of Brother Beaulieu’s deviant tendencies and failed to take appropriate action. Under the discovery rule, the statute of limitations would not begin to run until the plaintiff knew or should have known that these defendants had such prior knowledge. The court said that it could not find that the plaintiff should have known that these institutional defendants were possible wrongdoers until the recent publicity.

Doe v. Lieberth, 03-497920 (Cuyahoga Cty., Ohio 5/ 30/03), arose out of alleged sexual abuse of the plaintiff by Father Lieberth, while he was employed by St. Michael’s Catholic Church. The alleged abuse occurred in 1986 and the suit was not brought until 2003. The defendants included St. Michael’s Catholic Church and the Catholic Diocese of Cleveland. The plaintiff’s claims against these institutional defendants were not based on the doctrine of respondeat superior; they were based solely on the defendants’ failure to protect the plaintiff from the priest who allegedly assaulted him.

The plaintiff alleged that he did not learn until the spring of 2002 that Father Lieberth had sexually abused another minor in 1985 and that the 1985 incident had been reported to a representative of the Catholic Diocese in that year. According to the plaintiff, this was the alerting event that began the running of the statute of limitations against these defendants.

The court ruled that the discovery rule has two prongs. Under one, the plaintiff must know that the injury occurred. Under the other, the plaintiff must have knowledge of the defendant’s wrongful conduct. The statute of limitations does not begin to run until the plaintiff has information sufficient to apprise him of the elements of both prongs. The court said that while the plaintiff knew of the abuse and that Father Lieberth had committed the abuse in 1986, he did not know that his injuries might also have been the result of the negligence of additional parties (defendants Catholic Diocese of Cleveland and St. Michael’s Catholic Church). Thus, the court in response to the institutional defendants’ motion to dismiss ruled that the plaintiff’s claims were not barred by the statute of limitations.

The following three cases, cited by defendants, are the most persuasive in support of defendants’ position that this court should rule, as a matter of law, that plaintiff may not invoke the discovery rule:

In Mark K. v. Roman Catholic Archbishop of Los Angeles, 67 Cal. App. 4th 603 (Cal. Ct. App. 1998), the alleged abuse occurred in the middle 1970s, and the lawsuit was not filed until 1996. The lawsuit included a claim against the church for negligent supervision/retention. The plaintiff’s claim was based on allegations that church officials knew that the priest who committed the abuse had been involved in other sexually inappropriate behavior prior to the abuse that was the subject of the plaintiff’s complaint. The plaintiff alleged that he first became aware that the church knew of the prior inappropriate conduct of the priest when an earlier victim of the same priest made public allegations in June 1996.

The court ruled that the plaintiff could not rely on the discovery rule. The court said that the plaintiff knew that the perpetrator was a priest of the church, “thereby obligating plaintiff to determine, as with any employer whose employee has injured a third party, whether the church shouldered some responsibility for the misconduct of its priest.” Id. at 612.

In Cevenini v. Archbishop of Washington, 707 A.2d 768 (D.C. 1998), the plaintiffs alleged that they were abused by a priest during the period between 1975 and 1983 when he was serving as a pastor at St. John’s Church. The lawsuits were filed in 1995; the complaints raised claims against the Archbishop for negligent hiring and supervision.

The defendants sought dismissal on the ground that the claims were barred by the statute of limitations. The plaintiffs opposed on the ground that they only recently learned from articles published in the Washington Post in February 1995 that the Archdiocese knew of the priest’s pedophilic tendencies long before he assumed his pastoral duties at St. John’s. The plaintiffs alleged that it was not until the publication of these articles that they had reason to suspect independent wrongdoing by the Archdiocese with respect to the hiring and supervision of the priest.

The court ruled that the plaintiffs could not invoke the discovery rule. The relationship between the priest and the defendants was such that a reasonable plaintiff with knowledge of the misconduct of one would have conducted an investigation as to the other:

“According to their complaints, all three appellants were aware from the outset that it was the Archdiocese that had assigned Father Schaefer to St. John’s and that Schaefer’s role was that of a subordinate representative of the Archdiocese. It is also undisputed that the alleged acts of abuse occurred on church premises, while Father Schaefer was functioning as a representative of the Archdiocese. In these circumstances, we conclude that a reasonable plaintiff would have investigated his potential claims against the Archdiocese at the same time that his claims accrued against its representative. Because there is no evidence of fraudulent concealment by the Archdiocese, a reasonably diligent investigation would have revealed at least some evidence of wrongdoing on the part of the Archdiocese (assuming arguendo that such wrongdoing had occurred). Consequently, we hold that appellants’ claims against the Archdiocese accmed simultaneously with their claims against Father Schaefer.” Id. at 773. (footnote omitted)

In Doe v. Archdiocese of Washington, 689 A.2d 634 (Md. Ct. Spec. App. 1997), the alleged abuse occurred between 1972 and 1978. The lawsuit was filed in 1995. It included claims against the Archdiocese for negligent hiring, placement, and supervision.

The plaintiff alleged that he had no notice that the Archdiocese knew that one of the priests who had abused the plaintiff was a pedophile until the Archdiocese admitted in 1995 that it was aware of this former priest’s misconduct.

The court ruled that the discovery rule did not apply because when the plaintiff was molested, he was immediately on notice of potential claims against the priest as well as the Archdiocese as the priest’s employer:

“In sum, Doe failed timely to pursue his claims against the priests and the church. There are no facts alleged that support a claim that Doe could not have discovered the claims against the Archdiocese, if he had ever attempted to do so. In our view, appellant had inquiry notice of his potential claims against the Archdiocese, as the priests’ employer. Therefore, for the same reason that the claims against the priests are untimely, his claims against the Archdiocese must fail.” Id. at 645.

I find the case law upon which plaintiff relies to be consistent with the Pennsylvania appellate court case law governing the discovery rule. Thus, I am denying defendants’ motion for judgment on the pleadings because I find that a jury should determine whether the plaintiff may invoke the discovery rule (assuming that there is sufficient evidence to support plaintiff’s allegations).

The case law upon which defendants rely holds that the discovery rule may not be invoked because a person injured by an employee should have reason to suspect that the employer may also have independent responsibility for the injury. I do not find this rationale to be persuasive when the employer is a church which the plaintiff attends and the employee is engaging in activity that may be reasonably viewed as conduct that the church could never tolerate. A jury may find that there is a loud ring of truth to plaintiff’s statement that he and his family never approached Diocesan officials to ask whether they had knowingly assigned to their church, to work directly with the parishioners, including young boys, a priest with a history of sexually molesting children, because it would never cross their minds that the church would do so. Under the law, there is no duty of inquiry where there is no reason to suspect that a party’s involvement contributed to the injuries; it is for the jury to decide whether the plaintiff exercised reasonable diligence in discovering the cause of his injury unless reasonable minds would not differ in finding that plaintiff failed to exercise reasonable diligence. The argument of counsel for defendants — reasonable minds must find that in 1989 plaintiff and his family should have considered the possibility that the Diocese had assigned to plaintiff’s church as its priest a person whom church officials knew to have engaged in sexual activity with children — is based on a portrayal of the church that a jury may not be prepared to accept.

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

ORDER

On August 3, 2004, it is ordered that defendants’ motion for judgment on the pleadings, based on the defense that the claims are barred by the statute of limitations, is denied.

      . Pennsylvania case law holds that a church is not responsible for acts of sexual abuse committed by a minister or priest because such activity is outside the scope of employment. R.A. v. First Church of Christ, 748 A.2d 692, 699 (Pa. Super. 2000).

      . The court distinguished the plaintiffs’ claims against the defendants from claims based on vicarious liability. The court said that the plaintiffs had no recourse against these defendants under a theory of vicarious liability because an employer is not vicariously responsible for actions outside the scope of employment.


author: STALLONE, J.,

text:
    Donegal Mutual Insurance Company v. Cipolla

      C.P. of Berks County,
    no. 01-3830.

      Jesse L. Pleet, for plaintiff.

      Daniel E.P Bausher, for defendant.
    June 22, 2004
   STALLONE, J.,

In this declaratory judgment action, we are being asked to decide whether the defendant, Lisa Cipolla, is entitled to recover underinsured motorist benefits under an automobile insurance policy issued by the plaintiff, Donegal Mutual Insurance Company, to David A. Levan and Natalie Levan. The dispute between the parties arises out of a collision which occurred on February 10, 1998, involving a motor vehicle being driven by the defendant, Lisa Cipolla, but which had been rented by David A. Levan from Enterprise Rent-A-Car Inc., and a second motor vehicle being driven by Scott B. Werner.

And now, after a non-jury trial, at which time a series of stipulated facts was incorporated into the record by agreement of the parties, we enter the following findings of fact, discussion and conclusions of law in disposition of their respective claims.

FINDINGS OF FACT

(1) On February 7,1998, at approximately 11:50 a.m., David A. Levan rented a motor vehicle (the rental vehicle) from Enterprise Rent-A-Car Inc., located in Temple, Berks County, Pennsylvania. N.T., trial, p. 16.

(2) At that time, Mr. Levan signed a written rental agreement dated February 7,1998. N.T., trial, pp. 16-17.

(3) The defendant, Lisa Cipolla, was present on February 7, 1998, when Mr. Levan signed the rental agreement, but she did not review it. N.T., trial, pp. 16, 30.

(4) The defendant was not identified as an “Additional driver” of the rental vehicle in the February 7,1998 rental agreement, as evidenced by the following language which appears in capital letters in the middle of the first page of the agreement:

“ADDITIONAL DRIVER — NONE PERMITTED WITHOUT ENTERPRISE’S APPROVAL” and under which appears the following typed words, again in capital letters:

“NO OTHER DRIVER PERMITTED.” N.T., trial, pp. 18, 24.

(5) The first paragraph of the terms and conditions of the February 7, 1998 rental agreement, as it appears therein, provides that:

“RENTER AGREES BY HIS SIGNATURE ON THE FACE HEREOF THAT HE HAS READ AND IS AWARE OF THE FOLLOWING TERMS AND CONDITIONS CONCERNING THE USE OF THE VEHICLE AND ACCEPTS FULL RESPONSIBILITY HEREIN. This contract is the entire agreement between the renter and owner. It is agreed that these terms are contractual and cannot be altered by another document or oral agreement.” N.T., trial, p. 16.

(6) Paragraph 13 of the terms and conditions of that agreement, as it appears therein, also specifically provides as follows:

“(13) VIOLATIONS OF THE CONTRACT. A violation of the contract shall exist if the car is used or driven:

“(e) By any person other than the renter without written consent of the owner.” N.T., trial, p. 16.

(7) Mr. Levan understood that no additional drivers were permitted to use the rental vehicle, under the February 7,1998 rental agreement, without Enterprise’s permission. N.T., trial, pp. 18, 24.

(8) Mr. Levan returned the rental vehicle to Enterprise’s Temple location on February 10, 1998, because it was not working properly, at which time he was accompanied by the defendant. N.T., trial, pp. 19, 29.

(9) Since Enterprise did not have another comparable rental car available at that location, Enterprise personnel made arrangements for Mr. Levan to exchange it for another vehicle located at Enterprise’s Morgantown Road, Reading, facility. N.T., trial, pp. 19, 28.

(10) The defendant accompanied Mr. Levan to Enterprise’s Morgantown Road facility to exchange the rental vehicle. N.T., trial, pp. 20, 28, 29.

(11) Upon his arrival, Mr. Levan executed an identical rental agreement dated February 10, 1998, for the replacement rental vehicle containing all of the same terms and conditions that are in the February 7, 1998 rental agreement, including the prohibition on the use of the replacement vehicle by any additional driver without Enterprise’s permission. N.T., trial, p. 20.

(12) Mr. Levan knew that no additional drivers were permitted to use the replacement vehicle under the February 10, 1998 agreement without Enterprise’s permission. N.T., trial, p. 24.

(13) The defendant was standing at the counter with Mr. Levan when he signed the rental agreement, but she did not review it. N.T., trial, pp. 20, 30.

(14) The defendant did not, nor did Enterprise personnel request her to, provide her driver’s license, credit card or any other information to Enterprise personnel on February 10, 1998. N.T., trial, pp. 21, 27.

(15) At no time on February 10, 1998, while the defendant and Mr. Levan were standing at the counter, did the defendant request or obtain permission from Enterprise personnel for her to drive the replacement vehicle. N.T., trial, p. 21.

(16) As a result, the defendant was not identified as an “Additional driver” in the February 10,1998 rental agreement. N.T., trial, pp. 21, 24.

(17) After completing the paperwork, Mr. Levan and the defendant walked outside onto the parking lot, followed by an unidentified Enterprise employee who was walking behind them. N.T., trial, p. 22.

(18) This employee proceeded to walk toward the rental vehicle that they had returned and pointed them to the location where the replacement vehicle was parked, which was two parking spaces away. N.T., trial, pp. 21, 31, 33, 37, 39.

(19) The defendant did not engage in any conversation with this unidentified Enterprise employee at any time either inside or outside the facility. N.T., trial, p. 36.

(20) While Mr. Levan and the defendant were walking towards the replacement vehicle, Mr. Levan advised the defendant that he did not feel well and gave her the keys to the vehicle. N.T., trial, pp. 22, 31.

(21) The defendant proceeded to drive the replacement vehicle off of the parking lot, with Mr. Levan sitting in the front passenger seat of the vehicle, and onto the northbound lane of Morgantown Road towards the intersection of Morgantown Road and Lancaster Avenue. N.T., trial, pp. 23, 35.

(22) The Enterprise employee who had followed Mr. Levan and the defendant onto the parking lot allegedly waved to them as the defendant was driving the vehicle off of the parking lot onto Morgantown Road. N.T., trial, p. 35.

(23) Shortly thereafter, while the defendant and Mr. Levan were stopped at the intersection of Morgantown Road and Lancaster Avenue, a second vehicle being driven by Scott B. Werner struck the rear of the replacement vehicle, causing the defendant to sustain personal injuries. N.T., trial, pp. 23, 36.

(24) At the time of the collision, Scott B. Werner maintained an automobile liability insurance policy with a maximum limit of $15,000. N.T., trial, p. 3.

(25) Following that incident, the defendant made a claim against Mr. Werner’s automobile liability insurance company and entered into a settlement in the amount of $12,500, with the understanding that she was preserving her right to proceed with an underinsured motorist claim for the excess value of her claim over the $ 15,000 policy limit. N.T., trial, p. 3.

(26) She then pursued a claim for underinsured motorist benefits against the plaintiff, Donegal Mutual Insurance Company, under an automobile insurance policy issued by the plaintiff to Mr. Levan and his wife, Natalie Levan, no. PAE 0515420, which the plaintiff denied on the basis that the defendant did not have permission from Enterprise to drive the replacement vehicle. N.T., trial, p. 3.

DISCUSSION

Initially, the burden is upon the defendant to establish her entitlement to coverage under the terms of the insurance policy issued to Mr. and Mrs. Levan. The record is clear that the replacement vehicle is covered and that the defendant is an “insured” under the terms of the policy.

Accordingly, the burden then shifts to the plaintiff to establish an exclusion under the terms of the policy that defeats the defendant’s claim. In response, the plaintiff points to the following exclusion which appears in the underinsured motorists coverage section of the policy:

“(B) We do not provide underinsured motorists coverage for ‘bodily injury’ sustained by any ‘insured’: ...
“(3) Using a vehicle without the permission of the owner.

Therefore, the issue which we must determine is whether the defendant was driving the rental car without Enterprise’s permission at the time of the collision. Under Pennsylvania law, the permission required to establish coverage may either be express or implied. Federal Kemper Insurance Co. v. Neary, 366 Pa. Super. 135, 139, 530 A.2d 929, 931 (1987).

In the action at bar, it is clear that no such express permission was given by Enterprise, inasmuch as no additional drivers were permitted under the terms of the February 7, 1998 and February 10, 1998 rental agreements. Therefore, the only remaining issue is whether there is sufficient evidence as a matter of law to establish any implied permission on the part of Enterprise.

In the context of the use of a motor vehicle, implied permission may arise from the relationship of the parties or by virtue of a course of conduct in which the parties demonstrate their mutual acquiescence. Federal Kemper, supra at 139-40, 530 A.2d at 931. However, a finding of implied permission requires something more than mere tolerance without the taking of any steps to prevent the use of the motor vehicle. Id. at 140, 530 A.2d at 931. Instead, the owner of the vehicle must say or do something that warrants the belief that any subsequent use was with his consent. Id.

The defendant’s first contention is that the record supports a finding of implied permission on the basis that the unidentified Enterprise employee was walking behind the defendant and Mr. Levan at the time that Mr. Levan gave her the keys to the replacement vehicle and that he was standing on the parking lot when the defendant drove away. We disagree, as there is no evidence in the record that this employee actually observed Mr. Levan hand the keys to the replacement vehicle to the defen-. dant or observed her entering the driver’s side of the replacement vehicle. On the contrary, the undisputed evidence in the record is that they “split like a ‘y,’ ” with Mr. Levan and the defendant walking to the left side of the parking lot toward the replacement vehicle and the unidentified Enterprise employee walking to the right side toward the returned rental vehicle and that, as the defendant drove away, the employee was standing next to the returned rental vehicle. N.T., trial, pp. 38-39.

Finally, the defendant maintains that the conduct of the unidentified Enterprise employee in allegedly waving to her and Mr. Levan as she drove away is evidence of implied permission on the part of Enterprise for her to operate the rental vehicle. Again, we must disagree. Under Pennsylvania law, the non-verbal conduct of a person is treated as a “statement,” if it is intended as an assertion. See Commonwealth v. Rush, 529 Pa. 498, 605 A.2d 792 (1992); Whelan v. W.C.A.B. (F. H. Sparks Co. of Pa. Inc.), 110 Pa. Commw. 242, 532 A.2d 65 (1987). Here, any alleged wave by the Enterprise employee toward the defendant and Mr. Levan is clearly non-verbal conduct intended as an assertion and, therefore, a statement. Therefore, inasmuch as it is being offered to prove the “truth of the matter asserted,” that being implied permission from Enterprise for the defendant to drive the vehicle, it constitutes inadmissible hearsay.

Accordingly, the record does not support a finding of implied permission by Enterprise for the defendant to drive the replacement vehicle.

CONCLUSIONS OF LAW

(1) The defendant has met her burden of establishing that the replacement vehicle was covered under the terms of the automobile insurance policy issued by the plaintiff to David A. Levan and Natalie Levan, no. PAE 0515420.

(2) The defendant has met her burden of establishing that she is an “insured” under the terms of the automobile insurance policy issued by the plaintiff to David A. Levan and Natalie Levan, no. PAE 0515420.

(3) That policy contains an exclusion which prohibits an “insured” from the recovery of underinsured motorist benefits where she is using a vehicle without the permission of its owner.

(4) The defendant, as an “insured” under the terms of the policy, did not have express permission from Enterprise and Pennrac Inc., to drive the replacement vehicle on February 10, 1998.

(5) The defendant, as an “insured” under the terms of the policy, did not have implied permission from Enterprise and Pennrac Inc., to drive the replacement vehicle on February 10, 1998.

Accordingly, the plaintiff has met its burden of establishing that the defendant is not entitled to recover underinsured motorist benefits under the aforesaid insurance policy, thereby requiring the entry of the following verdict.

VERDICT

And now, June 22, 2004, this court finds in favor of the plaintiff, Donegal Mutual Insurance Company, and against the defendant, Lisa Cipolla.

      . In the rental agreement which he signed on that date, Mr. Levan is named as the “renter” and Pennrac Inc., a wholly-owned subsidiary of Enterprise Rent-A-Car Inc., and Enterprise are (collectively) named as the “owner” of the rental vehicle.

      . The same is true for the original rental transaction on February 7, 1998.

      . For purposes of the policy, a “covered automobile” is defined as including:
      “(4) Any auto or ‘trailer’ you do not own while used as a temporary substitute for any other vehicle described in this definition which is out of normal use because of its:
      “(a) Breakdown;
      “(b) Repair;
      “(c) Servicing;
      “(d) Loss; or
      “(e) Destruction.”

      . The term “insured” is defined under the policy as:
      “ ‘Insured’ as used in this endorsement means:
      “(1) You or any ‘family member’;
      “(2) Any other person ‘occupying’ ‘your covered auto.’
      “(3) Any person for damages that person is entitled to recover because of ‘bodily injury’ to which this coverage applies sustained by a person described in (1) or (2) above.”

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

      . Under Pa.R.E. 801(c), “hearsay” is defined as: “a statement other than one made by the declarant while testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.”

      . The defendant is also asking this court to reconsider a ruling made by Judge Scott E. Lash, a judge of coordinate jurisdiction in the Court of Common Pleas of Berks County, in his order dated March 18, 2003, denying the parties’ cross-motions for summary judgment, that:

        “(3) Plaintiff, Donegal Mutual Insurance Company, in making payment of defendant, Lisa Cipolla’s, first-party benefits, did not admit coverage nor waive any objection to coverage for underinsured motorists benefits.”
      Her request is based upon Wood v. Allstate Insurance Co., 1997 WL 602796 (E.D. Pa. 1997), and, more recently, Hollock v. Erie Insurance Exchange, 842 A.2d 409 (Pa. Super. 2004). In particular, the defendant relies upon Wood for the proposition that Judge Lash’s ruling was clearly erroneous and upon Hollock on the basis that Hollock represents a change in the applicable law and had not been decided at the time that Judge Lash made his ruling. However, we decline to do so on the basis that we do not believe that either case supports the defendant’s arguments.