author: FRIEDMAN, J.,

text:
    Bonda v. Point Marion Ford Sales Inc.

      C.P. of Allegheny County,
    no. GD 92-19884.

      Michael J. Colarusso, for plaintiffs.

      Anthony J. Williott, for defendants.

      July 27, 2000
   FRIEDMAN, J.,

The defendants have appealed from this court’s order dated December 7,1999, denying their motion for post-trial relief, molding the verdict to include delay damages, deducting a credit to defendants for first-party wage loss benefits, and denying credit for other benefits. The net amount of the molded verdict in favor of plaintiff was $136,275.88.

This case arose from an incident involving a 1991 Ford F-150 truck which plaintiff had purchased from defendant Point Marion Ford Sales Inc. The truck had been manufactured by defendant Ford Motor Company. Plaintiff alleged in his complaint that within 10 days of the purchase, he began having “problems with the door latch mechanism on the driver’s side door,” (complaint ¶5), and that he returned the vehicle to Point Marion at least three times during the first month he owned the vehicle. (Complaint ¶6.) Plaintiff alleged that on the day of the accident in question, one month after purchasing the truck, while he was riding as a passenger in his car, “the passenger side door latch mechanism failed by opening unexpectedly, and plaintiff fell out of the vehicle, sustaining injuries and damages . . . .” (Complaint ¶7.) At trial, plaintiff pursued only a products liability claim against the defendants. The factual issue for the jury was whether or not the defect in the lock caused the door to appear closed when the latch really was not engaged.

A jury trial was held before the undersigned, resulting in a verdict in favor of the plaintiff. Defendants, in their statement of matters complained of on appeal, raise 14 instances of error on the part of the court. We have condensed those items, somewhat, into the seven areas listed below:

“(1) The court’s mling that, because defendants had no other evidence of intoxication, the evidence of plaintiff’s blood alcohol level was not admissible.
“(2) The court’s rulings regarding various aspects of the testimony of plaintiff’s expert, Howard Earnest, including the admissibility, extent and scope of his direct testimony and the limitation of cross-examination, as well as the rulings regarding defendants’ expert.
“(3) The court’s refusal to instruct the jury on assumption of the risk.
“(4) The court’s refusal to allow defendants to read into evidence an excerpt of plaintiff’s deposition in which he admitted that no physician had ever told him that he was disabled.
“(5) The court’s allowing the recall notice into evidence. (Defendants contend that the Pennsylvania case law allowing evidence of a subsequent recall in a products liability case is not correct.)
“(6) The court’s calculation of delay damages based on its conclusion that the writ of summons was ‘original process’ and that either party, not just plaintiff, could have placed the case at issue.
“(7) The court’s ruling denying defendants a credit for disability benefits and the related ERISA issue.”

The issue of the limitation of defendants’ expert Fred Hoffmann’s testimony was withdrawn. See defendants’ brief in support of motion for post-trial relief, p. 20. The issue is therefore waived and we will not address it further herein.

DISCUSSION

1. Blood Alcohol Evidence Is Not Admissible To Show Intoxication Unless There Is Also Other, Objective, Evidence Suggestive of Intoxication, Such As Slurred Speech or an Unsteady Gait

It is well-settled that under Pennsylvania law, in order for evidence of blood alcohol content to be admissible, other objective evidence of intoxication must be present: “The theory behind allowing a blood alcohol level to be admitted into evidence in a civil case is that it is relevant circumstantial evidence relating to intoxication. However, blood alcohol level alone may not be admitted for the purpose of proving intoxication. There must be other evidence showing the actor’s conduct which suggests intoxication. Only then, and if other safeguards are present, may a blood alcohol level be admitted.” Ackerman v. Delmonico, 336 Pa. Super. 569, 576, 486 A.2d 410, 414 (1984).

During oral argument on plaintiff’s motion, defendants’ counsel conceded that “a bare blood alcohol reading in and of itself probably does not go into evidence.” (TT p. 10,1.23.) However, defendants could not point to any evidence of intoxication other than blood alcohol content. The record of the argument on plaintiff’s motion in limine made to the trial court indicates that counsel for defendants could not identify any evidence he could present to the jury other than the blood alcohol test itself. The argument begins on page 4 of the transcript. The court specifically asked defendants’ counsel what other evidence he had. (TT p. 10,1. 8.) Defendants’ counsel alluded to the hearsay contents of the hospital records, the fact that plaintiff did not drive his own car, his need to urinate during the ride home, and his post-accident loss of consciousness and brief amnesia after the passenger side door flew open and he fell out of the car as it was going around a bend in the road. At the time of argument on plaintiff’s motion in limine to exclude the evidence of plaintiff’s blood alcohol, defendants said that plaintiff’s decision not to drive was evidence of intoxication. This is hardly the case as there are many reasons why an owner of a motor vehicle would let someone else drive. The law of Pennsylvania describes objective evidence of intoxication by example: slurred speech, unsteady gait, etc. The other evidence alluded to by defendants in their brief in support of the motion for post-trial relief are not a basis for relief because they were not brought to the court’s attention in a timely fashion, during the argument on plaintiff’s motion. It is well-settled that grounds not argued to the court are permanently waived.

Another reason, perhaps even more important, why the expert testimony on plaintiff’s blood alcohol content was excluded was that when asked his ultimate opinion on plaintiff (as opposed to the statistical incidence of various alcohol impairments), defendants’ expert said he did not know how plaintiff would have behaved. Defendants’ purpose in offering the excluded testimony could only have been to prejudice the jury as it had no probative value given the expert’s inability to testify about anything other than statistics.

2. The Court Did Not Abuse Its Discretion With Regard to the Testimony of Plaintiff’s Expert on the Product Liability Issues

At trial, defendant’s counsel sought to cross-examine plaintiff’s expert witness, Howard Earnest, regarding aspects of his report dealing with product liability issues, regardless of whether or not Earnest had been questioned on those issues during direct examination. (TT pp. 366-78.) Defendant’s counsel argued that as long as something was contained in the expert’s report, he should be able to question the expert about it, regardless of whether or not it had been brought out on direct examination.

The court disagreed, and only permitted defendants’ counsel to cross-examine Earnest on matters actually brought out on direct examination. Even though a certain amount of leeway is routinely permitted for cross-examination, it is well-settled that the questions on cross must relate to the testimony given on direct. Defendants’ objectionable questions would have gone well beyond the fair scope of direct and there was no abuse of discretion in refusing to require plaintiff’s expert to answer them.

It should also be noted that well after all the testimony was concluded, during discussions regarding the charge to the jury, defendants moved the court to strike Earnest’s entire testimony on the grounds that it was beyond the scope of and contradictory to his report. (TT pp. 569-73.) We denied this motion, first because it was untimely (coming at the conclusion of all testimony in the case rather than during or immediately after Earnest’s testimony), and second, because there was some doubt whether defendants’ counsel had properly objected to Earnest’s testimony, at the time it was given. Defendants’ counsel contended that his objections were made during the discussion with the court about the scope of his cross-examination (discussed above), that he did object to the hypothetical at the time, and that he had not objected more strenuously during direct examination because he had thought at that time that he would have the opportunity for extensive cross-examination. However, this discussion with the court had taken place after Earnest’s direct examination, by which time defendants’ objections to the expert’s direct testimony had already been waived. Even assuming that defendants’ counsel did not simply forget to object at the proper time and that he in fact had a good faith belief about a matter he had not yet raised to the court (his ability to cross-examine a witness on matters covered by his report but not covered by his in-court testimony), there is no precedent to suggest that the argument, “I didn’t think I would have to object,” is a valid basis for appeal as defendants have argued. Again, denial of a belated motion to strike is not an abuse of discretion.

Regarding the proper degree of certainty for an expert’s opinion, defendants’ counsel submitted a case to the court in support of his position that a defense expert’s opinion could be less certain than a plaintiff’s expert’s. Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987). (TT pp. 478-79, 535-37.) We did not find the case persuasive, because on the issue of certainty it merely seemed to refer to there being no need for magic words. The Superior Court in Neal did observe that, although a plaintiff, upon whom the burden of proof rests, must prove causation with the appropriate certainty, “the defendant’s case is usually nothing more than an attempt to rebut or discredit the plaintiff’s case,” and further stated that “[t]he defendant ordinarily need not prove, with certainty or otherwise, that he or she is innocent of the alleged wrongdoing.” 365 Pa. Super, at 476, 530 A.2d at 109. However, this is clearly a reference to the fact that a defendant does not have the burden of proving his or her “innocence.” It does not change the rule that an expert’s opinion, even one for the defense, must be “reasonably certain.”

3. There Was Insufficient Evidence Upon Which a Jury Could Find Plaintiff Had Assumed the Risk Involved in the Instant Case. Therefore, That Issue Was Properly Not Submitted to the Jury

We acknowledge that assumption of the risk may be a viable defense in products liability cases. However, the evidence presented to the jury was not sufficient to support a factual finding that plaintiff was aware of the risk that the passenger door could appear closed but be open, nor was there any evidence that he consciously disregarded that risk. The general principle of assumption of the risk as set forth in the Restatement (Second) of Torts at section 496A, is that “[a] plaintiff who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of the defendant cannot recover for such harm.”

Plaintiff’s experience was that the driver’s side door sometimes failed to close. The court refused to instruct the jury on assumption of the risk because there was no evidence that plaintiff knew that the door latches malfunctioned after they appeared to be closed. In particular, defendants offered no contrary evidence about plaintiff’s difficulties with the lock on the driver’s side. The available evidence shows only that plaintiff had experienced problems when trying to close the door, and therefore he was not aware of the risk in the instant situation: that the malfunctioning latch would open a door that he had closed successfully. In other words, plaintiff was lulled into a false sense of security by his previous experience with the driver’s door, that it did not swing open once it had closed. Furthermore, there is no evidence that plaintiff had any idea that subfreezing temperatures caused the instant problem with the latches, as defendant Ford admittedly discovered before the recall.

The discussion of assumption of the risk centered around the Restatement (Second) of Torts section 496A and three Pennsylvania cases, Kupetz v. Deere & Company Inc., 435 Pa. Super. 16, 644 A.2d 1213 (1994); Robinson v. B.F. Goodrich Tire Co., 444 Pa. Super. 640, 664 A.2d 616 (1995); and Jara v. Rexworks Inc., 718 A.2d 788 (Pa. Super. 1998) (in which, coincidentally, the undersigned was the trial judge).

The Restatement (Second) of Torts, in comments c(l) through c(4) to section 496A, outlines four types of assumption of the risk:

(1) Where “the plaintiff has given his express consent to relieve the defendant of an obligation to exercise care for his protection, and agrees to take his chances as to injury from a known or possible risk.”

(2) Where “the plaintiff has entered voluntarily into some relation with the defendant which he knows to involve the risk, and so is regarded as tacitly or impliedly agreeing to relieve the defendant of responsibility, and to take his own chances.”

(3) Where “the plaintiff, aware of a risk created by the negligence of the defendant, proceeds or continues voluntarily to encounter it.”

(4) Where “the plaintiff’s conduct in voluntarily encountering a known risk is itself unreasonable, and amounts to contributory negligence. There is thus negligence on the part of both plaintiff and defendant; and the plaintiff is barred from recovery, not only by his implied consent to accept the risk, but also by the policy of the law which refuses to allow him to impose upon the defendant a loss for which his own negligence was in part responsible.”

Comment c(4) describes the kind of assumption of the risk at issue here, “when the plaintiff unreasonably encounters a defect specifically known to him.” Robinson, supra, states that before a plaintiff can be said to have assumed a particular risk, he must intelligently acquiesce in a known danger. In the instant case, plaintiff’s efforts to get the driver’s side lock fixed by taking the truck back to the dealer whenever the problem occurred, are undisputed evidence that he did not acquiesce in the danger related to the problem of which he was aware.

4. Plaintiff’s Testimony Regarding What Opinions a Doctor Did or Did Not Relay To Him About His Condition Is Not Admissible for the Truth of the Doctor’s Opinion and Was Therefore Properly Excluded by the Court

Defendants wished to read into evidence an excerpt of plaintiff’s deposition in which he admitted that no physician had ever told him that he was disabled. This evidence would serve only an improper purpose, allowing the jury to infer, based solely on lay testimony, that plaintiff was not disabled merely because no treating doctor had told plaintiff he was disabled. Furthermore, defendants’ proffer was an improper attempt to prove an affirmative fact {i.e., defendants’ position that plaintiff was not disabled by his injury) by introducing only hearsay evidence that no one stated its opposite.

The fact of disability or non-disability is a matter for expert' testimony, which plaintiff did provide. Plaintiff’s actual'physical condition is independent of his own lay knowledge of it.

5. The Court Correctly Followed Precedent and Admitted the Evidence of a Subsequent Recall

Regarding the issue of whether or not evidence of a recall notice may be properly introduced into evidence in a products liability case, defendant’s counsel argued, based upon Pennsylvania Rule of Evidence 407, that evidence of the post-accident recall should be excluded. He contended that the new rule created a split in Pennsylvania law on the issue. (TT p. 77.)

Pennsylvania Rule of Evidence 407 provides:

“When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove that the party who took the measures was negligent or engaged in culpable conduct in connection with the event. This rule does not require the exclusion of evidence of subsequent measures when offered for impeachment or to prove other controverted matters, such as ownership, control, or feasibility of precautionary measures.” (emphasis added)

Since a products liability case does not involve either negligence or culpable conduct, the exclusionary part of Rule 407 does not apply; the language of the rule is not inconsistent with the law allowing such evidence in cases such as the instant one.

The leading case on this question appears to be Matsko v. Harley Davidson Motor Co. Inc., 325 Pa. Super. 452, 473 A.2d 155 (1984). Duchess v. Langston Corp., 709 A.2d 410 (Pa. Super. 1998), is also useful. Matsko and Duchess, although decided prior to the enactment of the rules of evidence, are not inconsistent with Rule 407, and speak clearly to the issue here, in which the evidence of a recall was admitted in a products liability case, where neither negligence nor “culpable” conduct are an issue. Defendants’ argument that those cases were decided before the enactment of the Rules of Evidence is without merit. The rules purport to codify prior case law, for the most part. Certainly, Rule 407 does not purport to change any pre-existing case law.

6. The Court Correctly Calculated the Period to Which Delay Damages Would Apply

Over defendants’ objection, we allowed delay damages for a period which included the time between the issuance of the writ of summons and the filing of the complaint. This ruling was based upon Pa.R.C.P. 238(a)(2)(ii), which provides that “[djamages for delay shall be awarded for the period of time . . . from a date one year after the date original process was first served in the action up to the date of the award, verdict or decision.” We merely recognized that, in this case, the writ was the original process, not the complaint. See e.g., Pa.R.C.P. 401, governing service of process, which states that “[ojriginal process shall be served within the Commonwealth within 30 days after the issuance of the writ or the filing of the complaint. ” (emphasis added) See also, Black’s Law Dictionary:

“Original process. That by which a judicial proceeding is instituted; process to compel the appearance of the defendant (i.e., summons). Distinguished from ‘mesne’ process, which issues, during the progress of a suit, for some subordinate or collateral purpose; and from ‘final’ process, which is process of execution.”

Defendants’ contention that only a complaint can constitute “original process” for delay damage calculation is without merit.

As to the period prior to the placement of the case at issue, which defendants also contend should be excluded from the calculation of delay damages, it is no secret that either party may place the case at issue. See Allegheny County Local Rule 214(h), which provides in part that “[t]he prothonotary shall keep an issue docket and shall enter cases therein when requested by any of the parties.” (emphasis added) The rule regarding delay damages does not excuse a defendant from payment if defendant as well as plaintiff could have moved the case along.

7. Disability Benefits/ERISA Issue

Defendants also wanted a credit for the disability payments plaintiff had received under his employers’ ERISA plan. Defendants’ contention was that the plan was not fully self-funded and therefore the ERISA pre-emption applies, permitting a credit against the verdict amount.

Both parties rely on FMC Corp. v. Holliday, 498 U.S. 52 (1990), but they disagree as to its meaning. Defendants contended that “ERISA pre-empts the PA Motor Vehicle Financial Responsibility Law in connection with ERISA plans that are fully self-funded.” (Mr. Williott’s emphasis) Plaintiff disagreed, saying that FMC is not limited to fully self-funded plans. Plaintiff cited several cases, from other circuits, in support of his position: Thompson v. Talquin Building Products Co., 928 F.2d 649 (4th Cir. 1990); United Food & Commercial Workers & Employers Arizona Health & Welfare Trust v. Pacyga, 801 F.2d 1157 (9th Cir. 1986), and Brown v. Granatelli, 897 F.2d 1351 (5th Cir. 1990).

The parties also disagreed as to who has the burden of proof for the issue at hand. The defendants argued that the burden of proof lies with the plan to prove that ERISA pre-emption applies here. Plaintiff argues that defendants have raised the affirmative defense of preclusion and that defendants thus have the burden.

After the jury verdict, in connection with his motion to mold the verdict, plaintiff adduced evidence on this issue by affidavit, to the effect that the plan was self-funded fully. The court had ordered this procedure and had given defendants an opportunity to cross-examine the affiant, an opportunity they declined. Instead, defendants argued that the affidavit on its face was insufficient to eliminate the ERISA pre-emption. Defendants having waived the right to attack the affiant’s credibility, the affidavit that the plan was self-funded is conclusive and sufficient. The court properly denied defendants a credit for these payments.

CONCLUSION

The numerous instances of error which defendants complain of on appeal are all without merit. Defendants had an ample opportunity to present proper evidence to the jury. The fact that they failed in their attempts to introduce inadmissible evidence and to exclude proper testimony is not a basis to sustain their appeal. The post-trial motions regarding delay damages and credits for third party payments were also correctly decided.

      . The complaint had contained counts of negligence, products liability, and breach of warranty against both of the defendants.

      . The post-trial brief (p. 4) attempts to suggest that defendants had evidence that plaintiff engaged in horseplay, had difficulty closing the door, and intentionally opened the door. However, a careful reading of the brief reveals that defendants are really talking about possible inferences they wanted the jury to make from the only evidence defendants had, the blood alcohol content. The trial transcript reveals that defendants did not mention, for example, evidence of horseplay, at all.

      . It should be noted that the Pennsylvania Supreme Court, in Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993), held, inter alia, that Pennsylvania’s comparative negligence statute removed this absolute bar to recovery of a plaintiff’s contributory negligence.

      . This impropriety is made even more obvious if we consider the opposite situation. Suppose a plaintiff-were, trying to introduce as evidence of his disability the fact that no doctor had told him he was not disabled. A defendant would rightly be apoplectic if a court were to admit this non-event into evidence.


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Henderson v. Biwojno

      C.P. of Allegheny County,
    no. GD98-6733.

      Patrick J. Loughren, for plaintiff.

      David B. White, for defendant Biwojno.

      Steven M. Houghton, for defendant Presbyterian University Hospital.

      Giles J. Gaea, for defendants Avolio and Cardiopulmonary-Renal Associates.

      David R. Johnson, for Keystone.
    September 26, 2000
   WETTICK, J.,

The claim of a non-party HMO (Keystone Health Plan) that its evaluations of the medical care that plaintiff received are protected from discovery by the Peer Review Protection Act (63 P.S. §425.1 et seq.) is the subject of this opinion and order of court.

This is a medical malpractice action brought by a plaintiff who suffered permanent heart damage. Plaintiff was receiving health benefits from her employer through Keystone Health Plan. Plaintiff selected from Keystone’s list of participating physicians Cardiopulmonary-Renal Associates to be her primary care physician group. Dr. Guy Avolio was employed by Cardiopulmonary-Renal Associates.

In this lawsuit, plaintiff has raised claims against several medical providers, including Dr. Avolio. According to plaintiff’s complaint, plaintiff was treated by Dr. Avolio for a two-month period for complaints of chills, sweating, headaches, shortness of breath, etc. Plaintiff alleges that throughout this period she was suffering from an infection that went undetected and untreated (and which led to her permanent heart damage) as a result of Dr. Avolio’s negligence.

After plaintiff had been correctly diagnosed and treated by other health care providers, plaintiff wrote a four-page letter dated December 8,1996 to Keystone complaining about the treatment provided by Dr. Avolio. She concluded her letter by requesting that the situation be looked into and recorded.

Upon receipt of this letter, Keystone requested plaintiff’s medical records from her treating physicians. Once they were received, Keystone arranged for two physicians to review the records and provide comments to Keystone on the quality of care provided by Dr. Avolio.

On February 7, 1997, Keystone sent plaintiff a letter which stated that “your information was referred to clinical quality improvement for review. As a health care plan, we are required to analyze complaints made against our network providers to determine if quality problems exist.”

Plaintiff seeks to obtain the evaluations of the care furnished by Dr. Avolio through a deposition of an employee of Keystone who was involved in the quality assurance review. Keystone contends that this information is protected from discovery by the Pennsylvania Peer Review Protection Act. Keystone relies on section 425.4 which provides that: “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee.”

In order for this section to apply, (1) the evaluation must constitute a proceeding or record of a review committee and (2) the discovery must be sought in connection with a civil action against a professional health care provider arising out of matters which are the subject of the evaluation and review of the committee.

The second requirement is met. A physician is a professional health care provider as defined in section 425.2 of the Peer Review Protection Act. Consequently, this is a civil action against a professional healthcare provider (Dr. Avolio) arising out of the matters which were the subject of the evaluation and review.

I next consider the first requirement. A “review organization” is defined by section 425.2 as “any committee engaging in peer review.” “Peer review” is defined in section 425.2 as “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other health care providers.”

While Keystone arranged for professional health care providers to conduct the evaluation of the quality and efficiency of services performed by Dr. Avolio, this was an evaluation by Keystone. Consequently, the controlling issue is whether an evaluation by Keystone is an evaluation by a professional health care provider.

The term “professional health care provider” is defined in section 425.2 as follows:

“Professional health care provider” means:
“(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to, the following individuals or organizations:
“(i) a physician;
“(ii) a dentist;
“(iii) a podiatrist;
“(iv) a chiropractor;
“(v) an optometrist;
“(vi) a psychologist;
“(vii) a pharmacist;
“(viii) a registered or practical nurse;
“(ix) a physical therapist;
“(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
“(xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility.”

An EPA-model HMO does not come within any of the 11 individuals or organizations described in the definition. Consequently, Keystone must rely on the following provision: “including, but not limited to, the following individuals and organizations.”

The issue of whether an IPA-model HMO is a professional health care provider was addressed by the Superior Court in McClelland v. Health Maintenance Organization of Pennsylvania, supra, 442 Pa. Super. 504,660 A.2d 97 (1995). In that case, the estate of the deceased patient commenced a medical malpractice action against a physician chosen from an HMO list (Dr. Hempsey) based on his failure to diagnose or treat a malignant melanoma. The estate instituted a second malpractice action against the HMO based, inter alia, on allegations of a failure to select and retain only competent physidans and a failure to formulate, adopt, and enforce adequate rules and policies to ensure quality care for its subscribers.

The plaintiffs sought production of certain documents, including writings relating to the care and treatment provided by Dr. Hempsey to his HMO primary care patients. The trial judge entered an order sustaining the HMO’s objections to requests for production of documents on the ground that the requested documents were protected by the Peer Review Protection Act. On appeal, the Superior Court reversed. The court ruled that IPA-model HMOs are not professional health care providers. Consequently, the Peer Review Protection Act does not preclude discovery of peer review material in an action against an IPA-model HMO because section 425.4 protects only records sought in a civil action “against a professional health care provider.” 63 PS. §425.4.

The ruling of the Superior Court was affirmed by an equally divided court in McClelland v. Health Maintenance Organization of Pennsylvania, supra, 546 Pa. 463, 686 A.2d 801 (1996). The opinion of Justice Newman in support of affirmance stated that the resolution of the question of whether the Peer Review Protection Act’s confidentiality provision (section 425.4) applies will be determined by the court’s interpretation of section 425.2’s definition of “professional health care provider.” She found the term to be ambiguous because of the language “including, but not limited to” the 11 individuals or organizations described in the definition. She applied the “widely accepted” principle that “general expressions such as ‘including, but not limited to’ that precede a specific list of included items should not be construed in their widest context, but apply only to persons or things of the same general kind or class as those specifically mentioned in the list of examples.” Id. at 472, 686 A.2d at 805. (citations omitted) Since this list includes only immediate or direct health care providers and administrators of medical facilities and since an IPA-model HMO does not come within either category, she concluded that the legislature did not intend for IPA-model HMOs to be covered by the confidentiality provisions of the Peer Review Protection Act.

In an opinion in support of reversal, Justice Zappala agreed with the analysis of the opinion in support of affirmance that restricted the definition of health care providers to immediate or direct health care providers and organizations operating medical facilities. He looked to the case law which holds that IPA-model HMOs have the same duties as hospitals to select and retain competent physicians. He concluded that if hospitals and IPA-model HMOs are sufficiently similar to impose on both a duty to select and retain competent physicians, then IPA-model HMOs merit the same protection as is afforded to hospitals.

Justice Nigro also filed an opinion in support of reversal. He agreed with the authors of the other opinions that a review committee’s records are not discoverable in a civil action against an IPA-model HMO unless IPA-model HMOs are professional health care providers. He concluded that a statutory mandate under the Health Maintenance Organization Act that HMOs provide or arrange for patient care (40 P.S. § 1554(b)) puts HMOs in the same class as administrators of health care facilities and organizations operating health care facilities which also provide or arrange for patient care. He criticized the opinion in support of affirmance for ignoring the fact that HMOs dictate the care provided in the health care facilities and prescribe the tests patients receive, the doctors patients see, and the time patients stay in health care facilities.

In the present case, Keystone contends that the McClelland rulings have little to do with this litigation. In McClelland, the courts were addressing the issue of whether a civil action against an HMO constitutes a civil action “against a health care provider” pursuant to section 425.4. In the present case, on the other hand, plaintiff has sued only immediate or direct health care providers. Thus, this case is clearly a civil action against a professional health care provider.

The difficulty with plaintiff’s argument is that, as I have discussed at pages 325-26 in this opinion, in a civil action against a health care provider section 425.4 protects only evaluations conducted by a review committee; section 425.2 defines a “review organization” as a committee engaged in peer review; and section 425.2 defines “peer review” as the procedure for evaluation by professional health care providers. The opinion of the Superior Court in McClelland and the three opinions authored by Justices Newman, Zappala, and Nigro were construing the term “professional health care provider.” I am construing the same term in this case. Consequently, these opinions govern this case.

Also, there would be no reason why the legislature would have intended to allow discovery of HMO review committee materials if the plaintiff included the HMO as a defendant in a medical malpractice action, but protected this information if the HMO was not included. A construction of the Peer Review Protection Act in this fashion would encourage lawyers to include an HMO as a defendant in situations where a lawsuit against the treating physicians would provide an adequate remedy.

The ruling of the Superior Court in McClelland that IPA-model HMOs are not professional health care providers continues to be the controlling authority. Consequently, the Peer Review Protection Act does not apply.

Keystone also relies on the Quality Health Care Accountability and Protection Act, 40 P.S. §991.2101 et seq. (Act 68). Under 40 P.S. §991.2121 (a), managed care plans are required to adopt and maintain credentialing standards for health care providers. Under this subsection, the credentialing process shall include written criteria and procedures for initial enrollment, renewal, restrictions, and termination of credentials for health care providers. Under 40 P.S: §991.2121 (d), a managed health care plan shall disclose relevant credentialing criteria and procedures to health care providers that apply to participate or that are participating in the plan’s provider network and shall also disclose relevant credentialing criteria and procedures pursuant to a court order or a rule. “Any individual providing information during the credentialing process of the managed care plan shall have the protections set forth in ... the ‘Peer Review Protection Act.’ ”

For at least two reasons, the above-quoted provision does not support Keystone’s position that the information which plaintiff seeks is protected by the Peer Review Protection Act. First, it refers only to any individual providing information. Consequently, its purpose is to extend the immunity from liability provisions of the Peer Review Protection Act (63 P.S. §425.3) to persons who provide this information.

Second, the documents that are being sought do not involve information provided during the credentialing process. Under 40 P.S. §991.2141, a managed care plan is required to establish and maintain an internal complaint process by which an enrollee can file a complaint regarding a participating health care provider. No provisions of the legislation addressing the internal complaint process refer to the Peer Review Protection Act.

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

ORDER

On September 26, 2000, it is hereby ordered that the motion of Keystone Health Plan to quash subpoena to attend and testify is denied.

      . Keystone is an Independent Practice Association HMO (IPA-model HMO), meaning that it provides medical services to its subscribers through independent health contractors. Keystone, in other words, does not directly provide medical services through its own employees or through medical facilities that it operates. See generally, McClelland v. Health Maintenance Organization of Pennsylvania, 442 Pa. Super. 504, 660 A.2d 97, 100-101 (1995), aff’d per curiam, 546 Pa. 463, 686 A.2d 801 (1996).

      . Keystone notes that the definition of “review organization” in section 425.2 includes a “health insurance review committee.” This portion of the definition may have relevance to HMO models other than an IPA-model HMO and to the immunity from liability provisions of the Peer Review Act, 63 P.S. §425.3.


author: DOERR, J.,

text:
    Chenot v. Metropolitan Life Insurance Company

      C.P. of Butler County,
    no. 96-10975.

      James M. Pietz and Lomek Albert, for plaintiff.

      Frederick N. Egler Jr., for defendants.
    January 31, 2000
   DOERR, J.,

Before the court are defendant’s preliminary objections to plaintiff’s complaint.

FACTUAL BACKGROUND

Kenneth Lee Chenot, plaintiff, was insured by a “whole life” life insurance policy from Metropolitan Life Insurance Company which had a death benefit of $5,000. This policy had an initial premium of $71.65 and a subsequent annual premium of $84.30 for each year thereafter. The cash value benefit was to increase during the life of the policy.

In 1984, MetLife agent Gerald L. Raabe, defendant, contacted plaintiff. Defendant offered plaintiff a $25,000 insurance policy that would require out-of-pocket monthly premiums for the first year of the policy. The policy premium was to be paid from the cash value of plaintiff’s first policy. The second policy required a monthly premium of $46.25 and had a cash value benefit that was supposed to increase in value during the life of the policy.

Plaintiff believes that MetLife classified the second policy as a “new insurance transaction” as opposed to one involving a “replacement transaction.” Plaintiff also believes that because of this classification, he was overcharged on the second policy. Plaintiff filed this lawsuit against defendant and MetLife claiming breach of fiduciary duty, common-law fraud, violations of the Pennsylvania Unfair Trade Practice and Consumer Protection Law, violations of the Pennsylvania Bad Faith Statute and Professional Negligence.

LEGAL STANDARD

In determining preliminary objections, all well-pleaded material and relevant facts are deemed to be tme. Johnson v. Pennsylvania Board of Probation and Parole, 706 A.2d 903 (Pa. Commw. 1998). Further, the issues must be resolved by the court on the basis of the pleadings alone. Duffee v. Judson, 251 Pa. Super. 406, 380, A.2d 843 (1977). Preliminary objections should be sustained only in cases that are clear and free from doubt. Id.

LEGAL ANALYSIS

Defendant filed preliminary objections in the nature of a demurrer to plaintiff’s claim for breach of fiduciary duty. The question presented by a demurrer is whether the complaint adequately states a claim for relief under any theory of law. Eckell v. Wilson, 409 Pa. Super. 132, 597 A.2d 696 (1991).

This court is bound by President Judge Martin O’Brien’s ruling that no fiduciary responsibilities exist between an insurance company and its insured. Kreibel v. Metropolitan Life, Butler County (A.D. 95-10666), June 23, 1997. Similarly, Judge Wettick in Allegheny County, has held that “Pennsylvania case law addressing the scope of the duty of an insurance company to inform an insured of benefits to which the insured may be entitled supports [his] conclusion that the law governing fiduciary relationships does not govern the relationship between an insured and an insurance company.” Inhat v. Pover, Allegheny County (GD 94-17465), December 16, 1997. Accordingly, defendant’s preliminary objection in the nature of a demurrer to Count II of plaintiff’s complaint is sustained.

Defendant also requests that this court strike paragraphs 58 and 59 of Count IV, the negligence count, of plaintiff’s complaint. Specifically, defendant argues that paragraphs 58 and 59 improperly attempted to state a claim for reckless disregard and willful misconduct against defendant. In support of its argument, defendant cites to the economic loss doctrine, which provides that economic losses may not be recovered in tort absent physical injury or property damage. See Aikens v. Balti more and Ohio Railroad Co., 348 Pa. Super. 17, 501 A.2d 277 (1985).

The court can also apply the test set forth in Bash v. Bell Telephone Co., 411 Pa. Super. 347, 601 A.2d 825 (1992), to decide whether a breach of contract claim could give rise to an actionable tort. The Bash court stated that “[ajlthough mere non-performance of a contract does not constitute fraud ... it is possible that a breach of a contract also gives rise to an actionable tort.... ‘To be construed as in tort, however, the wrong ascribed to defendant must be the gist of the action, the contract being collateral.’ ” Bash v. Bell Telephone, at 355-56, 601 A.2d at 829 citing Closed Circuit Corp. v. Jerrold Electronics Corp., 426 F. Supp. 361 (E.D. Pa. 1977). The court further explained that “tort actions lie for breaches of duties imposed by law as a matter of social policy, while contract actions he only for breaches of duties imposed by mutual consensus between particular individuals.” Id.

This court relies on the Bash test in deciding that plaintiffs alleged tort claims of fraud, breach of fiduciary duty, negligence and bad faith are the gist of this action. Plaintiff is not asserting a contract claim against defendant, nor is he seeking to recover for a breach of duties imposed by the insurance agreement itself. On the contrary, plaintiff seeks to recover for the alleged deception by defendant regarding the replacement transaction. Defendant’s preliminary objection in the nature of a motion to strike paragraphs 58 and 59 of Count IV, the negligence count, of plaintiff’s complaint is overruled.

Defendant finally asserts that this court should strike the punitive damages prayer for relief in Count IV, the negligence count, of plaintiff’s complaint. Specifically, defendant argues that the allegations of “willful misconduct” and “reckless disregard” are improper in a negligence count. Defendant further argues that the use of these phrases requires the existence of physical harm.

Punitive damages may be awarded where the defendant’s conduct is “outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” McDaniel v. Merck, Sharp & Dohme, 367 Pa. Super. 600, 623, 533 A.2d 436, 447 (1987). Moreover, the Supreme Court of Pennsylvania has held that a plaintiff can make a claim for punitive damages in absence of a physical injury. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991). Defendant’s preliminary objection in the form of a motion to strike the punitive damages prayer for relief in Count IV, the negligence count, of plaintiff’s complaint is overruled.

ORDER

And now, January 31, 2000, after careful consideration of the arguments of both parties, briefs submitted by both parties and the preliminary objections filed by defendant, it is hereby ordered, adjudged and decreed that:

(1) Defendant’s preliminary objection to Count II of plaintiff’s complaint in the nature of a demurrer is sustained. Plaintiff is directed to amend the complaint in accordance with this memorandum opinion within 20 days from the date of this order or suffer dismissal;

(2) Defendant’s preliminary objection in the nature of a motion to strike paragraphs 58 and 59 of Count IV, the negligence count, of plaintiff’s complaint is overruled; and

(3) Defendant’s preliminary objections in the form of a motion to strike the punitive damages prayer for relief in Count IV, the negligence count, of plaintiff’s complaint is overruled.

      . Replacement transactions are strictly regulated in Pennsylvania. See 31 Pa. Code §81 et seq. The Pennsylvania Insurance Department Market Conduct Division examined MetLife’s market conduct. The February 11, 1994 report revealed that MetLife’s practice of falsely labeling replacement transactions as new transactions was widespread.


author: STEWART, Member,

text:
    In re Anonymous No. 124 D.B. 97

      Disciplinary Board Docket no. 124 D.B. 97.
    November 23, 1998
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

STEWART, Member,

Pursuant to Rule 208(d) (2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

Office of Disciplinary Counsel, petitioner, filed a petition for discipline against respondent, [ ], on October 14, 1997. The petition alleged that respondent improperly used funds arising out of a client’s personal injury settlement, and further, failed to timely pay a referral fee to another attorney. Respondent was charged with violation of Rules of Professional Conduct 1.15(a), 1.15(b), 1.15(c), and 8.4(c). Respondent filed an answer to petition on November 12, 1997.

A disciplinary hearing was held on February 6, 1998 before Hearing Committee [ ], comprised of Chair, [ ], Esquire, and Members [ ], Esquire, and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ] Esquire.

The committee filed a report on May 26, 1998 and recommended a one-year period of suspension. Respondent filed a brief on exceptions and request for oral argument on June 3, 1998. Respondent requested that the board reject the committee’s recommendation and recommend to the Supreme Court either a public censure, with or without probation, or a stayed suspension with probation. Petitioner filed a brief on exceptions on June 4,1998 and a brief opposing respondent’s exceptions on June 12,1998, and requested that the board recommend a sanction in the range of a three-year suspension to a disbarment.

Oral argument was held on July 21, 1998 before a three-member panel of the Disciplinary Board chaired by Richard W. Stewart, Esquire, and consisting of Members Thomas J. Elliott, Esquire, and Mark C. Schultz, Esquire.

This matter was adjudicated by the Disciplinary Board at the meeting of August 13, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1947 and admitted to practice law in Pennsylvania on May 24, 1983. His registered address for the practice of law is [ ]. Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania. Respondent is married and has one minor child.

(3) In and subsequent to 1992, respondent represented [A] relative to personal injuries she received in an accident that occurred on July 17, 1992. Respondent’s fee agreement with [A] was for him to receive a contingency fee of one-third of the gross amounts paid to her as a result of the representation.

(4) Respondent’s representation of [A] was as a result of a referral from [B], Esquire, [A’s] family attorney. Respondent’s normal referral fee agreement with Attorney [B] on contingency matters was to remit to him 50 percent of the fees as those fees were received by respondent.

(5) At all times pertinent hereto, respondent maintained as a part of his law practice an escrow account and an office account at [C] Bank. Respondent utilized the Safeguard double-write ledger systems in his law practice.

(6) On April 1, 1993, [D] Insurance issued a draft for $33,334, payable to respondent and [A] in satisfaction of a portion of her claims arising from the accident. Respondent deposited this check into the escrow account, as reflected in the summary for the account and the Safeguard ledgers. (P.E. 1 & 15.)

(7) On April 7,1993, respondent had a settlement with [A] relative to the $33,334. Respondent distributed $11,111.11 to himself as the total one-third contingency fee due by transferring that amount from the escrow account to the office account. Respondent also distributed $160.12 to himself in reimbursement of costs he had advanced. These transactions were noted on the Safeguard ledgers. (P.E. 1 & 17.)

(8) The April 7,1993 settlement sheet reflects the balance due to the client as $22,062.11 and the notation that “$5,000 of the balance due client will be distributed to client at settlement. The balance, $17,062.11, will remain in [respondent’s] escrow account until the Medicare lien in this case is satisfied, compromised, or waived.” (P.E. 1 & 19.)

(9) On April 7, 1993, one-half ($5,555.56) of the $11,111.11 received in fees was potentially subject to the referral fee interests of Attorney [B]. On this date, respondent wrote a check on his office account for $5,555.56 to Attorney [B], but then voided the check.

(10) Subsequent to respondent’s receipt of the fees of $11,111.11, respondent personally utilized, without the knowledge or permission of Attorney [B], the $5,555.56 portion that was potentially subject to the referral fee due to Attorney [B].

(11) On April 14, 1993, [E] Insurance issued a draft for $100,000 payable to respondent and [A], in satisfaction of the balance of her claim arising from the accident. Respondent deposited this check in his escrow account.

(12) On April 15, 1993, respondent had a settlement with [A] and transferred $33,333.33 to the office account as the one-third contingency fee.

(13) On April 15, 1993, [A] executed the settlement sheet prepared by respondent relative to the $100,000 portion of the settlement. The sheet reflects the balance due the client as $66,666.67 and reflects the notation “This balance due client will remain in [respondent’s] escrow account until the Medicare lien in this case is satisfied, compromised, or waived. Any balance due client after these disbursements are made will be issued to client.” (P.R..1 & 26.)

(14) Of the $33,333.33 fee respondent received on April 15, 1993, one-half ($16,666.67) was potentially subject to the referral fee interests of Attorney [B].

(15) Subsequent to April 15, 1993, respondent personally utilized the $16,666.67, which sum was potentially subject to the interests of Attorney [B].

(16) In April 1993, respondent spoke to Attorney [B] and acknowledged the settlement totaling $133,333.33 and told Attorney [B] the determination and payment of any referral fee would have to wait until the determination of the subrogation amount due on the settlement.

(17) As of April 15,1993, the subrogation amount was undetermined.

(18) Respondent never made any written attempts to have the Medicare lien satisfied, compromised or waived, although he or his staff had some verbal discussion with Medicare representatives. On one or more occasions, respondent’s office sent to [A] forms to complete and return for submission to Medicare, but these forms were not returned to respondent.

(19) As of April 15, 1993, from the $133,333.33 in total settlement proceeds respondent had obtained and received for [A], respondent had distributed to himself all of the attorney fees and costs due on the total settlement.

(20) On May 14, 1993, respondent took $6,000 from the escrow account and recorded this amount as taken from the funds maintained for [A].

(21) The check for $6,000 contained the notation “[A] Medicare retainer.”

(22) No retainer agreement existed between respondent and [A] relative to either the Medicare subrogation claim or to the $6,000 respondent took from the escrow account.

(23) Respondent used these funds for his own benefit.

(24) On June 15, 1993, respondent took $1,000 from the escrow account and used the sum for his own benefit.

(25) By letter of July 23,1993, [F], on behalf of Medicare, notified respondent that the subrogation claim totaled $24,186.20.

(26) As of July 23,1993, the maximum due Medicare was the subrogation of $24,186.20 less the pro rata share of legal fees and costs Medicare was legally required to pay. Medicare’s one-third pro rata share of the legal fee was one-third of the total subrogation of $24,186.20, which is $8,062.07, and which amount the respondent had received as part of the total fees respondent had taken in April 1992. Medicare’s one-third pro rata share of the $160.12 in costs the respondent incurred in obtaining the initial settlement proceeds was $53.37.

(27) The total due Medicare was the total subrogation of $24,186.20, less the pro rata attorney fee of $8,062.07, less the pro rata costs of $53.37, for a net due of $16,070.76.

(28) On July 28, 1993, respondent took and personally used $1,200 from [A’s] funds.

(29) On August 6,1993, respondent took $4,200 from [A’s] funds.

(30) As of August 6, 1993, respondent had taken and converted to his own use $12,400 of the funds in his possession payable to [A].

(31) Respondent testified that he believed he was entitled to take the $12,400 as a second fee on the subrogation amount, even though he had already taken a one-third fee on the entire settlement. (N.T. 98-99.)

(32) In the summer or fall of 1993, respondent acknowledged to his office staff that he knew it was wrong to have taken the $12,400 in proceeds. Respondent informed his staff that he intended to make restitution of the $12,400 as soon as he could.

(33) As of October 6, 1993, respondent had distributed a total of $15,000 to [A].

(34) On December 2, 1993, [A] died testate in [ ] County. Shortly thereafter, Attorney [B], on behalf of the [A] estate, made a demand of respondent for an accounting and payment to the estate of the [A] funds respondent possessed.

(35) In February 1994, Attorney [B] frequently contacted respondent and demanded both the payment of the funds due and an accounting. Attorney [B] needed the funds to take advantage of the discount of Pennsylvania transfer inheritance tax paid within three months of death.

(36) In late February 1994, respondent gave Attorney [B] an accounting of the [A] settlement proceeds and a check in the amount of $49,542.58.

(37) By letter dated March 7,1994, respondent transmitted to Attorney [B] a check in the amount of $24,186.20. Respondent gave the [A] estate the gross amount originally retained for the Medicare subrogation.

(38) Of this total amount of $24,186.20, at least $12,400 represents the funds respondent converted, and at least part of the check represents personal funds respondent commingled in the escrow account.

(39) The March 7, 1994 payment was the balance of the funds that respondent owed to the estate from the settlement proceeds totaling $133,333.33.

(40) By check dated My 7, 1994 in the amount of $17,000 made payable to [B], Attorney [B] accepted payment in satisfaction of part of the referral fees due to him.

(41) By letter of My 1,1994, Attorney [B] attempted to have the Medicare subrogation against the [A] settlement funds compromised or waived. By letter of September 24,1994, Medicare acknowledged the obligation to pay a pro rata share of attorney fees and costs incurred in producing the settlement, but denied the request for any waiver. It asserted the amount due was $16,095.09. This amount was paid to Medicare by the [A] estate.

(42) After petitioner became aware in 1994 of respondent’s handling of the [A] settlement proceeds, petitioner undertook an extensive investigation of respondent’s financial records. Respondent cooperated fully with this investigation.

(43) Respondent has no prior record of discipline.

(44) Respondent expressed sincere remorse for his misconduct and recognizes the errors he made in his handling of the [A] settlement. (N.T. 96, 103.)

(45) Seven character witnesses testified on respondent’s behalf at the disciplinary hearing. These witnesses were fellow attorneys and community members, and they testified to respondent’s good reputation for truthfulness and honesty. (N.T. 21-71.)

m. CONCLUSIONS OF LAW

Respondent’s conduct, as set forth above, constitutes violations of the following Rules of Professional Conduct:

(1) R.P.C. 1.15(a) — Failing to hold property of clients or third persons that is in the attorney’s possession in connection with a representation separate from the attorney’s own property.

(2) R.P.C. 1.15(b) — Failing to promptly deliver to a client or third person any funds or other property that a client or a third person is entitled to receive and, failing to promptly render a full accounting regarding such property, upon request by a client or third person.

(3) R.P.C. 1.15(c) — Failing to hold property of clients or third persons claiming interest separate until there is an accounting and severance of their interests.

(4) R.P.C. 8.4(c) — Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter comes before the Disciplinary Board on a petition for discipline filed against respondent on October 14, 1997. The petition alleged that respondent engaged in misconduct relative to a client’s settlement proceeds. Respondent was charged with violation of Rules of Professional Conduct 1.15(a), (b), and (c), and 8.4(c).

The Disciplinary Board conducts a de novo review of all disciplinary matters that come before it upon recommendation by a Hearing Committee. Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). The board is not bound by the findings and recommendation of the Hearing Committee, but rather is free to make its own recommendation based on the formulation of its own findings and conclusions. Office of Disciplinary Counsel v. Walker, 469 Pa. 432, 366 A.2d 563 (1976).

A stipulation of facts was reached by the parties and respondent agreed that his actions constituted a violation of at least Rule 1.15(a). A hearing was held during which petitioner presented as its case in chief the stipulation and 26 exhibits to which the stipulation referred. Respondent testified on his own behalf and presented seven character witnesses.

The facts of this case may be summarized as follows. Respondent received a settlement of $133,333 for his client, [A]. This settlement was subject to a one-third contingency fee of $44,444. Respondent converted to his own uses, through a series of checks drawn on his escrow account, an additional total sum of $12,400 from the [A] settlement proceeds. Respondent believed he was entitled to this sum as his fee for the subrogation amount, even though he had already taken a one-third fee on the entire settlement. Respondent eventually made restitution to the [A] estate. A partial referral fee of $17,000 was paid to Attorney [B].

Office of Disciplinary Counsel has the burden to prove by a preponderance of the evidence “an attorney’s unprofessional conduct and the proof of such conduct must be clear and satisfactory.” Berlant Appeal, 458 Pa. 439, 441, 328 A.2d 471 (1974). (emphasis in original) The record supports a finding by clear and convincing evidence that respondent violated Rules 1.15(a), (b), and (c), and 8.4(c) of the Rules of Professional Conduct. The board’s responsibility is to determine the appropriate measure of discipline to be imposed on respondent as a consequence of his misconduct. The nature and gravity of the offending conduct, as well as the presence of mitigating or aggravating circumstances, and the existence of a record of prior discipline are factors considered by the board when reaching the ultimate recommendation. Prior case law involving similar misconduct, while not conclusive as to the discipline to be recommended, may be instructive.

The instant case involves the misappropriation of client funds, a serious act of misconduct. The proper handling of client funds goes to the heart of a lawyer’s obligations to a client and to mishandle such funds abuses the trust between the lawyer and the client. Relevant case law indicates that there is no per se rule of discipline in Pennsylvania when an attorney engages in mishandling of client funds. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). Precedent establishes that unauthorized dealings with client funds has required some form of public discipline, due to the breach of trust involved. The level of public discipline in such cases depended upon aggravating and mitigating factors. In assessing the proper discipline, the cases frequently considered whether restitution was made, whether respondent demonstrated an appreciable understanding of the nature of the misconduct and how it damaged the trust of the client, and whether a record of prior discipline existed.

In the case of In re Anonymous No. 44 D.B. 87, 49 D.&C.3d 488 (1988), an attorney commingled and converted the funds of four different clients and made misrepresentations to those clients concerning the funds. This attorney received a one-year suspension. Among the factors considered in reaching this sanction were the attorney’s lack of prior record, as well as his poor judgment and poor office practices. In the case of In re Anonymous No. 123 D.B. 90, 17 D.&C.4th 464 (1992), an attorney who misappropriated estate funds in the amount of $2,300 received a one-year and one-day suspension. This attorney had a prior record. An attorney who misappropriated approximately $4,300 in client funds for 16 months received a two-year suspension. In re Anonymous No. 132 D.B. 88, 1 D.&C.4th 331 (1990). In the matter of In re Anonymous Nos. 79 D.B. 95 and 159 D.B. 95, no. 373 disciplinary docket no. 3 — Supreme Court (1997), as yet unpublished, the attorney commingled and converted approximately $4,600 of client funds for his own use and made misrepresentations to his clients. The board recommended and the court imposed a suspension of one year and one day based on the attorney’s lack of prior discipline, the short amount of time the monies were mishandled, and the full reimbursement of the funds.

The facts evidence that respondent has been a licensed attorney in Pennsylvania since 1983 and has no prior record of discipline. Respondent made full reimbursement of the funds to the [A] estate and made a satisfactory refund of the referral fee to Attorney [B]. Respondent understands the extent of his misconduct and the actions he must take in the future to avoid the same problems. He expressed sincere remorse for his actions. Character witnesses testified at the hearing as to the high regard in which respondent is held by fellow attorneys and community members.

The Hearing Committee recommended a suspension of one year. Petitioner took exception to this recommendation and requested that a suspension ranging from three years to disbarment be imposed. Petitioner argued that this was a pure case of conversion of funds with no mitigating circumstances. Petitioner believed a message must be sent that if attorneys engage in such activity, there will be very serious repercussions. Respondent contended that this matter warrants a public censure, with or without probation, or a stayed suspension with probation. Respondent reasoned that this piece of behavior was an aberration involving one client. Respondent fully admitted his wrongdoing and maintains an excellent reputation in his community. Respondent believed that a suspension of one year, as recommended by the committee, or more, as suggested by petitioner, was merely punitive in nature and had no legitimate purpose. Respondent argued that a public censure was an able deterrent and served to protect the public in this matter.

After careful review of the recommendations from the committee, the petitioner and respondent, the board is not persuaded that any of the recommendations are appropriate for this matter, but instead recommends that respondent be suspended for a period of one year and one day. The Hearing Committee recommendation is the most appropriate of those put forward for this situation; however, the board believes that respondent must receive a sanction that obligates him to petition for reinstatement before he is permitted to practice law in the future. While the facts of this case render it less egregious than some other misappropriation cases, the acts engaged in by respondent constitute a very serious breach of trust. The board would neglect its duty to protect the public and maintain the integrity of the legal profession if a sanction less than a one-year and one-day suspension was recommended.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be suspended from the practice of law in the Commonwealth of Pennsylvania for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Miller dissents and would recommend a three-year suspension.

ORDER

Upon consideration of the report and recommendations of the Disciplinary Board dated November 23,1998, and following oral argument, it is hereby ordered that [respondent] be and he is suspended from the bar of this Commonwealth for a period of one year and one day, and he shall comply with all the provisions of Rule 217, Pa.R.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.

Mr. Chief Justice Flaherty and Mr. Justice Zappala dissent and would suspend respondent for a period of two years.

Mr. Justice Nigro dissents and would suspend respondent for a period of three years.


text:
    Smith v. Zarnick

      C.P. of Butler County,
    no. 99-10625.

      Fred Freitag and John W. Gibson, for plaintiffs.

      James F. Donohue, for defendant Zarnick.

      Dennis Mulvihill, for defendant State Farm.
    April 11, 2000
   DOERR, J.,

Before this court are State Farm Mutual Insurance Companies’ and James Zamick’s preliminary objections to plaintiffs’ complaint and State Farm’s motion to sever the case.

FACTUAL BACKGROUND

On July 15, 1997, Mr. Zarnick was operating a four-wheel all-terrain vehicle on Robert Smith, plaintiff-husband, and Sheila Smith’s, plaintiff-wife, land without their permission. The property was marked with no trespassing signs. Plaintiff-husband followed Zarnick on a private service road on the property and then onto a public road. Plaintiff-husband came to a stop on the public road and parked. Zarnick drove to plaintiff-husband’s vehicle and an oral altercation ensued. At some point during this conversation, plaintiff-husband exited his vehicle and placed his hand on the carrier on the back of the ATV. Zarnick revved the ATV and pulled away while plaintiff-husband’s hand was caught in the carrier of the ATV. Plaintiff-husband walked and ran along side the ATV until he was unable to do so due to the accelerated speed. Plaintiff-husband was dragged by the ATV causing him to sustain injuries and incur medical expenses.

At the time of the accident, Zarnick’s ATV was not registered nor covered by an insurance policy. Plaintiff-husband was insured by an automobile insurance policy issued by State Farm. Plaintiff-husband filed a claim with State Farm for first-party benefits, which was denied. Plaintiffs filed the instant lawsuit asserting claims of breach of contract, bad faith and violation of the Unfair Trade Practices and Consumer Protection Law against State Farm and negligence against Zamick. Plaintiff-wife asserted a claim for loss of consortium against Zamick.

State Farm has filed preliminary objections and a motion to sever the case. Specifically, State Farm seeks dismissal of the claims against it because plaintiff-husband failed to state a claim upon which relief may be granted. State Farm also maintains thatplaintiff-husband improperly included Zamick as a party to this action and requests that this court strike the complaint as to State Farm. Zamick preliminarily objects to plaintiffs’ complaint contesting in personam jurisdiction. At the time and place for argument for the prehminary objections and motion to sever, the parties agreed that plaintiff-wife’s claims against State Farm would be dismissed and the case would be severed as to State Farm and Zamick.

LEGAL STANDARD

In determining preliminary objections, all well-pleaded material and relevant facts are deemed to be true. Johnson v. Board of Probation and Parole, 706 A.2d 903 (Pa. Commw. 1998). Further, the issues must be resolved by the court on the basis of the pleadings alone. Duffee v. Judson, 251 Pa. Super. 406, 380 A.2d 843 (1977). Preliminary objections should be sustained only in cases that are clear and free from doubt. Id.

LEGAL ANALYSIS

State Farm preliminarily objects to plaintiffs’ complaint in the nature of a demurrer. The question presented by a demurrer is whether the complaint adequately states a claim for relief under any theory of law. Eckell v. Wilson, 409 Pa. Super. 132, 597 A.2d 696 (1991). All well-pleaded allegations in a complaint must be accepted as true for purposes of a demurrer. McMahon v. Shea, 547 Pa. 124, 688 A.2d 1179 (1997).

I. Breach of Contract

State Farm contends that plaintiff-husband is not entitled to first-party benefits under his insurance policy because the accident did not arise out of the maintenance and use of a motor vehicle. The Motor Vehicle Financial Responsibility Law states that “a person who suffers injury arising out of the maintenance and use of a motor vehicle shall recover first party benefits.” 75 Pa.C.S. §1713.■

State Farm argues that an ATV is not within the definition of motor vehicle as set forth in the Motor Vehicle Code. A motor vehicle is defined in the code as follows:

“A vehicle which is self-propelled except one which is propelled solely by human power by electric power or by electrical power obtained from overhead trolley wires, but not operated upon rails.” 75 Pa.C.S. §102.

The Commonwealth Court has held that an ATV falls within the definition of motor vehicle under section 102 of the code. Pelter v. PennDOT, 663 A.2d 844 (Pa. Commw. 1995). In Pelter, the Department of Transportation imposed a three-month license suspension on the plaintiff who was struck by a car when operating his ATV.

Similarly, the Superior Court held that a three-wheeled self-propelled vehicle constitutes a motor vehicle as defined in section 102 of the code. Commonwealth v. Eliason, 353 Pa. Super. 321, 509 A.2d 1296 (1986). The defendant was convicted of driving under suspension and driving an unregistered vehicle as a result of operating a three-wheel vehicle on a public highway. Commonwealth v. Eliason, at 322-23, 509 A.2d at 1296.

This court finds that Zarnick’s ATV is a motor vehicle under the code. Accordingly, State Farm’s preliminary objection in the nature of a demurrer to all claims in plaintiff-husband’s complaint on the basis that an ATV is not within the definition of motor vehicle as set forth in the Motor Vehicle Code is denied.

II. Bad Faith

State Farm next contends that plaintiff-husband may not assert a bad faith claim, under section 8372 of the Judicial Code, based on an insurer’s denial of first party benefits. Specifically, State Farm argues that section 8372 cannot be reconciled with and is pre-empted by section 1797 of the Motor Vehicle Code.

Section 8371 of the Judicial Code, which affords plaintiffs a statutory remedy for bad faith by an insurance company, provides in pertinent part as follows:

“In an action arising under an insurance policy, if the court finds that the insurer has acted in bad faith toward the insured, the court may take all of the following actions:

“(1) Award interest on the amount of the claim from the date the claim was made...
“(1) Award punitive damages against the insurer.
“(2) Assess court costs and attorney fees against the insurer.” 42 Pa.C.S. §8372.

The term “bad faith” is not defined in section 8371; however, the following definition of the term is widely accepted in the context of insurance:

“Insurance. ‘Bad faith’ on part of insurer is any frivolous or unfounded refusal to pay proceeds of a policy; it is not necessary that such refusal be fraudulent. For purposes of an action against an insurer for failure to pay a claim, such conduct imports a dishonest purpose and means a breach of a known duty (i.e., good faith and fair dealing), through some motive of self interest or ill will; mere negligence or bad judgment is not bad faith.” Terletsky v. Prudential Property & Casualty Insurance Co., 437 Pa. Super. 108, 125, 649 A.2d 680,688 (1994), allocatur denied, 540 Pa. 641, 659 A.2d 560 (1994), quoting, Black’s Law Dictionary 139 (6th ed. 1990).

The MVRFL permits insurers to utilize peer review organizations to evaluate the medical necessity of medical treatment provided to a person injured in an automobile accident. 75 Pa.C.S. § 1797(b). “Under this legislation, the insurance company decides which claims of a medical provider will be submitted to a peer review organization. The law allows an insurance company to refuse payment of a medical bill even though it did not obtain a peer review evaluation of the bills.” Pipchock v. State Farm Insurance Co., 140 Pitt. L.J. 185 (C. C. Allegheny 1992).

Sections 8371 and 1797 were both enacted as a component of the Act of February 7, 1990, P.L. 11, no. 1990-6 (Act 6). The rule of statutory construction that applies to reconciling statutes of broad and specific application provides as follows:

“Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.” 1 Pa.C.S. §1933.

Defendant cites cases in which Pennsylvania courts and federal courts, applying Pennsylvania law, have reviewed the issue of whether section 1797 prohibits a bad faith claim based on denial of first party benefits. This court recognizes that the peer review and appeal provisions of section 1797 pre-empts section 8371 punitive damages claims in some circumstances. See Danley v. State Farm Mutual Automobile Insurance Co., 808 F. Supp. 399 (M.D. Pa. 1992); Gemini Therapy and Rehabilitation Inc. v. State Mutual Automobile Insurance Co., 40 F.3d 63 (3d Cir. 1994); Williams v. State Farm Mutual Automobile Insurance Co., 763 F. Supp. 121 (E.D. Pa. 1991).

However, section 1797 does not pre-empt a bad faith claim under section 8371 under every factual scenario. For instance, in Pipchok, the Court of Common Pleas of Allegheny County held that challenges to denials of claims for first party benefits for reasons other than the necessity of the treatment or that the treatment did not conform to medical standards are not pre-empted by section 1797. Pipchok v. State Farm Mutual Automobile Insurance Co., supra. The court further explained that “[t]he amendments did not change the existing law for claims questioned on the grounds for other reasons (the most common being that there is no insurance coverage or that the treatment — while necessary — is not for injuries sustained in the automobile accident).” Id. The court concluded that “[tjhere is nothing in either the Financial Responsibility Law or the Judicial Code indicating that the legislature sought to limit damages for a bad faith to pay medical benefits of payments set forth in section 1716 where the provisions of section 1797(b) are inapplicable.” Id.

Similarly, in Seger by Seger v. Allstate Insurance Co., 776 F. Supp. 986 (M.D. Pa. 1991), the court found that the insurer was questioning whether the plaintiff’s medical expenses were covered under the policy, because of a contract exclusion dealing with motorcycles or motorbikes, rather than the medical necessity of the plaintiff’s treatment. Further, the court held that there could be no conflict between sections 1797 and 8371 under the factual scenario of the case. Seger by Seger v. Allstate Insurance Co., 116 F. Supp. at 990.

The same analysis was applied in Daumer v. Allstate Insurance Company, 1992 WL 57673 (E.D. Pa. 1992). In Daumer, the court held that section 1797 is limited to the purpose of “confirming that such treatment, products, services or accommodations conform to the professional standards of performance and are medically necessary.” The court further opined that “[njowhere in section 1797 ... is the determination of causation . . . vested in the peer review organization.” Id. Finally, the court found that the plaintiff’s claim under section 8371 should not be dismissed because section 1797 did not apply. Id.

In the case sub judice, State Farm admits that the sole basis of their denial of plaintiff-husband’s first party benefits under the policy is that plaintiff-husband’s injuries resulted from an accident involving a recreational vehicle. Clearly, a denial of first party benefits on the basis of a challenge as to whether a plaintiff’s medical bills are covered under the policy is not governed by section 1797. Accordingly, this court finds that State Farm’s refusal to pay proceeds of the policy may very well be bad faith and therefore State Farm’s request that this court dismiss Count IV, bad faith, of plaintiffs’ complaint is denied.

III. Consumer Protection Law

Defendant also maintains thatplaintiff-husband’s averments in support of the Pennsylvania Unfair Trade Practices and Consumer Protection Law do not state a claim upon which relief may be granted. The UTPCPL provides in relevant part as follows:

“Any person who purchases or leases goods or services primarily for personal, family or household purposes and thereby suffers any ascertainable loss of money or property, real estate or personal, as a result of the use or employment by any person of [unfair or deceptive act or practices] may bring a private action to recover... damages.” 73 PS. §201-9.2(a).

It is well settled that an insurer’s refusal to pay benefits to an insured is nonfeasance and is not actionable under the UTPCPL. Klinger v. State Farm Mutual Automobile Insurance Co., 895 F. Supp. 709 (M.D. Pa. 1995). In this case, plaintiff-husband essentially argues that State Farm violated the UTPCPL by failing to pay first party medical benefits under the insurance contract. Plaintiff-husband fails to state cause of action under the UTPCPL, therefore, State Farm’s preliminary objections to Count V of plaintiff-husband’s complaint is hereby granted.

IV. Punitive Damages

Plaintiff-husband makes a claim for punitive damages in his complaint. State Farm argues that plaintiff-husband has not alleged sufficient facts to recover punitive damages under Pennsylvania law since he cannot recover under the Bad Faith Act. A plaintiff seeking to recover punitive damages under section 8371 must prove that an insurer did not have a reasonable basis for denying the claim. Klinger v. State Farm Mutual Automobile Insurance Co., supra. This court found that plaintiff-husband was not barred from making a claim for bad faith, therefore, State Farm’s argument on this point is moot.

V. In Personam Jurisdiction

Zarnick preliminarily objects to plaintiffs’ complaint arguing that he was not properly served with the complaint. On July 29, 1999, the Butler County Sheriff Department unsuccessfully attempted to serve Zarnick at 385 Foxburg Road in Eau Claire, Pennsylvania. Plaintiffs reinstated the complaint and directed the sheriff department to serve Zarnick at 2515 Oneida Road in Petrolia, Pennsylvania. The sheriff department served Pam Zarnick at the Oneida Road address. Zarnick maintains that he does not reside at that address.

Generally, a sheriff must effectuate service of original process. Pa.R.C.P. 400(a). Further, the sheriff may serve original process by handing a copy to the defendant or an adult at the residence of the defendant. Pa.R.C.P. 402. An action cannot proceed against a defendant unless effective service has been made. Collins v. Park, 423 Pa. Super. 601, 621 A.2d 996 (1993), allocatur denied, 536 Pa. 618, 637 A.2d 278 (1993).

In the instant case, service of original process was not effectuated at the Foxburg or Oneida Road addresses. Service would have been proper at the Oneida Road address if Zamick resided at that address inasmuch as original process was handed to an adult.

ORDER

And now, April 11, 2000, in consideration of State Farm’s and James Zamick’s preliminary objections to plaintiffs’ complaint and State Farm’s motion to sever the case it is hereby ordered, adjudged and decreed as follows:

(1) State Farm’s preliminary objection in the nature of a demurrer to all claims on the basis that an ATV is not within the definition of motor vehicle as set forth in the Motor Vehicle Code is denied;

(2) State Farm’s preliminary objection to Count IV, bad faith, of plaintiffs’ complaint is denied;

(3) State Farm’s preliminary objection to Count V, violation of the Consumer Protection Law, of plaintiffs’ complaint is granted. Plaintiffs shall have 20 days to amend the complaint or suffer dismissal;

(4) State Farm’s preliminary objection to plaintiff-husband’s claim for punitive damages is denied;

(5) State Farm’s motion to sever their case from Mr. Zamick’s case is granted;

(6) State Farm’s motion to dismiss all of plaintiff-wife’s claims against it is granted; and

(7) Mr. Zarnick’s preliminary objection to plaintiff’s complaint based on lack of in personam jurisdiction is granted. Plaintiffs shall have 30 days from the date of this order to serve Mr. Zamick by certified mail signed by Mr. Zarnick or his agent. If Mr. Zamick refuses to accept service by certified mail, plaintiffs shall effectuate service by regular mail.

      . Plaintiff-husband’s automobile insurance policy with State Farm provides in pertinent part as follows:
      “Medical Payments — Coverage C
      “What we pay
      “We will pay for bodily injury to an insured arising out of the maintenance and use of a motor vehicle ....”


author: VARDARO, J.

text:
    Wimer v. Macielak

      C.P. of Crawford County,
    no. A.D. 1995-1052.

      James P. Lay III, for plaintiffs.

      Bernard R. Rizza, for defendants.
    July 26, 2000
   VARDARO, J.

The plaintiffs have brought the present medical malpractice action against the named defendants for injuries suffered by plaintiff, John D. Wimer, while under their care as a patient at the Meadville Medical Center on or about October 7,1993. It is alleged that as a result of the medical negligence of the defendants, the plaintiff suffered a spinal cord injury which has left him a paraplegic. The pleadings are now closed and defendant Macielak and Orthopedic Associates of Meadville have moved for summary judgment as to the plaintiff’s punitive damage claim. We turn now to address this matter.

DISCUSSION

Rule 1035.2 provides as .follows:

“After the pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report; or
“(2) if after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.

The purpose of this rule is to eliminate cases prior to trial where a party cannot make out a claim after relevant discovery has taken place. Eaddy v. Hamaty, 694 A.2d 639 (Pa. Super. 1997). Summary judgment will be properly granted where the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to a judgment as a matter of law. Cosmas v. Bloomingdales Bros. Inc., 442 Pa. Super. 476, 660 A.2d 83 (1995).When ruling on a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party by resolving all doubt as to the existence of genuine issues of material fact and against a grant of summary judgment. Young v. PennDOT, 560 Pa. 373, 744 A.2d 1276 (2000). Summary judgment may be granted only in cases where the right is clear and free from doubt. Davis v. Brennan, 698 A.2d 1382 (Pa. Commw. 1997). The task of the trial court is not to decide issues of material fact, but only to decide if evidence has been set forth to conclude that material facts remain to be tried. Troy v. Kampgrounds of America Inc., 399 Pa. Super. 41, 581 A.2d 665 (1990).

The defendants take the position that the evidence of record does not support the plaintiffs’ claim for punitive damages and, therefore, no material issue of fact remains with respect to this issue. We are faced in the matter sub judice with a procedural error on the part of the plaintiffs which is unfortunately a disturbing, but widespread practice in the area of summary judgments and which has caused many seemingly viable causes of action to be dismissed. The plaintiffs, in response to the defendant’s motion for summary judgment, responded with their “brief in opposition to motion for partial summary judgment filed by defendants Macielak, Laub and Orthopedic Associates of Meadville P.C.” Attached to the brief are exhibits supporting, their argument in opposition to the defendant’s motion. These supporting exhibits, however, which include documents, hospital records, and excerpts from deposition testimony, are not part of the record. We have examined the record of documents filed with the prothonotary’s office and find none of the exhibits which are presented in the plaintiffs’ brief to be part of the plaintiffs’ record.

It is black-letter law that briefs are not part of the official record. Scopel v. Donegal Mutual Insurance Co., 698 A.2d 602 (Pa. Super. 1997). See also, Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968) (on a motion for summary judgment a court must consider the setting of the case and only those papers which are included in the record). Consequently, we cannot and will not consider the exhibits which the plaintiffs have attached to their brief in opposition to the defendant’s motion for summary judgment.

Notwithstanding the plaintiffs’ failure to enter their supporting exhibits into the record, we have examined the entire record as we are required to do. See Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989) (trial court must examine the entire record, including the pleadings, depositions, answers to interrogatories, any admissions to the record, and affidavits that were filed by the parties before ruling on a summary judgment motion). As a result, we have examined the exhibits attached to the defendants’ motion for summary judgment which are part of the record. We find that two of the defendants’ exhibits are also exhibits which the plaintiffs attached to their brief. We also find portions of defendant Macielak’s deposition testimony attached as an exhibit to the defendants’ summary judgment motion.

From these exhibits, we find evidence that neurological deficits manifested with the plaintiff shortly after his surgery and that at least two attempts were made at that time to contact defendant Macielak though his beeper in an effort to advise him of the situation. (Defs.[’j exhibit D.) The first attempt was at 4:50 p.m. and the second at 5 p.m. Id. A third attempt to contact defendant Macielak at 7 p.m. is then evidenced. (Defs.[’] exhibit F.) The defendant testified, however, that while he did have his beeper with him on the day in question and was not aware of any malfunctions, he did not recall receiving these messages and did not return to the hospital until 9 p.m. (Defs.[’j exhibits D, G, R, Q and S.) Nor could he explain his whereabouts at the times at issue. (Defs.[’j exhibit R.)

We note that punitive damages may be awarded “only if an actor’s conduct was malicious, wanton, willful, oppressive, or exhibited a reckless indifference to the rights of others.” Johnson v. Hyundai Motor America, 698 A.2d 631, 639 (Pa. Super. 1997). Punitive damages are appropriate only when an individual’s actions are of such an outrageous nature that they demonstrate intentional, willful, wanton, or reckless conduct. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 587 A.2d 702 (1991). See also, Restatement (Second) of Torts §908(2), adopted in Pennsylvania in Feld v. Merriam, 506 Pa. 383, 485 A.2d 742 (1984).

Considering the evidence properly before us in the light most favorable to the plaintiffs and the law framing that which constitutes behavior sufficient to justify an award of punitive damages, we conclude that there is sufficient evidence of record to find that a material issue of fact remains to be determined as to whether the defendant acted with reckless indifference to the medical condition of the plaintiff in failing to respond to the messages sent to the defendant’s beeper. See Aimco Imports v. Industrial Valley Bank, 291 Pa. Super. 233, 435 A.2d 884 (1981) (fundamental that the moving party’s evidence must clearly exclude any genuine issue of material fact). We find it reasonable that a jury could choose to disbelieve the defendant that he did not receive any of the messages which were sent to him from the hospital and that his disregard of the attempts to contact him, with knowledge of the post-operative dangers inherent in the plaintiff’s recent back surgery, constituted reckless indifference to the health of the plaintiff. We find it equally reasonable that a jury could choose to believe the defendant, in fact, received no messages. Our task at this point is not to decide whether defendant Macielak acted with reckless indifference in his care of the plaintiff, but only to decide if sufficient evidence is on the record to conclude that this fact remains to be tried. We so decide. The defendants’ motion for summary judgment is denied.

ORDER

And now, July 26, 2000, the defendants’ motion for summary judgment is denied.

      . A review of Pa.R.C.P. 4002.1 and the explanatory comment thereafter discloses that discovery materials do not automatically become part of the record.