author: LEWIS,

text:
    Bennett v. Boal

      C.P. of Dauphin County,
    no. 5499 S 1996.

      Ronald L. Wolfe and Martina W. McLaughlin, for plaintiff.

      Thomas J. Williams III, for defendants Boal, Hanks, and Orthopedic Institute

      Thomas J. Bradley, for defendant Grandview Craig A. Stone and Kathleen D. Yaninek, for defendant Holy Spirit Hospital.

      BEFORE: TURGEON, LEWIS AND HOOVER, JJ.

    April 29, 1999
   LEWIS,

This action arises out of a surgical procedure performed on plaintiff Renee Bennett at Grandview Surgery and Laser Center on June 14, 1996. On that date, plaintiff had arthroscopic surgery performed on her right knee which involved reconstruction. The surgery was performed by defendants Dr. Gregory Hanks and Dr. Richard Boal. Complications arose during the surgery and plaintiff was transferred to Holy Spirit Hospital that same day. Additional surgery on plaintiff’s right leg performed at Holy Spirit Hospital was not successful in re-establishing continuity of the nerve.

Following the surgery, plaintiff developed a deep vein thrombosis requiring inpatient hospitalization and anti-coagulation therapy. After discharge, she began to experience significant pain in the right leg which was diagnosed as neuropathic pain. Plaintiff was treated with medication but ultimately had to undergo additional surgery in an attempt to repair the nerve. This surgery was also unsuccessful and plaintiff continues to have significant pain and loss of sensation in the right lower extremity.

Defendant Grandview Surgery and Laser Center is an ambulatory surgical facility limited to the performance of outpatient surgical procedures. Defendants Hanks and Boal were two of the physicians that had surgical privileges at the facility. Each physician was permitted to perform surgical procedures at the center and neither physician was an employee nor drew any salary from the facility. They were limited partners in the facility as of the date of plaintiff’s surgery and each owned 1.6250 percent of the outstanding shares of the partnership. Each physician received a quarterly dividend check for an equal amount of money. There was no relationship between the number of surgical procedures performed at the facility and the amount of compensation in terms of a quarterly dividend received by each physician. Both defendants argue that they were independent contractors of the facility.

Plaintiff initiated her action by filing a writ of summons on November 26, 1996. Thereafter, defendant Grandview Surgery and Laser Center’s motion for summary judgment was filed on December 14, 1998. Presently, the center contends that it is not vicariously liable for any alleged malpractice on the part of Dr. Hanks and Dr. Boal. Therefore, it argues that summary judgment should be granted.

DISCUSSION

The standard of review for summary judgment is well-settled. Summary judgment shall be entered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035.2; Coleman v. Coleman, 444 Pa. Super. 196, 663 A.2d 741 (1995). An entry of summary judgment may be granted only in cases where the right is clear and free from doubt. Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 111 (1992). In determining whether to grant a motion for summary judgment, the trial court must examine the record in a light most favorable to the nonmoving party. City of York v. Schaefer Temporary Services Inc., 667 A.2d 495 (Pa. Commw. 1995).

Defendant argues that an employer is not liable for torts committed by an independent contractor in his employ. McDonough v. U.S. Steel Corporation, 228 Pa. Super. 268, 324 A.2d 542 (1974). However, Pennsylvania courts have recognized an exception to this rule involving independent contractor physicians where there is evidence that the physician is the ostensible or apparent agent of the hospital. Restatement (Second) of Torts §429 (1965). In resolving the ostensible agency issue with regard to an independent contractor physician, the courts have examined two factors: (1) whether the patient looks to the institution, rather than the individual physician for care; and (2) whether the hospital “holds out” the physician as its employee. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980).

In Capon, an independent contractor physician was found to be the ostensible agent of the hospital. In that case, plaintiff was admitted to the defendant hospital through the emergency room for treatment of a severe nose bleed and defendant physician was called on to respond to the emergency. While in the hospital, plaintiff became delirious and violent. Defendant physician administered a series of drugs to plaintiff in an attempt to calm him but he subsequently died of cardiac arrest. The court in Capon held that it was error for the lower court not to instruct the jury on a theory of ostensible agency. Id., 287 Pa. Super, at 370, 430 A.2d at 650. The court noted that the defendant physician had treated plaintiff in his capacity as house physician and that the hospital held out the physician as its employee by providing his services for dealing with emergencies within the hospital. Id.

In the present case, an analysis of the two factors set forth by the court in Capon leads to the conclusion that there is no evidence of ostensible agency. With regards to the first factor of whether the patient looks to the institution rather than the individual physician for care, there is no evidence that plaintiff initially contacted defendant Grandview Surgery and Laser Center and sought medical advice or a referral to a physician. The situation in the instant case differs from Capon, where the plaintiff contacted the defendant hospital seeking treatment before that plaintiff began a relationship with the physician.

In addition, all preoperative and postoperative care was performed at the office of the defendant physicians rather than at Grandview Surgery and Laser Center. An analysis of the second factor of whether the hospital “holds out” the physician as its employee also shows no ostensible agency. Grandview Surgery and Laser Center did not hold out either physician as an employee. Both physicians were passive investors in the surgery center partnership and were not involved in the management of the center.

Plaintiff contends that summary judgment should be denied because the claim against defendant should not be based on ostensible agency but rather on the theory of respondeat superior. Plaintiff claims that the center is liable pursuant to section 8325 of the General Partnership Act, which provides:

“Where, by any wrongful act or omission of any partner acting in the ordinary course of the business of the partnership or with the authority of his co-partners, loss or injury is caused to any person, not being a partner of the partnership, or any penalty is incurred, the partnership is liable therefor to the same extent as the partner so acting or omitting to act.” 15 Pa.C.S. §8325.

This statute sets forth a cause of action derived from the respondeat superior theory of recovery which places the partnership in the position of an insurer, and guarantees that the innocent third party injured by the wrongful act or omission of the partner will not bear the loss. See Levy v. First Pennsylvania Bank N.A., 338 Pa. Super. 73, 487 A.2d 857 (1985).

Plaintiff argues that she has set forth a valid cause of action against the defendant partnership for the wrongful acts or omissions of its partners under the applicable statutory law. She first contends that the surgical procedure was performed by defendant partners in the ordinary course of Grandview Surgery and Laser Center’s business. Second, she maintains that the co-partners of defendant physicians allegedly authorized these physicians to perform the surgery by granting privileges to these doctors and by setting forth rules and regulations specifying the types of outpatient procedures that could be performed at the center.

However, this court finds that neither of the physicians were actual agents of Grandview Surgical and Laser Center. Neither physician was an employee of the center nor did they draw a salary from it. Finally, defendant argues that the physicians were not acting in the ordinary course of the partnership because, while performing surgery, neither was acting in his capacity as a limited partner.

Accordingly, the following is entered:

ORDER

And now, April 29, 1999, it is hereby ordered that defendant Grandview Surgery and Laser Center’s motion for summary judgment is granted.


source: Caselaw Access Project

author: MacELREE, J.,

license: Public Domain

text:
    PennDOT v. Harrington
    C.P. of Chester County,
    no. 99-02476.

      Michelle Fioravanti, for plaintiff Office of Chief Counsel.

      Timothy P. Wile, for plaintiff PennDOT.

      John J. Kerrigan Jr., for defendant.
    June 30, 1999
   MacELREE, J.,

This case comes before me as a result of the suspension of defendant’s driver’s license. On May 6,1999,1 sustained defendant’s statutory appeal, and reinstated his driving privileges. The Commonwealth now appeals the ruling, complaining that our interpretation of 75 Pa.C.S. §1581, article III of the Driver’s License Compact and 75 Pa.C.S. § 1584 was unduly restrictive, was in violation of the mandates under the Driver’s License Compact, and beyond the limited scope of review of a bureau conviction-based suspension. We found the New Jersey notice to be deficient in that it lacked some of the information required by article III of the compact, and that 75 Pa.C.S. §1584 was not a cure for the lack of information required under article III of the compact.

On August 9, 1998, defendant, a resident of Pennsylvania, was arrested in New Jersey and charged with driving under the influence. Subsequently, New Jersey sent notice to the Commonwealth of Pennsylvania regarding the defendant’s conviction for violation of the New Jersey DUI statute. Upon examination I found that the notice provided the following information:

(N.T. 5/6/99, p. 22.) The notice failed to identify the convicting court, and failed to indicate whether a plea of guilty or not guilty was entered or the conviction resulted from forfeiture of bail or security.

On February 26,1999, following the Commonwealth’s receipt of the above notice, defendant was notified by the department that his Pennsylvania driver’s license and operating privileges would be suspended for one year pursuant to 75 Pa.C.S. §3731 of the Pennsylvania Motor Vehicle Code. The defendant appealed the license suspension. On May 6,1999,1 sustained defendant’s statutory appeal, and reinstated his driving privileges. The Commonwealth now appeals this decision pursuant to 75 Pa.C.S. §1550.

The Driver’s License Compact found at 75 Pa.C.S. §1581, reads in pertinent part:

“Article III
“The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of the forfeiture of bail, bond or other security and shall include any special findings made in connection therewith, (emphasis added)
“Article IV
“(a) The licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported ... as it would if such conduct had occurred in the home state in the case of convictions for: ... (2) driving a motor vehicle while under the influence of intoxicating liquor ....”

The Driver’s License Compact is recognized by New Jersey under N.J.S. §§39:5D-1 to 39:5D-14.

The Commonwealth Court has ruled that the reporting requirements of the compact are mandatory and not subject to the discretion of the reporting state. Mazurek v. PennDOT, 717 A.2d 23 (Pa. Commw. 1998); Kiebort v. PennDOT, 719 A.2d 1139 (Pa. Commw. 1998). The report of conviction from the reporting state must contain: “(1) the identity of the person convicted; (2) a description of the violation including the section of the statute ... violated; (3) the identity of the court in which the person was convicted; (4) and an indication of the plea [guilty or not guilty] or whether the conviction resulted from a forfeiture of security.” Kiebort, 719 A.2d at 1143.

In Kiebort, a Pennsylvania driver was charged and convicted by a New Jersey court of violating N.J.S. §39:4-50(a) relating to driving under the influence of alcohol or drags. The Pennsylvania Department of Transportation was notified and suspended the driver’s license. The Commonwealth Court reversed, holding that New Jersey’s report of conviction failed to identify the court in which the defendant was convicted and failed to indicate the nature of the plea or whether the conviction resulted from a forfeiture of security.

After Kiebort, a legislative amendment under 75 Pa.C.S. §1584 purports to relax the reporting requirements of article III as it eliminated the need for reporting states to report all of the information required under article III. 75 Pa.C.S. §1584 now reads in pertinent part:

“The omission from any report received by the department from a party state of any information required by article III of the compact shall not excuse or prevent the department from complying with its duties under article IV and V of the compact.”

The amendment violates the specific requirements of article III of the compact and it violates due process requirements under the United States and Pennsylvania constitutions. The purpose of due process notice is founded on the concept of fundamental fairness. Due process requires that the defendant have enough information to respond to the charge. An examination of 75 Pa.C.S. §1584 reveals a broad and sweeping provision which permits Pennsylvania to suspend a driver’s license where “any information” is omitted from the report required by article III of the compact. Applying 1584 literally could result in Pennsylvania suspending the license of a driver where the report only contained the licensee’s name or operator’s license number. Such notice would be really no notice at all because it would lack fundamental facts sufficient to advise the licensee of who, what, where or when an alleged violation occurred. It would be the equivalent of a criminal information which read only “John Jones, you violated the law” or a civil complaint which read only “John Jones owes me money.”

The Fifth Amendment to the United States Constitution mandates that no person shall “be deprived of life, liberty, or property, without due process of law . . . .” The Fourteenth Amendment to the constitution “operates to extend ... the same protection against arbitrary state legislation, affecting life, liberty, and property, as is offered by the Fifth Amendment.” Hibben v. Smith, 191 U.S. 310, 325 (1903).

“The extent to which procedural due process must be afforded the recipient is influenced by the extent to which he may be ‘condemned to suffer grievous loss,’ ... and depends upon whether the recipient’s interest in avoiding that loss outweighs the governmental interest in summary adjudication.” Goldberg v. Kelly, 397 U.S. 254, 262-63 (1970) (quoting Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 168 (1951) (Justice Frankfurter concurring)).

“Identification of the specific dictates of due process generally requires consideration of three distinct factors: first, the private interests that will be affected by the official action; second, the risk of erroneous depravation of such interest through the procedures used, and probable value, if any, of additional or substitute procedural safeguards; and, finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976).

In Bell v. Burson, 402 U.S. 535, 541-42 (1971), the U.S. Supreme Court ruled that the State of Georgia violated due process under the state’s Motor Vehicle Safety Responsibility Act by requiring suspension of an uninsured’s driver’s license and registration unless they posted security to cover damages claimed by aggrieved parties after an accident. In striking down the statute, the Supreme Court stated:

“Once licenses are issued ... their continued possession may become essential in the pursuit of a livelihood. Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without that procedural due process required by the Fourteenth Amendment.” Id. at 539. (citations omitted)

The defendant is entitled to the proper constitutional notice as is set forth in article III of the compact.

75 Pa.C.S. §1581 article III reporting requirements satisfy due process under Bell v. Burson. However, the amendment under 75 Pa.C.S. §1584, relaxing the reporting requirements of the Driver’s License Compact dilutes the notice requirement to the point where article III and due process are both violated. Absent all the information required under article III, the notice is defective for purposes of enforcing the compact.

We believe that if 75 Pa.C.S. § 1584 is allowed to stand and thus modify the compact then the compact would fail to meet the minimum notice requirements due process demands. However, if we strike down section 1584 then the unmodified compact is left intact as constitutionally sound. We choose the path of least destruction and strike down 75 Pa.C.S. §1584 as unconstitutional.

      . N.J.S. §39:4-50(a).

      . Amended December 21, 1998.


author: ALBRIGHT, J.,

text:
    Wilson v. Norristown Area School District
    C.P. of Montgomery County,
    no. 94-09819.

      Richard W. Rogers, for plaintiff.

      John M. Donahue, for defendants.
    July 30, 1999
   ALBRIGHT, J.,

FACTS AND PROCEDURAL HISTORY

Plaintiffs initiated this action by complaint filed on August 25,1994, alleging that Littissia Wilson, a minor, sustained serious injuries to her face, mouth, teeth, and chin, when she fell on an indoor staircase while participating in a drill during a field hockey practice on October 21, 1993. Defendant, John Meissner, an adult individual, was employed as a coach at the East Norriton Middle School and was supervising the aforementioned field hockey practice when Ms. Wilson was injured. Initially, the practice was held outside, but inclement weather necessitated that Meissner move the practice indoors. Inside the East Norriton Middle School gymnasium, the field hockey team first played a relay tag game. Thereafter, coach Meissner divided the girls into two teams and directed that they go to one of two wings of the building at which site staircases were located. The girls were instructed to participate in a tag race whereby they would start at the bottom of one set of stairs, climb a series of 13 steps, run through a hallway, down two steps, continue running along a wall, finally descending a second set of stairs to tag another girl waiting at the bottom. Ms. Wilson was descending the stairs on the last leg of the race when she lost her footing and stumbled down the remaining four to five stairs, falling to the floor and causing her to sustain the injuries complained of.

A jury trial was conducted before the undersigned on October 14 through 16, 1998, and, at the conclusion of the plaintiffs’ case in chief, the court granted a compulsory nonsuit against the plaintiffs and in favor of the defendants. The court, giving the plaintiffs the benefit of every reasonable inference and resolving all of the evidentiary facts in their favor, was constrained to find no liability on the part of the defendants, as the plaintiffs failed to demonstrate any theory of recovery within any of the enumerated exceptions to governmental immunity as set forth in the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq., specifically the real property exception, 42 Pa.C.S. §8542(b)(3), which might otherwise allow them to prevail against either the defendant Norristown Area School District or its agent and employee, John Meissner.

On October 26,1998, the plaintiffs filed a motion for post-trial relief seeking the grant of a new trial. Following oral argument held on January 27, 1999 and February 26, 1999, and, upon consideration of the parties’ memoranda of law, plaintiffs’ motion was denied by this court by order dated February 26,1999. In response, the plaintiffs filed a notice of appeal, and, pursuant to Pa.R.A.P. 1925(b) and this court’s order dated April 1, 1999, filed a concise statement of matters complained of on appeal on April 12, 1999, in which the following issues have been raised verbatim:

“(1) The court erred as a matter of law in concluding that the defendants were entitled to judgment as a matter of law.
“(2) The court erred in finding and concluding that no liability exists as to the defendants under the facts and circumstances presented as a matter of law so as to warrant the entry of a nonsuit.
“(3) The court erred as a matter of law and/or abused its discretion in finding/concluding that the claim of the plaintiff did not fall within the real property exception of the Political Subdivision Tort Claims Act; to wit 42 Pa.C.S. §§8542(a)(l), 8542(a)(2) and 8542(b)(3).
“(4) The court erred as a matter of law and/or abused its discretion in finding/concluding that the East Norriton Middle School facility was not under the care, custody and control of the defendant, Norristown Area School District and its employee John Meissner, during the field hockey practice session which gave rise to plaintiff’s injury.
“(5) The court erred as a matter of law and/or abused its discretion in finding/concluding that the stairs and hallways of the East Norriton Middle School in which the field hockey session was conducted were not under the care, custody and control of the defendant, Norristown Area School District and/or coach Meissner as its employee, at the time of the field hockey practice session which gave rise to the plaintiff’s injury.
“(6) The court erred as a matter of law and/or abused its discretion in finding/concluding that the stairs did not constitute an artificial condition or defect in the real property which caused the plaintiff’s injury.
“(7) The court erred as a matter of law and/or abused its discretion in finding/concluding that coach Meissner’s conduct in requiring the field hockey team members to engage in a tag relay race on the stairs of the East Norriton Middle School constituted the failure to supervise the conduct of students.
“(8) The court erred as a matter of law and/or abused its discretion in finding/concluding that the direction and use of the East Norriton Middle School stairs for the running of tag races by the field hockey team did not constitute a dangerous condition of the real estate for field hockey team conditioning, despite the fact that it was a use of the stairs for a purpose for which the stairs were not intended.
“(9) The court erred as a matter of law and/or abused its discretion in finding/concluding that using the stairs for the running of tag relay races did not create a dangerous condition of the real property.
“(10) The court erred as a matter of law and/or abused its discretion in finding/concluding that a dangerous condition of the real property was not created when the stairs were directed to be used for the running of tag races by the field hockey team during practice.
“(11) The court erred as a matter of law and/or abused its discretion in finding/concluding that the use of the East Norriton Middle School stairs for field hockey practice constituted a defect of the real property in the care, custody and control of the school facility.
“(12) The court erred as a matter of law and/or abused its discretion in finding/concluding that the use of the stairs for tag relay races by the field hockey team during their practice session was not a use of the premises that was a reasonably foreseeable use which would cause injury to the plaintiff (or others).
“(13) The court erred as a matter of law and/or abused its discretion in finding/concluding that the plaintiffs failed to establish a cause of action under the common law under the facts and circumstances premised on Restatement of Torts §323 rendering a possessor of land liable for physical harm to an invitee by the condition of the land when one knows, or by the reasonable exercise of care would discover that running on the stairs involves an unreasonable risk of harm, and that the minor plaintiff would not discover or realize the danger, and would not protect herself against it, or reasonably fail to exercise reasonable care.
“(14) The court erred as a matter of law and/or abused its discretion in finding/concluding that the Norristown Area School District by and through its employee/coach was not negligent with respect to the care, custody or control of real property under the factual circumstances presented.
“(15) The court erred as a matter of law and/or abused its discretion in finding/concluding that the use and condition of the stairs for tag relay races did not create a dangerous condition which caused the plaintiff’s injury.
“(16) The court erred as a matter of law and/or abused its discretion in failing to submit to the jury for consideration the question of whether the Restatement of Torts §323 imposed a duty on the Norristown Area School District and coach Meissner to protect the plaintiff from injury and not to expose her (and others) to an obvious hazard of running relay tag races on the stairs.
“(17) The court erred as a matter of law and/or abused its discretion in failing to submit to the jury the question of whether the Norristown Area School District and coach Meissner as its employee had a duty to make the premises safe for field hockey team activities conducted on the premises, and whether requiring them as students to run tag relay races on the stairs breached that duty.
“(18) The court erred as a matter of law and/or abused its discretion in finding/concluding that relay tag races on the stairs as a field hockey practice activity was a safe activity consistent with the school district duty to protect students entrusted to their care.
“(19) The court erred as a matter of law and/or abused its discretion in finding/concluding that the conduct of coach Meissner as a Norristown Area School District employee requiring the field hockey team to run relay tag races on the stairs did not create a dangerous condition which gave rise to the plaintiff’s injuries.
“(20) The court erred as a matter of law and/or abused its discretion in failing and refusing to find that the Political Subdivision Tort Claims Act real property exception renders the school district and/or its employees legally liable for acts/conduct which causes the stairs to be unsafe for activities for which the stairs might reasonably be foreseen to be used.
“(21) The court erred as a matter of law and/or abused its discretion in finding/concluding that the running of tag relay races on the stairs was no different from the usual and ordinary risk associated with the running of tag relay races in the gym or on the hockey field for the conditioning of field hockey team members.
“(22) The court erred as a matter of law and/or abused its discretion in failing and refusing to submit to the jury the question of whether the use of the stairs for tag relay races created a dangerous condition, and that the condition created the reasonably foreseeable risk that a runner would fall and sustain injury.
“(23) The court erred as a matter of law and/or abused its discretion in finding/concluding that the issue of whether the running of tag relay races on stairs in a school facility created a dangerous condition was a matter which required expert testimony because their knowledge and ken of ordinary life experience.
“(24) The court erred as a matter of law and/or abused its discretion in finding/concluding that the expert testimony of Norman Goldstein, a forensic safety engineer, that the running of tag races on the stairs was a dangerous condition did not present an issue of fact for determination by the jury.
“(25) The court erred as a matter of law and/or abused its discretion in finding/concluding that the expert testimony of Norman Goldstein, forensic safety engineer, that the steps were not designed for running and when used for running, are dangerous, did not present an issue of fact for jury determination.
“(26) The court erred as a matter of law and/or abused its discretion in failing and refusing to submit the question of whether running or tag races on the stairs constituted a dangerous condition of the real property to the jury, particularly in light of the testimony of Norman Goldstein, forensic safety engineer, and the testimony of defendant Meissner that as an educator, when he observed the students running up and down the stairs, that he instructed them not to run on the stairs during school hours.
“(27) The court erred as a matter of law and/or abused its discretion in its failure to submit to the jury for their consideration every factual assertion and in each inference on behalf of the plaintiffs in reaching a determination on liability and damages.
“(28) The court erred as a matter of law and/or abused its discretion in its failure to submit to the jury the record facts as sufficient evidence from which a jury could find the creation of a dangerous condition of the real property by the use made of the stairs.
“(29) The court erred as a matter of law and/or abused its discretion in finding/concluding that the ‘Medical information, activities policies and statement of assumed risk’ document signed by plaintiff’s parents constituted a waiver or assumption of risk of injury by plaintiff.
“(30) The court erred as a matter of law and/or abused its discretion in admitting in evidence the ‘Medical information, activities policies and statement of assumed risk’ documents as capable of establishing as a matter of law the plaintiff’s assumption of risk of or waiver of recourse as to the plaintiff’s injury sustained as a result of relay tag races being run on the East Norriton Middle School building stairs at the direction of coach Meissner.
“(31) The court erred as a matter of law and/or abused its discretion in finding/concluding as a matter of law that the ‘Medical information, activities policies and statement of assumed risk’ documents constituted either an assumption of risk or waiver of risk as a matter of law.
“(32) The court erred as a matter of law and/or abused its discretion in finding/concluding that the plaintiff assumed the risk of injury sustained as a risk of field hockey practice sessions.
“(33) The court erred as a matter of law and/or abused its discretion in finding/concluding that the risk suffered by plaintiff was the kind of risk for which her parents contemplated in signing for her to participate as a member of the field hockey team.
“(34) The court erred as a matter of law and/or abused its discretion in finding/concluding that the record presented factual questions and issues upon which reasonable men would not or could not differ.
“(35) The court erred as a matter of law and/or abused its discretion in the grant of a nonsuit, which nonsuit failed to consider the various immunity statutes required to be interpreted in pari materia with one another.
“(36) The court erred as a matter of law and/or abused its discretion in finding/concluding that the plaintiff’s injuries were not redressable for the reason that the plaintiff’s injuries did not derive or result from acondition or defect which was ‘of’ the stairs.
“(37) The court erred as a matter of law and/or abused its discretion in finding/concluding that there is no liability capable of being imposed upon the school district employee as a matter of law under the attendant facts and circumstances.
“(38) The court erred as a matter of law and/or abused its discretion in the failure and refusal to submit the matter to the jury on the basis of the record evidence for their consideration.”

Contrary to the constricts of Pa.R.A.P. 1925(b), requiring that an appellant provide a concise statement to the court, the plaintiffs have alleged in somewhat less than succinct manner, the aforementioned 38 counts of error. Rather than addressing each grievance specifically, this court will instead focus upon the logic utilized in its decision in granting the defendants’ motion for a compulsory nonsuit in order to better clarify this appeal for review and disposition by the Commonwealth Court.

DISCUSSION

Initially, this court notes that the standard for reviewing a trial court’s decision to grant a compulsory nonsuit is well-established. A trial court may grant a compulsory nonsuit when, “viewing the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, and resolving all conflicts in [her] favor, a jury could not reasonably conclude that the elements of the cause of action have been established.” Boyer v. City of Philadelphia, 692 A.2d 259, 262 (Pa. Commw. 1997) (citing Iandiorio v. Kriss & Senko Enterprises Inc., 512 Pa. 392, 517 A.2d 530 (1986); Talarico v. Bonham, 168 Pa. Commw. 467, 650 A.2d 1192 (1994)). The facts and circumstances must lead the trial court to the conclusion that no liability exists. Berman v. SEPTA, 698 A.2d 1362, 1363 (Pa. Commw. 1997) (citing Harvilla v. Delcamp, 521 Pa. 21, 25, 555 A.2d 763, 764 (1989)). In this case, after giving the plaintiffs the benefit of all favorable testimony and every inference of fact arising therefrom, this court, nonetheless, concluded that, as a matter of law, the plaintiffs had failed to establish a cause or action under either the real property or any other exception to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. Accordingly, since the East Norriton Middle School, being a part of the Norristown Area School District, and its employee, coach Meissner, are each afforded immunity under the PSTCA (see part I, infra), the court was compelled to grant the compulsory nonsuit in favor of each of the defendants and against the plaintiffs herein.

I. The Trial Court Correctly Granted the Nonsuit Against the Plaintiffs, Since the Plaintiffs Failed To Sustain a Cause of Action Under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq.

School districts, such as the Norristown Area School District, are sheltered from prosecution under the Pennsylvania Political Subdivision Tort Claims Act which states:

“Except as otherwise provided in this subchapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.” 42 Pa.C.S. §8541; Dunaway v. Southeastern School District, 676 A.2d 1281 (Pa. Commw. 1996), alloc. denied, 547 Pa. 719, 688 A.2d 173 (1997).

Coach Meissner, as an employee of the Norristown Area School District, is also shielded from liability under the PSTCA since:

“An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this subchapter.” 42 Pa.C.S. §8545.

It, therefore, was incumbent upon Littissia Wilson to provide evidence sufficient to place her claim within one of the exceptions to governmental immunity articulated in the PSTCA. See part II, infra. Because Ms. Wilson failed to demonstrate at trial that her claim fell squarely within one of the recognized exceptions to the PSTCA, this court did not abuse its discretion in granting the non-suit in favor of the defendants whose immunity from suit is otherwise guaranteed. As such, the court properly denied the plaintiff’s motion for a new trial.

II. The Trial Court Correctly Held That the Plaintiffs Had Failed To State a Cause of Action Under the Real Estate Exception to the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq., Since the Plaintiffs Were Unable To Demonstrate That the Minor Plaintiff’s Injuries Were Sustained Due to the Defendants’ Negligent Care, Custody or Control of Real Property

As first discussed in part I, supra, the plaintiffs have the burden of demonstrating that their action falls within one of the eight named exceptions of the PSTCA. The specific subsection of that Act which is applicable to this lawsuit is the real property exception. The relevant sections of the PSTCA, referencing the liability exception and the subsection relating to real property, provide as follows:

“(a) Liability imposed. — A local agency shall be liable for damages on account of an injury to a person or property within the limits set forth in this subchapter if both of the following conditions are satisfied and the injury occurs as a result of one of the acts set forth in subsection (b):
“(1) The damages would be recoverable under common law or a statute creating a cause of action if the injury were caused by a person not having available a defense under section 8541 (relating to governmental immunity generally) or section 8546 (relating to defense of official immunity), and
“(2) The injury was caused by the negligent acts of the local agency or an employee therof acting within the scope of his office or duties with respect to one of the categories listed in subsection (b). As used in this paragraph, ‘negligent acts’ shall not include acts or conduct which constitutes a crime, actual fraud, actual malice or willful misconduct.
“(b) Acts which may impose liability. — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: . . .
“(3) Real property. — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency ....” 42 Pa.C.S. §8542(a)-(b)(3). (emphasis omitted)

A. The Plaintiffs Have Failed To Satisfy the Requirement of Section 8542(a)(1) That the Action Be One in Which the Damages Sustained Would Be Recoverable Under Common Law or Statute

Pursuant to section 8542, the plaintiffs must establish that they possess a cause of action against a local agency. It is the plaintiffs’ contention that they have successfully asserted a cause of action under the Restatement (Second) of Torts §3232. The plaintiffs appear to maintain that Ms. Wilson was a business invitee to be included under the purview of section 343 because of her status as a student at East Norriton Middle School and a member of the field hockey team. The Commonwealth Court, in similar but clearly distinguishable circumstances, considered whether a high school athlete’s injuries would fall under the ambit of section 343 for purposes of analysis under the PSTCA’s section 8542.

In Gump by Gump v. Chartiers-Houston School District, 125 Pa. Commw. 596, 558 A.2d 589 (1989), alloc. denied, 523 Pa. 644, 565 A.2d 1168 (1989), a high school wrestler, Todd Alexander Gump, failed to negotiate a turn during a sprinting drill in a school hallway and, while turning a comer, unintentionally pushed his hand through a window pane in a hallway door which caused him to suffer multiple lacerations of his hand and arm. The court held:

“Appellants assert that appellee should have realized that the hallway window created an unreasonable risk of harm given the regular and permitted use of the hallway as a runway during wrestling practice; that appellee should have expected that Todd would not discover or realize the danger or would fail to protect himself against the danger; and that appellee did nothing to protect Todd against the danger. Appellants have alleged facts that satisfy each element of section 343 of the Restatement (Second) of Torts (1965).” Id. at 602, 558 A.2d at 591.

In contrast to the factual circumstances in Gump, there was no “regular and permitted use” of the hallway and/ or stairs in the East Norriton Middle School as a runway for the field hockey team. Contrary, to Count 7 and Count 11 of the plaintiffs’ complaint which allege that indoor conditioning, such as the relay tag race involving the stairs and hallway, was a regular and permitted use of the real property, both Ms. Wilson and fellow field hockey team member and witness to Ms. Wilson’s fall, Latisha Bazemore, testified that this was the first time coach Meissner had ever led the field hockey team in such an indoor tag relay race. (N.T., 10/14/98, p. 83,11. 13-16; p. 101,11. 14-15.)

Section 343 also refers specifically to a “condition on the land.” (See footnote 1, supra.)

In the case at bar, no such “condition” was alleged. Unlike the situation in Gump, where the plaintiffs asserted that a defect in the hallway door caused Mr. Gump’s injuries and that said defect could have been cured by “the installation of safety glass or other types of protective devices” (id. at 590), plaintiffs’ expert, Norman Goldstein, an engineer whose area of expertise was in forensic safety, failed to provide any evidence or testimony relative to a condition of the school property which might otherwise have contributed to Ms. Wilson’s fall and her resultant injuries.

In fact, the following dialogue between counsel for the defendants, Mr. John Donahue, and Mr. Goldstein, illustrates that there was, indeed, no defect at all on the stairs:

“Q. Mr. Goldstein, in your years as an engineer that you related to the jury, since 1951, you’ve seen a lot of steps in your day?
“A. Yes, sir.
“Q. You’ve been doing this work a long time. Would you agree with me that these steps that you’ve seen pictures of, and inspected personally the day I was with you with Mr. Rogers, these steps are as good as they get, aren’t they?
“A. They’re good steps, just not for running.
“Q. They’re well constructed?
“A. No argument.
“Q. Brightly lit?
“A. No argument about any of that.
“Q. Diamond plate with grits?
“A. Diamond plate with grits.
“Q. You don’t always see that, do you?
“A. No. On the other hand, the diamond plate does not wrap around the nosing, so, when you say they’re as good as they get, they could have been a little bit better, but they are not bad steps by any means.
“Q. And the stairs, in and of themselves, are not dangerous?
“A. That is correct, when used in a normal manner.
“Q. And no defects in these steps, in and of themselves, as constructed, according to the building code?
“A. That is correct.” (N.T., 10/15/98, p. 41,1. 11 to p. 42,1. 15).

Therefore, the court concludes that the plaintiffs have not met this first of the two requirements enunciated under section 8542, wherein liability shall only be imposed when the damages sustained would be recoverable under common law or a statute creating a cause of action if the injuries were not caused by a person not having immunity under section 8541. 42 Pa.C.S. §8542(a)(l). The plaintiffs have failed to demonstrate to this court that they would have been entitled to maintain a cause of action against the defendants under either common-law principles or under section 343 if the defendants did not have immunity under the PSTCA. Accordingly, the plaintiffs cannot satisfy this first prong of the test prescribed by the PSTCA. Nevertheless, the court will engage in an analysis in the second of the two requirements.

B. The Plaintiffs Have Additionally Failed To Satisfy the Requirements Needed To Bring an Action Under the Real Property Exception to Government Immunity Under 42 Pa.C.S. §8542(a)(2) and (b)(3)

The Pennsylvania Supreme Court has instructed that the real property exception to the PSTCA should be narrowly construed, given the expressed legislative intent “to insulate political subdivisions from tort liability.” Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1987) (citing Casey v. Geiger, 346 Pa. Super. 279, 499 A.2d 606 (1985), alloc. denied, 516 Pa. 638, 533 A.2d 710 (1987); Vann v. Board of Education of the School District of Philadelphia, 16 Pa. Commw. 604, 464 A.2d 684 (1983)). In 1997, the Pennsylvania Supreme Court decided the case of Grieff v. Reisinger, 548 Pa. 13, 693 A.2d 195 (1997) and held that the plain language of the PSTCA referring to the “care, custody or control of real property” should be applied to the factual situation presented to the court. Eger v. Lynch, 714 A.2d 1149, 1152 (Pa. Commw. 1998), alloc. denied, 1999 Pa. LX 630 (1999). In Grieff, as the defendant fire association chief, Robert Grieff, was using paint thinner to remove paint from the floor of the fire station kitchen, the liquid thinner flowed under the refrigerator and was ignited as the refrigerator began to run. Grieff, supra 548 Pa. at 14, 693 A. 2d at 196. The fire traveled to where plaintiff, Marlene Reisinger, a visitor at the fire station, was standing, engulfing her in flames and causing her to sustain serious injuries. Id. The trial court denied the defendants’ motion for summary judgment, holding that “the alleged negligent care of the fire station [fell] within the real property exception to immunity.” Id. The Commonwealth Court reversed the decision of the trial court since the plaintiffs, Mr. and Mrs. Reisinger, did not assert that the real property itself was defective. Id. Differentiating the Grieff case from the previous cases wherein the real property exception did not apply because the government’s property only facilitated injuries caused by third parties, the Pennsylvania Supreme Court held that the plaintiffs’ claim fell squarely within the real property exception since it was the fire association’s alleged negligent care of the real property which caused Ms. Reisinger’s injuries and, therefore, reinstated the trial court’s order denying the motion for summary judgment. Id. 548 Pa. at 17, 693 A.2d at 197. (emphasis added)

In the case at bar, both parties concede that the factual circumstances surrounding Ms. Wilson’s injuries present an issue of first impression for the court. (N.T., 2/16/99, p. 8, 11. 20-25.) The plaintiffs have asserted that their claim falls within that section of the PSTCA which provides for an exception to government immunity where the alleged negligence of the agency arises out of the control of real property. (N.T., 2/16/99, p. 4,11. 10-15.)

This case, indeed, differs from the large majority of cases cited by the parties at trial and during post-trial proceedings, insofar as the authority relied upon involved consequences generally attributed to conditions of or on the real property in question. In Kilgore v. City of Philadelphia, 553 Pa. 22, 717 A.2d 514 (1998), the Supreme Court reversed the trial court’s grant of the defendant city’s motion for summary judgment, ruling that the plaintiffs, Mr. and Mrs. Kilgore’s, claims placed them within the real estate exception to the PSTCA. Id. 553 Pa. at 29, 717 A.2d at 518. Walter Kilgore severely injured his foot, as he and a co-worker, Mark Newell, were attempting to hitch a cargo dolly to a motorized tug. Id. 553 Pa. at 24, 111 A.2d at 515. The injury occurred when Newell slipped on an accumulation of ice and snow which had fallen during a previous storm and lost control of the tug, causing Kilgore to be struck and injured. Id. The Kilgore decision, however, is still not applicable to the case at bar since Newell slipped on ice and snow which had not been cleared after an earlier storm. In this case, the stairs were free and clear of any debris.

In Snyder v. North Allegheny School District, 722 A.2d 239, 240 (Pa. Commw. 1998), plaintiff, Mary Ann Snyder, slipped and fell on ice and snow which had accumulated on a concrete landing at the top of a set of stairs in front of a school building. A jury returned a verdict in favor of the plaintiff, and, when the trial court denied the school district’s post-trial motions, the case was appealed to the Commonwealth Court. Id. at 242. The Commonwealth Court relied on its previous decisions in Hanna v. West Shore School District, 717 A.2d 626 (Pa. Commw. 1998); Eger, supra, 714 A.2d 1149 (Pa. Commw. 1998); Abella v. City of Philadelphia, 703 A.2d 547 (Pa. Commw. 1997); and Martin by Martin v. City of Philadelphia, 696 A.2d 909 (Pa. Commw. 1997), in holding that the school district’s negligence in failing to remove the ice and snow from the concrete landing placed the plaintiffs’ claims squarely within the real property exception to the PSTCA. Snyder, supra at 246,

In Hanna v. West Shore School District, 717 A.2d 626 (Pa. Commw. 1998), Mr. and Mrs. Hanna were attending a parent-teacher conference at an elementary school when Mrs. Hanna slipped on a puddle of water located on the indoor corridor floor and sustained serious injuries. Id. at 627. The trial court entered summary judgment, rejecting the plaintiffs, Mr. and Mrs. Hanna’s, argument that their claim fell within the purview of the real property exception since the alleged negligence occurred while an employee of the district was tending to real property. Id. That decision was affirmed by the Commonwealth Court but reversed and remanded by the Pennsylvania Supreme Court for “further consideration” in light of the court’s decision in Grieff v. Reisinger, supra. Hanna, supra at 628. The Commonwealth Court, in its subsequent analysis of Grieff opined that “Grieff’s care of the fire association’s property caused the fire that injured Reisinger,” and, in acknowledging the similarity in facts between the two cases, reversed the trial court’s order granting summary judgment and remanded the case for trial. Id. at 628-29 (quoting Grieff, supra, 548 Pa. at 16, 693 A.2d at 197.

In Abella v. City of Philadelphia, 703 A.2d 547 (Pa. Commw. 1997), Mary Ann Abella brought suit after she slipped and fell on hills and ridges of ice and snow while leaving a state office building. The Commonwealth Court considered whether the trial court erred in holding that the real property exception to PSTCA was inapplicable under the facts presented. Id. at 548. The trial court decision was affirmed by the Commonwealth Court, pursuant to the holding in Finn v. City of Philadelphia, 165 Pa. Commw. 255, 645 A.2d 320 (1994), affirmed, 541 Pa. 596, 664 A.2d 1342 (1995). However, Finn involved the sidewalk exception to the general immunity provisions of the PSTCA and is not applicable to the case at bar which did not involve in any way the care, custody or control of defendant school district’s sidewalks. Abella, supra at 550.

In Martin by and through Martin v. City of Philadelphia, 696 A.2d 909 (Pa. Commw. 1997), a child was playing on a city football field when he dove to catch a football and landed on a metal pipe lying on the ground. Id. at 910. Martin cited Grieff which differentiated itself from Mascaro and its progeny in that a defect must cause and not merely facilitate injury in situations where third parties cause harm. Id. at 912. Reversing the order of the trial court granting summary judgment in favor of the City of Philadelphia, the Commonwealth Court held:

“Under Grieff, local agency liability for negligence in the care, custody or control of real property does not require the instrumentality causing harm to be ‘of’ the real estate in the sense of being affixed to it. The Martins must be offered the opportunity to prove their allegations that a goalpost was left concealed in an area intended for play by children, and the finder of fact will then determine whether the facts proved constitute a dangerous condition arising from the care, custody and control of the city’s real property.” Id. (footnote omitted)

The court is cognizant of the fact that, in this case, there was no such instrumentality which might be identified as being “of’ or “on” the real property and to which the injuries suffered by Ms. Wilson might be attributed. Rather, the steps upon which the injured plaintiff fell were at all times held out to be in good and proper condition, a fact confirmed by plaintiffs’ expert, Norman Goldstein, who testified: “I found nothing wrong with the steps.” (N.T., 10/15/98, p. 36,11. 6-7.)

In 1987, the Pennsylvania Supreme Court expounded upon the real estate exception to the PSTCA in the case of Mascaro v. Youth Study Center, 514 Pa. 351, 362, 523 A.2d 1118, 1124 (1987), opining:

“Acts of the local agency or its employees which make the property unsafe for the activities for which it is regularly used, for which it is intended to be used, or for which it may reasonably be foreseen to be used, are acts which make the local agency amenable to suit.”

This premise was reiterated in 1989 in Snyder v. Harmon, 522 Pa. 424, 434, 562 A.2d 307, 312 (1989) (citing Cestari v. School District of Cheltenham Twp., 103 Pa. Commw. 274, 520 A.2d 110 (1987), alloc. denied, 517 Pa. 595, 535 A.2d 84 (1987)). Unlike Gump, supra, in which the high school wrestling team regularly participated in running drills around the school hallways, and where there was a definite issue as to whether the glass through which the plaintiff, Todd Alexander Gump, inadvertently pushed his hand, was defective, in the case at bar, there was absolutely no testimony proffered by any witness, including plaintiffs’ expert, Mr. Goldstein, that the stairs in any way contained a defect or condition which might have contributed to Ms. Wilson’s fall during this activity which occurred during an activity which was rarely conducted by coach Meissner. To reiterate, plaintiffs’ forensic safety expert, Mr. Goldstein, found absolutely nothing wrong with the stairs.

It is a well-established maxim that the failure to adequately supervise or negligent supervision does not fall under the ambit of the real property exception to the PSTCA. Robson v. Penn Hills School District, 63 Pa. Commw. 250, 437 A.2d 1273 (1981). In Farber v. Pennsbury School District, 131 Pa. Commw. 642, 644, 571 A.2d 546, 547 (1990), an appeal from a trial court’s grant in part and denial in part of the defendant school district’s motion for judgment on the pleadings, a high school senior had charged his school district with negligence when he slipped or tripped and fell, sustaining an injury to his knee during a district-sponsored race in which he was carrying another student on his back. Citing Mascaro for the proposition that the real property exception is inapplicable as a basis of a claim of negligence grounded upon failure to supervise the conduct of students or persons adequately, the court held, “[i]t is clear that Faber’s allegations of negligence in . . . the complaint deal with conduct of district employees in supervising the race and are not allegations of a defect or artificial condition of the land itself.” Id. at 647, 571 A.2d at 549.

This viewpoint was echoed in Musheno v. Lock Haven University of Pennsylvania, 132 Pa. Commw. 643, 574 A.2d 129 (1990), in which a handicapped 18-year-old boy was found unconscious at the bottom of Lock Haven’s pool and later died from the injuries he sustained. Affirming the trial court’s grant of summary judgment, the Commonwealth Court held:

“The real estate exception to governmental immunity is a narrow exception and refers only to injuries arising out of the care, custody or control of the real estate in the possession of the political subdivision or its employees. ... Furthermore, ‘the real estate exception,... has consistently been held to be unavailable to those whose claim of negligence consists of a failure to supervise the conduct of students or persons adequately’ . . . ‘The real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, these acts are outside the statute’s scope of liability.’ ...
“In the instant case, the allegations do not contain statements as to artificial conditions or defects of the land itself. What is alleged here is a lack of a lifeguard which the trial court correctly found to be negligent supervision. Unfortunately, this egregiously negligent supervision is not a basis for a cause of action that would fit into the real estate exception.” Id. at 647, 574 A.2d at 131. (citations omitted)

Based on the foregoing, this court may not infuse liability for negligent supervision on the part of coach Meissner which is couched as a claim based on the failure to control real property under the real property exception to the PSTCA.

In Mooney by Mooney v. North Penn School District, 90 Pa. Commw. 7, 493 A.2d 795 (1985), a case containing factual circumstances remarkably similar to the case at bar, the plaintiff/appellant, Kristen Mooney, took part in an educational exercise designed by her teacher to simulate the hostage crisis situation in Iran. Id. at 8, 493 A.2d at 796. While Ms. Mooney was blindfolded and being escorted around the school by another student, she fell down some steps and sustained injuries to her mouth. Id. The Commonwealth Court held: “The appellants contend that because the school district had exclusive control of the steps from which she fell the school district should be held liable under section 202(b)(3) of the Act, the real property exception to governmental immunity. We disagree.” Id. at 8-9, 493 A.2d at 796. The court declared that the “ ‘action or activities’ complained of was not, as the appellants allege in their brief, the unsafe condition of the school’s steps, but rather the failure of the school district to supervise properly the activities of the students.” Id. at 9, 493 A.2d at 797.

In Fizzano v. Borough of Ridley Park, 94 Pa. Commw. 179, 503 A.2d 57 (1986), alloc. denied, 514 Pa. 640, 523 A.2d 346 (1987), plaintiff, Christine Fizzano, was ice skating on a public lake when she was struck by a hockey puck and sustained injuries. Plaintiffs filed suit and alleged that Ms. Fizzano’s injuries were the direct result of the defendant borough’s “negligent failure to control, restrict, or prevent the dangerous conduct of third parties while on public property.” Id. at 181, 503 A.2d at 58. (emphasis added) The plaintiffs alleged the fact that the borough permitted children to play hockey in the same vicinity as people ice skating amounted to negligent conduct relating to the care, custody and control of real property. Id. Affirming the trial court’s grant of a motion for summary judgment, the Commonwealth Court held that “failure to supervise the activities of third parties is not the type of negligence which is covered by the real property exception to governmental immunity.” Id. The court added, “[t]he conduct complained of must be directly related to the condition of the property.” Id. at 182, 503 A.2d at 58.

Although the instant case was not one which involved the actions of a third party, the court similarly reached the logical conclusion that coach Meissner’s conduct in instructing the field hockey team to run a tag relay race on the stairs ultimately concerned the issue of the propriety of Mr. Meissner’s supervision and that Ms. Wilson’s injuries were not “directly related to the condition of the property.” Fizzano, supra at 182, 503 A.2d at 58. Had there been some actual defect of or on the stairs which caused Ms. Wilson to fall, perhaps this court may have reached a different result. However, there was no such defect. This fact was confirmed by the testimony of plaintiffs’ expert as well as Ms. Wilson herself. In short, the plaintiffs failed to demonstrate to the court how or why the factual circumstances of this particular claim could be attributed to anything other than coach Meissner’s purported negligent supervision of the East Norriton Middle School field hockey team. Therefore, the court concluded as a matter of law, that it was abundantly clear, when viewing all of the evidence and in considering all reasonable inferences arising therefrom in the light most favorable to the plaintiffs, and resolving all conflicts in their favor, a jury could not reasonably conclude that the elements of a cause of action under the real property exception to governmental immunity under the Political Subdivision Tort Claims Act, 42 Pa.C.S §8541 et seq., had been established. See e.g., Boyer, supra at 262.

CONCLUSION

The factual circumstances presented to this court reflect nothing more than the possibility of negligent supervision on the part of coach Meissner. While there might be a case made for a more careful monitoring by defendant Meissner of his team’s relay race drills being run in the defendant school district’s building, the activity was not one which was performed with any degree of frequency, nor does the complained of activity fall within the ambit of uses which might be determined as either foreseeable or intended by the school district to occur upon the premises in question. While the court is not unsympathetic toward Ms. Wilson and the injuries she sustained as a result of her fall, the court is not here at liberty to fashion a remedy for which there exists no legal basis or authority. Rather, the court is obligated to adhere to the plethora of appellate decisions whose consistent interpretation of the PSTCA and the real property exception to the clearly established immunity of governmental agencies have not yet embraced the concept of liability based solely upon the alleged negligent conduct of such an entity or one of its employees.

For all of the foregoing reasons, this court finds that the arguments proffered by the plaintiffs are without merit, and this court’s order of February 26,1999, denying the plaintiffs’ motion for post-trial relief, should be affirmed.

      . Section 323 of the Restatement (Second) of Torts provides:
      “One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increased the risk of harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Shannon v. McNulty, 718 A.2d 828, 836 n.5 (Pa. Super. 1998).
      It is the belief of this court that it was the intention of the plaintiffs to utilize another section of the Restatement, namely section 343, since the plaintiffs’ references to Ms. Wilson, as a business invitee who must be afforded protection by a possessor of land, are more akin to the description of the class of individuals included within the latter provision.
      Section 343 of the Restatement (Second) of Torts (1965) states:
      “A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he
      “(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, 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.” Gump by Gump v. Chartiers-Houston School District, 125 Pa. Commw. 596, 601 n.6, 558 A.2d 589, 591 n.6 (1989).

      . The Restatement (Second) of Torts (1965) section 332 defines invitee as follows:
      “(1) An invitee is either a public invitee or a business visitor.
      “(2) A public invitee is a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public.
      “(3) A business visitor is a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with the possessor of land.” Gump, supra at 601, 558 A.2d at 591.

      . Count 7 of the plaintiffs’ complaint states: “7. The defendant School District permitted and regularly engaged'in the use of the hallways for conditioning purposes for sports activities.”

      . Count 10 states:
      “10. The use of the stairs for lacrosse practice tag relay activities was an unsafe condition which should have been known to the District and [i]ts agents, servants and/or employees to create an unreasonable risk of harm given the regular and permitted use of the halls and stairways for lacrosse practice tag relays and other practice activities.”
      The court is cognizant of the fact that the complaint alleges that plaintiff’s injuries occurred during a lacrosse practice. In fact, Ms. Wilson’s injuries were sustained during a field hockey practice. (N.T., 10/14/98, p. 44,1. 25 to p. 45,1. 3.)

      . In fact, coach Meissner testified to the effect that he coached a tag relay race while in the school hallways and stairs on only one other occasion, during the year prior to the date of Ms. Wilson’s accident. (N.T., 10/15/98, p. 5,11. 18-25.)

      . Mr. Richard W. Rogers was counsel for the plaintiffs in this action.

      . The Pennsylvania Supreme Court in Kilgore v. City of Philadelphia, 553 Pa. 22, 29, 717 A.2d 514, 517 (1998), see infra applying the first prong of the two requirements pronounced in section 8542(a)(1), opined that the plaintiffs could recover if Mr. Kilgore had fallen on private property. Instantly, that conclusion is not as tenable. There is a seemingly insufficient basis upon which to conclude that, had Ms. Wilson fallen down stairs located on private property, without any other catalyst such as snow or water which had caused her to slip, she would be entitled to recovery.

      . In Eger v. Lynch, 714 A.2d 1149 (Pa. Commw. 1998), alloc. denied, 1999 Pa. LX 630 (1999), William Lynch consumed an excessive amount of alcohol at a township fire hall fundraiser and, while driving home, was involved in an auto accident which killed his passenger, Susan L. Parkin a/k/a Susan L. Eger. Id. at 1153. The decedent’s estate brought a wrongful death and survival action against Lynch and the fire association charging that the real property exception to governmental immunity under the PSTCA applied. Id. at 1152-53. Plaintiff’s executor contended that the association was negligent in its control of its real property in that it permitted the illegal sale of alcohol on its premises. Id. The court resolved that “[t]he association is only the local agency whose property may have facilitated the injuries caused by Lynch. This is not a question of care, custody or control over the real property owned by the association as in Grieff. ” Id. at 1153.

      . In Robson, a child was injured by a pencil which had been thrown by another student while both were sitting in an unsupervised classroom. Id. at 252, 437 A.2d at 1275. The court held:
      “Our reading of the complaint leads us to the determination that the ‘action or activity’ complained of can be fairly characterized as the supervision of students. Therefore, we can only conclude that it would be a total distortion of the language of section 202(b)(3) to allow the supervision, or lack of supervision, of school children to fall within the scope of care, custody and control of real property. Thus, we accept the view of the court below that ‘a more commonsense approach is warranted here.’ ” Id. at 253-54, 437 A.2d at 1275-76. (footnote omitted)


author: DiNUBILE JR., J.,

text:
    Feldman v. Entine

      Eric G. Zajac, for plaintiffs.

      George L. Young, for defendant.
    September 9, 1999
   DiNUBILE JR., J.,

This opinion arises from the denial of defendant’s post-trial motions and the entry of judgment on the verdict, in this medical malpractice case, in favor of the plaintiff, Alan Feldman, and against the defendant, Joseph Entine M.D., in the amount of $2,500,000. Judgment was also entered in favor of plaintiff’s wife, Jacqueline Feldman, in the amount of $300,000 for loss of consortium. Delay damages were assessed against the defendant and in favor of the plaintiff-husband in the amount of $1,251,863.20, resulting in a total judgment entered against the defendant and in favor of the plaintiff-husband to be $3,751,863.20.’ The major grounds for post-trial relief involve this court’s decision to charge the jury on the doctrine of res ipsa loquitur. Defendant also sought remittitur.

The facts giving rise to these post-trial issues can be stated as follows. The plaintiff-husband underwent thyroid surgery on August 16,1990 to remove a cancerous growth which was imbedded in his thyroid gland. The thyroidectomy, the subject matter of this suit, was performed by the defendant, Joseph Entine M.D., a certified general surgeon. During the operation, the plaintiff-husband’s laryngeal nerve was damaged, causing paralysis of the left vocal cord. As a result of this paralysis, plaintiff-husband’s voice was permanently injured, resulting in constant hoarseness and weakness of his voice. The issues of both negligence and causation were hotly contested. The plaintiffs asserted that injury to the vocal cord could not have occurred in the absence of negligence. On the other hand, the defense presented testimony through the defendant and his expert that he did not cause injury to the nerve; and in any event, harm to the vocal cords could occur in an operation of this nature in the absence of negligence.

The defendant’s major assertion contained in his post-trial motions was that the court committed reversible error during its definition of negligence by instructing the jury on the theory of res ipsa loquitur. Defendant argues that the evidence did not warrant such a charge in light of certain conflicts in the evidence presented pertaining to the elements of this doctrine. This court respectfully disagrees. Plaintiffs’ expert, Dr. Harold Arlen, a certified otolaryngologist (an ear, nose and throat specialist), testified that under the circumstances of this operation, negligence was the cause of injury to the plaintiff-husband’s laryngeal nerve resulting in paralysis to the vocal cord. He further testified that such an injury could occur without negligence only under the following three limited circumstances: (1) if the cancer was impinging upon the nerve itself; (2) there was a distortion of the anatomy (e.g. the gland was so large that it was impinging upon the nerve); or (3) there was scar tissue on the nerve due to a prior surgery. Since none of these conditions existed at the time of the surgery, Dr. Arlen concluded that the defendant must have been negligent in performing the operation since the vocal cord was injured. He could not state with specificity, however, how the injury to the laryngeal nerve, causing paralysis to the vocal cord, actually occurred. Consequently, in its charge to the jury, this court first defined the basic principles of negligence. The jurors then were instructed that they could also infer negligence, but only upon certain limited circumstances provided they found the following three elements (comprising the doctrine of res ipsa loquitur) to be present: (1) the event was of a kind which ordinarily does not occur in the absence of negligence; (2) other responsible causes, including the conduct of the plaintiff-husband, third persons and other events were sufficiently eliminated by the evidence; and (3) the negligence arose during the scope of the defendant’s duty to the plaintiff-husband; namely, during the course of the operation. This instruction was given in reliance on Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52 (1997). Hightower involved a thyroidectomy in which the court held that a res ipsa charge should have been given. This court also considered the cases of D’Ardenne v. Strawbridge & Clothier Inc., 712 A.2d 318 (Pa. Super. 1998) and Smith v. City of Chester, 357 Pa. Super. 24, 515 A.2d 303 (1986) prior to its decision, occurring at the pre-charge conference, to give this instruction. These cases hold that although a res ipsa loquitur instruction is not warranted in the face of clear proof of negligence, it must be given and is appropriate where the facts of a particular case lie somewhere in the “gray zone.” This so-called gray zone occurs when the plaintiff can produce no evidence of specific acts of negligence and must therefore rely on a res ipsa loquitur inference. The D Ardenne case further held that a plaintiff may be permitted to proceed under both direct negligence and res ipsa loquitur theories. See also, Smith, supra. In the instant case, the plaintiffs’ evidence of direct negligence was not clear-cut. Their expert, Dr. Arlen, testified that under the particular circumstances of this surgery, injury must have been due to defendant’s negligence. His conclusion was based on the fact that an injury without negligence could have occurred only in the presence of three conditions, all of which he had ruled out. He was unable, however, to specify exactly how harm to the vocal cord took place. Under these circumstances, and in keeping with the holding of the above previously cited cases, plaintiffs were permitted to proceed under both direct negligence and res ipsa loquitur. Thus, the court charged the jury under both theories.

The defendant attempts to distinguish these cases from the instant situation because the plaintiff-husband’s own treating physician, Dr. Mark R. Rosen, a certified oto-laryngologist, had testified during cross-examination, in his videotaped testimony, that injury to the nerve and vocal cord could have occurred in the absence of negligence. The defense therefore argues that since there was a conflict in the plaintiffs’ own testimony concerning the existence of the first two elements necessary to permit an inference of negligence (the event does not ordinarily occur in the absence of negligence and other responsible causes must be eliminated), it was erroneous for the court to have given the res ipsa charge. This court disagrees. As stated, Dr. Rosen was called by way of videotaped deposition to testify as to the treatment he rendered to the plaintiff-husband as a result of the paralysis to his vocal cord. He testified that in April and June of 1991, he performed two surgical procedures by injecting the plaintiff-husband with a Teflon paste substance behind the vocal cord. This treatment had the effect of moving the injured vocal cord closer to the other vocal cord and toward the center or midline of the larynx. As a result of these surgeries, the plaintiff-husband’s condition markedly improved. On cross-examination, defense counsel, over the objection of the plaintiffs, had asked the doctor whether, in his opinion, defendant breached the standard of care and whether this injury could have occurred in the absence of negligence. The doctor testified that there was no breach in this case and that the injury could in fact have occurred in the absence of negligence. At a pretrial motion in limine hearing, the court precluded that portion of the videotaped deposition in which Dr. Rosen opined that defendant had met the standard of care since he was not the defendant’s expert and was called solely as the treating physician by the plaintiffs. Of course, the defendant had his own expert, Dr. Raymond Lesser, an otolaryngologist, who testified on behalf of the defendant. The court, however, did permit, over objection of the plaintiffs, that portion of Dr. Rosen’s deposition where he expressed the opinion that the injury could have occurred in the absence of negligence. The court reasoned that this testimony did not deal directly with the issue of Dr. Entine’s alleged malpractice.

After a review of the case law cited herein, the court concludes that the difference between plaintiff-husband’s treating physician and expert concerning whether injury to the vocal cord could have occurred in the absence of negligence did not preclude the res ipsa loquitur charge. It must be borne in mind that plaintiffs’ counsel never sought to introduce that portion of Dr. Rosen’s opinion testimony about whether harm could have occurred in the absence of negligence. It was brought out on cross-examination and permitted over his objection. In addition, the court’s charge was extremely explicit that the jury could consider the inference of negligence only if they found the three elements which comprise the doctrine of res ipsa loquitur to be present. Defense counsel, of course, was permitted to argue and did so that this conflict in the testimony between plaintiffs’ expert and treating physician should lead them to conclude that defendant did not commit malpractice during the operation. Even had the charge not been given, defendant would have made the same argument about the conflict in plaintiffs’ evidence. It is therefore difficult to conceive how this charge was the determining factor causing an adverse verdict against the defendant.

The defendants also assert that the verdict in favor of the plaintiffs should be remitted. The test is not whether this court agreed with the verdict but whether the evidence presented was supported by the jury’s findings. Was the award so excessive as to shock the court’s conscience? See Botek v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992); Stark v. Lehigh Foundries Inc., 388 Pa. 1, 130 A.2d 123 (1957); Doe v. Raezer, 444 Pa. Super. 334, 664 A.2d 102 (1995). A review of the testimony precludes remittitur. The plaintiff-husband suffered permanent injury to his vocal cord which renders his voice hoarse and weak. He underwent two surgical Teflon procedures described by Dr. Rosen to improve his condition. He was the second highest ranked instructor in the country in a form of self-defense developed by the Israelis, called Karav Maga. He had first studied this form in Israel and had spent many years to reach his ranking. Prior to the surgery, he made his living as an instructor, appearing in various television programs. In order to demonstrate what his voice was like before the surgery as compared to its present state, he presented brief portions of videotaped television shows demonstrating his instruction. Testimony was introduced showing that as a result of the injury, which he sustained to his vocal cord, he was permanently deprived from pursuing his career in this field. After weighing and considering this evidence, the jury placed a value as part of its award on his loss of the ability to enjoy this endeavor. It is not for this court to challenge the monetary figure which the jury set for the emotional loss of someone in his early forties who will never be able to continue to work in his field of choice. Similarly, plaintiff-wife’s claim for loss of consortium must stand as well. As a result of plaintiff-husband’s injury, he has become abrupt and irritable, making her life more difficult.

Counsel for the defendant, Dr. Entine, in the alternative to his post-trial relief, filed a motion requesting the court to mold the verdict against him to include another defendant, Surgical Services Ltd., as well. This entity, which was also sued, was the professional corporation for whom Dr. Entine was employed during the time in which he treated the plaintiff, Alan Feldman. Plaintiffs’ counsel joins in the motion. It is opposed by counsel for the Medical Professional Liability Catastrophe Loss Fund because a grant of this motion would increase the extent of the fund’s liability. Its present attorney also opposes the motion. This corporation was represented by Dr. Entine’s trial counsel until this motion to mold was filed. In Dr. Entine’s answer to the complaint, he admitted that he was an employee of Surgical Services Ltd. It is for this reason that both defendant, Entine, and plaintiffs seek a grant of the motion. This case was first tried before the Honorable Paul Ribner in May 1997. It ended in a mistrial because the jury could not reach a decision. At no time during that trial was the liability of Surgical Services Ltd. presented to the jury. The same was true for the retrial before this court. In both trials, neither the attorneys nor any of the witnesses mentioned Surgical Services Ltd. as a defendant nor was there a request to add this corporation for liability consideration in questions submitted to the jury. The first time this court became aware of the fact that Surgical Services Ltd. was an entity involved in any way in this case was after trial when it received the defendant’s motion to mold the verdict to include it. Under these circumstances, the court denies this motion.

Defendant argues (and plaintiffs join in this assertion) that since there was an admission of agency on the part of the defendant in his answer to plaintiffs’ complaint (that is that Dr. Entine was an employee of the corporation during the time of the malpractice) the verdict rendered against him automatically should be molded to include the professional corporation as well. Since no mention was made of this entity during the trial of this case, how can the court mold a verdict against it? Normally, in a medical malpractice trial, where both the defendant and his/her professional corporation is sued, and there being no question of agency, the court usually places on the record that a finding against the physician will result in a verdict against the professional corporation without the need to submit a separate question of the corporation’s liability to the jury. This scenario did not take place here. There was never any agreement placed on the record by counsel that the liability of the doctor would result in a liability of the entity or vice versa. Therefore, the court cannot mold a verdict to include an entity that the court did not know was in any way connected with the case and, most importantly, whose liability the jury never considered. Consequently, the motion is denied.

Plaintiffs’ counsel argues in his brief that assuming arguendo that the verdict cannot be molded without there being actual testimony as to the relationship between the defendants, Entine and Surgical Services Ltd., then the proper recourse would be to conduct a trial on this narrow issue. Plaintiff then would prevail since there was an admission of agency in the pleadings. Even assuming that the admission of agency by Dr. Entine constitutes an admission on the part of the professional corporation as well, plaintiffs’ request which would result from this argument extends beyond the parameters of the motion. The motion seeks a molding of the verdict to include the professional corporation, not a separate trial on the issue of whether or not the physician was an agent of it. In any event, having not moved for trial against the corporation, res judicata principles would bar it.

“Res judicata bars not only those issues actually raised but also those issues which could have been litigated in the first action.” Day v. Volkswagenwerk, 318 Pa. Super. 225, 236, 464 A.2d 313, 318 (1983).

ORDER

And now, September 9,1999, the court enters the following order:

(1) The post-trial motions of defendant, Joseph Entine M.D., are hereby denied. Enter judgment of the jury verdict in favor of plaintiff-husband, Alan Feldman, and against defendant, Joseph Entine M.D., in the amount of $2,500,000. Delay damages are also assessed against the defendant, Joseph Entine M.D., in favor of plaintiff-husband, Alan Feldman, in the amount of $1,251,863.20; making the total judgment entered in favor of plaintiff-husband, Alan Feldman, and against defendant, Joseph Entine M.D., to be $3,751,863.20. Also enter judgment on the jury verdict for loss of consortium in favor of plaintiff-wife, Jacqueline Feldman, and against defendant, Joseph Entine M.D., in the amount of $300,000.

(2) The motion of defendant, Joseph Entine M.D., and joined into by the plaintiffs, to mold the jury verdict to include the defendant, Surgical Services Ltd., is denied. Therefore, the motions of defendant, Surgical Services Ltd., for preliminary objections and judgment on the pleadings are rendered moot.

(3) Counsel for defendants, Joseph Entine M.D. and Surgical Services Ltd., shall notify plaintiffs’ counsel in writing about any and all liability policies in effect in August 1990 and the amount of coverage provided within 20 days of the date of this order.

      . Plaintiffs had sought the sum of $1,311,075.34 as delay damages; however, this court excluded the time period from 1/21/98 to 4/21/98, due to a Commonwealth Court-ordered stay stemming from the insolvency of defendant’s liability insurance carrier, Physicians Insurance Co.

      . Since post-trial motions have been denied and judgment has been entered on the verdict, the liability of the CAT Fund would be increased if the motion were granted. The fund then would be obligated to cover and supply an additional $1,000,000 on behalf of the professional corporation to satisfy the judgment.


author: O’BRIEN, P.J.,

text:
    McMillen v. Herr-Voss Corp.

      C.P. of Butler County,
    no. 95-10774.

      Donald P. Graham, for plaintiff.

      David G. Klaber, for defendant.
    August 5, 1999
   O’BRIEN, P.J.,

Plaintiff Wilma E. McMillen has filed a motion to compel defendant Herr-Voss Corporation to provide answers to plaintiff Mc-Millen’s interrogatories and request for production of documents.

Plaintiff McMillen has filed a complaint against defendant Herr-Voss for the death of her husband, James McMillen, that was allegedly caused by a malfunction with a machine manufactured by defendant Herr-Voss. James McMillen was an employee of Armco who had purchased the machine from defendant Herr-Voss. Plaintiff McMillen claims defendant Herr-Voss was negligent in the manufacturing of this machine and should be held strictly liable for her husband’s death.

In the interrogatories and request for production of documents served on defendant Herr-Voss, plaintiff McMillen sought to discover information surrounding any post-accident investigation into the death. Specifically, plaintiff McMillen seeks inter alia, copies of the notes and reports that resulted from the meeting between defendant Herr-Voss employees and Armco employees regarding the death.

In response to these requests, defendant Herr-Voss contended the information was protected from discovery by the attorney-client privilege and the work product doctrine.

A confidential communication or disclosure made by a client to the client’s attorney for purposes of obtaining legal advice is protected from discovery by the attorney-client privilege. See 42 Pa.C.S. §5928; Brennan v. Brennan, 281 Pa. Super. 362, 371, 422 A.2d 510, 514 (1980). The court may require disclosure of the communication if the party seeking disclosure establishes that non-disclosure would frustrate the administration of justice. See Brennan at 372, 422 A.2d at 515. Any doubt as to whether the administration of justice would be frustrated by non-disclosure should be resolved in favor of non-disclosure. See id.

In the present case, James Phillips, vice president finance and administration for defendant Herr-Voss, stated in his deposition he attended a meeting with the Armco employees concerning the accident and prepared a report of the meeting and his observations at the request of counsel. See plaintiff’s exhibit C at 29. Further, defendant Herr-Voss in the answers to the interrogatories states the meeting between defendant Herr-Voss employees and Armco employees was arranged at the request of counsel for the purpose of discussing the accident.

Statements made by defendant Herr-Voss employees to counsel regarding the accident and for the purpose of obtaining legal assistance are protected by the attorney-client privilege. Further, any reports or written communications defendant Herr-Voss employees may have prepared at the request of counsel are protected by the attorney-client privilege. Conversations defendant Herr-Voss employees and Armco employees may have had regarding the accident and any notes taken do not constitute communications between a client and an attorney, and therefore, are not protected by the attorney-client privilege. Merely depositing the notes with the attorney does not transform them into confidential communications. See 42 Pa.C.S. §5928. See also, Benton v. Mechanicsburg Sub-Acute Rehab. Associates, 23 D.&C.4th 559 (1993).

The work product doctrine protects from discovery records of interviews, statements, memoranda, correspondence, briefs, and documents containing mental impression and/or personal beliefs prepared by an attorney or the attorney’s agent. See Commonwealth v. Noll, 443 Pa. Super. 602, 608, 662 A.2d 1123, 1126 (1995).

In the present case, any employees of defendant Herr-Voss present at the meeting with Armco were not acting as agents for counsel nor were they in the employment of counsel. Rather, they were functioning as representatives and employees of defendant Herr-Voss. Therefore, any written documentation the employees may have prepared, including written notes, is not attorney work product and is not protected as such under the work product doctrine.

ORDER

And now, August 5,1999, the court hereby orders that

(1) Plaintiff McMillen’s motion to compel is granted with regard to any conversations defendant Herr-Voss had with Armco employees concerning the accident and with regard to any notes made about the accident.

(2) Plaintiff McMillen’s motion to compel is denied with regard to any conversations defendant Herr-Voss had with counsel about the accident and for the purpose of obtaining legal advice, and with regard to any report defendant Herr-Voss employees prepared at the request of counsel.

Defendant Herr-Voss is directed to provide answers to plaintiff McMillen’s interrogatories and requests for production of documents in accord with this opinion.

      . By “notes taken” the court means to include any handwritten notes taken during the meeting as well as any written summaries of the meeting that may have been prepared afterwards but were not requested by counsel.