author: WETTICK, J.,

text:
    Krelic v. Mutual Pharmaceuticals Company, Inc.

      May 1, 2013

      Daniel W. Ernsberger, for plaintiffs.

      Constantine J. Passodelis, for defendant.
   WETTICK, J.,

— Defendant’s motion for summary judgment seeking dismissal of plaintiff’s first amended complaint is the subject of this opinion and order of court.

Plaintiffs have instituted state tort failure-to-wam claims against a generic drug manufacturer. This manufacturer uses the warning label used by the manufacturer of the brand-name drug. For purposes of defendant’s motion for summary judgment, i will assume that under state tort law the warnings are inadequate.

I.

Defendant seeks dismissal of the failure-to-wam claims on the ground that these failure-to-wam claims are preempted by federal law. Defendant bases its preemption defense on a June 23, 2011 ruling by the United States Supreme Court in PLIVA, Inc. v. Mensing, 131 S. Ct. 2567 (2011).

In PLIVA, the generic manufactures raised the following preemption defense: federal law requires a generic manufacturer to use the label of the brand-name manufacturer. Plaintiffs; state law claim is based on the failure of the generic manufacturer change its label to include a warning about the risks of developing CSR. A potential side effect. This requirement, imposed by state tort law, that the generic manufacturer change its label, requires the manufacturer to do what it is prohibited from doing under federal law, namely to use safety and efficacy labeling that differs from that used by the brand-name manufacturer. Where it is impossible for the generic manufacturer to comply with state tort law duties without violating a federal law, settled law establishes that state law must give way.

The United States Supreme Court, in a 5-4 split, found merit to the above argument of the generic manufacturer’s strengthening its warning label would violate federal statutes and regulations requiring a generic manufacturer’s drug label to match the label of the brand-name manufacturer.

The court’s opinion began with what was not in dispute. A manufacturer seeking federal approval to market a new drug must prove that the new drug is safe and effective and that the proposed label is accurate and adequate. However, a generic drug can gain FDA approval simply by showing equivalence to a listed drug that has already been approved by the FDA and by showing the safety and efficacy labeling which this generic manufacturer proposes is the same as the labeling approved for the brand-name drug:

A generic drug application must also “show that the [safety and efficacy] labeling proposed ... is the same as the labeling approved for the [brand-name] drug.” [21 U.S.C.] § 3559jO(2)(A)(v); see also § 355(j)(4)(G); Beers §§ 30.01, 3.03[A].

PLIVA, 131 S. Ct. at 2574.

The court stated that what is in dispute is whether, and to what extent, generic manufactures may change their labels after initial FDA approval of the generic drug.

Prior to PLIVA, in Wyeth v. Levine, 555 U.S. 555 (2009), the United States Supreme Court had addressed the issue of whether a state law failure-to-warn tort claim may be brought against a brand-name manufacturer for failure to have modified the warming label placed on the drug once it had been approved by the FDA.

The brand-name manufacturer made the same preemption argument that was made in PLIVA: under federal law, the manufacturer must use the warning labels approved by the FDA. Thus, the manufacturer would violate federal law if, without FDA approval, it included stronger warnings in order to comply with state tort law. Id. at 563.

The court ruled against the brand-name manufacturer. If found that it was not impossible for Wyeth to comply with state and federal law obligations because of an FDA regulation which permits a brand-name manufacturer to make certain changes to its label before receiving FDA approval. The court stated:

Among other things, this “changes being effected” (CBE) regulation provides that if a manufacturer is changing a label to “add or strengthen a contraindication, warning, precaution, or adverse reaction” or to “add or strengthen an instruction about dosage and administration that is intended to increase the safe use of the drug product,” it may make the labeling change upon filing its supplemental application with the FDA; it need not wait for FDA approval. §§ 314.70(c)(6)(iii) (A), (C).

Id. at 568.

In PLIVA, the court reached the opposite result. It did so because the legislation and regulations, as interpreted by the FDA, allow changes to generic labels only when a generic drug manufacturer changes its labels to match an updated brand-name label or to follow the FDA’s instructions. Under FDA interpretations, changes unilaterally made to strengthen a generic drug’s warning label would violate federal legislation and regulations requiring and generic drug’s label to match its brand-name counterparts. 131 S. Ct. at 2575.

Defendant contends that the question of whether state failure-to-wam tort claims may be brought against a generic manufacturer using the same safety and efficacy labeling used by the brand-name manufacturer has been resolved through the PLIVA opinion, which holds that state tort claims may not be brought because of the FDA requirement that the labeling be the same. Thus I should dismiss plaintiffs’ failure-to-warn tort claims.

Plaintiffs raise the following argument in support of their position that PLIVA does not bar a generic manufacturer, which is a different entity than the brand-name manufacturer, from including risks that are not disclosed in the brand-name label: PLIVA considered only the provision within 21 U.S.C. § 355(j)(2)(A)(v) (quoted at page 2 of this opinion) requiring the generic manufacturer to use the labels of the brand-name manufacturer. [Plaintiffs are correct.] However, this legislation includes the Different Manufactures Exception. [Plaintiffs are correct.]

This Exception reads as follows:

An abbreviated application for a new drug shall contain...information to show that the labeling proposed for the new drug is the same as the labeling approved for the listed drug referred to in clause (i) except for changes required because of differences approved under a petition filed under subparagraph (C) or because the new drug and the listed drug are produced or distributed by different manufacturers.

21 U.S.C. § 355(j)(2)(A)(v) (emphasis added).

In PLIVA, neither the opinion of the court nor the dissenting opinion mentioned the Different Manufacturers Exception. [Plaintiffs are correct.]

This means, according to plaintiffs, that the Different Manufacturers Exception permits a generic manufacturer to comply with sate tort law governing a failure to warm by strengthening its safety and efficacy labeling.

It is this final step where plaintiffs encounter a problem. Plaintiffs do not explain why the scope of the Different Manufacturers Exception would allow generic manufacturers to deviate from the labeling of brand-name drugs by adding contraindications, warnings, precautions, adverse reactions, and other information related to the active ingredients of both the brand-name and generic manufacturers.

The Different Manufacturers Exception refers to changes “required” because the manufacturers are different. The use of the word “required” refers to changes to the label of the generic manufacturer that are triggered by the manufacturer of the generic drug not being the same as the manufacturer of the brand-name drug. The active ingredients of a generic and a brand-name drug are identical, so changes are not “required” with respect to warnings and other safety-related information concerning the active ingredients.

Most drugs on the market are generic. Thus, under plaintiffs’ construction of the Different Manufacturers Exception, the scheme under which generic drugs shall use the FDA-approved label of the brand-name manufacturer would be rendered almost meaningless. Plaintiffs cannot explain why this is what Congress intended.

In PLIVA, the opinion of the court looked to the FDA’s interpretations of the legislation and regulations in deciding whether the generic labels regarding safety and efficacy could be strengthened. It cited case law holding that the FDA’s interpretations are controlling unless plainly erroneous or inconsistent with the regulations or where there is another reason to doubt that these views reflect the FDA’s fair and considerate judgments. 131 S. Ct. at 2575.

At 21 C.F.R. § 314.94(a)(8)(iv), the FDA has described the scope of the Different Manufacturers Exception. The scope, as described below, does not include any differences relating to active ingredients:

Labeling (including the container label, package insert, and, if applicable, Medication Guide) proposed for the drug product must be the same as the labeling approved for the reference listed drug, except for changes required because of differences approved under a petition filed under § 314.93 or because the drug product and the reference listed drug are produced or distributed by different manufacturers. Such differences between the [generic] applicant’s proposed labeling and labeling approved for the reference listed drug may include differences in expiration date, formulation, bioavailability, or pharmacokinetics, labeling, revisions made to comply with current FDA labeling guidelines or other guidance, or omission of an indication or other aspect of labeling protected by patent or accorded exclusivity under section 505(i)(5) (f) of the act.

21 C.F.R. § 314.94(a)(8)(iv) (emphasis added).

A February 8, 2012 letter from Dr. Jane Woodcock, Director of FDA’s Center for Drug Evaluation and Research, Docket No. FDA-2011-P-0702, addressed the petition of a manufacturer of a brand-name drug requesting that the FDA refrain from approving generic manufacturer applications unless they use the same labels. The letter denying the manufacturer’s request that the FDA bar a generic manufacturer from issuing new instructions for splitting the label discussed the scope of the Different Manufactures Exception. AT pages 3 and 4 of the letter, Dr. Woodcock states:

Similarly, the regulations at 21 CFT 314.94(a)(8)(iv) require the following:

Labeling (including the container label, package insert, and, if applicable, Medication Guide) proposed for the [generic] drug product must be the same as the labeling approved for the reference listed drug, except for changes required because of differences approved under a petition filed under § 314.93 [21 CFT 314.93] or because the drug product and the reference listed drug are produced or distributed by different manufacturers.
Section 314.94(a)(8)(iv) sets forth examples of permissible differences in labeling that may result because the generic drug product and reference listed drug are produced or distributed by different manufacturers. These difference include the following:
...differences in expiration date, formulation, bioavailability, or pharmacokinetics, labeling revisions made to comply with current FDA. Labeling guidelines or other guidance, or omission of an indication or other aspect of labeling protected by patent or accorded exclusivity under section 505(j)(4)(D) of the [A]ct.
We have interpreted the difference-due-to-differences-in-manufacturer exception to apply when the ANDA differs in an aspect that is not required by the statute or regulation to be the same as the RLD (e.g. a difference in inactive ingredients).

At page 9 of her Report, Dr. Woodcock states:

We believe that labeling differences of the type you suggest would be acceptable under the relevant statute and regulations as a permissible difference due to difference in manufacturer. As mentioned above, generic products are permitted to have labeling that differs from the labeling of the FLD, FDA regulations in § 314.94(a)(8)(iv) require that the “labeling.. .proposed for the [generic] drug product must be the same as the labeling approved for the reference listed drug, except for changes required because of differences approved under a petition filed under § 314.93 or because the drug product and the reference listed drug are produced or distributed by different manufacturers” (emphasis added). FDA has interpreted this exception to apply when an aspect of the ANDA product that is not required by statute or regulation to be the same as that of the RLD (such as an inactive ingredient) is different, and the difference necessitates a difference in labeling. Here, because the labeling difference for an ANDA would relate to an aspect of the product that is not required by statute or regulation to be the same as that of the RLD *i.e., the scoring pattern), the difference in labeling for a generic single-scored 150 mg doxycycline hyelate would fall within the difference-due-to-different-manufacturers exception set out at 21 CFT 314.94(a)(8)(iv).
The Doryx 150 mg product is currently marketed as a dual-scored product (with the single-scored product still on the market until the inventory is returned to the RLD manufacturer or is depleted). For an ANDA applicant that seeks approval of a single-scored product (identical to the RLD prior to its change to the dual-scored product) and seeks to omit the information regarding the dual score, FDA may permit such a difference. The new instructions for splitting the tablet added by the RLD to not have a bearing on the single-scored generic product because these instructions pertain only to the dual-scored configuration and the generic product is not dual-scored. It is therefore possible to simply omit these instructions from labeling for a generic single-scored product without adverse consequence. Thus, in this instance, FDA may allow a 150 mg doxycycline hyclate delayed-release product to have labeling different from Doryx to account for differences in scoring configuration because the product is produced by a different manufacturer. Any ANDA manufacturer who receives approval for a single-scored tablet will be expected to change to a dual-scored tablet upon the manufacture of its next production batch. We make this type of decision on a case-by-case basis in accordance with relevant statutes and FDA regulations.

Where the brand-name manufacturer and the generic manufacturer are the same, the labels will be the same because the products will be the same. Where (as is almost always the case) the manufacturers are not the same, the inactive ingredients of the generic manufacturer’s drug need not be the same as the inactive ingredients of the drug of the brand-name manufacturer. Thus, the labeling as t the inactive ingredients need not be the same. In her February 8, 2012, letter, Dr. Woodcock described changes that the permitted:

...differences in expiration date, formulation, bioavailability, or pharmacokinetics, labeling revisions made to comply with current FDA labeling guidelines or other guidance, or omission of an indication or other aspect of labeling protected by patent or accorded exclusivity under section 505(j)(4)(d) of the [A]ct, (Footnote omitted).

In summary, Dr. Woodcock states that the Different Manufacturers Exception permits labeling differences that relate to differences between the generic drug and the brand-name drug. However, the active ingredients of the generic drug and the brand-name drug must be the same. Thus, the warnings as to the side effects and safety of the active ingredients must be the same.

In its brief filed in the United States Supreme Court, PLIVA discussed the Different Manufacturers Exception, i find its argument, set forth below, to be convincing:

Of course, certain labeling differences are unavoidable. Petitioners’ generic versions of Wyeth’s Reglan® cannot, for instance falsely represent that they too are manufactured by Wyeth. See 21 U.S.C. § 331(b); id. § 321(n). Hatch-Waxman therefore authorizes labeling variances where 4’’the [genetic] drug and the [brand-name] drug are produced or distributed by different manufacturers.’” 21 U.S.C. § 355(j)(2)(A)(v). FDAhas interpreted this language to permit differences
In expiration date, formulation, bioavailability, or pharmacokinetics, labeling revisions made to comply with current FDA labeling guidelines or other guidance, or omission of an indication or other aspect of labeling protected by patent or accorded exclusivity.
21 C.F.R. § 314.94(a)(8)(iv). The regulation pointedly does not authorize divergent product warnings.
That is no accident, FDA received dozens of comments when it proposed regulation, including two submissions proposing that it “be revised to permit ANDA applicants to deviate from the labeling for the [branded] drug to add contraindications, warnings, precautions. Adverse reactions and other safety-related information. 57 Fed. Reg. At 17961, Pet. App. 108a (emphasis added). FDA rejected the proposal:
FDA disagrees with the comments. Except for labeling differences under section 505(j)(2)(v) of the act, the ANDA product’s labeling must be the same as the listed drug product’s labeling because the listed drug product is the basis for ANDA approval. Consistent labeling will assure physicians, health professionals, and consumers that a generic drug is as safe and effective as its brand-name counterpart.
Id., Pet. App. 109a (emphasis added; citing 21 U.S.C. § 355(j)(2)(A)(v); see also id. at 17953, Pet. App. 104a (“As for accepting ANDA’s with additional warnings or precautions...the act requires that the applicant’s proposed labeling be the same as that of the [branded] drug.”) (citing 21 U.S.C. 5 § 355(j)(2)(A)(v) (j)(3)(G).

While PLIVAs’ brief addressed the Different Manufacturers Exception, neither plaintiffs’ brief nor any of the twelve amicus briefs filed in PLIVA in support of the plaintiffs, including FDA’s brief, mentioned the exception. Furthermore, the dissenting opinion viewed the majority opinion as reaching all generic drugs: “Today’s decision affects 75 percent of all prescription drags dispensed in this country.” 131 S. Ct. at 2583.

The only explanation for the failure of the briefs supporting plaintiffs or the Supreme Court’s opinions in PLIVA to discuss the Different Manufacturers Exception is that the exception does not permit different labeling as to safety and efficacy.

II.

Plaintiffs also have pled other causes of action which, according to plaintiffs, are not dependent in any way on a failure to warn. Defendant has raised the statute of limitations.

Since discovery is not complete, I cannot address these matters at this time.

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

ORDER OF COURT

On this 11th day of April, 2013, it is ordered that:

(1) all claims raised in plaintiffs first amended complaint that require a showing of a failure to warn are dismissed;
(2) within twenty (20) days, plaintiffs shall file a preliminary pretrial statement describing the claims, other than those dismissed in paragraph (1) of this order, which they seek to pursue; and
(3) a status conference will be held on May 10,2013 at 10:00 A.M. o’clock.

      . The dissenting opinion in PLIVA, 131 S. Ct. at 2584, cites a study which states that seventy-five percent of all prescribed drugs are generic drugs, and that ninety percent of prescriptions for which a generic version is available are now filled with the generic drug.

      . WE note that, due to a series of amendments to the FD&C Act, the reference in § 314.94(a)(8)(iv) to section 505(j)(4)(D) of the FD&C Act corresponds to current section 505(j)(5)(F) of the FD&C Act.

      . See generally, Zeneca Inc. v. Shalala, 213 F. 3d 161, 169 (4th Cir. 2000). In Seneca the Fourth Circuit agreed with FDA’s interpretation of section 314.94(a)(8)(iv) allowing the generic drug product label for propofol with the preservative sodium metabisulfite to differ from the RLD by containing a warning against possible allergic reaction to the preservative. Specifically, the court concluded that “ [b]ecause a difference in preservative is a permitted variation in formulation, it is reasonable for the FDA to interpret its own regulation to allow corresponding difference in labeling to identify the preservative and provide any appropriate warnings.” Id. See also September 15, 2009, letter from Janet Woodcock, Director, Center for Drug Byaluation and Research, to Beth Brannon at al, Docket Nos. FDA-2005-P-003, FDA-2006-P-0019, FDA-2006-P-0331, and FDA-2006-P-0391 (FDA permitted the generic product to contain a previously approved formulation of the drug product and carry labeling different from the reformulated RLD product).


source: Caselaw Access Project

author: NANOVIC, P.J,

license: Public Domain

text:
    R.M. v. N.F.

      May 17, 2013

      Steven A. Bergstein, for plaintiff

      Robert S. Frycklund, for defendant
   NANOVIC, P.J,

— The state legislature in sections 5328(a) and 5337(h) of the Child Custody Act, 23 Pa.C.S.A. §§ 5328(a) and 5337(h), set forth sixteen custody and ten relocation factors to be considered by the court in deciding issues of child custody and requests for relocation respectively. Notwithstanding these checklists, the guiding principle in all child custody litigation is the best interests of the child. With this in mind, we review mother’s appeal from our decisions denying her request to relocate and granting, in part, Father’s request to modify the existing custody order.

PROCEDURAL AND FACTUAL BACKGROUND

R.M. (“mother”) and N.F., III (“Father”) are the parents of one child together, Abygail, age six. The parties separated in July of2008, when Abygail was two years old. In the meantime, both have developed new relationships and have married: Mother married her current hiisband, J.M. (“husband”), on January 21, 2011, with whom she has a sixteen-month-old daughter; and father married his current wife, A.F. (“wife”), on October 20, 2012. Father and wife do not have any children together.

Following their separation, the parties reached agreement on the terms of a custody order, which agreement was decreed as such on August 12, 2010. Under this order, the parties shared legal custody; mother held primary physical custody; and father was permitted supervised custodial rights every other weekend, on Easter Sunday and such other holidays as the parties could agree upon, and two weeks of uninterrupted vacation time.

At the time of the original custody order, Abygail was four years old. Approximately two years earlier, father had been involved in a motor vehicle accident, and sustained serious head and hip injuries. (N.T., p. 116). It was because of these injuries and AbygaiPs youthful age that father’s visits were agreed to be supervised. (N.T., pp.12, 60-61). The August 12, 2010 order required AbygaiPs paternal grandparents to be present at all times during father’s visitations. Since father’s marriage to wife, wife has also served as supervisor. (N.T., p.12).

This custody arrangement has worked well. Abygail is a healthy child, well cared for, and loved by both of her parents. She is in the first grade and doing well. (N.T., p.37). She has a good relationship with husband, wife, her half-sister, and father’s parents, who live in a separate home from father’s, on the family farm, approximately thirty yards away. (N.T., p.98). Father’s grandmother lives immediately to the rear of father’s home. (N.T., p.98).

Father’s sister lives within approximately a mile and a half from father. Her daughter, AbygaiPs cousin, often plays with Abygail when Abygail is visiting her father. (N.T., pp.47, 101, 124, 164-65). Mother is an only child; her mother resides in Hamburg, Pennsylvania. (N.T., P-45).

On March 15, 2013, father filed a petition for modification of the August 12,2010 custody order. Therein, father sought more time with his daughter, “as the present partial custody schedule does not provide father adequate time to participate in the child’s life in a meaningful way.” Four days later, on March 19, 2013, mother gave notice of her intent to relocate to Florida in June, and proposed the custody schedule be modified to allow father to see his daughter twice a year — during the spring break from school and half the summer — and every other Christmas. Mother proposed father maintain his relationship with Abygail during the remainder of the year through phone calls using Skype or other video calling software. (N.T., p.33). Father objected to both the relocation and proposed change in custody schedule.

On April 16, 2013, we held a consolidated custody hearing on both mother’s request for relocation and father’s petition for modification. By order dated April 19, 2013, we denied mother’s relocation request. That same day, we entered a modified order essentially continuing the existing custody order wherein mother retained primary physical custody, but eliminating the requirement that father’s visits with his daughter be supervised, expanding the number of designated holidays throughout the year to be shared, and dividing the summertime equally between the parents. In the event mother nevertheless chose to move to Florida, we also entered an alternate order transferring primary physical custody to father, with mother to have visits every Thanksgiving holiday, for six consecutive weeks during the summer months, and over the Christmas holiday for half of the school break.

Mother has appealed from our April 19, 2013 order. In her concise statement which accompanied the appeal, mother has identified eleven issues which she intends to raise on appeal. These issues have each been addressed within the body of our discussion below. For the reasons which follow, we believe the best interests of Abygail have been furthered by our decision and would be dramatically adversely affected if mother were permitted to relocate to Florida with Abygail.

DISCUSSION

A. Custody Order, As Modified

To the extent mother questions the modified custody order, contending we have not thoroughly examined each of the sixteen factors set forth in section 5328, we have done so, albeit not explicitly. The April 19, 2013 order denying mother’s request for relocation makes multiple findings of fact which we found to be significant in our determination. Expanding on these factors in the sequence set out by section 5328, we make the following findings and conclusions:

1. Both parents understand the importance of the other in Abygail’s life and both have acted to assure that Abygail has a relationship with the other. Moreover, father has agreed to reduce his time with Abygail when this was in her best interests.
At the time the August 12, 2010 custody order was entered, Abygail did not attend school. (N.T., pp.10-11). The order provided father partial custody on alternating weekends from Saturday at 11:00 A.M. until Tuesday at 11:00 A.M. When Abygail began school the following year, father agreed to have his weekend visits end Sunday afternoon, rather than Tuesday morning. (N.T.,pp.l 1,49-50).
The converse has not happened, father’s ability to develop a full relationship with his daughter has been limited by the requirement that father’s visits be supervised. (N.T., pp.105-06). While there was reason for this limitation to exist at the time the order was entered, due to the extent and nature of father’s injuries and the age of Abygail, since then father’s mind and body have markedly improved such that there is no need for father’s visits with his daughter to continue to be supervised. (N.T., pp.113-15,117, 125, 128,131-36, 152, 157, 166-69, 181). Though mother has never precluded Father from visiting Abygail, she is unable to accept the improvement in father’s health and is unwilling to allow father to have unsupervised visits. (N.T., p.80).
2. There is no evidence that either parent currently or in the past abused the other or a member of their household.
3. Prior to father’s motor vehicle accident in 2008, when Abygail was two years old, mother was AbygaiTs primaiy caretaker. (N.T., pp.8-9). At that time, father worked five days a week, Monday through Friday, between the hours of 9:00 A.M. and 6:00 P.M. (N.T., p. 9). Immediately following the accident, father’s injuries prevented him from being a primary caretaker. During the beginning of father’s recovery, father was cared for by his mother, who also helped in the care of Abygail when mother was at work. At the present time, father has the ability and desire to provide full-time care for his daughter.
4. At the present time, Abygail has a good, stable relationship with both of her parents and their spouses, as well as with her paternal grandparents. (N.T., p.101). She is doing well in school, especially in reading, and is involved in various activities. (N.T., pp.37, 40). The court believes it important that this stability continue.
5. AbygaiTs paternal grandparents live within yards of her father. Both have cared for Abygail in the past and acted as supervisors under the prior custody order. Abygail has a close relationship with her grandparents and visits them frequently whenever she is with her father. (N.T., pp.62, 165). Father’s sister and grandmother also live nearby. (N.T.,pp. 101-03,120-21; Respondent’s exhibit 1). In contrast, the closest nearby maternal relative is AbygaiTs maternal grandmother who lives in Hamburg, Pennsylvania.
6. Abygail’s relationship with her half-sister was characterized as good, however, it must be remembered that Abygail’s sister is only sixteen months old and Abygail is five years older. (N.T., pp.62, 158). No further detailed evidence was presented as to what Abygail and her sister do together.
7. At the request of the parties, the court did not interview Abygail. (N.T., pp.73-75). Nor was any other evidence presented as to her preference.
8. No evidence was presented that either parent has attempted to turn Abygail against the other.
9. The court finds that both parents are equally able and willing to maintain a loving, stable, consistent and nurturing relationship with Abygail adequate for her emotional needs.
10. The court finds that each parent is equally able and willing to attend to Abygail’s daily physical, emotional, developmental and educational needs. There is no evidence of any special needs for Abygail. (N.T., pp.71-72).
11. The parties live within approximately fifteen minutes of one another. (N.T., p.45).
12. The court finds that each party is equally able to care for Abygail or to make appropriate childcare arrangements. Father is currently on social security disability and is available to care for Abygail. (N.T., p.118). Likewise, the court believes Abygail has been well cared for by her mother and that she would continue to do so.
13. For the most part, the court finds both parties have communicated with one another and cooperated with one another in Abygail’s best interests. Although mother testified that they do not communicate well, and that most forms of communication were previously with father’s mother, and presently with wife, father testified that they do communicate with one another. (N.T., p.100). For instance, when mother first sought to set up a meeting to talk to father about relocating to Florida, she contacted wife to schedule this meeting without explaining the purpose. (N.T., p.63). Father was immediately in touch with mother to find out what she wanted to meet about. (N.T., pp.112, 140-41). Although mother’s request to relocate has caused some friction in the relationship between mother and father, we believe this to be temporary. (N.T., p.36).
14. With the exception of mother’s testimony that father’s motor vehicle accident was alcohol related, there is no other evidence that either parent has abused drugs or alcohol, or has any substance abuse problems at the present time. (N.T., pp.76-77).
15. The only evidence of mental or physical limitations of any of the parties or members of their family are the injuries father sustained in the 2008 motor vehicle accident. As to the current status of these injuries, we find that father has made a good recovery and has no limitations at the present time that would affect his ability to safely care for Abygail or require that his visits be supervised. (N.T., p.101). In this regard, we also note that father has an unrestricted driver’s license. (N.T., p.99). Further, before his accident, father was a counselor with Kids Peace where he worked with children. (N.T., pp. 160-61).
16. The only other relevant factor brought to our attention is that father and wife take Abygail to church and Sunday school during Abygail’s visits with them. (N.T., pp.124,165). Similar evidence was not provided by mother.

Based on the foregoing we concluded that Abygail’s best interests would be served by continuing primary physical custody with mother, but giving additional time to father during the summer months, providing a better defined and more certain division of holiday visits, and removing the requirement that all of the father’s time with Abygail be supervised. To the extent mother is objecting to this latter aspect of our April 19, 2013 decision, her objection appears to be centered on her belief that father continues to experience cognitive difficulties and physical limitations which could endanger Abygail if the visits are unsupervised. The record belies this fear.

In response to mother’s testimony that father’s cognitive abilities have not changed since 2010 and that he is unable to communicate and make decisions on his own, father testified that he was released from medical care and therapy in 2010, that he has made vast improvements mentally and physically since then, that his memory has increased, that he drives without any restrictions on his operating privileges, and that he has been looking for part-time employment for the past five to six months. (N.T., pp.34, 52-53, 118-19, 131, 171). Wife, who is a licensed practical nurse and works with special needs children, testified that father has no limitations which would affect his ability to care for his daughter or require supervised visits. (N.T., pp. 165-68). In our observations of father, although he had a slight limp and exhibited some minor forgetfulness, he was thoughtful and responsive to the questions asked. Mother presented no medical evidence to contradict father’s testimony or that of wife, and we believe the record fully supports our finding of father’s ability to safely have unsupervised visits with his daughter.

B. Relocation

Section 5337(h) outlines the factors to be considered by the court in ruling on a proposed relocation. In the same sequence set forth in section 5337(h), we make the following findings and conclusions:

1. Abygail has a good and close relationship with both of her parents, and loves both. (N.T., p.170). Although the evidence establishes that mother was Abygail’s primary caretaker until age two, and that both mother and the paternal grandmother cared for Abygail when father was unable to do so following his injuries in 2008, father now has the ability to care for Abygail and is active in her life during the times he is with her. Father walks, rides bike, watches movies, plays board games, fishes and goes on vacations with Abygail. (N.T., p. 103). Fie is also interested in her school progress, assists her in homework, attends parent/teacher conferences, and goes online to view her grades. (N.T.,pp.l09,128,130, 148). Mother is likewise active in Abygail’s life and has had primary custody of Abygail since the parties separated in 2008.
Abygail also has a good and close relationship with husband and wife. She further has a close relationship with her paternal grandparents with whom she has had frequent contact since her father was injured in 2008. Until her father’s recent marriage in October of 2012, father’s mother in particular had supervised father’s visits with Abygail. Since then, Abygail sees her paternal grandparents every weekend she is with her father.
Although none of the details of Abygail’s relationship with her half-sister were described, nothing was presented to believe that this relationship is other than that which would be expected between a sixteen-month-old infant and a sibling who is five years older.
2. At this time, Abygail is almost seven years old. Her birthdate is June 17,2006. Both parties agreed that they preferred we not interview Abygail and we honored this request. There is nothing to suggest that Abygail is other than a typical six-year-old girl who is loved and cared for by both of her parents; who gets good grades in first grade, especially reading; and who is involved in various activities, including weekly gymnastics, Daisies, and swimming lessons. (N.T., pp.19, 57-58). Given the distance of the move proposed by mother, and the close and frequent contact Abygail has had both with father and her paternal grandparents, there is no question but that these relationships would be weakened by the move.
Although Mother testified that the schools in Florida have five star ratings, father testified that the school Abygail now attends is a good one. (N.T., pp.37, 42, 106). There is no reason to believe that Abygail’s physical, educational or emotional development would be better served in Florida than if Abygail continued residing in Carbon County.
3. Mother has suggested that if she were permitted to relocate with Abygail to Florida, father would be allowed to have visits with Abygail during the Easter holiday, for half the summer, and every other Christmas. (N.T., pp.54-55). Mother agreed that she would be responsible for the transportation expenses. (N.T., pp.33-34, 56). She further testified that she believed father could maintain continuing contact with Abygail through Skype or some other form of video conferencing.
The amount and quality of time father would be permitted to have with his daughter under mother’s proposal is dramatically less than that which now exists. Presently, father exercises partial custody every other weekend and is active with his daughter during these times. (N.T., p.75). He also testified that he takes his daughter to activities during the times she is with him and attends his daughter’s activities on other times provided he is made aware of them. (N.T., pp.19, 58, 82, 99, 128-29).
It is also clear that father has a close relationship with his parents and his family. Father and wife, his parents, and his grandmother live on the family farm within yards of one another. His sister is approximately a mile and a half away. This is a close-knit family of which Abygail is an active member. She sees her grandparents whenever she visits with her father and she plays with her cousin, father’s sister’s daughter, during these visits.
4. For the reasons already stated herein, we did not question Abygail and no testimony was presented of her preference by either party.
5. From what we can determine, both parents encourage Abygail to have a good relationship with the other. However, as already stated, mother does not believe Father should be permitted to have unsupervised visits with his daughter. There is no evidence that either parent criticizes or denigrates the other in Abygail’s presence.
6. At this time, the extent of any benefit of the relocation to mother is unclear and uncertain. The principal reason for the move is financial, for husband to find better employment. (N.T., pp.23, 36-37, 94). Husband currently works as a security guard at St. Luke’s Hospital, Allentown Campus, and makes approximately $33,000.00 ayear. (N.T., p.91). Husband has a bachelor’s degree in criminal justice and believes he is over-qualified to be a security guard. (N.T., p.31). While he would like to obtain employment in the fields of corrections, probation or law enforcement, he has been unsuccessful in locating employment in any of these fields in Pennsylvania. (N.T., pp.86-87). Husband has been interviewing for jobs in Florida and claims he has six strong prospects; however, to date husband has not been offered a job. (N.T., pp.42, 88-90).
Husband also claims that he would like to obtain his master’s degree in criminal justice and that this will enhance his prospects for employment as well as higher pay. (N.T., p.91). To obtain this degree, husband attended a semester at West Chester College but did not pursue this course because of the time and expense of travel, roughly $400.00 to $500.00 per month, as well as $1,000.00 for the cost of tuition. (N.T., pp.68, 94). Husband testified he would like to pursue the degree at the University of Florida, near where his mother lives, and that the cost of this would be paid by one of his prospective employers, the State of Florida. (N.T., pp.68, 93). No evidence was presented that Husband has been accepted into the master’s program for this degree at the University of Florida.
With respect to mother’s employment as a nurse, mother testified that there is little difference in pay between her position in Pennsylvania and that which she hopes to obtain in Florida. (N.T., pp.25, 29). She did state, however, that because Florida has no income tax, this would result in a financial benefit. (N.T., p.29). Also, that she believed any employment she would obtain as a nurse in Florida would be closer to where she would be living and, therefore, her travel time and expenses would be decreased. (N.T., pp.29-30, 66-67). Again, as of the date of hearing, mother had not secured nor been offered a job in Florida. (N.T., pp.42, 83).
7. Given the idefiniteness of mother’s and husband’s promise for employment in Florida, there is no clear financial benefit to Abygail from this move. Nor is there any evidence that mother and her husband are currently struggling financially or having any difficulty in making ends meet. Further, since mother’s current employment in Pennsylvania is on weekends, freeing mother to spend weekdays with Abygail, and the work hours and work days of any employment she might obtain in Florida are unknown, there is a real possibility that any employment mother obtains in Florida will limit the number of hours she has available to be with Abygail. (N.T., p.7).
8. The principle reason mother has given for the move is financial. Yet, as already indicated, neither mother nor husband has secured employment in Florida. To the extent mother testified that her educational opportunities would also be expanded by moving to Florida, again, nothing definite has been planned or secured. (N.T., pp.30-31, 82).
Father is opposed to the relocation because if Abygail is allowed to move, the time he can spend with Abygail will be lessened and the relationship he has worked to maintain will be weakened at a time when he is attempting to strengthen that relationship and become even more active in AbygaiPs life. (N.T., pp. 112-13, 148-49, 150-51, 170).
9. There is no evidence that either party or a member of the parties’ household has previously or is presently abusing another.
10. There are no other factors not already mentioned.

The foregoing addresses the first two issues raised by mother: a showing that the court is aware of and considered the relocation factors set forth in section 5337(h) and those custody factors set forth in section 5328(a). M.J.M. v. M.L.G., 63 A.3d 331, 336 (Pa. Super. 2013) (holding that while the Custody Act requires the trial court to articulate the reasons for its decision prior to the filing of a notice of appeal, there is no required amount of detail; “all that is required is that the enumerated factors are considered and that the custody decision is based on those considerations”). What is most important, however, is that the reason for considering these factors not be lost: to determine the best interests of the child. Johns v. Cioci, 865 A.2d 931, 936 (Pa. Super. 2004). “This standard requires a case-by-case assessment of all of the factors that may legitimately affect the ‘physical, intellectual, moral and spiritual well-being’ of the child.” C.M.K. v. K.E.M., 45 A.3d 417, 421 (Pa. Super. 2012) (quoting Landis v. Landis, 869 A.2d 1003, 1011 (Pa. Super. 2005)).

Implicit in our August 12, 2010 order modifying custody was that the best interest of Abygail was for primary physical custody to remain with mother provided she did not relocate to Florida. Our findings that Abygail is a happy, healthy, well-adjusted six-year-old; that Abygail has a strong, stable and beneficial network of family, friends and relatives in Carbon County; and that Abygail is doing well physically, mentally and emotionally, all support this decision. Wiseman v. Wall, 718 A.2d 844, 846 (Pa. Super. 1998) (stating that courts should be “reluctant to disturb custody arrangements which have satisfactorily served the best interests of the child.”).

To the extent we eliminated the restriction that father’s time with Abygail be supervised, the evidence and the facts found by us support this conclusion. Further, the more equal division of time between mother and father provided during the summer months and the broadening of the number of holidays recognizes the importance of developing fuller and better parent/child relationships by spending time together while celebrating special occasions and in having extended visits.

As to mother’s decision to relocate to Florida with Abygail, the burden was upon mother to establish that relocation would be in Abygail’s best interests. See 23 Pa.C.S.A. § 5337(i)(l). On this issue, both mother and husband testified that the primary reason for the move was financial, to better Husband’s employment and employment prospects. Yet not only did neither husband nor mother have a firm job offer as of the time of hearing, the decision to move to Florida was made prior to engaging in any serious investigation concerning what employment and educational opportunities existed in Florida. (N.T., pp.64-65).

Discounting for the moment the speculativeness of the reasons given to relocate, even if husband had secured a better paying job and mother a comparable job to what she has now, and even if husband had applied for and was accepted into the master’s program at the University of Florida, at most this would establish that mother’s reasons for the move are realistic, and that mother will be better off financially. It does not establish, under the facts of this case, that a significant benefit would flow to Abygail. As to the personal happiness that might result for mother, “the personal happiness of [a] relocating parent cannot be the only or the predominant factor” in justifying a relocation. Graham v. Graham, 794 A.2d 912, 917 (Pa. Super. 2002).

Critical to this case is the non-economic factors that are at stake. With the possible exception of husband’s mother, all of Abygail’s family with whom she now has close personal ties are in Pennsylvania. While mother suggests that father could maintain his relationship with Abygail through two to three visits a year and internet communication, it is unrealistic to believe that such limited visits are a fair substitute for the frequent regular contact father now has with Abygail, or that video conferencing through the internet is the same as face-to-face contact, particularly with a young child. Marshall v. Marshall, 814 A.2d 1226, 1233 (Pa. Super. 2002).

We do not question that Abygail has a good relationship with her mother. That it is a good and beneficial relationship was considered by us and was, without question, a factor in our decision to continue primary physical custody with mother, if she remains in Pennsylvania. However, this is not the only relationship Abygail has. Her relationship with father is a good and important one, as is her relationship with her paternal grandparents, her father’s extended family, and wife. While not considered a critical factor in a custody case, it is nevertheless a factor that father and wife are providing for AbygaiTs religious upbringing, with no evidence having been presented that mother does likewise. See Zummo v. Zummo, 574 A.2d 1130 (Pa. Super. 1990) (confirming the long-standing legal principle that the court will not interfere with the religious preferences of either parent). To find that all of this should be sacrificed, and that AbygaiTs progress in school, involvement in activities, and existing friendships, should be placed at risk, together with the concomitant potential dangers of disruption of established patterns, for what we believe has not been a well-thought out decision, is not in AbygaiTs best interests.

To the extent mother argues that our decision did not take into account AbygaiTs relationship with her half-sister, it did. What is important in this analysis is that AbygaiTs half-sister is sixteen months old, Abygail is five years older, and the relationship which exists between them, while typical of that between a sixteen-month-old and six-year-old sibling, does not carry the same weight as if Abygail’s half-sister were closer in age to Abygail or the two had a more equally balanced relationship.

While the policy against separating siblings does not distinguish between half-siblings and siblings who share both biological parents, the policy is only one factor, and not a controlling factor, in the ultimate custody decision. Johns, 865 A.2d at 942-43. In Johns, the Superior Court stated:

In the majority of cases in which this doctrine has been invoked, the children have been reared together prior to separation or divorce of the parents. In cases where the siblings have not been reared in the same household, the force of the doctrine is less compelling.
In the present case, the child has never lived in the same household with her younger sister. Furthermore, the younger child was bom to Father and step-mother following the divorce of Mother and Father. We do not believe that the divorced parent who has another child by a subsequent relationship should thereby be favored in a custody decision regarding any older children, based on the whole family doctrine. Such an application of the doctrine would imply an unacceptable policy: that the parent who subsequently has additional children with a different partner is automatically favored in a custody dispute. This would be blatantly unfair to the parent who, by choice or fate, has no additional children. We therefore refuse to extend the laudable whole family doctrine to the present facts.

Id. (citations omitted). Similar concerns exist here.

The driving force behind mother’s decision to relocate to Florida is husband’s desire to move to pursue his master’s degree and to better his job prospects. That mother is supporting husband in this decision and desires to move with him is understandable. That the benefits to Abygail are uncertain and questionable are evident. That mother is aware of the risks involved was acknowledged, in a candid moment, when she confided to father that she was not happy with the move. (N.T., p.159).

CONCLUSION

While there may be some potential advantages to mother and husband in moving to Florida, they are speculative, and far outweighed by the actual advantages which exist now and will continue to exist if Abygail remains in Carbon County. The record does not support a finding that the quality of Abygail’s life will be substantially improved if she relocates to Florida with mother; that the strength and development of her relationships with father, wife, paternal grandparents, and father’s extended family can be maintained or furthered by the custody arrangement proposed by mother; or that the best interest of Abygail will be served by relocating to Florida. In sum, mother has not met her burden of proving that relocating Abygail to Florida with her will be in Abygail’s best interests.

      . As indicated, three orders were entered on April 19, 2013: one denying mother’s request for relocation, one modifying the existing August 12; 2010 custody order, and one in the alternative in the event mother chose to relocate to Florida without Abygail. Mother’s notice of appeal does not state which of these orders is being appealed from.

      . In response to mother’s claim that father does not take full advantage of the two weeks he is allotted for vacation under the current order, father testified to the contrary. He did acknowledge, however, that in 2012 he was only able to use one week because neither his parents nor wife were available to provide supervision for the second week. Father rarely, if ever, has missed any of his alternating weekend visits.

      . In Ketterer v. Seifert, 902 A.2d 533 (Pa. Super. 2006), the court commented on the deference to be accorded the trial court’s observations and judgment as follows:
      [W]e consistently have held that the discretion that a trial court employs in custody matters should be accorded the utmost respect, given the special nature of the proceeding and the lasting impact the result will have on the lives of the parties concerned. Indeed, the knowledge gained by a trial court in observing witnesses in a custody proceeding cannot adequately be imparted to an appellate court by a printed record.

        Id. at 540 (quoting Jackson v. Beck, 858 A.2d 1250, 1254 (Pa. super. 2004)).

      . In Geiger v. Yeager, 846 A.2d 691 (Pa.Super. 2004), the court stated the following which is clearly applicable in this case:
      The majority of relocation cases we receive are difficult. As the Gruber court observed, these cases are wrought with “deep and almost irreconcilable competing interests” that our courts must balance in order to achieve the “right” result. Gruber, 583 A.2d at 437. The interests that we must accommodate are: the custodial parent’s desire to exercise autonomy over basic decisions that will directly affect his or her life and that of the children; a child’s strong interest in maintaining and developing a meaningful relationship with the non-custodial parent; the interest of the noncustodial parent in sharing in the love and rearing of his or her children; and, finally, the state’s interest in protecting the best interests of the children.

        Id. At 438-39.
      While a quick reading of these interests show that they do conflict with one another, it can also be seen that they all boil down to one thing: the best interests of the child.

        Id. at 696.

      . As an incidental benefit, mother also noted the absence of a state income tax and the possibility that she might pursue graduate studies. As to the relative cost of living in Florida versus that which exists in Carbon County, no evidence was presented.

      . We are also aware that “[t]he fact that a move of a considerable distance will increase the cost and logistical problems of maintaining contact between the noncustodial parent and child will not necessarily preclude relocation when other factors militate in favor of it.” Ketterer v. Seifert, 902 A.2d 533, 539 (Pa. Super. 2006). On this point, the Court in Dranko v. Dranko, 824 A.2d 1215 (Pa. Super. 2003), further stated:
      The court should not insist that the advantages of the move be sacrificed and the opportunity for a better and more comfortable life style for the [custodial parent] and children be forfeited solely to maintain weekly visitation by the [non-custodial parent] where reasonable alternative visitation is available and where the advantages of the move are substantial.

        Id. at 1220 (emphasis in original) (quoting Gruber v. Gruber, 583 A.2d 434, 439-40 (Pa. Super. 1990)). The factors enunciated in Gruber are incorporated in the Section 5337(h) factors, specifically the third, sixth, seventh and eighth factors. C.R.F., III v. S.E.F., 45 A.3d 441, 445 (Pa. Super. 2012). Here, the avowed advantages of the move are speculative at best and, in any event, not substantial.

      . In her appeal, mother complains that we have not given proper consideration to her status as the primary caregiver of Abygail. In this regard, we first note that while “the primary caretaker doctrine requires the trial court to give positive consideration to the parent who has been the primary caretaker, and is one of many factors for the trial court to consider when determining the best interests of a child,” Marshall v. Marshall, 814 A.2d 1226, 1231 (Pa. Super. 2002) (quotation marks omitted), the considerations encompassed by the doctrine have been “woven into the statutory factors, such that they have become part and parcel of the mandatory inquiry.” M.J.M. v. M.L.G., 63 A.3d at 339. “[T] he primary caretaker doctrine, insofar as it required positive emphasis on the primary caretaker’s status, is no longer viable.” Id.


author: WILLIAMSON, J.,

text:
    Signorile v. Fernwood Hotel & Resort

      May 29, 2013 —

      Gary A. Brienza, for plaintiffs

      Gerard J. Geiger, for defendants
   WILLIAMSON, J.,

This matter comes before us on a motion for summary judgment filed by Fernwood Hotel & Resort and Bushkill Group (hereafter, “defendants”), requesting William Signorile and Carol Kaminski-Signorile’s (hereafter, “plaintiffs”) complaint be dismissed because plaintiffs have failed to establish that defendants had notice of any dangerous condition.

Plaintiffs commenced this action by filing a writ of summons on May 19, 2008. Plaintiffs then filed a complaint against the defendants and RCI, on December 27, 2010. On November 5, 2012, the parties stipulated to the dismissal of RCI as a defendant pursuant to Pa. Rule of Civil Procedure 229(b). The remaining defendants filed the motion for summary judgment currently before this court on March 21, 2013. In their complaint, plaintiffs allege that they were business invitees of the defendants at the Hotel’s indoor pool, and that a rusty screw on the floor caused Carol Kaminski-Signorilé (“plaintiff’) to sustain injuries when she stepped on it. During the course of discovery, written interrogatories were exchanged and plaintiff was deposed on July 12, 2011. Since that time, paper discovery has been engaged in by both parties. Attempts were made to schedule plaintiff for an independent medical examination, but she was unable to travel due to ongoing medical problems. Oral argument on this matter was held on May 6,2013. We are now ready to dispose of defendants’ motion summary judgment.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035.2 where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Thompson Coal Co. v. Pike Coal Co., 412 A.2d 466, 468-69 (Pa. 1979). Summary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits, demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa. R.C.P. 1035(b); Cosmas v. Bloomingdales Bros., Inc., 660 A.2d 83, 85 (Pa.Super. 1995).

Summary judgment may be granted only in cases where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 562 A.2d 279, 280 (Pa. 1989). The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. Davis v. Pennzoil Co., 264 A.2d 597 (Pa. 1970). Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson, 412 A.2d at 469.

In response, the non-moving party may not rest upon the pleadings, but must set forth specific facts demonstrating a genuine issue for trial. Phaff v. Gerner, 303 A.2d 826 (Pa. 1973). The court may also accept as true all well-pled fact contained in the non-moving party’s pleadings. Mattia v. Employers Mut. Cos., 440 A.2d 616 (Pa. Super. 1982); Ritmanich v. Jonnel Enters, Inc., 280 A.2d 570 (Pa. Super. 1971). A general denial is unacceptable and deemed an admission where it is clear that the defendant has adequate knowledge and that the means of information are within the control of the defendant. Elia v. Olszewski, 84 A.2d 188 (Pa. 1951).

Plaintiffs argue that the motion for summary judgment is untimely because discovery is incomplete. It is clear that discovery relative to the causation of the injury has been completed. While it may be true that some discovery remains on the issue of damages, that discovery is irrelevant for the current motion for summary judgment. The explanatory comment from the 1996 revision of Pa. R.C.P. 1035.2 states, in part, “[sjpecial note should be taken of the requirement under Rule 1035.2(2) that the motion be made after completion of discovery relevant to the motion, including the production of expert reports.” (emphasis added). The issue in this motion for summary judgment is whether the defendants had constructive notice of the screw. Nothing in an IME would be relevant to that analysis, plaintiffs brief even states on page 6 that “Plaintiff’s medical treatment, which would not be relevant for purposes of summary judgment...” [Plaintiff’s br. at 6.] Therefore, the motion for summary judgment is timely.

Defendants argue that there are no genuine issues of material fact and requests that the court grant summary judgment in its favor. Defendants allege that the plaintiffs have failed to produce evidence identifying the source of the screw or how long it was on the floor before plaintiff stepped on it. They argue that without proof that defendants had actual or constructive notice of the screw, the plaintiffs fail to state a claim as a matter of law. We disagree.

The facts of this case, as viewed in the light most favorable to the plaintiff, are as follows. On December 8, 2006, plaintiff was injured when she was entering the sauna area of the defendants’ resort. As she was walking on the indoor pool deck, intending to enter the sauna, she stepped on a rusty screw which pierced her left foot. At the time in question, a pool attendant was monitoring the pool area. All pool attendants receive three days of training when they are hired. The defendants instruct their pool attendants that the pool deck must be swept at least once every hour. Plaintiff testified at her deposition that a witness saw her injury and informed her that the screw came from the sauna door.

Q. Did the lady in the hot tub that you said screamed about the door, did she say the screw came from the door?
A. She did. She did.
Q. Can you recall her words?
A. When she realized that this incident had happened, this “ow”, you know, I screamed and everything and then I had that screw I pulled out of my foot in my hand, and she was watching the whole thing, apparently, which was unbeknownst to me, her seeing, and screaming, that, that, that sauna door again. Apparently she knew that there was some ongoing situation of a maintenance, she used the word maintenance problem, that the sauna door was not closing properly. Now, for me, that’s the whole key thing, for it to close.
Q. Did this lady say — did she use the word screw?
A. Yes, she did. Yes, she did. She said that — because, you know, she saw that I had that in my — she didn’t know at first what I stepped on, but when I screamed and said oh, my God, a screw, she goes, “That came from the sauna door.” She seemed to know, and then she started screaming. She was actually with a guy, believe it or not, who also seemed to know with her, I — they were a couple, somehow, and they — they knew this place, they knew this place.

[“Carol deposition, 7/12/11, p. 49-50”]

To recover in a negligence claim, the plaintiffs must establish that (1) the defendant owed a clear duty to her; (2) the defendant breached its duty; (3) a causal connection exists between the defendant’s conduct and the plaintiff’s injury; and (4) the plaintiff suffered actual loss or damage. See Farabaugh v. Pa. Tpk. Comm’n, 911 A.2d 1264 (Pa. 2006). In Pennsylvania, a possessor of land is liable to injuries to an invitee that occur on its property only where it:

(a) Knows or by exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitee; and
(b) Should expect that they will not discover or realize the danger, or will fail to protect themselves against it; and
(c) Fails to exercise reasonable care to protect them against the danger.

Restatement of Torts, 2d., §343.

I. Constructive Notice

It is undisputed that plaintiff was a business invitee of the defendants at the time of the incident. There is no question that a business owner owes a duty of care to its invitees. However, the business owner is not an insurer of its customers’ safety. Moultrey v. Great A&P Tea Co., 422 A.2d 593 (Pa. Super. 1980). The mere existence of a harmful condition in a public place of business or the mere happening of an accident due to such a condition is neither, in and of itself, evidence of a breach of proprietor’s duty of care to his invitees, nor does it raise a presumption of negligence. Id. at 596.

To impose liability, a plaintiff must produce evidence that the condition that caused the injury is traceable to the possessor of land or his agents and not an unassociated individual. Myers v. Penn Traffic Company, 606 A.2d 926, 930 (Pa. Super. 1992). In essence, the plaintiff must show that the defendant had actual or constructive notice of the condition. Estate of Swift v. Northeastern Hosp. of Phila., 690 A.2d 719 (Pa. Super. 1997).

Plaintiffs do not argue that the defendant had actual notice of the dangerous condition. Therefore, we will determine whether a genuine issue of material fact exists with respect to whether defendants had constructive notice of the screw on the pool deck.

The amount of time that a dangerous condition existed is one of the most important factors when analyzing whether a defendant had constructive notice. Neve v. Insalaco’s, 771 A.2d 786, 791 (Pa. Super. 2001). Pennsylvania courts regularly treat a plaintiff’s failure to provide evidence of the amount of time that a dangerous condition existed as fatal to the plaintiff’s case. See Lanni v. Pa. R.R. Co., 88 A.2d 887 (Pa. 1952) (reversing the denial of defendant’s motion for judgment nonwithstanding the verdict where plaintiff did not provide evidence showing how long the grease spot in which he fell had been on the driveway); Porro v. Century III Assocs., 846 A.2d 1282, 1286 (Pa. Super. 2004) (affirming summary judgment because the plaintiff “admitted in his deposition that he does not know how long the substance he slipped on was present”); Estate of Swift, supra at 722 (affirming summary judgment because the plaintiff did not present evidence regarding “how long the condition existed”).

In the present case, a genuine issue of material fact exists as to whether the defendants had constructive notice of the screw being on the deck of the pool. In an affidavit attached to the motion for summary judgment, Noelle Keller, the Recreation Manager for the defendants at the time of plaintiffs’ alleged injury, averred that the pool attendants are instructed that the pool deck area must be cleaned at least every hour. [Aff. Noelle Keller; SJ motion, appendix, p. 18.] This case is different from the aforementioned cases, where there was no evidence of a timeframe in which the dangerous condition was present. Here, there is evidence to show how long the screw could have possibly been on the floor: one hour. This assumes the pool deck area was swept clean every hour as required. At this time, such an assumption must be taken in the light most favorable to the plaintiffs. It remains an open issue of fact. Therefore, a fact-finder may infer that the defendants had the ability to discover and correct the problem.

Defendants also argue that the screw could have come from anywhere, and therefore, there was no constructive notice. As explained above, plaintiff testified during her deposition that she had a conversation with two people who witnessed the incident, and was told that the screw came from a nearby sauna door that had a maintenance problem. In their motion, defendants display the sauna door hinge and the screw in question side by side. [SJ motion, ¶38.] While it appears that the screw are different, the picture does not show the whole sauna door, or the area around it. If the jury were to believe the testimony of the witnesses, that is enough to create a genuine issue of material fact.

While it is true that courts have refused to find constructive notice where the plaintiff offers no evidence beyond the defect itself, [See Schofielf v. Crossman, 216 A.2d 455 (Pa. 1966)], the evaluation of the constructive notice factors is usually a task for a jury, unless the evidence “requires the jury to resort to conjecture, guess or suspicion.” Lanni, at 88 A.2d 889. In this case, there is enough evidence where a fact-finder could determine that the defendants had constructive notice of the screw on the pool deck without requiring mere speculation. Therefore, we cannot say the defendants failed to have constructive notice as a matter of law. There is an issue of material fact regarding whether the defendant had constructive notice of the dangerous condition of a screw on the pool deck. We issue the following order:

ORDER

And now, this 29th day of May, 2013, upon consideration of defendants’ motion for summary judgment, the same is denied.

      . Reference to testimony from Carol’s deposition will be referred to as [“Carol deposition, 7/12/11, p._.”]


author: BROWN, S.J.,

text:
    Rhodes v. USAA Casualty Insurance Company

      July 18, 2013-

      RichardM. Serbin, for plaintiffs.

      Patricia A. Monahan, for defendant
   BROWN, S.J.,

BACKGROUND

In two Pennsylvania Superior Court decisions the relevant facts and procedural history of this case has been set out: First, in an unpublished memorandum decision, William J. Rhodes, Jr. and Carrie E. Rhodes, his wife, v. USAA Casualty Insurance Company, filed on January 31, 2008 (951 A.2d 1225 (Table)(Pa. Super. 2008)(hereafter “Rhodes I”) (pp. 2-4); and later in Rhodes v. USAA, 21 A.3d 1253 (Pa. Super. 2011)(hereafter Rhodes II”)(pp. 1253-1255). This court is satisfied those recitations of the background of this case is sufficient for its purposes at this point. References will be made to the factual and procedural history as necessaiy throughout the discussion portion of this opinion.

DISCUSSION

This case is in an unusual, although not unprecedented, position. As set forth above, it has twice been before the Pennsylvania Superior Court on specific pre-trial issues. In the unpublished memorandum decision, William J. Rhodes, Jr., and Carrie E. Rhodes, his wife v. USAA Casualty Insurance Company, supra, the court reversed the trial court’s grant of summary judgment in favor of defendant USAA and affirmed the denial of plaintiff Rhodeses’s motion for partial summary judgment.

In Rhodes v. USAA, supra, the court reversed the trial court’s order compelling disclosure of Rhodeses’s attorney’s files to their insurer, USAA.

These appellate decisions and the orders and opinions of the trial court, not reversed by appellate decisions, represent the law of the case. See Commonwealth v. Starr, 664 A.2d 1326 (Pa. 1995). In this regard, the Superior Court’s statement at page 1262 of the opinion in Rhodes II is very instructive: “The only issue here is the reasonableness of USAA’s settlement offers and whether it acted in bad faith in refusing to meet the Rhodeses’s $175,000.00 settlement demand sooner.....”

The burden is on Rhodeses to prove their claim that USAA acted in bad faith by clear and convincing evidence. Adamski v. Allstate Ins. Co., 738 A.2d 1033 (Pa. Super. 1999). The burden of proof standard — clear and convincing evidence — applies whether the claim is under 42 Pa. C.S. §8371, “Actions on Insurance Policies,” or a contractual common law bad faith claim. Id.

Pennsylvania courts use a two-part test in considering bad faith claims under section 8371. Both elements of the test must be proved by clear and convincing evidence. An insured must show (1) the insurer lacked a reasonable bases for denying benefits under the policy; and, (2) the insurer knew or recklessly disregarded its lack of a reasonable basis. Terletsky v. Prudential Property & Casualty Ins., Co., 649 A.2d 680, 688 (Pa. Super. 1994). See also Condio v. Erie Insurance Exchange, 899 A.2d 1136, 1145 (Pa. Super 2006).

The statue does not include a definition of “bad faith”. As pointed out in Rhodes I, at p. 10, decisional law has established that the term as used in the context of insurance coverage can cover a wide range of objectionable conduct. Black’s Law Dictionary 139 (6th ed. 1990) has been quoted in several appellate court decisions. It has been defined as “any frivolous or unfounded refusal to pay proceeds of a policy...it is not necessary that such refusal be fraudulent.” See Bonenberger v. Nationwide Mutual Insurance Company, 791 A.2d 378, 380 (Pa. Super. 2002). Such conduct imports a dishonest purpose and means breach of a known duty, namely good faith and fair dealing, through some motive of self-interest or ill will. Rhodes I, at p. 10. Mere negligence or bad judgment is not bad faith. Id.

The bad faith statute applies to the handling of underinsured motorist claims. Brown v. Progressive Insurance Company, 860 A.2d 493 (Pa. Super. 2004).

A reasonable basis is all that is required to defeat a claim of bad faith. Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300 (3d Cir-1995). It is not bad faith for an insurance company to contest a UM/UIM claim. Condio v. Erie Ins. Exch., 899 A.2d 1136 (Pa. Super. 2006). A long period of delay, in and of itself, does not constitute bad faith. Thomer v. Allstate Insurance Company, 2011 U.S. Dist. LEXIS 49511 (E.D. Pa, 5/9/11). A delay of 42 months was insufficient to show bad faith in the case of Mitch’s Auto Serv. Ctr. v. State Auto Mut. Ins. Co., 2011 U.S. Dist. LEXIS 123119 (E.D. Pa. 10/24/11). Even if an insurer’s delay was unreasonable, where there is no evidence to indicate the delay was knowing or reckless, bad faith is not proven. Id.

A low, but reasonable offer, is not bad faith where the insurer makes a reasonable estimate of the insured’s losses. Brown v. Progressive Insurance Company supra.

Focusing on the Superior Court’s directive from Rhodes II, at 1262; and the first prong of the two-part test used by Pennsylvania courts, i.e, an insured must show the insurer lacked a reasonable basis for denying benefits (in this case, by not paying plaintiffs’ settlement demand sooner), this court will examine the timeline established by the facts.

The initial important date is May 17, 2002, when Rhodeses’ attorney, Richard Serbin, Esquire, submitted to USAA their statement of demand (dated May 10, 2002), wherein they informed the insurance company they placed a value of their claim at $235,000.00, which is in excess of USAA’s UIM stacked coverage of $200,000.00, and offered to settle their claim for $175,000.00. By this time, the Rhodeses had received $50,000.00 from State Farm and $15,000.00 from Progressive Insurance Company. On July 10, 2002, USAA offered to settle the claim for $5,000.00. At that time, USAA maintained there was a question of causation for one of Mr. Rhodes’s injuries, specifically a neck injury. The Rhodeses rejected this offer and attorney Serbin named an arbitrator. USAA increased its settlement offer several times thereafter, beginning July 1, 2003, when it offered to pay $50,000.00. Subsequently, offers of $65,000.00, of $80,000.00 and of $100, 000.00 were made and rejected by the Rhodeses. On December 4, 2003, the Rhodeses again demanded $175,000.00 to settle their claim. On December 22, 2003, USAA informed the Rhodeses’ attorney it agreed to pay $175,000.00. They signed a settlement release agreement and accepted the $175,000.00 in final settlement on January 12, 2004.

The Rhodeses contend USAA had no reasonable basis for refusing to meet their $175,000.00 demand sooner. It is the burden of the Rhodeses to prove by clear and convincing evidence that USAA had no reasonable basis for not paying $175,000.00 before January 12, 2004. The Rhodeses maintain it was unreasonable for USAA, initially after the settlement agreement, to require the Rhodeses to agree to not sue USAA for bad faith as a condition for their receiving $175,000.00

The Rhodeses point to a myriad of instances of action and, more often, inaction on the part of US S A that resulted in an unreasonable delay in the settlement of their claim — for the amount of their demand, $175,000.00. This court determines, and so holds, that the Rhodeses have not presented proof by clear and convincing evidence that USAA caused an unreasonable delay in resolving their claim.

Even as here, where liability is clear, where the value of the claim is not clear, the insurer acts reasonably to investigate the claim. Williams v. Hartford Casualty Insurance Company, 83 F. Supp. 2d 567 (E.D. Pa. 2000).

Through their attorney, the Rhodeses notified USAA of their underinsured motorist claim on August 20, 2001. (N.T., Day 3, A.M., p. 41) Linda Barboza, a claims handler employed by USAA, was assigned the case on September 7,2001. (N.T., Day 3, A.M., p. 46) By letter dated October 5, 2001, attorney Serbin wrote to Ms. Barboza advising her it was “premature to make a claim” since Mr. Rhodes continued receiving medical treatment. (N.T., day 3, a.m., p. 51).

There is no indication in the initial hospital records that Mr. Rhodes complained of neck pain. Although Mr. Rhodes maintained he had been working full-time for Brinks at the time of the accident (N.T., Day 1, P.M., p. 117 and N.T., Day 4, p. 114), a representative of Brinks supplied USAA with a statement indicating Mr. Rhodes was working part-time as of July 1, 2000. (N.T., Day 4, p. 114)

The Rhodeses’ statement of demand contained no numeric value for non-economic damages. (N.T., day 3, a.m., p. 75) The wage loss was set at $2,418.60. (N.T., day 3, a.m., p.74) Medical specials were listed at $21,890.25. (Def. ex. G-009)

On June 20, 2002, USAA ran a Colossus report using the statement of demand and medical records, which produced a value on the claim of $9,949.00 to $22,609.00. Colossus is a computer program used as a tool to aid in UIM claim evaluation. (N.T., day 3, a.m., p. 71) Also entered into the computer system was the statement of demand’s representation that Mr. Rhodes had suffered a disc herniation in his neck as a result of the accident. (N.T., day 3, a.m., p. 100; def. ex. 16) A member of USSA’s Colossus team, Kathy Ortiz, informed Ms. Barboza that disc herniation should not have been entered into the computer system because Mr. Rhodes did not treat for neck injury until more than one year following the accident. (N.T., day 3, a.m., pp. 98-99) At Ms. Ortiz direction, Ms. Barboza substituted neck soft tissue injury for disc herniation. (Ortiz depo., p. 29) The second Colossus run resulted in a value of $0 to $3,209.00 (money in excess of the $65,000.00 the Rhodeses had already received). (N.T. day 3, a.m., pp. 72-73) The second run included $7,500.00 (up from $5,000.00) for disfigurement. (N.T., day 3, a.m., pp. 100-101) The initial offer of $5,000.00, submitted on July 10, 2002, was based on a total value of the claim at $70,000.00. (Def. ex. H-001 and 1-001) On July 15, 2002, the $5,000.00 offer was rejected. Also, the Rhodeses’ attorney appointed an arbitrator and advised USAA he considered the initial offer was made in bad faith. No counter-demand was made. (Def. ex. J-001-002) USAA transferred the Rhodeses’ claim to Alma Trevino on July 29, 2002, because of the demand for arbitration, i.e., litigation. (N.T., day 1, p.m., p. 7) Also, on July 29, 2002, USAA referred the defense of the Rhodeses’ claim to the law firm of Meyer Darragh. (Def. ex. K-001-003) On August 1, 2002, Joel Kornanski, Esquire, of Meyer Darragh, called Ms. Trevino to discuss the assignment. (Def. ex. L-001)

From this point on in the chronology of events leading up to USAA’s paying the Rhodeses their settlement demand of $175,000.00 on January 12, 2004, there is a difference in the factual statements of the parties or, more often and more specifically, a difference in the effect the actions or inaction of USAA had on the ultimate outcome of the Rhodeses’ claim. The court finds credible the evidence hereafter set forth.

Mr. Rhodes suffered a football injury in 1991, which produced symptoms similar to those he complained of at the time of his written statement under oath to USAA. (Def. ex. Bl; N.T., day 2, p. 157) Dr. Agnew conducted an Independent Medical Examination of Mr. Rhodes on November 14, 2002. (Def. ex. Bl) Attorney Kormanski received Dr. Agnew’s report on December 3, 2002 (N.T., day 4, pp. 99), and sent it to Attorney Serbin on December 10, 2002. (Def. ex. B1-026) and to Ms. Trevino on the same date. (Def. ex. D1-001)

On November 21,2002, at a pre-arbitration conference, attorney Serbin informed attorney Kormanski that Mr. Rhodes had undergone tests with Dr. Opida and had been referred for a surgical evaluation with a neurosurgeon in December, and Mr. Rhodes would not be ready for an arbitration hearing until the following spring. (N.T., day 4, p. 18) On December 3, 2002, Mr. Rhodes treated with Dr. Protsko and was referred for an angiogram and a consult with Dr. Kyle Kim. Until that date, neither attorney Kormanski nor USAA had knowledge of Dr. Kim’s involvement with Mr. Rhodes’ treatment. (N.T., Day 4, pp. 97-98) On December 20,2002, Dr. Kim recommended cervical surgery and Mr. Rhodes intended to schedule the surgery. (N.T., day 4, p. 104)

The arbitration panel had set April 30,2003, as the date for the hearing. (Def. ex. Al)

On January 21,2003, Mr. Rhodes had cervical surgery. (Def. ex. LI) The treatment records of Dr. Opida, a neurologist, contained no reference to Dr. Kim or that Mr. Rhodes was to undergo surgery. (Def. ex. Jl) On January 21,2003, attorney Kormanski received medical records of Dr. Protsko, an associate of Dr. Kim, which contained no indication of surgery being scheduled. (Def. ex. Ml)

Dr. Agnew sent attorney Kormanski a supplemental report, dated February 28, 2003, and received by attorney Kormanski on March 17, 2003, which contained no reference to Mr. Rhodes’ surgery. (Def. ex. VI; N.T., day 4, p.116)

As of March 13, 2003, Ms. Trevino anticipated increasing the settlement offer based on additional information from attorney Kormanski. (N.T., day 2, p. 29)

On March 20, 2003, attorney Kormanski called attorney Serbin, to discuss Dr. Agnew’s objections to attorney Serbin’s subpoena, and learned, for the first time, Mr. Rhodes had undergone neck surgery in January. (N.T., day 4, p. 43) Attorney Serbin placed USAA on notice at that time that the accident caused Mr. Rhodes to suffer a vascular injury to his neck. (Def. exs. Y1 and A2) This was attorney Kormanski and USAA’s first notice Mr. Rhodes suffered a vascular injury. (N.T., day 4, pp. 17-18) On March 20, 2003, attorney Kormanski called Ms. Trevino and advised her of what he had learned. (Def. ex. Z1-002)

On March 21, 2003, attorney Kormanski received Mr. Rhodes’ surgery records from the Rhodeses’ attorney. He immediately forwarded them to Dr. Agnew for his review and opinion. (N.T., day 4, pp. 4-5) Dr. Agnew authored a March 27, 2003, report wherein he rendered an opinion that the vascular surgery was unrelated to the July 1,2000, accident. (N.T., day 4, pp. 15-16) Dr. Agnew advised attorney Kormanski that vascular surgery was outside his specialty. (Def. ex. J2)

On March 31, 2003, attorney Kormanski learned the arbitration hearing was continued. (Def. ex., N2)

On April 16, 2003, attorney Kormanski wrote attorney Serbin advising him he was waiting for a medical report from him that would support the Rhodeses’ contention that the neck complaints were related to the accident. (N.T., day 4, pp. 26-27)

Following the surgery with Dr. Kim, Mr. Rhodes received an evaluation from Dr. Lukács, who had treated Mr. Rhodes in 1992 for his 1991 football injury, but not since then. (Def. ex. F3-007) On May 5, 2003, Dr. Lukács wrote a letter to attorney Serbin stating the need for the Januaiy, 2003, neck surgery was caused by the July 1, 2000, accident. (Def. exs. F3-003-006, Y2) The first report of causation received from attorney Serbin was in a June 5, 2003 letter, which included Dr. Lukács’s report and office records. (Def. ex. F3) Dr. Lukács is a neurologist.

Dr. Moncman conducted an independent medical records review (IMR) of Mr. Rhodes’ medical records. On July 14, 2003, attorney Kormanski received Dr. Moncman’s report. (N.T., day 3, p. 80; def. ex. W3) Dr. Moncman provided a second report, dated July 21, 2003. (N. T., day 4, p. 40) Dr. Moncman opined there was no way a conclusion could be reached with reasonable medical certainty that the motorcycle accident caused Mr. Rhodes to have vertebrobasilar symptoms one year later. (Def. ex. W3) In Dr. Moncman’s supplemental report, received by attorney Kormanski on July 24, 2003, he advised with reasonable medical certainty, Mr. Rhodes’ vertebrobasilar insufficiency was not caused by the accident. (Def. ex. C4)

On October 7, 2003, Dr. Sangiorgio authored a report. In his report, Dr. Sangiorgio opined that Mr. Rhodes’ problems were directly a result of the accident on July 1, 2000. (Def. ex. P4) Attorney Serbin sent Dr. Sangiorgio’s report to attorney Kormanski and a letter dated October 13, 2003, and made a demand of $160,000.00. (Def. ex. 04) Attorney Kormanski had not received previous reports from Dr. Sangiorgio. (Def. Exs. S002, S4)

On December 2, 2003, attorney Serbin sent to attorney Kormanski Dr. Kim’s November 14,2003 report. (Def. ex. K5) In Dr. Kim’s report, he stated Mr. Rhodes’ prognosis was excellent and it would be reasonable to conclude the accident caused his symptoms or aggravated a preexisting condition. (Def. ex. K5) Attorney Kormanski sent copies of Dr. Kim’s report to USAA, Dr. Agnew and Dr. Moncman. (Def. exs. L5, M4)

In a letter dated December 4, 2003, attorney Serbin increased the Rhodeses’ demand to $175,000.00. (Def. Ex. N5) In a letter dated December 22, 2003, attorney Kormanski advised attorney Serbin that USAA agreed to pay $175,000.00. (Def. ex. E5)

By the time of the settlement of the Rhodeses’ claim, USAA had in its possession two reports from Dr. Moncman and three reports from Dr. Agnew that the July 1, 2000 motorcycle accident did not cause Mr. Rhodes to suffer any type of neck injury nor was there a need for neck surgery. (N.T., day 4, p. 46)

Attorney Kormanski, soon after he was retained, informed USAA he did not necessarily believe the value of the Rhodeses’ UIM claim was more than $5,000.00, on top of the $65,000.00 they already had received. However, there are uncertainties with litigation and expenses and he could see a willingness to move to a higher amount to settle the claim. (N.T., day 3, p.m., p. 129)

Alma Trevino did not increase Linda Barboza’s offer of $5,000.00 because she believed she would not be able to offer enough money to satisfy the Rhodeses, and she had no report causally linking Mr. Rhodes’s disc herniation, which was included in the settlement demand, to the accident. (N.T., Day 2, p. 29)

In attorney Kormanski’s letter of June 3, 2003 to Ms. Trevino, he advised her that Dr. Lukács report of June 5, 2003, was the first provided by the Rhodeses that confirmed a causal relationship between Mr. Rhodes’s neck complaints and Dr. Kim’s surgery to the motorcycle accident. (Def. ex. 13)

The court determines the opinions of the Rhodeses’ expert, James Chett, are not supported by the evidence and rejects his opinions regarding the reasonableness of the 18-20 months delay in USAA’s paying the settlement demand of $175,000.00

The Pennsylvania Unfair Methods of Competition and Unfair or Deceptive Acts or Practices applies here. This court concludes USAA did not violate Section (a)( 10) of 40P.S. §1171.5.

Violations of the Pennsylvania Code at 31 Pa. Code §145.6 and/or § 146.7(c) do not constitute clear and convincing evidence of bad faith. Williams v. Hartford Casualty Insurance Company, supra at 576.

If any reasonable basis for insurer’s action existed, there is no bad faith under section 8371. MP III Holdings, Inc. v. Hartford Cas. Ins. Co., 2011 U.S. Dist. LEXIS 72370 (E.D. Pa. June 30, 2011). A reasonable basis is all that is required to defeat a claim of bad faith. Horowitz v. Fed. Kemper Life Assurance Co., 57 F.3d 300, 307 (3d Cir. 1995), and J C. Penney Life Insurance Co. v. Pilosi, 393 F.3d 356, 367 (3d Cir. 2004).

It is not bad faith for an insurance company to contest an underinsured motorist claim. Condio v. Erie Ins. Exch., 899 A.2d 1136 (Pa. Super. 2006).

For delay to amount to bad faith, the insured must prove by clear and convincing evidence that the insurer had no reasonable basis for its actions which resulted in delay. Thomer v. Allstate Insurance Company, supra. Such is the case before this court. There were causes of delay on the part of USAA, but virtually all of them were as result of the pace of litigation and none were unreasonable.

In Rhodes I, the Superior Court determined the trial court had erred in holding that the Superior Court in Bonenberger v. Nationwide Mutual Insurance Co., supra., precluded consideration of evidence as to USAA’s IOP’s and claims philosophy, (pp. 21-25) In reaching its decision here, this court considered as evidence USAA’s adherence to its own Intelligent Operating Procedures (“IOP’s”) and claims philosophy, as well as to the UIPA and provisions of the Pennsylvania Code, 31 Pa. Code §146.1 et seq. See Lappile v. AMEX Assurance Co., 928 A.2d 251 (Pa. Super. 2007). The court is satisfied USAA complied sufficiently with the IOP’s, claims philosophy and UIPA to defeat a bad faith claim.

The Superior Court in Rhodes I, agreed with the trial court’s conclusion that Linda Barboza’s conduct on behalf of USAA raised a question of material fact as to whether her acts and omissions had a reasonable basis, (pp. 14-15 and fn. 5) This court has determined that such acts and omissions did not unreasonably delay USAA’s paying the Rhodeses’ claim. The Superior Court was critical of the conduct of other USAA personnel, particularly Alma Trevino, (p. 18) This court has determined that her conduct did not unreasonably delay the settlement of the UIM case.

Regarding USAA’s maintaining it did not meet the Rhodeses’ settlement demand more promptly because it did not have a physician’s report causally linking Mr. Rhodes’s neck injury to the accident, the Superior Court believed it posed a question of material fact. (Rhodes I at pp. 18-19) This court determines the credible evidence supports USAA’s position. Settlement was reached in approximately 6 months after USAA received such a physician’s report.

This court finds credible attorney Kormanski’s explanation of the sentence that appeared in his September 15, 2002, letter to Ms. Trevino, which reads as follows: “....Dr. Agnew will be able to refute any casual connection between claimant’s disc injuries in his neck and the subject accident.” He referred to it as a typographical error. It is noted that attorney Kormanski also believed it “would be difficult” to convince arbitrators that the disc injuries came from something other than the motorcycle accident. This court does not find there was collusion between attorney Kormanski and/or USAA and Dr. Agnew.

All objections made during depositions are overruled.

The Rhodeses have requested the court apply the missing witness rule and find that the testimony of Linda Barboza, Kathy Ortiz, Fred Philip Brookes, Paul Kinney, and Timothy Hanley would have been unfavorable to USAA had their testimony been presented at trial or secured before trial. This court declines to do so.

CONCLUSION

Plaintiffs have not proven by clear and convincing evidence that the time between May 17, 2002, when defendant USAA received the Rhodeses’ initial settlement demand of $175,000.00, and January 12, 2004, when they received $175,000.00 in final settlement of their UIM claim was an unreasonable passage time under the circumstances of this case. Neither has it been proved by clear and convincing that the actions of USAA personnel and its attorney were unreasonable.

Even though liability was not contested, USAA had a reasonable basis for defending the damages claim. USAA was not informed of Mr. Rhodes’s neck surgery until March, 2003, and not provided a physician’s report by the Rhodeses connecting the neck injuries of Mr. Rhodes to the motorcycle accident until June, 2003. USAA had reports in its possession that there was no causal connection. With this new information, USAA did increase its offer in July, 2003. Five months later, the parties agreed to a settlement. That is not an unreasonable delay.

Delays in this case were caused by the reasonable pace of the litigation.

Because of its determination that there has not been unreasonable delay in the resolution of the Rhodeses’ claim caused by USAA’s not having a reasonable basis for paying the Rhodeses’ settlement demand sooner, the court need not address whether USAA knew or recklessly disregarded its lack of a reasonable basis.

ORDER

And now, July 18, 2013, the verdict in the above-captioned case is entered in favor of defendant USAA Casualty Insurance Company and against plaintiff William F. Rhodes, Jr. and Carrie E. Rhodes, his wife.