author: MINORA, J,

text:
    Hook v. Auriemma
    C.P. of Lackawanna County,
    no. 02 CV 6190.

      Thomas R. Kline and Leon Aussprung, for plaintiff.

      George M. Nace III, for defendant, Desai.

      Eugene P. Feeney, for defendants, Auriemma and Colorectal Center.

      John J. Aponick, for defendant, Lackawanna Medical Group.

      Patrick C. Carey, for defendant Orehek.

      Mark T. Perry, for defendant, Marian Community Hospital.
    August 17, 2005
   MINORA, J,

I. INTRODUCTION

Currently before this court is the motion for summary judgment of the defendant, Marian Community Hospital (MCH).

By way of background, and according to the facts as set forth by the non-movant plaintiffs, this medical malpractice case, brought on behalf of the estate of Nancy Wilson (decedent), concerns the alleged negligent medical care of all defendants during decedent’s final hospitalization at defendant, Marian Community Hospital. Decedent presented for an elective surgical resection of her distal ileum and proximal colon to be performed by William Auriemma M.D. During the admission, defendant Auriemma consulted decedent’s primary care physician, Allen Orehek M.D., for assistance in co-managing the medical care of decedent during the hospitalization. After the surgery, decedent had fever, abdominal pain and blood in her stool. During the days that followed, a CT scan revealed free air in decedent’s abdomen, which is allegedly indicative of bowel perforation. Moreover, plaintiff’s white blood cell count initially spiked to an abnormally high level and then plummeted to a very low level, while continually demonstrating an abnormally high number of bands of differential cell count. Allegedly, these signs and symptoms were all consistent with an abdominal infection from a bowel perforation, but timely diagnosis and proper treatment allegedly did not occur, which soon resulted in the decedent’s death.

Moving defendant MCH brings the instant motion for summary judgment based upon two theories. First, defendant MCH asserts that plaintiffs have not supported any claim for direct/corporate negligence against it. Plaintiffs counter that they have produced an expert report by a critical care physician, Dr. Scardella, who clearly renders an opinion on the direct/corporate negligence of moving defendant. Plaintiffs’ expert allegedly renders the opinion that moving defendant violated its own policies and procedures by not caring for decedent in an intensive care unit during a time period in which she required blood pressure support medications and had very poor urine output. Dr. Scardella further renders an opinion that this violation of moving defendant’s own policies and procedures caused decedent’s death. Plaintiffs’ expert opinions are allegedly supported by the medical record and documents disclosed during discovery. Therefore, plaintiffs claim they have properly developed a direct/corporate negligence claim against defendant MCH sufficient to survive summary judgment.

Second, moving defendant MCH claims that it has no ostensible liability for the negligent acts and/or omissions of Meena Desai M.D. Plaintiffs claim that the record in this case is clear that not only did decedent look to moving defendant to provide medical care, and, in particular, to provide defendant Desai to care for her respiratory problems, but that the hospital also held out defendant Desai as its employ ee/agent. Specifically, during the hospitalization, defendant Orehek consulted defendant Desai, who was a pulmonologist, concerning decedent’s respiratory status. Prior to that consultation, decedent had never had a professional relationship or even met defendant Desai. The medical record allegedly indicates that a consultation was placed to defendant Desai by defendant Orehek and there is no information that decedent ever requested to be seen specifically by defendant Desai. Moreover, defendant Desai never informed decedent that she was not acting as an employ ee/agent of defendant MCH. Consequently, the plaintiffs claim that there are more than adequate facts of record for a jury to conclude that defendant Desai was an ostensible agent of defendant MCH.

This matter has been thoroughly briefed and argued before the undersigned on May 26,2005. By court order of May 20,2005, this matter has been firmly set for trial on March 13, 2006.

While the trial date is not close at hand, the current motion for summary judgment of defendant MCH is ripe for disposition.

II. ISSUES

(A) Whether defendant MCH is entitled to judgment as a matter of law and dismissal of all claims of corporate/direct negligence, with prejudice, upon the basis that plaintiffs have not produced during discovery and cannot produce at trial any expert opinion or other evidence in support of said claims against defendant MCH.

(B) Whether defendant MCH is entitled to judgment as a matter of law and dismissal of all claims of agency for the actions of the individual defendants, Drs. Auriemma, Orehek and Desai, with prejudice, upon the basis that plaintiff has not produced during discovery and cannot produce, at trial, any evidence in support of said claims against defendant.

III. DISCUSSION

A. General Standards for Summary Judgment

When considering a motion for summary judgment, the record must be viewed in a light most favorable to the non-moving party with all doubts as to the existence of a factual issue being resolved against the movant. Pappas v. Asbel, 564 Pa. 407,418,768 A.2d 1089,1095 (2001). To withstand a motion for summary judgment, a non-moving party must adduce sufficient evidence on an issue essential to the case and on which the party bears the burden of proof. Shumosky v. Lutheran Welfare Services of Northeastern PA Inc., 784 A.2d 196, 199 (Pa. Super. 2001). Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Feidler v. Morris Coupling Co., 784 A.2d 812, 815 (Pa. Super. 2001). Additionally, summary judgment may be granted only in those cases which are clear and free from doubt that the moving party is entitled to judgment as a matter of law. Bordlemay v. Keystone Health Plans Inc., 789 A.2d 748, 750 (Pa. Super. 2001). See also, Pa.R.C.P. 1035.2; Pa.R.C.P. 1035.3; Syslo v. Davis, 106 Lacka. Jur. 34, 37 (2005).

B.

With those principles in mind, we must first examine whether the record creates an issue of triable fact for a jury to find a case of corporate negligence against defendant MCH.

The Pennsylvania Supreme Court in the watershed case of Thompson v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991), recognized the doctrine of corporate liability based upon a hospital’s duties “to use reasonable care in the maintenance of safe and adequate facilities and equipment,” “to select and retain only competent physicians,” “to oversee all persons who practice medicine within it’s walls as to patient care,” and “to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients. ” Id. at 339-40, 591 A.2d at 707. (emphasis added)

Unlike vicarious liability, which is predicated upon the negligence of an actual or ostensible agent, a cause of action for corporate negligence is not dependent upon the negligence of a third party such as a physician or nurse. Welsh v. Bulger, 548 Pa. 504, 513, 698 A.2d 581, 585 (1997); Oven v. Pascucci, 46 D.&C.4th 506, 513 (Lacka. Cty. 2000). Instead, corporate liability is based on the negligent acts of the institution. Moser v. Heistand, 545 Pa. 554, 561, 681 A.2d 1322, 1326 (1996). “A cause of action for corporate negligence arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital agents.” Welsh, supra at 513, 698 A.2d at 585; Moser, 545 Pa. at 560, 681 A.2d at 1326; Gurevitz v. Piczon, 42 D.&C.4th 308, 317-18 (Lacka. Cty. 1999) (corporate liability is premised “upon the systemic or institutional negligence of the hospital itself rather than the acts of the individual hospital employees.”). Therefore, under the theory of corporate liability, “a corporation is held directly liable, as opposed to vicariously liable, for its own negligent acts.” Welsh, supra at 513, 698 A.2d at 585; Rauch v. Mike-Mayer, 783 A.2d 815, 827 (Pa. Super. 2001), app. denied, 568 Pa. 634, 793 A.2d 909 (2002); see also, Laura White v. Richard Behlke M.D., 106 Lacka. Jur. 1, 4 (2005).

Viewing the record as a whole and in the light most favorable to the non-moving party, we conclude as a matter of law that the record could possibly support a jury finding of corporate negligence. Moreover, all doubts as to summary judgment must be resolved against the moving party. See Bordlemay, supra; Washington v. Baxter, 553 Pa. 434, 441, 719 A.2d 733, 737 (1998).

The expert report of Anthony Scardella M.D. dated December 11,2004, and attached as exhibit “E” to plaintiffs’ summary judgment response, clearly opines that

“Monitoring blood pressure when vasopressors are indicated requires transfer to the intensive care unit, which was not done in this case and which was indicated according to Marion Community Hospital policy and the standard of care.”

Certainly, as a matter of law, we are unable to say at the summary judgment stage that Marian Community Hospital has not breached its non-delegable duties “to formulate, adopt and enforce adequate rules and policies to ensure quality care for the patients.” Thompson v. Nason Hospital, 527 Pa. 330, 339-40, 591 A.2d 703, 707 (1991). (emphasis added)

Therefore, resolving all doubts in favor of the non-moving party, we must deny defendant MCITs motion for summary judgment as to corporate negligence.

C.

The defendant MCH’s other basis for summary judgment is their contention that the record is clear as a matter of law that they have no ostensible liability for defendant Desai.

At first glance, a hospital may be held ostensibly liable for negligent acts/omissions of a physician. This can occur “(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.” Goldberg ex rel. Goldberg v. Isdaner, 780 A.2d 654, 660 (Pa. Super. 2001).

Certainly, the record is replete with questions of fact regarding whether or not MCH “held out” defendant Desai as its employee and whether or not MCH advised decedent that defendant Desai was not the hospital’s agent. (See deposition testimony of Dr. Desai exhibit “F” to plaintiffs’ summary judgment response pp. 17-18, pp. 20 and 22; see also, exhibit “G” to plaintiffs’ summary judgment response.)

On the above basis alone, triable issues of fact exist, for a jury to decide, which are not clear cut as to the issue of ostensible liability. See Washington, supra.

Therefore, defendant Marian Community Hospital’s entire summary judgment motion will be denied.

An appropriate order will follow.

ORDER

And now, to wit, August 17,2005, upon due consideration of the motion for summary judgment of the defendant, Marian Community Elospital, the able verbal and written arguments of counsel and in accordance with the foregoing memorandum, said motion for summary judgment is denied.


source: Caselaw Access Project

author: GRINE, J,

license: Public Domain

text:
    McMinn v. Pennsylvania Rural Water Authority Association

      C.P. of Centre County,
    no. 2002-2516.

      Bernard F. Cantorna, for plaintiff.

      Robert E. Durrant, for defendant.
    August 17, 2005
   GRINE, J,

Before this court for consideration is the complaint of plaintiff Stephanie McMinn in which she alleges defendant John H. Hood, director of the Pennsylvania Rural Water Authority Association, wrongfully terminated her employment in violation of the Whistleblower Law, 43 P.S. §1421 et seq. A non-jury trial was held in the matter on December 2,2004, at the conclusion of which, this court ordered counsel for plaintiff and defendants to submit suggested findings of fact, conclusions of law, and memorandums of law within 20 days after the receipt of the transcript. Counsel for each party filed their suggested findings, conclusions, and memorandums in a timely manner, and this court has reviewed the same. This court finds that plaintiff was terminated in violation of the Whistleblower Law and is entitled to relief available under the statute.

PRELIMINARY DISCUSSION

PRWA is a non-profit association of approximately 800 small water and waste water systems. The association provides mutual support for these smaller systems to assist in their operations. N.T. 12/02/2004 at 3. Funding for PRWA is obtained through Commonwealth and federal grants making it a “public body” under the law. Id. at 4. See 43 P.S. §1422. At all relevant times to the present action, defendant was, and continues to be, the executive director of PRWA. Above defendant in the chain of command was the board of directors for the association. As executive director of PRWA, defendant is responsible for general management of PRWA, including hiring and firing employees and establishing internal office polices and operating procedures. One of defendant’s policies as understood by his staff is a strict chain of command when problems and issues arise. All problems were to be presented directly to defendant and under no circumstances was anyone to go above his head to seek resolution for an issue. It was also understood by his staff that a breach of this policy would result in disciplinary action up to and including termination of employment.

Plaintiff was hired by defendant to work for PRWA on December 27, 2000. Her initial position was that of assistant to the chief financial officer, but she was promoted to the position of controller after the chief financial officer left the organization. As controller, plaintiff was responsible for the financial reporting, payroll, and invoicing for Department of Environmental Protection (DEP) programs, as well as contract review and budgeting. Id. at 82. During her course of employment as controller, plaintiff began to grow concerned over some of the financial operations of the association. For example, plaintiff had concerns that financial statements were overstating PRWA’s income. Plaintiff also began to suspect inappropriate expenses were being charged to federal and Commonwealth grants, such as overtime compensation, which was prohibited by the regulations governing use of the grant money. Plaintiff also noted large expenses were not being competitively bid and asset purchases were being expensed rather than capitalized, thus overcharging the grants. Plaintiff grew concerned that charges were being placed on the association’s credit card for which she did not have receipts and that the association’s van was being excessively used for personal use. Id. at 83-86.

Plaintiff initially took her concerns to defendant, but defendant did not appear to be too concerned about these issues. Having received no satisfactory answer from her immediate supervisor, plaintiff took her concerns to the auditors whose report was ultimately viewed by the board, and she expressed her concerns to several board members. Id. at 87-89. PRWA’s finances were ultimately discussed at a board meeting held June 13, 2002. Following the meeting, plaintiff noted a marked change in defendant’s attitude toward her. It seemed as if he embarked on a crusade of sorts to either gain her unconditional support for him in his position as executive director of PRWA or, alternatively, her resignation. Plaintiff’s employment was ultimately terminated on September 4, 2002. Id. at 93-109.

DISCUSSION

Plaintiff asserts her termination of employment was unlawful as it was in violation of the Whistleblower Law, which prohibits an employer from discharging, threatening, discriminating, or retaliating against an employee “regarding the employee’s compensation, terms, conditions, location or privileges of employment because the employee or a person acting on behalf of the employee makes a good faith report or is about to report, verbally or in writing, to the employer or appropriate authority an instance of wrongdoing or waste.” 43 P.S. §1423(a). A “good faith report” is “a report of conduct defined... as wrongdoing or waste which is made without malice or consideration of personal benefit and which the person making the report has reasonable cause to believe is true.” 43 P.S. § 1422. “Waste” is defined under the law as “an employer’s conduct or omissions which result in substantial abuse, misuse, destruction or loss of funds or resources belonging to or derived from Commonwealth or political subdivision sources.” Id. “Wrongdoing” is defined as “a violation which is not of a merely technical or minimal nature of a federal or state statute or regulation, of a political subdivision ordinance or regulation or of a code of conduct or ethics designed to protect the interest of the public or the employer.” Id.

In order to support a claim under the statute, “an employee alleging a violation of this Act must show by a preponderance of the evidence that, prior to alleged reprisal, the employee . . . had reported or was about to report in good faith, verbally or in writing, an instance of wrongdoing or waste to the employer or an appropriate authority.” 43 P.S. § 1424(b). The wrongdoing or waste alleged must be “of the type that the employer is charged to enforce for the good of the public or is one dealing with the internal administration of the governmental employer in question.” Gray v. Hafer, 168 Pa. Commw. 613, 618-19, 651 A.2d 221, 224 (1994). An “appropriate authority” is “a federal, state or local government body, agency or organization having jurisdiction over... regulatory violations, professional conduct or ethics, or waste; or a member, officer, agent, representative or supervisory employee of the body, agency or organization.” 42 P.S. §1422. In other words, a plaintiff must establish a connection or nexus between the employer’s performance of its duty and the subject of the investigation. Sea v. Seif, 831 A.2d 1288 (Pa. Commw. 2003).

Plaintiff alleges that while she was in the position of controller she became concerned over some of the financial practices of the association. She first took those concerns to defendant, her supervisor, but received little response to her concerns other than “do not worry.” When her concerns were not addressed by defendant, she took her concerns to the auditors and several members of the board, resulting in those concerns being addressed at the June 13,2002 meeting. After that meeting where the concerns expressed by plaintiff were addressed, she noted a change in defendant’s behavior toward her as he grew more adamant that she understand the importance of her supporting him in his position and began to insinuate that her continued employment at PRWA hinged on her support.

This court must first determine whether plaintiff met her evidentiary burden under the law, namely a nexus between her reporting her concerns and termination of employment. This court finds that she has satisfied her burden. This court additionally finds that the board members constitute an appropriate authority as they are in a supervisory capacity over PRWA.

Defendant, as director of PRWA, was responsible for overseeing all the internal operations of PRWA. The proverbial buck stopped at his desk. Plaintiff, as controller, knew the regulations that needed to be followed in order to properly use the grant monies and had valid questions over whether policies sanctioned by defendant complied with grant regulations. Any mishandling of grant monies would most certainly qualify as wrongdoing or waste under the statutory definitions contained within the Whistleblower Law. See 25 P.S. §1422. As such, when plaintiff began to grow concerned that the financial practices permitted by defendant in his capacity as director might be in violation of the regulations governing the use of grant monies, she first went to defendant with her concerns. He disregarded her concerns and told her not to worry. Plaintiff continued to worry and justifiably took her concerns to the next level in the chain of command. Her termination a few months following a board meeting regarding the finances of the association only appears to prove plaintiff’s claim that she was terminated because she went above defendant’s head and took her concerns to the board.

Defendant, however, argues that plaintiff has not met her burden. Assuming the concerns about which plaintiff spoke to the board fell within the scope of defendant’s duties as director, defendant argues plaintiff cannot establish her termination was the result of any allegations she made to the board. In support of this proposition, defendant points out that plaintiff formally accused defendant of wrongdoing and waste in a letter to several board members that was written on July 24, 2002, but was not mailed until September 4,2002. As plaintiff was not terminated until September 4,2002, defendant claims he did not know she made any accusations until after her employment was terminated.

This court finds defendant’s assertion incredible, given the sequence of events. Plaintiff approached defendant with some concerns over the financial administration of PRWA. He told her not to worry and that he was not concerned. This response did little to assuage her concerns as the one responsible for the financial operations of PRWA. She then expressed her concerns to the auditors. Defendant knew she would be speaking with the auditors as it was part of her job, and the auditors would, in turn, report to the board. Logically, anything plaintiff told the auditors would be relayed to the board. Following the audit, the concerns plaintiff initially expressed to defendant were the subject of a board meeting. For defendant to claim he had no idea that plaintiff took her concerns about possible wrongdoing or waste to the board prior to learning about her letter simply does not make sense.

Even assuming defendant was aware plaintiff took her concerns over his head, defendant asserts that his termination of plaintiff does not violate the Whistleblower Law because she was not terminated for reporting to the board. Indeed, the law does provide a defense “if the defendant proves by a preponderance of the evidence that the action by the employer occurred for separate and legitimate reasons, which are not merely pretextual.” 43 P.S. § 1424(c). Specifically, defendant claims that plaintiff was a difficult employee who was ultimately terminated for repeated acts of insubordination. Defendant does acknowledge that he had multiple conversations with plaintiff concerning her ongoing lack of support for him and how critical the support of his employees was to the effective operation of PRWA. N.T. 12/02/2004 pp. 19-20. Defendant also testified to an incident of immature behavior on the part of plaintiff when she refused to speak to him following an incident where another employee indicated to plaintiff that defendant was going to fire her, and, upon learning about the statement, defendant questioned this employee through her supervisor. Id. at 48-49. Defendant also testified about another incident when plaintiff attempted to get his approval for a work-sharing arrangement with another employee so that plaintiff could take care of a litter of puppies. Id. at 49. Defendant also pointed to the fact that he could not effectively conduct meetings with plaintiff because she insisted on having a third party present. Her insistence on this point, he argues, severely curtailed his ability to effectively manage PRWA. Brief for defendant at 11. Defendant concludes that plaintiff’s behavior as evidenced by these incidents indicated a major personality conflict that could neither be tolerated nor remedied. The only solution left to defendant was to fire plaintiff.

In light of the evidence presented by plaintiff through former PRWA employees, this court finds the testimony of defendant that plaintiff was terminated because she was an employee who was difficult, if not impossible, to .work with merely a pretext. Testimony provided by Todd Mace and Wendy Malehorn indicated that defendant’s need to ensure he had his employees’ unconditional support in all aspects of his managing PRWA was paramount. This court found the testimony of Ms. Malehorn particularly interesting in that she was reprimanded by defendant for essentially the same conduct as plaintiff. Ms. Malehorn testified that she needed to know how to account for charges against a particular grant. Ms. Malehorn asked for assistance but received nothing from defendant or anyone else. Rather than be unproductive, she sought out an answer from National Rural Water. Upon learning that she had gone over his head after he refused to assist her, defendant informed Ms. Malehorn that she was fired and that, if she wanted to continue to work at PRWA, she needed to come in and try to regain her job. Id. at 73. This court cannot help but note the similarities between Ms. Malehorn’s experiences in dealing with defendant and the accounting practices of PRWA and plaintiff’s. Both Ms. Malehorn and plaintiff had questions, and both sought assistance from within the PRWA structure, but were unsuccessful in obtaining answers that satisfactorily answered their questions. They both went over defendant’s head for assistance and were reprimanded. Additionally, Mr. Mace explained to this court that the internal policy enforced by defendant, that any complaints that did not go directly to him would result in the termination of one’s employment, was generally understood by all employees. Id. at 61.

This court certainly recognizes the need for employers to have the support of his/her employees. An organization such as PRWA would be impossible to ran if there were not some form of management and oversight, and the court also recognizes effective management cannot be obtained without a definitive chain of command. A chain of command, however, is only as good as each individual link. If there is one weak link, the chain will falter, and that appears to be the situation here. Plaintiff attempted to stay within the chain of command and take her concerns to defendant first, but he did not appear willing to work with plaintiff to satisfactorily address her concerns. On the contrary, with regard to employee concerns that questioned defendant’s managerial policies, defendant opted for a more Machiavellian approach to management where a simple question as to his internal policies met with an almost immediate reprisal. One cannot expect to dismiss employee concerns with a mere “do not worry” and not expect that sooner or later a proactive employee intent on doing his/her job will not seek out a more definitive answer or resolution elsewhere.

Defendant notes that ultimately the auditors did not make any finding of wrongdoing or waste. Brief for defendant at 10. Unfortunately for defendant, it is not the fact that no finding was discovered. The Whistleblower Law is not a mechanism to punish employers for retaliating against employees; instead it is “chiefly a remedial measure intended to ‘enhance openness in government and compel the government’s compliance with the law by protecting those who inform authorities of wrongdoing.’ ” O’Rourke v. Commonwealth, Department of Corrections, 566 Pa. 161,175, 778 A.2d 1194, 1202 (2001). (citations omitted) A policy where employees were not permitted, under any circumstances, to go above defendant’s head when they had concerns or questions but did not receive adequate answers to address their concerns or questions does anything but promote openness and compel compliance; in fact, it achieves just the opposite goal by ensuring that any suspected wrongdoing or waste will never be addressed, and compliance will never be achieved or enforced.

Having determined that defendant’s reasons for terminating plaintiff were pretextual, this court must find in favor of plaintiff that her termination was due to her expressing her concerns to the board of directors as to the financial operations of the association in violation of the Whistleblower Law. Under the law, a successful plaintiff may seek damages for wrongful termination. Plaintiff requests damages in excess of $100,000 for lost wages, lost 40IK contribution, health insurance, the wrongful withdrawal of the 40IK, and attorney’s fees. As defendant has not chosen to dispute these amounts, this court will accept the damage calculations as to damages, and awards plaintiff damages in the amount of $100,791.61.

The court enters the following order.

ORDER

And now, August 17,2005, after trial and a review of the suggested findings of fact, conclusions of law, and memorandums of law submitted by counsel, this court hereby finds in favor of plaintiff.

Defendant shall pay to plaintiff the sum of $100,791.61 in damages within 90 days of the date of this order.


author: GEPHART, Member,

text:
    Office of Disciplinary Counsel v. Simpson
    Disciplinary Board Docket no. 6 D.B. 2004.
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

May 12, 2005

GEPHART, 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

On January 23, 2004, Office of Disciplinary Counsel filed a petition for discipline against Stephen W. Simpson, respondent. The petition charged respondent with commingling client funds and overdrawing his attorney escrow account, and engaging in the unauthorized practice of law. Respondent did not file an answer to petition.

A disciplinary hearing was held on July 8, 2004, before Hearing Committee 1.01 comprised of Chair Stewart L. Cohen, Esquire, and Members Leon W. Tucker, Esquire, and Patrick O. McDonald, Esquire. Respondent appeared pro se.

The Hearing Committee filed a report on January 24, 2005, finding that respondent violated the Rules of Professional Conduct and Rules of Disciplinary Enforcement as charged in the petition, and recommending that he be suspended for one year and one day.

This matter was adjudicated by the Disciplinary Board at the meeting of March 16, 2005.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and 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 said Rules of Disciplinary Enforcement.
(2) Respondent, Stephen W. Simpson, was born in 1945 and was admitted to practice law in Pennsylvania in 1969. His last attorney registration address is 1600 Walnut Street, Suite 1107, Philadelphia, PA 19103. He is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.
(3) Respondent has no prior history of discipline.
Charge I — Misuse of IOLTA Account and Commingling Funds
(4) Respondent maintained an IOLTA account at Commerce Bank, captioned “Simpson and Associates LLC.”
(5) Petitioner obtained respondent’s bank records from his IOLTA account for the period of August 1, 2000 to June 2001. Petitioner’s investigator-auditor, Diane Calabrese, prepared an IOLTA account spreadsheet. The spreadsheet reflects to a mathematical certainty all transactions on the IOLTA account between August 2000 and June 2001.
(6) Respondent used his IOLTA account as his attorney operating account into which he deposited fees and disbursed funds for general office expenses and malpractice insurance. In September 2000, respondent accepted and deposited into the IOLTA account a check in the amount of $2,500 from Prime Public Adjusters Inc. The check was a partial retainer fee for services respondent rendered on behalf of the client for a real estate purchase and luxury limousine transaction.
(7) In March 2001, respondent accepted and deposited into his IOLTA account a check in the amount of $1,000 from United Settlement Services Inc. The check represented fees for services to be rendered on behalf of the client or a real estate closing.
(8) Respondent routinely commingled in the IOLTA account his funds with those of his clients.
(9) Respondent commingled his funds because he believed that: due to tax liens, any account in his name would be seized by the taxing authorities, and that the only way he could survive financially was to use his escrow account, which he admitted was inappropriate.
(10) For example, respondent commingled client funds and personal funds as follows:
(a) on February 23, 2001, respondent deposited into his IOLTA account a check in the amount of $10,000, payable to Vivian Young and Simpson and Associates;
(b) at the time of the deposit, respondent’s IOLTA account contained his personal funds; and
(c) on February 23, 2001, respondent disbursed two checks to Ms. Young in the amounts of $4,309.18 and $300.
(11) There is no evidence that respondent misused any client funds that were held in the escrow account.
(12) Respondent alone had control over his IOLTA account and testified that he reconciled it “every couple of weeks.” (N.T. p. 28.)
(13) Between November 2000 and September 2002, respondent engaged in a pattern of overdrawing his IOLTA account on at least 25 separate occasions.
(14) Respondent stated that his checks were returned for insufficient hands because checks had “not cleared when the checks were presented or did not clear.” (N.T. p. 30.)
(15) Respondent received notices from the bank and the Lawyers Fund for Client Security about the overdrafts in his IOLTA account.
(16) The only corrective measures that respondent took to prevent the overdrafts was to “wait longer” before writing a check. (N.T. p. 31.)
(17) By order dated November 22, 1999, effective December 22,1999, the Supreme Court of Pennsylvania transferred respondent to inactive status pursuant to Pa.C.L.E. 111.
(18) Respondent commingled his clients’ funds and mishandled his IOLTA account when he was not authorized to practice law in Pennsylvania.
Charge II — Unauthorized Practice of Law
(19) By letter dated November 22, 1999, Elaine M. Bixler, secretary to the Disciplinary Board, notified respondent of the Supreme Court’s order transferring him to inactive status, effective December 22,1999, for failing to comply with Pennsylvania Rules for Continuing Legal Education.
(20) Ms. Bixler’s letter also informed respondent of the requirement under Pa.R.D.E. 217(e) that he file a verified statement of compliance with the board secretary within 10 days after the effective date of his transfer to inactive status.
(21) Respondent received the November 22,1999 letter from Ms. Bixler.
(22) Respondent failed to file the verified statement of compliance.
(23) By letter dated February 16,2000, Suzanne Price, attorney registrar, notified respondent that:
(a) the Pennsylvania Continuing Legal Education Board had certified that he was CLE compliant;
(b) he could not be transferred back to active status until he complied with Rule 219, Pa.R.D.E., by completing and returning the enclosed PA attorney’s Annual Fee Form for 1999-2000 and paying $200; and
(c) complying with Rule 217 of the Pa.R.D.E. by filing a verified statement of compliance.
(24) Respondent received Ms. Price’s letter of February 16, 2000.
(25) Respondent failed to comply with Rule 219, in that he did not make the $200 payment, and failed to comply with Rule 217(e), in that he did not file a verified statement of compliance.
(26) In or around October 3, 2001, respondent submitted the 2001-2002 PA Annual Attorney Fee Form and enclosed a check for $375 drawn on an account entitled “Simpson and Associates LLC, escrow account.”
(27) The attorney registrar returned the check to respondent as it was drawn on his escrow account.
(28) Respondent did not re-submit the payment.
(29) Respondent remained on inactive status.
(30) Respondent remained ineligible to practice law.
(31) On June 27, 2002, Alan M. Kaplan, Esquire, of respondent’s office, filed a civil action in the Court of Common Pleas of Philadelphia County, on behalf of George and Brenda Stovall.
(32) On December 10, 2002, Mr. Kaplan withdrew his appearance and respondent filed a praecipe to enter his appearance on behalf of the Stovalls.
(33) On February 21,2003, Roland J. Atkins, Esquire, attorney for defendants, filed a petition for stay by reason of unauthorized practice of law based on respondent’s ineligibility to practice law.
(34) By order dated March 6, 2003, the honorable Norman Ackerman set a rule returnable hearing for respondent to appear before the court on March 19,2003, and present evidence as to why the stay should not be granted and why appropriate sanctions should not be imposed on respondent.
(35) Respondent received a copy of the order but failed to appear for the March 19,2003 hearing. By order dated March 19, 2003, Judge Ackerman removed respondent as counsel.
(36) By letter dated April 29, 2003, addressed to the Disciplinary Board, respondent stated that he had recently learned that his license to practice law in Pennsylvania had been “suspended,” and he requested information as to what steps he was required to take to be reinstated.
(37) Respondent’s statement that he recently learned of his “suspended” status was not true, as he was aware that he was placed on inactive status in November 1999.
(38) Between December 1999 and April 2003, respondent held himself out as an attorney permitted to practice law in the Commonwealth.
(39) Between December 1999 and April 2003, respondent handled approximately 100 legal matters. These matters included real estate transactions, general advice, creating entities, reviewing papers, and one case where respondent entered his appearance and went to court to reschedule a hearing. Respondent did not inform his clients that he was an inactive attorney.
(40) Respondent freely and sincerely admitted his mistakes, misjudgments and rules violations.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.
(2) R.P.C. 1.16(a)(1) — A lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law.
(3) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
(4) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.
(5) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
(6) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
(7) Pa.R.D.E. 203(b)(3) — Willful violation of any provision of the Enforcement Rules shall constitute misconduct and shall be grounds for discipline via:
(a) Pa.R.D.E. 217(c) — A formerly admitted attorney shall promptly notify, or cause to be notified, of the transfer to inactive status, all persons or their agents or guardians to whom a fiduciary duty is or may be owed at any time after the transfer to inactive status, and all other persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances where there is a reasonable probability that they may infer that he or she continues as an attorney in good standing.
(b) Pa.R.D.E. 217(d) — Orders imposing transfer to inactive status shall be effective 30 days after the entry. The formerly admitted attorney, after entry of the transfer to inactive status order, shall not accept any new retainer or engage as attorney for another in any new case or legal matter of any nature.
(c) Pa.R.DJE. 217(e) — Within 10 days after the effective date of the transfer to inactive status order, the formerly admitted attorney shall file with the board a verified statement showing that the provisions of the order and Rule 217 have been fully complied with, and all of the state, federal, and administrative jurisdictions to which such person is admitted to practice. Such statement shall also set forth the residence or other address of the formerly admitted attorney where communications to such person may be thereafter directed.
(d) Pa.R.D.E. 217(j)(4)(iv) — A formerly admitted attorney is specifically prohibited from engaging in representing himself or herself as a lawyer or person of similar status.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with the unauthorized practice of law and commingling of client funds. Respondent did not file an answer, therefore all factual allegations contained in the petition for discipline are deemed admitted. In addition, respondent stipulated that he violated all Rules of Disciplinary Enforcement and Rules of Professional Conduct set forth in the petition for discipline. The stipulations, exhibits, and hearing testimony amply support the rule violations. Petitioner has met its burden of proof and established that respondent’s conduct violated the rules.

Respondent received notice in November 1999 that he had not fulfilled his continuing legal education requirements and was transferred to inactive status. After he completed his CLE credits, shortly after his transfer to inactive status, he subsequently failed to properly complete the attorney registration form, pay the annual fee, and comply with the administrative requirements for reinstatement. Although respondent was notified of the prerequisites to the resumption of the practice of law, he failed to fulfill them. These prerequisites were not onerous. Instead, respondent chose to practice law without a current license, handling approximately 100 matters from December 1999 through April 2003. Respondent even entered his appearance in a court proceeding, albeit briefly. Respondent never advised his clients that he was ineligible to practice law.

In addition to his lengthy unauthorized practice of law, respondent engaged in other professional misconduct. Respondent deposited personal funds into his IOLTA account when he was using that account to maintain client funds, thereby commingling the funds. Respondent also issued 25 bad checks.

Mitigating factors are present in this matter. Respondent showed remorse for his actions and cooperated with petitioner by entering into extensive stipulations of facts and law. Respondent has not received discipline in the past. Respondent offered no witnesses in mitigation, but his own testimony was evidence of the personal and financial pressures, guilt and embarrassment that he has endured.

The board has previously considered cases involving the unauthorized practice of law following transfer to inactive status. Applicable precedent establishes that suspension results from such misconduct, the length of which depends on the aggravating and mitigating circumstances present. Additional charges of misconduct in conjunction with the unauthorized practice may require a longer suspension. The rationale for suspension is that an attorney has an affirmative duty to know the status of his privilege to practice law and to comply with the professional requirements. The acts of fulfilling continuing legal education credits, filing an annual registration form and paying an annual fee are not mere ministerial duties, but part and parcel of the privilege of practicing law in the Commonwealth.

A sampling of recent discipline cases supports the imposition of a suspension of not less than one year and one day. In the matter of Office of Disciplinary Counsel v. Brown, 64 D.B. 2003, 954 Disciplinary Docket no. 3 (Pa. Oct. 15, 2004), Mr. Brown was employed as a part-time public defender in Erie County. While on inactive status, he defended at least 97 criminal defendants from January 2001 to February 2002. He was suspended for one year and one day. In the matter of Office of Disciplinary Counsel v. Forman, 70 D.B. 2001, 799 Disciplinary Docket no. 3 (Pa. Jan. 31, 2003), Mr. Forman continued to practice law for 12 years while on inactive status and was suspended for one year and one day for this misconduct. In Office of Disciplinary Counsel v. Harris, 150 D.B. 2002, 930 Disciplinary Docket no. 3 (Pa. July 15, 2004), Mr. Harris continued to represent a client after his transfer to inactive status and maintained an office with a large sign advertising himself as an attomey-at-law. The board noted that attorneys who engage in such activity cause harm to their unsuspecting clients and to the general public. Mr. Harris was suspended for one year and one day.

Another similar instance of misconduct resulted in a two-year suspension for the attorney. In Office of Disciplinary Counsel v. Jones, 71 D.B. 1999 and 126 D.B. 1999, no. 531 Disciplinary Docket no. 3 (Pa. Aug. 15, 2001), Mr. Jones engaged in at least 20 instances of the unauthorized practice of law during a 17-month period of time, and in addition was found to have inadequately represented and communicated with clients. There was no question that Mr. Jones had received notice of his transfer to inactive status and understood the effect of the inactive status, although Mr. Jones initially attempted to argue his lack of knowledge in the matter. Mr. Jones had a prior history of two informal admonitions.

Application of the strong line of precedent to respondent’s actions leads the board to conclude that a suspension of two years is appropriate. He engaged in a wide scope of unauthorized practice of law, handling at least 100 matters for approximately three and a half years. He never informed his clients that he was on inactive status. Additionally, respondent engaged in fiscal irresponsibility by depositing personal funds into his IOLTA account when he was using that account to maintain client funds. Respondent did admit his wrongdoing and demonstrate remorse; however, the court has plainly found that such misconduct is contemptuous and has imposed suspensions of at last one year and one day even in matters involving a short period of time and very few clients, such as the case at 150 D.B. 2002. Respondent’s misconduct warrants a two-year suspension.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Stephen W. Simpson, be suspended from the practice of law for a period of two years.

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 Sheerer dissented and would recommend a three-year suspension.

Board Member Curran did not participate in the matter.

Board Members McLaughlin, Brown, Pietragallo and Nordenberg did not participate in the March 16, 2005 adjudication.

ORDER

And now, July 22, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated May 12,2005, it is hereby ordered that Stephen W. Simpson be and he is suspended from the bar of this Commonwealth for a period of two years, and he shall comply with all the provisions of Rule 217 Pa.RD.E.

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


author: FRITSCH JR., J,

text:
    PennDOT v. Scarpa

      C.P. of Bucks County,
    no. 04-04018-29-6.

      Craig A. Sopin, for appellant.

      Joel West Williams, for appellee.
    January 13, 2005
   FRITSCH JR., J,

I. INTRODUCTION

Joseph Scarpa filed a petition for appeal from the order of the secretary of transportation suspending his operator’s license. This court denied the appeal by order dated December 1, 2004. This opinion is offered to explain the reasons for our decision.

II. PROCEDURAL AND FACTUAL BACKGROUND

By letter bearing mail date May 25, 2004, the Commonwealth of Pennsylvania, Department of Transportation notified Scarpa (appellant) that his driving privileges were suspended for one year effective June 29, 2004, as a result of his conviction on March 31, 2004, for violating section 3731 of the Vehicle Code (driving under influence). Appellant was arrested for DUI in Pennsylvania on October 5,2003, and was convicted in Pennsylvania on March 31, 2004. Appellant appealed the suspension of his Pennsylvania driver’s license, and a hearing was held before this court on November 9,2004. At his license suspension hearing before the undersigned, appellant’s sole argument was that PennDOT was not authorized to suspend his driving privileges because the conviction occurred and the official notice was mailed after February 1, 2004, the effective date of the Act of September 30, 2003, 2003 Pa. Legis. Serv. 2003-24 (West) (Act 24).

This matter was taken under advisement to allow appellant and the Commonwealth to submit memoranda of law. Following the receipt and review of the memoranda, this court issued an order on December 1, 2004, which denied the appeal and reinstated the suspension of appellant’s driving privileges.

III. ISSUES

Appellant raises two issues on appeal: (1) whether this court “erred in denying appellant’s driver license suspension appeal since the March 31, 2004 New Jersey (sic) DUI conviction date should have been the controlling date for the purposes of determining whether the department had authority to impose a suspension under Act 24 of 2003, effective February 1, 2004”; and (2) whether this court “erred in denying appellant’s driver license suspension appeal since the suspension authority in the official notice of suspension was 75 Pa.C.S. § 1532(b) but the legislature had repealed the inclusion of section 3731 (the old DUI law) in that section and failed to include a savings provision for section 1532(b), resulting in there having been no suspension authority under that provision at the time the suspension action was taken.” See statement of matters complained of on appeal.

IV. ANALYSIS OF THE ISSUES

In the case sub judice, appellant was convicted in Pennsylvania of violating section 3731A. The date of his violation was October 5, 2003. The date of his conviction was March 31,2004. Clearly, this is a DUI that occurred in Pennsylvania. (N.T., 11/09/04, p. 9.) Therefore, any reference to a New Jersey DUI in appellant’s statement of matters complained of on appeal is erroneous.

Pennsylvania’s DUI law was contained in 75 Pa.C.S. §3731 until February 1,2004. Effective February 1,2004, 75 Pa.C.S. §3731 was repealed and replaced by 75 Pa.C.S. §3802. Under the old statute (75 Pa.C.S. §3731), all first-time DUI convictions resulted in a one-year suspension of driving privileges. Under the new statute (75 Pa.C.S. §3802), drivers convicted of violating section 3802(a) who have not been convicted of DUI within the past 10 years will avoid any suspension of driving privileges. Drivers who are convicted of a second or subsequent DUI will remain subject to suspension of driving privileges.

Section 21 of Act 24 provides:

“Section 21. The following shall apply:...
“(2) The repeal of 18 Pa.C.S. §7514 and 75 Pa.C.S. §3731 shall not affect offenses committed prior to February 1, 2004, or civil and administrative penalties imposed as a result of those offenses.
“(3) An individual sentenced under 18 Pa.C.S. §7514 or 75 Pa.C.S. §3731 shall be subject to administrative and civil sanctions in effect on January 31,2004....
“(5) The following apply to offenses committed before February 1, 2004:
“(i) Except as set forth in subparagraph (ii) or (iii), this Act shall not affect an offense committed before February 1,2004, or any criminal, civil and administrative penalty assessed as a result of that offense.”

In license suspension appeals involving Act 24, the Bucks County Court of Common Pleas has held that the date of violation is the correct date for determining which version of the statute applies. PennDOT v. Woods, docket no. 04-03799-30-6, Bucks Cty. C.C.P., November 3, 2004. PennDOT v. McCann, docket no. 04-02600-30-6, Bucks Cty. C.C.P., September 8, 2004.

Appellant argues that PennDOT lacked the authority to impose a one-year suspension of his driving privileges as a result of his March 31, 2004 conviction. This argument is based on appellant’s belief that the current version of75 Pa.C.S. §1532(b) should be read in a vacuum. Appellant wants this court to ignore the savings provisions set forth above in section 21 of Act 24 and apply the wording of the current version of section 1532(b) to his case. While the current version of section 1532(b) does not authorize a one-year suspension for appellant’s conduct, the version which was in effect on January 31, 2004 clearly does.

Prior to February 1, 2004, section 1532(b) read:

“1532. Revocation or suspension of operating privilege ...
“(b) Suspension.—
“(3) The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 (relating to driving under influence of alcohol or controlled substance) or 3733 (relating to fleeing or attempting to elude police officer) or an adjudication of delinquency based on section 3731 or 3733. The department shall suspend the operating privilege of any driver for six months upon receiving a certified record of a consent decree granted under 42 Pa.C.S. ch. 63 (relating to juvenile matters) based on sections 3731 or 3733.” 75 Pa.C.S. § 1532(b)(3) (1994).

As a result of the savings clauses in section 21 of Act 24 (quoted above), this court determined that PennDOT had the authority to suspend appellant’s driving privileges under the version of section 1532(b) in effect on January 31, 2004.

Appellant’s second issue raised the point that the legislature had repealed the inclusion of section 3731 in 75 Pa.C.S. § 1532(b), and failed to include a specific savings provision for section 1532(b). This issue is inextricably linked to appellant’s first argument that the controlling date should be the date of conviction rather than the violation date. Appellant cites Berner v. PennDOT, 7A6 A.2d 1207 (Pa. Commw. 2000) in support of his position. That case addressed the application of the driver’s license compact where the motorist was no longer licensed in Pennsylvania at the time of conviction in another state. Because Scarpa was convicted in Pennsylvania and remains licensed in Pennsylvania, we find that Berner is inapplicable to the case sub judice.

In light of the language set forth above in section 21 (2), (3) and (5) of Act 24, we find that appellant’s suspension was imposed under proper legal authority and that the violation date is the critical date for determining the applicable law. Woods, supra at 7.

V. CONCLUSION

The foregoing represents the reasons for this court’s order of December 1,2004.

      . The new DUI law is contained in the Act of September 30,2003, 2003 Pa. Legis. Serv. 2004-24 (West). This legislation is commonly referred to as “Act 24” and the provisions relevant to the instant case became effective on February 1, 2004.


author: QUIÑONES ALEJANDRO, J,

text:
    Scavetti-Celano v. Milillo

      C.P. of Philadelphia County,
    January Term 2004,
    no. 0731.

      Marc T. Sacchetta, for plaintiff.

      Austin R. Gray, for defendants Louden, Louden and Milillo.
    July 13, 2005
   QUIÑONES ALEJANDRO, J,

INTRODUCTION

The instant appeal involves allegations that the undersigned trial judge erred and/or abused [her] discretion when determining that Vanessa Scavetti-Celano (plaintiff) was subject to the “limited tort” option provisions of the Motor Vehicle Financial Responsibility Law (MVFRL or Motor Vehicle Code), 75 Pa.C.S. §1705 et seq. This trial judge disagrees.

RELEVANT FACTUAL AND PROCEDURAL HISTORY

Plaintiff’s civil action complaint for personal injuries against Lisa M. Milillo (defendant), Ron Louden and Ron Alan Louden (same person, defendant Louden), and Valerie Elaine Monroe for negligent entrustment of a motor vehicle. On January 20, 2005, a default judgment was entered against defendant Monroe as a result of her failure to file an answer to the complaint. Discovery ensued and was completed. On March 2,2005, a jury trial commenced against the remaining defendants. Briefly, the relevant evidence the jury considered is as follows:

“On January 8, 2002,[] plaintiff was a 29-year-old female[] employed as a supervisor in the digitizing department at Main Line Embroidery,[] an entity she had worked with for 14 years.[] On that date, she received a phone call at her place of employment from the police notifying her that the alarm system at her mother’s house had been triggered.[] Plaintiff asked a co-worker, defendant Monroe, to drive her from their Essington, Pennsylvania,[] work location to check on her mother’s home located in Philadelphia, Pennsylvania.[] Defendant Monroe agreed and they were headed in a southward direction on 4th Street[] in Tinicum Township,[] with plaintiff as an unrestrained[] front seat passenger,[] when the motor vehicle accident occurred.
“Defendant Louden was driving a vehicle he and his wife, defendant Milillo, owned, on his way to a truck driving school located in Lester, Pennsylvania.[] Moments prior to the motor vehicle accident, defendant Louden came to a rolling stop[] before making a left hand turn onto Seminole Street, the cross street to 4th Street[] (which does not have any stop signs for vehicles going north and south).[] As he entered 4th Street, defendant Louden’s vehicle was traveling at approximately 10 miles per hour,[] while defendant Monroe’s approaching vehicle was traveling at a speed between 25 and 45 miles per hour. [] Defendant Louden had almost completed the turn onto 4th Street when the accident occurred. The collision impact was to the front passenger side of defendant Monroe’s Mazda 626[] causing the airbags to deploy,[] and to the right rear quarter panel of defendant Louden’s Suzuki Side Kick.[] The force of the collision broke the axle of defendant Louden’s vehicle, making it inoperable.[]
“Although an ambulance arrived at the scene of the accident, plaintiff refused immediate medical care.[] Later that evening, she went to the emergency room at Thomas Jefferson University Hospital where her entire body was x-rayed and she was later discharged.[]
“Approximately two weeks after the accident,[] plaintiff sought the services of a chiropractor. She underwent a MRI,[] which was positive for a herniated disk or protrusion.[] Plaintiff received treatment from the chiropractor until her medical benefits were exhausted, then ceased treatment because she could not financially afford the therapy.[] She was advised by her chiropractor to take up Pilates, but failed to do so.[] Approximately two to three months after the accident,[] her neck pains subsided, but her back pain allegedly did not.[] She used Aspercream on her back and took non-prescription pain medication.[]
“Before the accident, plaintiff claims that she did not suffer from any type of neck or back pain.[] She was able to exercise, run, and do sit-ups, household chores and other physical activities without any pain.[] Plaintiff claims, however, that since the accident, she continues to suffer from constant back pain;[] that she cannot sit or stand for extended periods of time;[] and that her ability to engage in physical activities has diminished.[] Other than the chiropractic treatments, plaintiff did not seek any medical treatment for her accident-related injuries.[]
“As a result of the motor vehicle accident, plaintiff did not miss any work nor did her job responsibilities require any accommodations for her injuries.[] Plaintiff did not suffer any lost wages.[] She has since married, had a child, and now manages a moving company with her husband.[] Her current responsibilities consist of secretarial and administrative duties.”[]

On March 8,2005, the jury rendered a verdict finding that defendant Louden was negligent but that his negligence was not a factual cause in bringing about plaintiff’s injuries. The jury also found that plaintiff did not sustain a “serious injury.”

On March 14, 2005, plaintiff filed a post-trial motion requesting a new trial. Oral argument was scheduled and heard on April 26 and April 27, 2005. By order dated April 27, 2005, this trial judge denied plaintiff’s post-trial motion.

Dissatisfied, on May 4, 2005, plaintiff filed the instant appeal.

ISSUE

In response to an order issued in accordance with Pennsylvania Rule of Appellate Procedure 1925(b), plaintiff, on June 3, 2005, served unto this trial judge a concise statement of matters complained of on appeal and argued that: “this honorable court committed an error of law and/or abuse of discretion in ruling that plaintiffs [sic] case was governed by ‘limited tort.’ Plaintiff’s counsel preserved this issue by objecting to the court’s ruling prior to the selection of the jury. Plaintiff also preserved this issue by objecting on the record outside the presence of the jury during the charging conference to a limited tort charge, and plaintiff again preserved this objection on the record at the sidebar conference immediately after the courts [sic] charge to the jury.”

LAW AND DISCUSSION

For the reasons that follow, this trial judge opines that the denial of plaintiff’s post-trial motion was proper and that this appeal is without merit.

At the outset, it is important to mention that, although the jury found defendant Louden negligent, they also found that defendant Louden’s negligence was not a factual cause in bringing about plaintiff’s injuries, and that plaintiff did not suffer a “serious injury.” Because this trial judge determined that the “limited tort” option of the MVFRL applied, the jury did not consider what damages, if any, plaintiff suffered. This judicial determination is the basis of plaintiff’s appeal and request for a new trial.

It is undisputed that the decision to grant and/or deny a request for a new trial lies within the sound discretion of the trial court. Andrews v. Jackson, 800 A.2d 959, 962 (Pa. Super. 2002), appeal denied, 572 Pa. 694, 813 A.2d 835 (2002). An appellate court may not disturb a trial court’s ruling unless the trial court palpably abused its discretion and/or committed an error of law. Neison v. Hines, 539 Pa. 516, 521, 653 A.2d 634, 636 (1995); Andrews, 800 A.2d at 961. An abuse of discretion is not merely an error of judgment. If, in reaching a conclusion, the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill will, as shown by the evidence of record, discretion is abused. See Fanning v. Davne, 795 A.2d 388, 393 (Pa. Super. 2002), citing Paden v. Baker Concrete Construction Co. Inc., 540 Pa. 409, 412, 658 A.2d 341, 343 (1995). However, an abuse of discretion may not be found merely because the appellate court might have reached a different conclusion. The court’s action requires a showing of manifest unreasonableness, or partiality, prejudice, bias, or ill will, or such lack of support as to be clearly erroneous. Fanning, 795 A.2d at 393.

A new trial is warranted where the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. Neison, 539 Pa. at 521, 653 A.2d at 636. However, a new trial should not be granted because of a mere conflict in testimony or some irregularity which occurred during trial or because the trial judge, on the same facts, would have arrived at a different conclusion. Harman ex rel. Harman v. Borah, 562 Pa. 455, 468, 756 A.2d 1116, 1122 (2000), appeal denied, 567 Pa. 762,790 A.2d 1017 (2001). The moving party must demonstrate to the trial court that he or she has suffered prejudice from the mistake. Id. at 468, 756 A.2d at 1122.

Here, the pertinent statute is the Motor Vehicle Code. Generally, under the provisions of this code, insurance companies must present their insureds with an opportunity to choose between the “full tort” option and the “limited tort” option. 75 Pa.C.S. § 1705(a)(1). For a higher yearly premium, the “full tort” option allows individuals an opportunity to seek financial compensation for all medical and out-of-pocket expenses, as well as noneconomic loss, which is defined as pain and suffering and other non-monetary damages suffered as a result of a motor vehicle accident. 75 Pa.C.S. § 1705(a) (1)(B) (2004); 75 Pa.C.S. §1702(2)(ii) (2004).

In contrast, the “limited tort” option restricts damage recovery to only medical and out-of-pocket expenses unless the injuries fall within the “serious injury” definition. 75 Pa.C.S. §1705(a)(1)(A) (2004). An insured who affirmatively chooses the “limited tort” option and who has not sustained a “serious injury” is precluded from recovering noneconomic damages. Berger v. Rinaldi, 438 Pa. Super. 78, 84,651 A.2d 553, 556 (1994), appeal denied, 544 Pa. 641, 664 A.2d 971 (1995).

A serious injury is defined as “a personal injury resulting in death, serious impairment of body function, or permanent serious disfigurement.” See 75 Pa.C.S. §1702. To meet a “serious impairment of body function” threshold requires answering two inquiries: (a) what body function, if any, was impaired because of the injuries sustained in a motor vehicle accident and (b) was the impairment of the body function serious? Washington v. Baxter, 553 Pa. 434, 447, 719 A.2d 733, 740 (1998). These inquiries are not on the injuries themselves, but rather, on the effect the injuries had on a particular body function. Id. Factors that should be taken into consideration when determining whether an injury is serious include the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. Id. Except in the clearest of cases, the determination of whether “serious injury” exists should be made by the jury. Id.

Here, prior to the commencement of the jury trial, this trial judge heard argument on whether this matter was governed by the provisions of full tort or limited tort. Plaintiff argued that this case should not be governed by “limited tort” provisions of the MVFRL because the declaration page of her Farmers New Century Insurance Contract dated December 10,2001, indicated in the “Coverages” section that the coverage was for a “full tort” plan, that she had not signed any waiver form, and that the total amount of the annual premium paid supported her contention that she had selected the “full tort” option. Defendants’ counsel, however, provided this trial judge with a waiver form dated April 19, 2001, signed by plaintiff’s mother. In response, plaintiff argued that the waiver form that her mother signed which selected the “limited tort” insurance option was done without her knowledge for a totally different insurance policy, as evidenced by the different policy numbers. In their response, defendants argued that the different numbers were due to a clerical error and that plaintiff had previously admitted at a trial deposition that she and her mother owned only one insurance policy, which is the one that contained the signed waiver and the sign-down form indicating the limited tort selection.

This trial judge is aware that section 1705(a)(2) of the Motor Vehicle Code provides: “Where there are two or more named insureds on a policy, any named insured may make the full or limited tort election provided for in this section for all named insureds on the policy.”

In addition to considering the arguments made, this trial judge carefully reviewed the waiver page and the amount of the annual premiums due, depending on the selection of either the full tort option or limited tort option. From these documents, it appeared that the basic annual premium paid for the coverage selected was consistent with the premiums due for the “limited tort” coverage, discounted. The amount plaintiff or her mother paid for the insurance premiums did not surpass the amount due for limited tort coverage, and was not near the amount due for full tort coverage. Despite plaintiff’s professed lack of knowledge that her mother signed the waiver form for the policy, this trial judge is convinced that a valid waiver had been signed by plaintiff’s mother and, consequently, that the “limited tort” option provisions of the MVFRL govern the instant case. The “limited tort” option chosen by plaintiff’s mother binds any and all insureds on that policy, including plaintiff. This trial judge was not persuaded by plaintiff’s argument that a valid waiver did not exist or that the waiver form was for a different insurance policy. Her argument, at times contradictory and inaccurate, was not convincing. In this trial judge’s opinion, plaintiff has failed to support her appellate claim that an error of law and/or an abuse of discretion occurred when this trial judge determined that the “limited tort” provisions applied in this case.

CONCLUSION

Based on the foregoing discussion, statutes, rules, and case law, this trial judge is of the opinion that no error of law and/or abuse of discretion occurred in ruling that plaintiff’s case was governed by “limited tort” provisions of the Motor Vehicle Code and/or in denying plaintiff’s post-trial motion for a new trial. This trial judge respectfully requests that plaintiff’s appeal be dismissed and that the order dated April 29,2005, be affirmed.

      . At the commencement of the trial, the caption was amended with leave of the court to reflect the parties as plaintiff, and defendants Louden and Monroe.

      . March 2,2005, trial transcript at 58: 14.

      . Id. at 104: 16.

        . Id. at 58: 5-11.

      . Id at 58: 7.

        . Id. at 67: 15-20.

      . Id. at 59: 19.

      . Id. at 59: 2-4, 14-16.

      . Id. at 60: 11.

      . Id at 46: 12-13.

        . Id. at 104: 16-18.

      . Id. at 60: 2, 7-8.

      . Id. at 122: 5-8; 121: 15.

      . Id. at 124: 11-14.

      . Id. at 124: 18-22.

      . Id. at 124: 18-22.

      . Id. at 134: 6-9.

      . Id. at 61: 10; 104: 16-18; 88: 11-13. There is inconsistent evidence regarding the speed of defendant Monroe’s vehicle. Plaintiff testified the speed of the vehicle was 25 miles per hour. However, the emergency room medical records indicate that plaintiff stated that the speed was 30 miles per hour, while the Emergency Department nursing record reflects the speed of the vehicle to be 45 miles per hour.

      . Id. at 59: 7.

      . Id. at 63: 7-21; 64: 24-25.

      . Id. at 124: 23; 127: 4-6.

      . Id at 125: 18-20.

      . Id. at 67: 11-13.

      . Id. at 68: 5-11; 68: 18-20.

      . Id. at 69: 3-8.

      . Id. at 72: 11.

      . Id. at 73: 19-20.

      . Id. at 95: 4-5; 95: 11-15.

      . Id. at 107: 17-22; 108: 5-9.

      . Id. at 71: 10-14.

      . Id. at 72: 6-7.

      . Id. at 92: 13-25.

      . Id. at 76: 2-5.

      . Id at 76: 13-16.

      . Id. at 74: 24-25.

        . Id. at 76: 20-25.

      . Id. at 77: 12-17. Plaintiff can walk a little bit on the treadmill but is not able to exercise as she used to before the accident. Household chores, such as vacuuming, hurt her back, and she cannot pick up her newborn baby without feeling back pain.

      . Id. at 101: 14-16.

      . March 2, 2005, trial transcript 91: 20-21.

      . Id. at 92: 3-11.

      . Id. at 57: 4-20.

      . Id. at 19-20.


author: GEORGE, J,

text:
    Kosek v. Yetter

      C.P. of Adams County,
    no. 04-S-622.

      Patrick W Quinn, for plaintiffs.

      Matthew E. Teeter, for defendant.
    August 30, 2005
   GEORGE, J,

On June 16, 2004, James and Michelle Kosek initiated a cause of action against Scott Yetter t/d/b/a Yetter Home Improvements and Anthony Helfrick t/d/b/a Helfrick Heating and Cooling. Essentially, Koseks alleged that they hired Yetter as a general contractor to make certain improvements to their property at 19 Lakeview Drive, Gettysburg, Pennsylvania. The complaint further alleges that Yetter selected Helfrick as a subcontractor to work on the HVAC system at Kosek’s residence. In the initial complaint, Kosek claims that the work was completed in an unworkmanlike manner thereby constituting a breach of contract. Kosek, therefore, sought damages in the amount of $5,300 relative to the alleged breach.

Kosek’s initial complaint was met by preliminary objections from Yetter challenging the lack of specificity of the pleading. Helfrick, however, failed to file a responsive pleading. On August 5,2004, default judgment was entered against Helfrick in the amount of $5,300.

Kosek responded to Yetter’s preliminary objections by filing an amended complaint on October 22, 2004. The amended complaint once again alleged that Yetter verbally agreed to be the general contractor and, thereafter, breached that verbal agreement by having the contemplated work completed in an unworkmanlike manner. Kosek’s claims for damages in the amended complaint increased to $5,680.

Following the close of the pleadings, a hearing was held before a board of arbitration on February 17,2005. That same day, the board entered an award against Kosek and in favor of Yetter. Atimely appeal was filed by Kosek. Following a pretrial conference on June 16, 2005, this matter was scheduled for a one-day jury trial to be held during the civil trial term beginning October 31, 2005. On July 8,2005, Kosek filed a motion to amend the complaint seeking to add counts of negligence, misrepresentation and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1 et seq. Under these proposed amended counts, Kosek now seeks $ 11,718.78 in damages plus punitive damages and attorney fees.

Generally, Pennsylvania jurisprudence is liberal in granting a party leave to amend their pleadings. Frey v. Pennsylvania Electric Co., 414 Pa. Super. 535, 538, 607 A.2d 796, 797 (1992). “Although the determination of whether to grant leave to amend is within the sound discretion of the trial court, leave should be granted at any stage of the proceedings, unless such an amendment violates the law or unfairly prejudices the rights of the opposing party.” Id. Amendments which introduce a new cause of action after the statute of limitations has expired are not permitted. Hodgen v. Summers, 382 Pa. Super. 348, 350, 555 A.2d 214, 215 (1989).

Kosek’s amended counts for negligence and misrepresentation are subject to a two-year statute of limitations. 42 Pa.C.S. §5524. A review of the pleadings indicates that the conduct upon which Kosek bases his complaint occurred in February or March of 2003 with all work completed in May of 2003. These causes of action clearly fall outside the statute of limitations and, therefore, an amendment to add these causes of action will not be permitted.

Kosek’s argument that the amended counts are only clarifications of the original cause of action is not persuasive. While it is true that Pennsylvania authority recognizes that a proposed amendment, which does not change a cause of action but merely amplifies that which has already been averred, will be permitted even though the statute of limitations has run, see Frey, cited above, that principle has no application to Kosek’s proposed amendment. Undoubtedly, the new tort claims alleged by Kosek are inherently different from the original cause of action filed in the breach of contract. See generally, Phico Insurance Co. v. Presbyterian Medical Services Corp., 444 Pa. Super. 221, 229, 663 A.2d 753, 757 (1995). Accordingly, Kosek will not be permitted to amend the complaint to allege causes of action for negligence and misrepresentation.

Kosek’s request to amend the complaint to add a cause of action under the UTPCPL merits further discussion. Unlike the negligence and misrepresentation causes of action, a cause of action under the UTPCPL is well within the statute of limitations. See Keller v. Volkswagen of America Inc., 733 A.2d 642, 646 n.9 (Pa. Super. 1999) (the UTPCPL is governed by a six-year statute of limitations). Therefore, it is necessary to examine whether the addition of a cause of action under the UTPCPL unfairly prejudices Yetter’s rights or is otherwise contrary to the law.

Obviously, the addition of a distinct cause of action brings with it the inherent prejudice related to increased exposure on a different theory of liability. Pennsylvania courts, however, have demanded more than this type of prejudice before an amendment is properly prohibited:

“ ‘Prejudice that would prevent the grant of an amendment must be... something more than a detriment to the other party “since any amendment almost certainly will be designed to strengthen the legal position of the amending party and correspondingly to weaken the position of the adverse party.... To make the advantage sought by an amendment operate as a bar to amendment would be to destroy the right to amend except in cases when a moving party would have no reason to amend.” ’... The test, therefore, is whether the prejudice would go beyond ‘that which would normally flow from the allowance of an amendment.’ ” Sands v. Forrest, 290 Pa. Super. 48, 53, 434 A.2d 122, 125 (1981) (quoting Cellutron Products Corp. v. Stewart, 223 Pa. Super. 391, 394, 300 A.2d 900, 901-902 (1972)).

Yetter suggests that additional prejudice arises from the delay in the requested amendment. Yetter’s claim of unreasonable delay as a basis for a finding of prejudice is traceable to a line of Pennsylvania cases which have denied amendment where extensive delay is present. See PennDOT v. Bethlehem Steel Corp., 486 Pa. 186, 404 A.2d 692 (1979); Hightower v. Bekins Van Lines Co., 267 Pa. Super. 588,407 A.2d 397 (1979); and Kenney v. SEPTA, 122 Pa. Commw.. 1, 551 A.2d 614 (1988). That line of cases, however, is distinguishable in light of the extensive delay present in each case. More recent appellate authority instructs that atrial court’s refusal to allow amendment solely on the basis of unreasonable delay and nothing more is an abuse of discretion. Horowitz v. Universal Underwriters Insurance Co., 397 Pa. Super. 473, 483, 580 A.2d 395, 400 (1990) (citing Stouffer v. PennDOT, 127 Pa. Commw. 610, 615, 562 A.2d 922, 925 (1989)); City of Philadelphia v. Spencer, 139 Pa. Commw. 574, 577, 591 A.2d 5, 7 (1991). The original complaint in this matter was filed on June 16, 2004. Kosek’s motion to amend follows the original filing by a little less than 13 months. I find this delay insufficient to trigger the Bethlehem Steel Corp. line of cases.

Yetter further claims that Kosek’s use of amended pleadings is impermissibly punitive in nature. Yetter suggests that the proposed amendments are retaliatory as a result of adverse decisions in earlier litigation. While this argument is interesting, it must also be rejected.

Pennsylvania Rule of Civil Procedure 1311 grants litigants an unlimited right to a trial de novo in any appeal from the decision of a board of arbitration. In Weber v. Lynch, 473 Pa. 599, 610, 375 A.2d 1278, 1283 (1977), the Supreme Court put to rest any question about the parameters of such an appeal when it held that a right to proceed to trial was absolute without evidentiary limitations. Interestingly, the Weber court found the absolute right to a de novo hearing on appeal despite claims that the appellant acted in bad faith by using the arbitration hearing for discovery without calling any witnesses on their own behalf. Thus, earlier proceedings are not a proper reference point from which to consider the merits of the proposed amendment.

I also recognize the wealth of appellate authority which has permitted amendment at various stages during the course of litigation. For instance, amendment has been permitted during trial, Laursen v. General Hospital of Monroe Cty., 494 Pa. 238, 244, 431 A.2d 237, 240 (1981); after the close of testimony, Ecksel v. Orleans Construction Co., 360 Pa. Super. 119, 131, 519 A.2d 1021, 1027 (1987); after verdict, Standard Pipeline Coating Co. Inc. v. Solomon & Teslovich Inc., 344 Pa. Super. 367, 376, 496 A.2d 840, 845 (1985); after judgment, Euster v. Standard Acc. Ins. Co., 139 Pa. Super. 6, 10, 10 A.2d 877, 879 (1940); and on appeal, Binswanger v. Levy, 311 Pa. Super. 41, 48, 457 A.2d 103, 106-107 (1983). When this case law is coupled with the absolute right to a de novo hearing, it is clear that an amendment should be liberally granted absent prejudice regardless of the motivation of the amending party. The type of prejudice envisioned by our appellate courts which justifies the denial of an amendment is that which compromises the opposing party’s ability to present its case. See Spencer, cited above. Since prejudice of that magnitude has not been proffered by Yetter, Kosek will be granted permission to amend in regard to a cause of action under the UTPCPL.

For the foregoing reasons, the attached order is entered.

ORDER

And now, August 30, 2005, the plaintiffs’ motion to amend is granted in part and denied in part. The plaintiffs are granted permission to amend the complaint to include a count for cause of action under 73 P.S. §201-1 et seq. in the substantial form set forth in the motion. The plaintiffs’ request to add additional counts for negligence and misrepresentation is denied. The plaintiffs shall file an amended complaint as permitted by this order within 20 days of the date of this order. Failure to do so will result in waiver of the amendment as requested.

      . In the alternative, Kosek’s complaint alleged that the relationship with Helfrick was a prime contract between Kosek and Helfrick. These allegations in the complaint appear to be alternative causes of action in that the allegations raise alternative factual backgrounds.

      . Although Yetter’s claim of retaliation is circumstantially supported by the history of this matter, I note that Kosek changed representation following the adverse verdict by the board of arbitrators. It is equally plausible that new counsel brings a different perspective and strategy to the litigation thereby prompting the motion to amend.

      . In permitting this amendment, I render no opinion as to the merits of Kosek’s additional claim. The probability of success, or lack thereof, is not a proper consideration in determining whether prejudice is present. James A. Mann Inc. v. Upper Darby School District, 99 Pa. Commw. 276, 281, 513 A.2d 528, 531 (1986).

      . I note that Kosek’s motion to amend seeks only to add three additional counts as discussed in this opinion. In his brief, however, Kosek implicitly references requests to add additional claims for damages. Due to the nature of the proposed amendment presented to this court, this opinion addresses only Kosek’s desire to add three additional counts.


author: JONES II, J.,

text:
    Eastern Dentist Insurance Company v. Jones

      C.P. of Philadelphia County,
    April Term 2004,
    no. 2398.

      Andrew J. Gallogly, for plaintiff.

      Anthony E. Zabicki, Jr. and Mary M. Labree, for defendant Simmons.

      Louis E. Slawe, for defendant Jones.
    June 29, 2005
   JONES II, J.,

This case is one of first impression for this court. In this action, plaintiff Eastern Dentist Insurance Company (EDIC), a dental society risk retention group, maintains that it need not defend and indemnify defendant Lionel A. Jones D.M.D. in an underlying medical malpractice action due to his alleged alterations of the patient’s medical records. For the reasons discussed below, EDIC’s motion for summary judgment is denied.

BACKGROUND

EDIC issued and delivered a policy of professional dental liability insurance to the defendant Lionel Jones D.M.D. providing coverage on a claims-made basis for a policy period March 1, 2002 to March 2003. During this policy period, Dr. Jones treated Robert Simmons on June 8, 2002, and extracted tooth no. 31 and prescribed Tetracycline and Tylenol. In July 2002, Jones responded to a request for records from an attorney and produced a copy of Simmons’ chart.

In or about October 2002, Dr. Jones received notice of a dental malpractice claim on the part of Robert Simmons. Dr. Jones thereafter reported the claim to EDIC on or about November 7, 2002, after which EDIC opened a claim file, established communications with Simmons’ attorney and began to investigate the claim. EDIC also received a copy of Simmons’ chart.

After EDIC and Simmons’ attorney were in possession of the chart, Dr. Jones added several notes to the chart. The notations were done with a different color pen and consisted of the following: (1) noting on the third line of the chart to the effect that the procedure performed by Dr. Jones on June 8,2002, was a “simple extraction”; (2) the addition of the word “minor” to describe the patient’s facial swelling at the time of his second office visit on June 10, 2002; (3) adding a statement at line 13 of the chart indicating that the patient said on his second visit that he had lost the medication which Dr. Jones had previously prescribed; (4) adding a statement at line 13 of the chart in connection with the second and last office visit to the effect that the patient had requested and was given his x-ray films; and (5) forging the patient’s signature at lines 17 and 18 of the chart to suggest that Mr. Simmons actually signed for receipt of the x-ray films.

After learning of the existence of two different versions of the patient’s chart, EDIC issued a reservation of rights letter to Dr. Jones and directed him to appear for an examination under oath to determine the circumstance surrounding the alterations. During the course of his sworn testimony on December 4,2003, Dr. Jones admitted that he made numerous changes to Simmons’ chart during a single sitting that were not dated contemporaneously with their making. Dr. Jones testified that it was his desire to make the chart more complete by adding notations for clarification.

DISCUSSION

“A court’s first step in a declaratory judgment action concerning insurance coverage is to determine the scope of . . . coverage.” General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997). Under Pennsylvania law, the primary consideration in interpreting a contract, including an insurance contract, is the language of the contract itself. Bateman v. Motorists Mutual Insurance Co., 527 Pa. 241, 245, 590 A.2d 281, 283 (1991). That language must be construed in accordance with its plain and ordinary meaning, O’Brien Energy Systems Inc. v. American Employers’ Insurance Co., 427 Pa. Super. 456, 461, 629 A.2d 957, 960 (1993), appeal denied, 537 Pa. 633, 642 A.2d 487 (1994), and the task of construing an insurance policy is generally performed by a court, rather than a jury. Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 304, 469 A.2d 563, 566 (1983). An insurer has a duty to indemnify its insured when it is established that the damages of the insured are within the policy coverage. Caplan v. Fellheimer Eichen Braverman & Kaskey, 68 F.3d 828, 831 n. 1 (3d Cir. 1995). In addition, exclusions in insurance policies are strictly construed against the insurer. First Pennsylvania Bank N.A. v. National Union Fire Insurance Co., 397 Pa. Super. 612, 618, 580 A.2d 799, 802 (1990).

“Contractual language is ambiguous ‘if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.’ ” Tyler v. Motorists Mutual Insurance Co., 779 A.2d 528, 531 (Pa. Super. 2001) (quoting Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 605, 735 A.2d 100, 106 (1999)). The court must not distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. Id. Instead, the court must determine if an ambiguity exists based upon the particular set of facts presented. Id. Simply because the parties do not agree on the proper construction to be given a particular policy provision does not render the contract ambiguous. Id.

With these principles in mind, the court turns to the issue before it. In this case, the particular policy provision at issue provides as follows:

“The insured shall not alter any medical records or commit any other act that would interfere with the company’s ability to defend a claim or suit against the insured. Alteration of medical records will make the policy void.” Policy, section V, conditions (5)(f).

EDIC maintains that, since Dr. Jones altered Simmons’ chart, the EDIC policy issued to Jones is void. Defendants, on the other hand, argue that the term “alter” is ambiguous, that a factual dispute exists over the writings that form the basis of the action and that EDIC has not suffered any prejudice as a result of the alterations.

Taking into consideration the briefs filed by the respective parties, oral argument as well as the EDIC policy provision, the court does not find the term “alter” to be ambiguous. Although the term “alter” is not defined by the policy, the court may refer to dictionary definitions to aid understanding of words of common usage that are not defined by the policy. Tyler v. Motorists Mutual Insurance Co., 779 A.2d 528, 531 (Pa. Super. 2001). Alter is defined as make different, modify. See the American Heritage Dictionary, 3rd Edition. Alter is also defined as make change; to modify, to vary to some degree. See Black’s Law Dictionary, 5th Edition. Merely because a word has more than one dictionary definition does not render the term ambiguous. Id. at 531. Reading the term in conjunction with the provision as a whole it is reasonable to conclude that “alter” refers to some form of change. Notwithstanding how the defendants wish to characterize the changes made by Dr. Jones, the changes do constitute alterations under the terms of the policy.

This, however, does not end the inquiry. The provision at issue factors in a requirement of prejudice when it provides that “the insured shall not alter any medical records ... that would interfere with the company’s ability to defend a claim or suit against the insured.” Consequently, before this court can void the policy due to Dr. Jones’ alteration of Simmons’ chart, the court must first determine whether the alterations by Dr. Jones interfered with/prejudiced EDIC’s ability to defend the underlying medical malpractice action.

As it pertains to this issue, the court is unable to reach a conclusion as to whether Dr. Jones’ alteration interfered with/prejudiced EDIC’s ability to defend the underlying action. According to defendants, the prejudice consists of increasing the likelihood of a verdict against the insured without regard to the actual facts or liability, creating the greater likelihood of a verdict against the insured without regard to the actual facts or liability, creating a greater likelihood of a punitive award, rendering the doctor guilty of unprofessional conduct and destroying his credibility as a witness.

On the other hand, defendants argue that Dr. Jones’ alterations have not interfered with or prejudiced EDIC’s ability to defend the underlying action. Defendants maintain that EDIC received the unaltered medical records, the altered records do not change the expert’s assessment of Dr. Jones’ alleged negligent treatment of Simmons, that Dr. Jones testified that the alterations were merely done to clarify the chart and that it was common for Dr. Jones to make editorial comments, such as the ones made on the chart, on all paperwork submitted to EDIC.

Based on the foregoing, the court cannot, at this stage in the proceedings, conclusively find that the altered medical records interfered with/prejudiced EDIC in the defense of the underlying action. Genuine issues of fact exist as to whether Dr. Jones’ alterations interfered with the underlying action which prejudiced EDIC. All doubts as to the existence of a genuine issue of a material fact are to be resolved against the granting of summary judgment. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). The only way in which this court can conclusively establish that the alterations caused interference is to await the outcome of the underlying litigation. Accordingly, this action is stayed pending the resolution of the underlying action.

CONCLUSION

For the foregoing reasons, EDIC’s motion for summary judgment is denied without prejudice and this action is stayed pending the resolution of the underlying action. An order consistent with this opinion will follow.

ORDER

And now, June 29,2005, upon consideration of plaintiff Eastern Dentist Insurance Company’s motion for summary judgment, all responses in opposition, memoranda, all matters of record, after oral argument and in accord with the contemporaneous memorandum opinion to be filed of record, it hereby is ordered and decreed that plaintiff’s motion for summary judgment is denied without prejudice.

It is further ordered that said action is stayed pending resolution of the underlying action.

      . The Medical Care Availability and Reduction of Error Act (the MCARE Act), 40 RS. §1303.511 permits a health-care provider to add or correct information as long as they are clearly identified as subsequent entries by date and time. Moreover, section (c) Alteration Of Records of the MCARE Act states that “in any medical professional liability action in which the claimant proves by a preponderance of the evidence that there has been an intentional alteration or destruction of medical records, the court in its discretion may instruct the jury to consider whether such intentional alteration or destruction constitutes an adverse inference.” See 40 P.S. §1303.511(c). Thus, the court finds it reasonable, in light of the policy, as well as the MCARE Act, to read a requirement of prejudice in the policy provision at issue.

      . EDIC, in support of its motion for summary judgment, relies upon Eastern Dentist Insurance Company v. Lindsay DDS, 2004 Mass. Super. Lexis 345 (2004). Although the policy provision at issue in Lindsay is identical, the facts are distinguishable. Unlike the claimant in Lindsay, here, Simmons received a copy of the unaltered medical records thus presenting a question of fact as to whether Dr. Jones was attempting to avoid legal liability for the alleged malpractice.