author: CASSIMATIS, J„

text:
    Russell v. Commercial Union Insurance Co.

      Dale E. Anstine and James A. Nettleton Jr., for plaintiff.

      Walter A. Tilley III, for defendant.
    March 21, 1991
   CASSIMATIS, J„

This matter is before the court pursuant to the motion of defendant, Commercial Union Insurance Company, to compel discovery of psychological and psychiatric records of plaintiff, DeEtta D. Russell. For the reasons set forth below, the motion of defendant is granted in part and denied in part.

The relevant facts are as follows. On April 4, 1988, plaintiff was involved in an automobile accident which resulted in personal injuries. At the time of the accident, plaintiff was insured under an insurance policy with defendant (as stated in the answer of defendant, the insurer is the Northern Assurance Company of America, a principal operating company of defendant). Following the accident, plaintiff gave timely notice to defendant of the accident and completed and sent to defendant an application for benefits.

Plaintiff initially was treated by Hugh E. Palmer, D.O. on April 25, 1988 and again on May 9 and May 23, 1988. On May 25, 1988, plaintiff began treatment with York Physical Therapy Center, and was also treated by Roy Ysla, M.D., a physical medicine specialist. Plaintiff was subsequently admitted to the Rehab Hospital of York by Dr. Ysla on August 24, 1988 for persistent neck and back pain, allegedly resulting from the automobile accident. Plaintiff was discharged from the Rehab Hospital on September 16,1988 and on September 30, 1988 was admitted to the psychiatric unit of Memorial Hospital where she remained until November 7, 1988. The final diagnosis from Memorial Hospital was “major depression with psychotic features.”

Defendant, upon receipt of plaintiff’s medical bills for her hospitalization at the Rehab Hospital of York, determined that an independent medical review was necessary and contracted the services of Ellis F. Friedman, M.D. Dr. Friedman concluded that he could find no justification for the plaintiff’s stay at the Rehab Hospital of York, and as a result, defendant denied payment of the charges for the treatment at the Rehab Hospital and submitted a copy of the report to counsel for plaintiff.

Louis D. Poloni, Ph.D., director of the “incentives” program at the Rehab Hospital, and Roy Ysla, M.D., responded to defendant with explanations for the reasonableness and necessity of plaintiff’s treatment. Dr. Friedman was provided with the above response, but did not change his opinion that plaintiff’s treatments were not reasonable and necessary and accident-related. Defendant also engaged the services of a psychiatrist who stated that it will be necessary for him to review plaintiff’s psychiatric records to reach a definitive conclusion as to the cause of plaintiff’s pain. The psychiatrist further reported that the condition diagnosed by Memorial Hospital, major depression with psychotic features, is not one that occurs suddenly and that it appears from the notes of treatment from the Rehab Hospital that plaintiff’s reports of pain are actually a physical manifestation of plaintiff’s mental illness.

Following the final denial of payment of the plaintiff’s medical bills in relation to her treatment at the Rehab Hospital, plaintiff filed suit in this action on May 23, 1989. The issue in this lawsuit is whether plaintiff’s medical expenses, specifically those in conjunction with her admission to the Rehab Hospital of York, are reasonable and necessary and related to the automobile accident in which plaintiff was involved, thus imposing a duty on defendant as plaintiff’s first-party benefit carrier to pay for said benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law. Defendant attempted to obtain copies of the psychological and psychiatric records voluntarily by having plaintiff sign a consent to their release. Plaintiff, by her counsel, responded that she would not sign the release, concluding that the psychiatric and psychological information is privileged pursuant to 42 Pa.C.S. §5944. The present issue is whether defendant will be permitted access to plaintiff’s psychiatric and psychological records in order to prepare its defense.

The statute, 42 Pa.C.S. §5944, entitled “Confidential communications to psychiatrists or licensed psychologists,” states:

“No psychiatrist or person who has been licensed under the Act of March 23, 1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client. ” 42 Pa.C.S. §5944.
“Formerly, this privilege applied only to persons licensed to practice psychology, though it had been contended that psychiatrists should be treated similarly. In 1989, the statute was amended to include psychiatrists.” Pennsylvania Evidence, Packel and Poulin, at 325-6.

The attorney-client privilege is governed by 42 Pa.C.S. §5928 and states:

“In a civil matter counsel shall not be competent or permitted to testify to confidential communications made to him by his client, nor shall the client be compelled to disclose the same, unless in either case this privilege is waived upon the trial by the client.”
“[T]his general rule has several well-established exceptions. A communication between an attorney and his client is not privileged if (1) it takes place in the presence of a third person or of the adverse party. . .” Loutzenhiser v. Doddo, 436 Pa. 512, 518-9, 260 A.2d 745, 748 (1970).

We have been unable to find any case law applicable and directly on point with the facts of this case in which a defendant insurance company requests that psychiatric and psychological records of the plaintiff be released where the plaintiff is not making a claim for emotional trauma/distress. However, in the case of Adoption of Embick, 351 Pa. Super. 491, 506 A.2d 455 (1986), the Superior Court explained the rationale for the privilege:

“At this point we should observe that the range of applicability of Pennsylvania’s psychologist-client privilege has been defined as being the same as the attorney-client privilege. In Commonwealth v. Goldblum, 498 Pa. 455, 464, 447 A.2d 234, 239 (1982), our Supreme Court said: ‘Between an attorney and client, the privilege is confined to confidential communications. . ..’
“There can be no doubt that the purpose of the psychologist-client privilege is to encourage people to seek professional help for their mental or emotional problems, and that purpose is best accomplished when people in need of psychotherapeutic treatment know that what they tell their therapist during treatment will not be disclosed to anyone.
££[T]he analysis suggested by Dean Wigmore would compel the conclusion that the statutory psychologist-client privilege must yield to disclosure of the communications under the facts of this case. Wigmore said that four criteria must be satisfied to justify an evidentiary privilege: (1) the communications must originate in the confidence that they will not be disclosed; (2) the element of confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one which, in the opinion of the community, ought to be sedulously fostered; and (4) the injury that would inure to the relationship by the disclosure of the communication must be greater than the benefit thereby gained for the correct disposal of litigation. Wigmore, supra, §2285.” Adoption of Embick, supra.
££[F]our fundamental conditions cited above are recognized as necessary to the establishment of a privilege against the disclosure of communications. Only if these four conditions are present should a privilege be recognized. These four conditions must serve as the foundation of policy for determining all such privileges, whether claimed or established.” Wigmore, §2285.

In the case at bar, defendant argues that plaintiff cannot establish that she meets the fourth criterion to satisfy the evidentiary privilege; specifically, there can be no injury to the relationship by the disclosure of the communication, since the relationship with the Rehab Hospital terminated when plaintiff was discharged on September 16, 1988. Further, defendant argues that there is a substantial factual question as to whether the treatment received by plaintiff was in fact related to the automobile accident, or whether it was related to her psychological condition. Therefore, there is a substantial benefit to be gained by the disclosure of the information in order to permit the correct disposal of the litigation.

Defendant further argues that under the circumstances of the case, plaintiff has placed her mental condition at issue by demanding payment for “psychological services.” In Farrell v. Glen-Gery Brick, 678 F.Supp. 111 (E.D. Pa. 1987), the plaintiff claimed sexual harassment at work and sued for emotional distress, the court holding that the plaintiff waived her right of privacy in psychiatric and psychological records when she placed her mental condition in issue by filing an intentional infliction of emotional distress claim.

“As to a constitutional right of privacy for confidential communications to one’s psychiatrist, plaintiff refers to the Pennsylvania Supreme Court decision, In re ‘B, 482 Pa. 471, 394 A.2d 419 (1978). ‘[A]n individual’s interest in preventing the disclosure of information revealed in the context of the psychotherapist-patient relationship has deeper roots than the Pennsylvania doctor-patient privilege statute, and . . . the patient’s right to prevent disclosure of such information is constitutionally based.’ In re ‘B’ at 484, 394 A.2d at 425.

“Nevertheless, The protection provided by the right of privacy is not absolute.’ In re Search Warrant, 810 F.2d 67 (3d Cir. 1987). The Tight of privacy as to plaintiff’s personal history that a plaintiff may otherwise have must be balanced against the defendant’s right to a fair trial.’ Lowe v. Philadelphia Newspapers Inc., 101 F.R.D. 296, 298 (E.D. Pa. 1983). Notably, both courts and commentators alike have consistently taken the view that when a party places his or her mental or physical condition at issue the privacy right is waived. Miller, 81 F.R.D. at 745. As one article observes: ‘Important fairness considerations justify this exception: an individual who wishes to receive the benefits of the judicial system should not be allowed to impose an additional burden on the system by withholding necessary information central to her claim.’ Note, Developments in the Law — Privileged Communications, 98 Harv. L. Rev. 1450, 1554 (1985).” Farrell, supra at 112-3.

In response, plaintiff argues that a quick summary of the various expenses which plaintiff incurred at the Rehab Hospital demonstrates that the charges for psychological care which included 11 group therapy sessions, six individual therapy sessions, four biofeedback sessions, and a pain-control workbook, are a mere 8 percent of the total medical expenses which defendant has refused to pay. Plaintiff asserts that this illustrates that the purpose of her admission to the Rehab Hospital was not for psychological care, but was rather for overall rehabilitation and treatment of the chronic pain from which she suffered. Also, in a letter to defendant from Dr. Roy Ysla (plaintiff’s treating physician), Dr. Ysla states that in any pain-management program, psychological counseling in the area of stress reduction is a necessary part and parcel of the overall treatment. If this is the case, that psychological and psychiatric records are a necessary component to any pain-management program, then the records requested by defendant would be directly related to pain-management issues, not an unrelated mental health issue. Following this argument, the four criteria set forth in the Embick case, which are to be met to satisfy an evidentiary privilege, would be very difficult to establish.

The case of Commonwealth v. Kyle, 367 Pa. Super. 484, 533 A.2d 120 (1987), cited by plaintiff, addresses the statutory privilege for psychologists and clients and the interests it is protecting.

“Like the attorney-client privilege, the psychologist-client privilege protects an interest extrinsic from the truth-finding process . . . patient confidence is essential for effective treatment. . ..

“The statutory privilege for psychologists and clients also serves to protect another interest as well: the privacy interest of the client . . . this privacy interest is not without significance. Indeed, it has been suggested that the privacy interest of the client may have constitutional underpinnings. . ..

“The privilege afforded by section 5944 was intended to inspire confidence in the client and to encourage full disclosure to the psychologist. By preventing the latter from making public any information which would result in humiliation, embarrassment, or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client’s private thoughts from public disclosure.

“The issue to be decided, however, is whether the public interests supporting the psychologist-client privilege outweigh an accused’s interest in reviewing arguably useful information protected by the privilege.” Kyle, supra.

See also, Miller v. Roberts, 38 D.&C. 3d 74 (1985): “The right of privacy is not absolute. Thus, the appellate courts of the Commonwealth have recognized that the individual’s right to privacy must be balanced against the interests that would be served by disclosure of the communications.” Miller at 83.

Defendant is requesting that the Rehab Hospital of York produce all of the psychiatric and psychological records pertaining to plaintiff during her stay at the hospital from August 24, 1988 to September 16, 1988. Similarly, defendant also requests the same records from Memorial Hospital which may apply to the mental condition of plaintiff from September 30, 1988 to November 7, 1988. Plaintiff has not made claim to defendant for payment of her psychiatric treatment at Memorial Hospital; therefore, the motion to compel discovery as to these records from Memorial Hospital is denied.

However, it is the conclusion of this court that plaintiff has placed her mental condition at issue by making claim to defendant for payment of her treatment at Rehab Hospital, and the extent of plaintiff’s injury is at issue here. Part of her treatment at the Rehab Hospital was for psychological care and in balancing plaintiff’s right to privacy as to these records against the interests of defendant and society as a whole, this court concludes that, to aid in the administration of justice, the records of the Rehab Hospital must be disclosed. Therefore, the motion to compel discovery of the records pertaining to the Rehab Hospital of York is granted.

Accordingly, we enter the following

ORDER

And now, March 21, 1991, the motion to compel discovery by defendant, Commercial Union Insurance Company, is denied as to the records of Memorial Hospital and is granted as to the records of the Rehab Hospital of York. Plaintiff is hereby ordered to produce all relevant psychiatric and psychological records of the Rehab Hospital within 30 days.

The prothonotaiy is directed to provide notice of the entry of this opinion and order as required by law.


source: Caselaw Access Project

author: LOWE, J.,

license: Public Domain

text:
    Eichelberger v. Gunton Corp.

      Barry W. Hixson, for plaintiff.

      W. Mark Mullineaux, for defendant.
    March 27, 1991
   LOWE, J.,

On February 13, 1991 this court entered an order sustaining the preliminary objections of defendant Gunton Corporation, t/a Pella Window and Door Company, to all five counts of the amended complaint of plaintiff David Eichelberger, thereby dismissing said amended complaint with prejudice. This matter is now on appeal before the Superior Court of Pennsylvania.

In March 1987 plaintiff was hired by defendant as a full-time employee and commenced working in its warehouse. During his employment plaintiff also served as a volunteer member of the Trappe Fire Company, and in connection with this membership periodically rendered services on behalf of the Trappe Ambulance Company. On January 17, 1988 plaintiff responded to an ambulance call at 416 Main Street in Trappe where he sustained a lower-back injury while lifting an elderly and disabled woman into an ambulance for transportation to the hospital. The next day plaintiff informed defendant of his injury. It was suggested that he visit the company physician. After examining plaintiff, defendant’s physician advised him to undergo rehabilitation until such time as he was deemed able to return to work. On March 9, 1988 defendant’s physician authorized plaintiff’s return to work. The following day plaintiff reported to work, but was terminated by defendant prior to commencing his duties.

In plaintiff’s amended complaint, he brought five counts against defendant. In counts 1 and 2 plaintiff alleged that his discharge was in violation of and discriminatory under 43 P.S. §1201 et seq., the Firemen Act, which governs job protection for volunteer firemen. Plaintiff’s next two counts were brought under a wrongful discharge theory. In count 3, plaintiff alleged that the discharge violated public policy; in count 4, plaintiff alleged that defendant specifically intended to harm him. Plaintiff requested punitive damages in count 5. Subsequently, defendant filed preliminary objections to all five counts of plaintiff’s amended complaint, and after argument February 8, 1991, and upon consideration of the briefs of counsel, the court sustained each of the preliminary objections. Plaintiff has filed a timely appeal with the Superior Court in which he asserts in his concise statement that sufficient facts were alleged in each of the five counts of his amended complaint to sustain a claim for relief.

The court begins its analysis by examining the Firemen Act. At the time of plaintiff’s discharge, 43 P.S. §1201 read:

“No employer shall terminate an employee who is a volunteer fireman, and in the line of duty has responded to a call prior to the time he was due to report for work resulting in a loss of time from his employment.”

In December 1988, nine months after plaintiff’s discharge, legislation was passed (hereinafter P.L. 1102), in which 43 P.S. §1201 was amended to read:

“No employer shall terminate or discipline an employee who is a volunteer fireman, fire police or volunteer member of an ambulance service or rescue squad and in the line of duty has responded to a call prior to the time he was due to report for work resulting in a loss of time from his employment.” (emphasis supplied)

Additionally, the legislature annexed 43 P.S. §1201.1 to the Firemen Act, which provides, in part:

“No employer shall discriminate against any employee because such employee has been injured in the line of duty as a volunteer fireman, fire police or volunteer member of an ambulance service or rescue squad, nor shall any employer discriminate against any employee injured in the line of duty as a volunteer fireman, fire police or volunteer member of an ambulance service or rescue squad who subsequently returns to work after receiving workers’ compensation benefits . . . the term ‘discriminate’ shall mean to discharge or to discipline in a manner inconsistent with the employer’s treatment of other similarly situated employees who are injured in the course of their employment or related activities.”

In passing P.L. 1102, the legislature further provided that these amendments to the Firemen Act shall be retroactive to January 1, 1988.

Plaintiff argues that by virtue of its retroactive application, the Firemen Act affords him protection. He contends that he sustained injuries while in the line of duty as a volunteer member of an ambulance service, and pursuant to 43 P.S. §1201 defendant owed a duty not to terminate him. In the same vein, he claims that such termination was discriminatory pursuant to 43 P.S. §1201.1.

Therefore, plaintiff’s argument hinges on whether P.L. 1102 is to be given effect retroactively. If it is, plaintiff is afforded protection under the Firemen Act; if it is not, the Firemen Act affords him no protection. Upon perusal of the law in this area, we conclude that these amendments are not to be applied retroactively, and the language of the Firemen Act, as it read March 10, 1988, controls. In Brown v. Commonwealth, State Bd. of Pharmacy, 129 Pa. Commw. 642, 566 A.2d 913 (1989), the Commonwealth Court, citing Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 1987 (1983), and Bortulin v. Harley-Davidson Motor Co. Inc., 115 Pa. Commw. 42, 539 A.2d 906 (1988), succinctly summarized the law with regard to retroactive legislation. It is axiomatic that retroactive application of new legislation offends the due process clause if, balancing the interests of both parties, such application would be unreasonable. Retroactive laws which impair no contract and disturb no vested right, but only vary remedies or cure defects in proceedings otherwise fair, have been deemed reasonable. It is important to distinguish between statutes which impact upon procedural matters and those which affect a party’s substantive rights. While it is not constitutionally objectionable to retroactively apply legislation which involves a procedural change, when a party’s substantive rights are involved, the law which was in effect at the time the cause of action arose must be applied.

Applying these principles to the instant case, it is clear that retroactive application of P.L. 1102 would offend the due process clause and is therefore improper. To repeat, at the time plaintiff was discharged, a volunteer member of an ambulance service did not have a cause of action against an employer for discharging or discriminating against him. In passing P.L. 1102 the General Assembly went far beyond curing defects or varying remedies of the Firemen Act, it created causes of actions for several classes of people, including volunteer members of ambulance services. Unquestionably, the legislation impacted upon the parties’ substantive rights and not merely upon procedural matters. Plaintiff argues that defendant knew or should have known that it was implied in the law that volunteer community service personnel would be afforded the same protection as volunteer firemen. This assumption by plaintiff is unfounded. At the time of the discharge, the act clearly protected only volunteer firemen; it is manifestly unreasonable for defendant to assume that the law implied that volunteer community service personnel would be afforded the same protection. Plaintiff also points out that the purpose of P.L. 1102 was to protect the class of volunteers who are so vital to the community and vulnerable to such discrimination. The court acknowledges that volunteer ambulance service personnel are vital to the community, and believes that it was propitious for the legislature to pass P.L. 1102 in order that they too are afforded job protection under the Firemen Act. However, while the court sympathizes with plaintiff’s plight, the fact remains that the legislation was passed after plaintiff’s discharge and giving it effect retroactively so that he is protected would be antipathetic to well-established law.

In sustaining defendant’s preliminary objections to counts 3 and 4 of plaintiff’s amended complaint, the court surveyed the long line of Pennsylvania cases in which causes of action for wrongful discharge have been brought. As a general rule, an employer has the unfettered right to discharge an at-will employee for any or no reason in the absence of a contractual or statutory prohibition. Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 565 A.2d 1170 (1989). However, as noted in Geary v. U.S. Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974), and Tourville v. Inter-Ocean Insurance Co., 353 Pa. Super. 53, 508 A.2d 1263 (1986), an at-will employee may have a cause of action for wrongful discharge if one of two circumstances is met: the discharge is contrary to public policy or the discharge is made with specific intent to harm. The court considers these exceptions to the general rule seriatim.

The public policy exception is a very narrow one and was discussed in Hineline v. Stroudsburg Electric Supply Co. Inc., 384 Pa. Super. 537, 559 A.2d 566 (1989). Relying upon Yaindl v. Ingersoll Rand Company, 281 Pa. Super. 560, 422 A.2d 611 (1980), and Turner v. Letterkenny Federal Credit Union, 351 Pa. Super. 51, 505 A.2d 259 (1985), the Superior Court observed that the extent to which public policy governs an employer’s control of his business must be determined on a case-by-case basis. A finding of a violation of a clearly defined mandate of public policy which “strikes at the heart of a citizen’s social right, duties and responsibilities” constitutes sufficient grounds for a wrongful discharge cause of action. Turner, supra, at 55, 505 A.2d at 61. Courts have frequently frowned upon employers’ discharges of employees, but nonetheless have been very reluctant to hold that their conduct contravened public policy. Two notable exceptions are Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978), and Hunter v. Port Authority, 277 Pa. Super. 4, 419 A.2d 631 (1980). In Reuther, the Superior Court concluded that discharging an employee for performing jury duty violated public policy because this is an important civic responsibility. Thus, the employee had a cognizable wrongful discharge claim. In Hunter, an employee who had been convicted of assault and was later pardoned by the governor also had a valid cause of action for wrongful discharge because there is an established public policy against stigmatizing former offenders. However, in the vast majority of cases, the Superior Court has declined to find that employers’ discharges violated public policy. For example, in McCartney v. Meadowview Manor Inc., 353 Pa. Super. 34, 508 A.2d 1254 (1986), an employer’s discharge of an employee for actively seeking a position with a competitor did not violate public policy; likewise, public policy was not threatened in Betts v. Stroehmann Bros., 355 Pa. Super. 195, 512 A.2d 1280 (1986), in which an employee was discharged despite performing his job satisfactorily.

The specific intent to harm exception is also quite narrow and has been found to exist only under very limited circumstances. As discussed in Geary, supra, and Tourville, supra, there are two ways in which a specific intent to harm discharge can be successfully alleged. First, an employer may be held liable if it is found that he discharged an employee out of “disinterested malevolence.” Here, the employee must show that there was no reason for the discharge other than a desire to hurt him. The second way an employee could make out a valid cause of action for wrongful discharge under a specific intent to harm theory is by showing that his employer discharged him with an “ulterior purpose.” This necessitates a showing of malice and viciousness, which can be found by reviewing the surrounding circumstances, limited to those acts of an employer occurring shortly before, contemporaneous with, and shortly after the discharge. Mudd v. Hoffman Homes for Youth Inc., 374 Pa. Super. 522, 543 A.2d 1092 (1988) presents a rare case of an employer who specifically intended to harm its employee. In that case, an employee alleged that she was discharged in order to prevent her pension benefits from vesting. The Superior Court held that such an allegation met both the “disinterested malevolence” and “ulterior purpose” criteria, because the employer’s conduct manifested a malicious desire to harm her. However, as with the public policy exception, courts seldom find a specific intent to harm. Tourville, supra, illustrates the unwillingness of courts to make this finding. An employee fell ill and was hospitalized. Subsequently, his employer went to his house, collected his business records, told his wife he was dying and furthermore told his former clients that he had beaten his wife, had a nervous breakdown, and kept dishonest accounts. In the Superior Court’s judgment, this conduct by the employer, obdurate as it may sound, did not rise to the level of specific intent to harm.

It is clear from these cases that it is eminently difficult for a discharged employee to allege a valid cause of action against an employer under a public policy violation or specific intent to harm theory. Like many before him, plaintiff in the instant case has failed in this attempt. To recapitulate, plaintiff sustained an injury and was informed by defendant’s physician that he would be forced to miss work indefinitely. In the ensuing weeks, it became apparent to defendant’s management that plaintiff might be incapacitated for a considerable period of time, and therefore they elected to find a full-time replacement. Kenneth Springs, defendant’s operations manager, explained the decision to replace plaintiff with Scott Braile at his December 19, 1989 deposition:

“I had called Chuck Mason [defendant’s Warehouse Manager] in and we had, in [plaintiff’s] absence and being unable to find out when he was going to return, hired another individual to replace him in the warehouse ... I was advised . . . that [Mr. Braile] was a very good employee, had picked up knowledge of the business very quickly and had been a very reliable employee during the part-time period that we had hired him . . . We really had to make a decision, which of the two employees would best benefit our business . . . [There was a comparison of sales abilities and working habits between plaintiff and Mr. Braile, and the effort] put forth by Mr. Braile was more than the effort put forth by [plaintiff] in terms of being able to do the job.” (N.T. 12/19/89 at 5, 22-3.)

Mr. Springs’ testimony indicates that defendant’s discharge of plaintiff was strictly a business decision. Following the mandate in Betts, supra, an employer’s discharge of an employee even though he is performing his job adequately does not constitute a violation of public policy. Moreover, defendant surely had no malevolent desire to hurt plaintiff, nor did it discharge him out of wanton or viciousness. Unfortunately for plaintiff, he was a victim of circumstances, because his temporary absence from work rendered him expendable. Defendant cannot be held liable for its decision to replace him with another employee.

Because plaintiff failed to allege a valid cause of action under any of his first four counts, his claim for punitive damages under count 5 must also be dismissed. It is black letter law that punitive damages are only recoverable if a party has a separate cause of action. Kirkbride v. Lisbon Contractors Inc., 521 Pa. 97, 555 A.2d 800 (1989). Furthermore, even if plaintiff alleged sufficient facts to sustain a claim for relief under one or more of his first four counts, he still would not be entitled to punitive damages. As the Superior Court noted in Jeannette Paper v. Longview, 378 Pa. Super. 148, 548 A.2d 319 (1988), conduct must be outrageous, reckless, or wanton to justify punitive damages; defendant’s behavior in the instant case did not approach this level.

In view of the foregoing, this court’s February 13, 1991 order should be affirmed.


author: KLEIN, R.B., J.,

text:
    Dallas v. Orthopedic Associates

      Yvonne G. Bach and Charles A. Harad, for plaintiff.

      A. Christine Giordano and Kevin H. Wright, for Orthopedic Associates and Anthony Salem, M.D.

      J. Grant McCabe, for Theodore Skowronski, M.D.

      Frederick J. DeRosa, for John H. Wolf Jr., M.D.
    April 4, 1991
   KLEIN, R.B., J.,

Emma Dallas, a Montgomery County resident, filed a medical malpractice case against physicians who all lived and worked in Montgomery County for treatment she received at a Montgomery County medical group office. The alleged malpractice was discovered at a Montgomery County hospital.

Plaintiff claims ties with Philadelphia because the medical group at one time had an office in Philadelphia. However, Ms. Dallas never went there and no doctor that worked at the Philadelphia location is still in the case. Plaintiff also says that after the initial discovery of the problem in Montgomery County, some of the later treating physicians are in Philadelphia.

These ties are not sufficient to withstand a forum non conveniens motion. In addition to only tangential Philadelphia contacts, the court congestion in Philadelphia is a factor that supports transfer. Because of perceived higher jury verdicts, many cases are filed in Philadelphia that belong elsewhere. In a city literally on the verge of bankruptcy, Philadelphia cannot spend thousands of dollars of taxpayers’ money on cases that just do not belong here.

Plaintiff complains that a good deal has happened in the case in Philadelphia up to this point. While that is true, this case was accelerated ahead of its normal time because of an experiment in trial listings in the individual judge civil program. Rather than only listing 1986 cases, which are those major cases presently on the trial list, a few later cases were added to the lists to see what happens with earlier judicial intervention. That is no longer being done. Therefore, this case is a year ahead of where it would be if it came up in the normal course. It probably can be heard in Montgomery County as soon as most other March 1987 cases are heard in Philadelphia.

Although plaintiff may complain about delay in trial if the case is transferred to a more appropriate venue, it was plaintiff’s counsel that picked the inappropriate venue in the first place. It is the obligation of counsel to advise clients of the risks and benefits of a forum choice. Plaintiff’s counsel decided to take a chance on what was perceived to be a more favorable venue, although that venue had only tangential contacts with the case. The court system and taxpayers of Philadelphia are not the ones who should bear any consequences of this misjudgment.

OPINION

Emma Dallas filed a medical malpractice suit claiming that she suffered serious bone and arthritic problems because of the steroid treatment necessitated by the failure of her physicians to diagnose Cushing’s disease. Cushing’s disease is a disorder caused by the oversecretion of steroid hormones by the adrenal glands.

Mrs. Dallas lives in Hatboro, Montgomery County. Theodore Skowronski, M.D., who was her prime treating physician, lives and works in Montgomery County. The medical office where Mrs. Dallas received treatment, that of the medical group Orthopedic Associates, is located in Huntingdon Valley, Montgomery County. At one time, Orthopedic Associates had an office in Philadelphia, but Mrs. Dallas never went there and the only doctor in the case that worked there has been dismissed as a defendant. The original diagnosis of Cushing’s disease was made in a Montgomery County hospital. However, plaintiff intends to use doctors that either live or work in Philadelphia during trial, who either treated plaintiff after the alleged medical malpractice, or were experts obtained by plaintiff’s counsel in anticipation of litigation.

Defendants, Orthopedic Associates and Anthony W. Salem, M.D.; Gary W. Muller, M.D.; Theodore Skowronski, M.D.; and John Wolf, M.D. bring their motion for change of venue pursuant to Pennsylvania Rule of Civil Procedure 1006(d) and common-law doctrine of forum non conveniens. Pennsylvania Rule of Civil Procedure 1006(d)(1) states:

“That for the convenience of the parties and witnesses the court upon petition of any party may transfer an action to the appropriate court of any other county where the action could originally have been brought.”

This rule, Pa.R.C.P. 1006(d)(1), gives the trial judge considerable discretion in determining whether or not to grant a petition for change in venue and the standard of review is one of abuse of discretion. Ernest v. Fox Pool Corp., 341 Pa. Super. 71, 491 A.2d 154 (1984).

The court in Fax held that a court is not required to accept and rely exclusively upon the plaintiff’s choice of a forum in preference to another forum found by the court to be more convenient to the parties and the witnesses and which maintained more direct contacts with the litigation. Id.

In Fox, the plaintiffs brought a negligence action against private owners of a swimming pool and manufacturer for injuries sustained in a pool accident and against a hospital and a physician for medical malpractice in treating the plaintiff’s injuries. By a multi-count complaint filed in Dauphin County, plaintiff alleged that the Fox Pool Corporation had defectively designed the pool, that the private owners of the pool and National Spa and Pool Institute, an association of swimming pool manufacturers, had been guilty of negligence, and that the doctor had been guilty of medical malpractice in treating the plaintiff’s injuries. Id. The defense filed a petition to transfer venue from Dauphin County to Northumberland County, and plaintiff appealed. Id. After reviewing the record, the Superior Court held that the lower court had not abused its discretion in transferring the case from Dauphin County to Northumberland County. It was in Nor-thumberland County that the plaintiff resided; it was there that their accident occurred. It was also in Northumberland County that the pool was located, where its owner resided, and where eyewitnesses to the accident resided. The physician who treated the plaintiff and who was later sued for medical malpractice was a Northumberland County physician. Conversely, Dauphin County had no connection with the litigation except the one defendant had an office there and several defendants included Dauphin County in the wider area in which they did business.

In a recent case Petty v. Suburban General Hospital, 363 Pa. Super. 277, 525 A.2d 1230 (1987), the court has set forth two factors that must be established in order for a defendant to succeed in the transfer of venue. The court said that the plaintiff “should not be deprived of the advantages presumed to come from [the choice of forum] unless the defendant clearly adduces facts that ‘either (1) establish such oppressiveness and vexation to a defendant as to be out of all proportion to plaintiff’s convenience or (2) make trial in a chosen forum inappropriate because of considerations affecting the court’s own administrative and legal problems.’ ” Id.

The plaintiff in Petty brought an action against the hospital and various physicians arising out of patient’s alleged uninformed consent to implant surgery. Defendants made a motion to transfer venue which was granted and plaintiffs appealed from the order transferring venue.

The Petty court listed the “private” elements that must be taken into consideration when a judge exercises his or her discretion to change venue, including ability to subpoena witnesses, access to sources of proof, and costs of obtaining witnesses, and other factors that make the trial of a case easy, expeditious and inexpensive. Id.

The court also set forth the “public” elements which must be considered. The factors in which the public has an interest include “problems of creating court congestion and imposing jury duty upon people of a community which has no relation to the litigation. . .’’Id.

Although the Petty court reversed and remanded the transfer of venue, this was based on a lack of consideration of the question of convenience of the parties and witnesses. In Petty, there was a disputed fact as to whether the defendants did business in Philadelphia. Those issues are not present in this circumstance.

In the instant case, the court considered the convenience of both the parties and the witnesses. Unlike Petty, none of the remaining defendants have any contacts with Philadelphia. None of the alleged negligent acts occurred in Philadelphia County. None of the fact witnesses expected to be called at trial live in Philadelphia County. The facts that give rise to this cause of action revolve around the alleged negligent conduct of doctors located in Montgomery County who treated plaintiff in Montgomery County. AJ1 of the records, from the hospital where the alleged negligent actions took place and doctors who allegedly participated in the treatment of plaintiff as well as all pertinent medical information and records where the condition was initially diagnosed, are located in Montgomery County. None of the parties, including plaintiff, have any contact with Philadelphia County, except for the fact that one of the doctors was able to be served at a Philadelphia office. However, plaintiff was never treated in that office and any allegations that give rise to plaintiff’s complaint do not involve that office. Today, that office is no longer in existence.

Perhaps the most compelling factor at this point in time is the public interests that have to be considered when a case is transferred for having insufficient contacts with a jurisdiction. If we were to allow these type of actions to be brought in Philadelphia’s already congested courts instead of being handled where they originated, it will compound an already overwhelmed legal system. Also, jury duty is a burden that ought not be imposed on people of a community which has no relationship to the litigation. Walker v. Ohio River Company and Wilson v. Ohio River Company, 416 Pa. 149, 205 A.2d 43 (1964). It is impossible to ignore the overwhelming burden that presently exists in the Philadelphia Court of Common Pleas with approximately 45,000 civil cases pending. Boyle v. Chester County Mutual Insurance Co., 21 Phila. Rep. 1 (1990). Although the transfer of this case alone will not solve the huge backlog that presently exists in the Philadelphia Court of Common Pleas, it is a step in the right direction that must be taken.

Plaintiff asserts that her expert doctors and subsequent treating physicians live or work in Philadelphia. However, all of these doctors had contact with plaintiff subsequent to the alleged negligence of the defendants. In addition, many of the expert doctors were obtained in anticipation of litigation. Plaintiff also contends that plaintiff’s case would be better served in Philadelphia because it would be more convenient for out-of-town witnesses than Montgomery County. If we were to allow these factors alone to determine the proper venue, lawyers could always select out-of-town experts and then most of the cases would be tried in cities with the biggest hospitals and most convenient airports.

As pointed out originally by Mr. Justice Jackson in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947), and cited by the Pennsylvania courts:

“Factors of public interest also have place in applying the doctrine of forum non conveniens. Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. . .”

After a close examination of the record in this case, it becomes abundantly clear that the Philadelphia Court of Common Pleas had no connection with this litigation except that one defendant was able to be served in Philadelphia County. However, defendants’ principal places of business were not in Philadelphia County but in Montgomery County.

For all of the foregoing reasons, the motion of defendants, Orthopedic Associates and Drs. Anthony Salem, M.D.; Gary Muller, M.D.; Theodore Skowronski, M.D.; and John Wolf, M.D., for change of venue to Montgomery County was properly granted.

        Plum v. Tampax Inc., 399 Pa. 553, 160 A.2d 549 (1960); Rini v. New York Central Railroad Company, 429 Pa. 235, 240 A.2d 372 (1968); Norman v. Norfolk and Western Railway Company, 228 Pa. Super. 319, 323 A.2d 850 (1974); Koenig v. International Brotherhood of Boilermakers, 284 Pa. Super. 558, 426 A.2d 635 (1980).


author: O’BRIEN, J.,

text:
    Commonwealth v. Leuthe

      Wieslaw T. Niemoczynski, township solicitor, for the Commonwealth.

      Leonard N. Zito, for defendant.
    March 20, 1991
   O’BRIEN, J.,

On October 29, 1990, defendant was found guilty of violations of the Clean Streams Act by a district justice and sentenced to pay fines totaling $800 and costs and attorneys fees. Defendant filed an appeal from the summary convictions with this court requesting a trial de novo. Defendant also filed a “pretrial motion to dismiss” alleging that the township solicitor did not have the standing to bring the prosecution, that an award of counsel fees was improper and that the statutory provisions charged failed to define any criminal offense. Following the submission of briefs by both parties and argument before the court on March 4, 1991, defendant’s pretrial motion to dismiss is now before the court for disposition.

On May 12, 1990, the Eldred Township Sewage Enforcement Officer gave written notice to defendant of a violation of the Clean Streams Law. When the Department of Environmental Resources failed to take any action in response to the violation notice, the Eldred Township solicitor advised the Attorney General’s Office that it would proceed to take enforcement action against defendant. In fact, the township solicitor filed both misdemeanor and summary charges. The district justice found defendant guilty of summary offenses but did not make a prima facie finding with respect to the misdemeanor charges. Therefore, the proceedings in this court will be limited to a consideration of the summary charges. We reject the township’s request for this court to reinstate the misdemeanor charges.

Defendant’s motion to dismiss is based on several statutory provisions of the Clean Streams Act. Defendant cites 35 P.S. §691.5(b)(6) as granting the DER sole criminal enforcement authority under 15 P.S. §691.1. Defendant also cites section 691.604 as conferring on the DER exclusion power to investigate complaints and take appropriate action, including initiating criminal proceedings. Section 691.5(b)(6) reads:

“(b) The department shall have the power and its duty shall be to:
“(6) Receive and act upon complaints.”
Section 691.604 provides:
“§691.604. Complaints; investigations
“Upon complaint made in writing by any responsible person to the department, it shall be the duty of the department through its agents to investigate any alleged source of pollution of the waters of the Commonwealth, and to institute appropriate proceedings under the provisions of this act to discontinue any such pollution if the offense complained of constitutes a violation of the provisions of this act.”

In determining legislative intent, sections of a statute must be read together and construed with reference to the entire statute. Panko v. Commonwealth Public School Employee’s Retirement System, 89 Pa. Commw. 419, 492 A.2d 805 (1985). Therefore, we must also consider the following provision:

“§691.701. Existing rights and remedies pre-setted
“The collection of any penalty under the provisions of this act shall not be construed as estopping the Commonwealth, or any district attorney or solicitor of a municipality, from proceeding in courts of law or equity to abate pollutions forbidden under this act, or abate nuisances under existing law. It is hereby declared to be the purpose of this act to provide additional and cumulative remedies to abate the pollution of the waters of this Commonwealth, and nothing in this act contained shall in any way abridge or alter rights of action or remedies now or hereafter existing in equity, or under the common law or statutory law, criminal or civil, nor shall any provision in this act, or the granting of any permit under this act, or any act done by virtue of this act, be construed as estopping the Commonwealth, persons or municipalities, in the exercise of their rights under the common law or decisional law or in equity, from proceeding in courts of law or equity to suppress nuisances, or to abate any pollution now or hereafter existing, or enforce common law or statutory rights.”

Section 691.601 provides further statutory authority for the township to proceed.

“§691.601. Abatement of nuisances; restraining violations

“(a) Any activity or condition declared by this act to be a nuisance or which is otherwise in violation of this act, shall be abatable in the manner provided by law or equity for the abatement of public nuisances. In addition, suits to abate such nuisances or suits to restrain or prevent any violation of this act may be instituted in equity or at law in the name of the Commonwealth upon relation of the Attorney General, or upon relation of any district attorney of any county, or upon relation of the solicitor of any municipality affected, after notice has first been served upon the Attorney General of the intention of the district attorney or solicitor to so proceed.”

In view of the above statutory provisions, defendant’s challenge to the township solicitor’s right to initiate this prosecution is clearly without merit.

Defendant also argues that the Clean Streams Law does not “define criminal offenses which can result in criminal prohibitions and/or sanctions.” However, 35 P.S. §691.201 specifically prohibits any person from discharging any sewage into any waters of the Commonwealth and 35 P.S. §691.202 specifically prohibits any such discharge without an appropriate permit. Further 35 P.S. §691.602 imposes specific penalties for violation of the foregoing provisions. Clearly, therefore, the Clean Streams Law has an effective standard of prohibited activity and penalties for violations thereof.

Defendant’s final argument pertains to the imposition of attorneys fees by the district justice following the conviction. Since this appeal entitles defendant to a hearing de novo before this court, the issue of penalty or costs imposed by the district justice is not properly before this court at this time.

ORDER

And now, March 20, 1991, it is ordered as follows:

(1) Defendant’s pretrial motion to dismiss is denied.

(2) Trial de novo before this court shall be held on April 18, 1991 at 1:30 p.m. in Courtroom no. 2, Monroe County Courthouse, Stroudsburg, Pennsylvania.


author: BROWN, P.J.,

text:
    Bechdel v. Bechdel

      Robert D. O’Connor Jr., for plaintiff.

      Randy P. Brungard, for defendant.
    March 14, 1991
   BROWN, P.J.,

The parties were married December 29, 1967. In July 1987, they separated. On May 9, 1988, the parties executed a separation agreement prepared by T. Max Hall, Esq., who was representing defendant at that time. Subsequent to executing the separation agreement, the parties reconciled from February 1989 until the parties’ final separation in July 1990. During the course of the reconciliation, defendant acquired a business and several income-producing rental properties. These properties were acquired in his name alone. Defendant filed the instant motion for special relief requesting a determination by the court as to whether the business and real estate investments are marital property or non-marital property.

ISSUE

Whether property acquired during a reconciliation subsequent to the execution of a valid postnuptial agreement is marital or non-marital property?

DISCUSSION

Under 23 Pa.C.S. §401(d), a party in a divorce proceeding may request the court to equitably divide the marital property. Marital property includes “all property acquired by either party during the marriage.” 23 Pa.C.S. §401(e). One statutory exception is “[pjroperty excluded by valid agreement of the parties entered into before, during or after the marriage.” 23 Pa.C.S. §401(e)(2).

It is well-settled that postnuptial agreements are presumed to be valid and binding on the parties. McGannon v. McGannon, 241 Pa. Super. 45, 359 A.2d 431 (1976). Parties may, by means of a prenuptial or postnuptial agreement, waive their right to equitable distribution of marital property. Wolfe v. Wolfe, 341 Pa. Super. 313, 491 A.2d 281, 283 (1985).

Plaintiff contends the property acquired by defendant during their reconciliation is marital property subject to equitable distribution. Plaintiff argues that under the Divorce Code the parties may only agree upon the division of their existing property rights. Plaintiff cites 23 Pa.C.S. §401.1(c) which provides:

“In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding disposition of existing property rights and interest between the parties . . . shall not be subject to modification by the court.” (emphasis supplied)

The court finds that section 401.1(c) does not prohibit parties from entering into agreements to determine future property rights. Parties may waive their right to future property rights by executing a prenuptial or postnuptial agreement. See, e.g., Laub v. Laub, 351 Pa. Super. 110, 116, 505 A.2d 290, 293 (1986) (Prenuptial agreement expressly relinquished each party’s right “in and to any property now owned or hereafter acquired by the other of them.”).

Whether the parties herein settled their future property rights depends upon the terms of the agreement between them. In interpreting a written contract, the court must determine and effectuate the intention of the parties. Id. at 115, 505 A.2d at 293. If the expressed terms of the contract are clear and unambiguous, the court shall determine the intent of the parties based on those terms. Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982). Thus, the issue squarely before the court is whether the parties in this action intended to compromise their rights to future property by entering into the separation agreement.

The stated purpose of the agreement is to “effectuate an equal division of their marital property.” Agreement, para. 19. The parties agreed not to incur any debts on behalf of the other:

“Each party represents and warrants to the other party that he or she has not incurred any debts or made any contracts for which the other party or his or her estate may be liable. Neither party shall incur any such debts or make any such contracts as long as the other party performs all of the obligations under the agreement.” Id., para. 4.

The parties agreed to release and discharge each other “from all cause of action, claims, rights or demands whatsoever, in law or equity, which either of the parties ever had or now has against the other. . .” Id., para. 5.

The marital residence, jointly owned prior to the agreement, became the sole property of plaintiff. Defendant had an obligation to make monthly payments of $200 toward the mortgage and to pay homeowner’s insurance for a limited period of time. Two lots adjacent to the marital residence, jointly owned prior to the agreement, became the sole property of defendant. A jointly owned camp became the sole property of defendant. Defendant received the contents of the marital residence with several items excepted. Defendant retained several vehicles titled in his name alone and transferred one vehicle to plaintiff. The parties divided their intangible personal property such as stocks, bonds, and IRA’s to the party possessing same or party “in whose name the property is now registered or issued.” Id., para. 8.C. The parties agreed that all remaining personal property had been divided and that “everything in his or her possession shall constitute his or her own sole, exclusive and separate property.” Id., para. 8.D. The parties waive all claims for alimony and each agreed to pay respective counsel fees and court costs. Additionally, the agreement contained the following waiver:

“Except as herein otherwise provided, each party may dispose of his or her property in any way, and each party hereby waives and relinquishes any and all rights he or she may now have or hereafter acquire ... to share in the property or the estate of the other as a result of the marital relationship. . .” Id., para. 12.

The agreement states that it is “the entire understanding of the parties” and that any modification or waiver thereto must be in writing. Id., paras. 15-6.

The court believes this agreement represents a complete property settlement between the parties. It divided the parties’ real estate, vehicles, intangible assets, and personal property. This was not merely an agreement to provide support. See Wolfe v. Wolfe, 341 Pa. Super. 313, 491 A.2d 281 (1985). In Wolfe the parties entered into an agreement to divide their marital property. Subsequently, the wife attempted to characterize the agreement as merely a “partial” property settlement. The wife contended that because the parties had failed to give her a portion of some of the husband’s sole assets, the agreement was not complete. The Superior Court of Pennsylvania disagreed. The court found the agreement between the parties was a complete property settlement agreement, rather than “a mere separation agreement providing for support.” Wolfe, supra at n.2.

Further, the agreement herein specifically relinquishes future property rights and claims in paragraph 12 which refers to existing rights and those “hereafter acquirefd].” In Conrady v. Conrady, 379 Pa. Super. 426, 550 A.2d 231 (1988), the Superior Court affirmed the enforcement of a pre-divorce property-settlement agreement in which the parties agreed to settle all rights and claims arising “out of their marriage or otherwise.” The Superior Court noted that the purpose of a property-settlement agreement is “to finally settle all claims each party has or may have against the other.” Id. (emphasis supplied)

The court finds that the parties’ reconciliation in no way affected the validity or scope of the agreement. Plaintiff argues that because the property in issue was acquired during a period of reconciliation that it is marital property. Reconciliation of the parties does not, however, affect a prior valid agreement determining future property rights. Wolfe, supra. See also, Lempergel v. Lempergel, 80 Berks L.J. 344 (1988).

The court concludes that pursuant to the May 9, 1988 separation agreement the parties herein completely divided their marital property. Any acquisitions thereafter made by either party would have been purchased with separate assets and thus must be deemed non-marital properly. Moreover, pursuant to the agreement each party waived his or her right to property acquired by the other subsequent to the agreement.

ORDER

And now, March 14, 1991, based upon the foregoing opinion, it is hereby ordered that defendant’s motion for special relief be granted. The court deems property acquired by defendant after the May 9, 1988 separation agreement to be non-marital.


author: BRADLEY, J,

text:
    Rinier v. Tax Claim Bureau of Delaware County

      Michael P. Dignazio, for plaintiffs.

      James E. DelBello, for Tax Claim Bureau.

      Alfred 0. Breinig, for intervenor.
    March 14, 1991
   BRADLEY, J,

T.L. Simpson Co. Inc., the bidder at the tax sale and intervenor, appealed the decision of this count setting aside the tax sale at the instance of petitioner, Helen P. Rinier.

The court found the following credible facts:

Helen F. Rinier was the co-owner of the relevant property. She divorced her husband in 1973 and has resided elsewhere for the past eight years. During the period August through September 1987, she was in the State of Florida. She testified that at no time did she receive notice of either the tax claim or tax sale.

A deputy sheriff testified that he visited the premises on at least two occasions and found neither of the record owners. He left the notice on the last visit but was unable to recall where the notice was left.

An employee of the Tax Claim Bureau testified that a mail notice was sent in petitioners’ joint names and the return receipt was signed by petitioner, Gordon Rinier only, on January 10, 1986.

Petitioner argues that the facts of this case suggest defective notice under both sections 308 and 602(e)(3) of the Real Estate Tax Sale Act, 72 P.S. §§5860.101 through 5860.803.

Section 308 of the act provides for the method of informing delinquent property owners of the need to file an entry of claim for delinquent taxes. Each taxpayer in jointly owned real estate should be sent a separate notice. Boehm v. Barnes, 63 Pa. Commw. 87, 437 A.2d 784 (1981). In that case, the Tax Claim Bureau sent a single section 308 notice to joint partners. Although subsequent notices were properly given, the Commonwealth Court held the sale invalid because of the failure to notify each delinquent taxpayer. See also, Teslovich v. Johnson, 486 Pa. 622, 406 A.2d 1374 (1979). The court felt that Boehm, supra, dictates the decision made in this case.

The testimony of the deputy sheriff suggests that after a couple of unsuccessful efforts to serve the notice, he left the notice at the premises. Section 5860.602(e)(3) requires proper posting as a prelude to a proper tax sale. Failure to do so renders the sale invalid. Chester County Tax Claim Bureau v. Griffith, 113 Pa. Commw. 105, 536 A.2d 503 (1988); Trussell Appeal, 102 Pa. Commw. 32, 517 A.2d 221 (1986). This court felt that the agency’s burden of proof that proper posting had occurred was not caused and, therefore, had not complied with the act.

For the foregoing reasons, this court set the tax sale aside.


author: SOLOMON, J.,

text:
    Commonwealth v. Jones

      Gina D’Alfonso, assistant counsel in charge, for the Commonwealth.

      John M. Purcell, for defendant.
    May 21, 1990
   SOLOMON, J.,

Defendant, Robert George Jones, filed an appeal from an order of the Department of Transportation suspending his driving privileges for a violation of section 1547 of the Vehicle Code. Specifically, defendant is charged with refusing to submit to a test to determine the alcohol content of his blood.

Initially, defendant was requested to submit to an intoxilyzer test, which test was then administered and the digital readouts provided to the machine operator. However, upon seeking to have the information printed out on its form, the paper did not proceed through the machine properly and all readings were typed on the same line, thereby obliterating the printed readout. Incorrectly believing that the digital readout could not be used against defendant, the machine operator requested that defendant submit to a blood test to determine the alcohol content of his blood. This defendant refused to do.

It is well established in this Commonwealth that once a police officer selects the type of test to be administered, it may only be administered once unless the police officer establishes a reasonable ground for requesting a second test. Pennsylvania Department of Transportation, Bureau of Driver Licensing v. Penich, 112 Pa. Commw. 303, 535 A.2d 296 (1988). If the first test is inconclusive due to faulty equipment or faulty performance by the motorist, a second test may be proper. Department of Transportation v. McFarren, 514 Pa. 411, 525 A.2d 1185 (1987). As in Penich, supra, the McFarren court held that if more than one chemical test is requested by a police officer, “the police officer must offer sufficient evidence to establish the ‘reasonableness’ of such a request.” Id. at 418, 525 A.2d at 1188.

Where, as here, a motorist has submitted to an initial valid test, but then declines to submit to a second test, there is no refusal within the meaning of section 1547(b). Blair v. Commonwealth of Pennsylvania, 115 Pa. Commw. 293, 539 A.2d 958 (1988). There was no testimony at the hearing that the intoxilyzer test alone was an insufficient means of obtaining a determination as to whether defendant was driving under the influence of alcohol. On the contrary, the trooper’s testimony was that the machine was operating properly, and that the reading it gave was proper. There was nothing inconclusive about the intoxilyzer test. In light of Blair, we must conclude that the arresting officer did not have reasonable grounds to request that defendant submit to a blood test, after he had already provided a breath sample.

Wherefore, we will enter the following

ORDER

And now, May 21, 1990, after hearing, it is hereby ordered that the appeal of defendant, Robert George Jones, be, and the same is hereby, sustained.


author: SYLVESTER, J,

text:
    Vicari v. Spiegel

      April 19, 2007

      Stephen E. Raynes, for plaintiff.

      Bart C. Tuttle, for defendnat Jefferson Health System.

      Fredric L. Goldfein, for defendant Spiegel.
   SYLVESTER, J,

I. FACTS AND PROCEDURAL HISTORY

On April 1, 2002, Barbara Vicari died from tongue cancer. Counsel for her estate, in his opening argument, claimed that Mrs. Vicari was never offered chemotherapy. See Notes of Testimony, May 1,2006. (N.T., pp. 7, 42, 44-47.) That alleged omission was the gravamen of their case. A claim for medical malpractice was brought. Trial began on May 1, 2006.

Counsel for the estate produced medical experts. Their testimony was designed to support an action for medical negligence. The trial court entered a nonsuit on May 2, 2006. On November 30, 2006, plaintiff’s statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b) was filed. The trial court has carefully reviewed this statement and the notes of testimony. For the reasons that follow, plaintiff’s appeal is utterly without merit and should be dismissed. The trial court will address those issues worthy of comment.

II. DISCUSSION

Plaintiff’s main complaint is that the nonsuit entered on the second day of trial should not have been granted “because the trial court applied an incorrect standard of law in striking Dr. Berman’s testimony on the basis that Dr. Berman did not state on the record that the opinions expressed where (sic) to a ‘reasonable degree of medical certainty’ when the totality of the testimony (including his testimony on cross-examination) made clear that the opinions expressed were not speculative and were held to a reasonable degree of medical certainty, and the Pennsylvania Supreme Court has held that experts are not required to use ‘magic words. ’ ” Plaintiff’s statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), pp. 1-2.

Plaintiff is mistaken. The law is clear. In Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 661 A.2d 397 (1995), the court addressed this very issue:

“[4] To state aprima facie cause of action for malpractice, a plaintiff must establish that (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient; and (4) the damages suffered by the patient were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Moreover, a plaintiff must ‘present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause ofthe harm suffered.' Id. at 62, 584 A.2d at 892.” 443 Pa. Super. at 250, 661 A.2d at 399-400.

In the case at bar, the direct testimony of Dr. Berman was not conducted properly. The jury and the court were confused. The words “reasonable degree of medical certainty” were painfully absent.

Plaintiff attempts to rely upon the notion that “no magic words” are necessary. See e.g., Pa. Rules of Evidence, 702(7), p. 554. Again, plaintiff is mistaken.

The seminal case of McMahon v. Young, 442 Pa. 484, 276 A.2d 534 (1971), provides guidance. In McMahon, supra, expert testimony that an injury was “consistent with” and “probably caused by” an auto accident was inadequate. The Supreme Court, per Mr. Justice O’Brien, stated:

“This issue is not merely one of semantics. There is a logical reason for the rule. The opinion of a medical expert is evidence. If the fact-finder chooses to believe it, he can find as fact what the expert gave as an opinion. For a fact-finder to award damages for a particular condition to a plaintiff, it must find as a fact that the condition was legally caused by the defendant’s conduct. Here, the only evidence offered was that it was ‘probably’ caused, and that is not enough. Perhaps in the world of medicine nothing is absolutely certain. Nevertheless, doctors must make decisions in their own profession every day based on their own expert opinions. Physicians must understand that it is the intent of our law that if the plaintiff’s medical expert cannot form an opinion with sufficient certainty so as to make a medical judgment, there is nothing on the record with which a jury can make a decision with sufficient certainty so as to make a legal judgment.

“Because Mrs. McMahon’s doctor’s testimony was not made with sufficient certainty, it was not legally competent evidence and a new trial must be granted.” Id. at 486, 276 A.2d at 535.

Furthermore, cases are legion that medical evidence must be presented to the jury with certainty. A jury cannot be permitted to speculate on the issue of causation. There must be evidence on the record which satisfies the standard of certainty.

“In McCrosson v. Philadelphia Rapid Transit Co., 283 Pa. 492, 495-96, 129 A.2d 568, 569 (1925), our Supreme Court set forth a legal test concerning the sufficiency for causation testimony by expert witnesses which ‘required the expert to testify that, in his “professional opinion, the result in question [did] come from the cause alleged....” ’Numerous cases since McCrosson have established that the expert witness must assert that the result in question actually came from the cause alleged. It is not enough to say that the alleged cause ‘possibly,’ or ‘could have’ led to the result, that it ‘could very properly account’ for the result, or even that it was ‘very highly probable’ that it caused the result.” Niggel v. Sears Roebuck & Co., 219 Pa. Super. 353, 354, 355, 281 A.2d 718, 719 (1971); Menarde v. Philadelphia Transportation Co., 376 Pa. 497, 103 A.2d 681 (1954); Vorbnoff v. Mesta Machine Co., 286 Pa. 199, 133 A.2d 256 (1926); Moyer v. Ford Motor Co., 205 Pa. Super. 384, 209 A.2d 43 (1965). Moreover, “[a] less direct expression of opinion falls below the required standard of proof and does not constitute legally competent evidence.” McMahen, 276 A.2d at 535, quoting Menarde.

In the case at bar, the medical expert, Dr. Berman, was merely asked if he had an opinion. See N.T., May 2, 2006, pp. 35-40. Most importantly, he used the words “potentially,” “high propensity” and “again re-indicating a prior propensity for further spread.” See N.T. May 2, 2006 p. 39.

This medically meaningless language does not satisfy the legal standards outlined above. For all of these reasons, a nonsuit was properly granted.


author: BROWN JR., PJ,

text:
    Poole Anderson Construction LLC v. Kuber Hospitality LLC

      March 26, 2007

      Jonathan H. Rudd, for plaintiff.

      Thomas A. Beckley and John G. Milakovic, for defendant.
   BROWN JR., PJ,

Before the court is a preliminary objection filed by defendant Kuber Hospitality LLC. For the reasons which follow, this court overrules the preliminary objection.

HISTORY

Plaintiff Poole Anderson Construction LLC and defendant Kuber Hospitality LLC entered into a written contract on February 12,2005, whereby plaintiff agreed to serve as contractor for defendant’s project (a hotel in Lamar, Clinton County, Pennsylvania) in return for payment. Pursuant to that contract, plaintiff commenced work on the project. On December 11, 2006, plaintiff filed a complaint against defendant to recover payment due as a result of defendant’s alleged termination of the contract for convenience, which was communicated to plaintiff via e-mail dated March 14, 2005. (Amended compl. ¶13.) Defendant filed preliminary objections on December 27, 2006. Plaintiff responded by filing an amended complaint on January 18, 2007.

Plaintiff’s amended complaint alleges defendant terminated the contract for convenience, thereby entitling plaintiff to payment for work executed, costs incurred by reason of termination, reasonable profit and overhead on future work not executed, and (as a result of defendant’s refusal to pay) interest, penalties and attorneys’ fees pursuant to the Contractor and Subcontractor Payment Act, 73 P.S. §501 et seq. Defendant filed a preliminary objection on March 1, 2007, which is at issue now. Specifically, defendant has moved to strike plaintiff’s request for interest, penalties and attorneys’ fees from the amended complaint, pursuant to the Payment Act.

DISCUSSION

In its preliminary objection, defendant has moved to strike plaintiff’s request for Payment Act remedies as an impertinent matter based on the argument that such remedies are not applicable to the facts of this case. This court disagrees with defendant that plaintiff’s request for Payment Act remedies are impertinent.

Rule 1028(a)(2) of the Pennsylvania Rules of Civil Procedure specifies that a preliminary objection may be filed to a pleading that includes impertinent matter. However, “the right of a court to strike impertinent matter should be sparingly exercised and only when a party can affirmatively show prejudice.” Commonwealth, Department of Environmental Resources v. Hartford Accident and Indemnity Company, 40 Pa. Commw. 133, 138, 396 A.2d 885, 888 (1979).

Defendant does not show any prejudice suffered as a result of plaintiff’s request for Payment Act remedies in the amended complaint. In its brief filed on March 1, 2007, defendant only disputes plaintiff’s reasons for seeking Payment Act remedies. Therefore, defendant has not met its burden of affirmatively showing plaintiff’s pleading is prejudicial, and the court must overrule defendant’s preliminary objection.

In Hartford Accident, the Commonwealth Court was charged with deciding whether or not to sustain defendant’s preliminary objection which argued that the damages plaintiff sought were impertinent and should be stricken from the complaint. The court overruled the preliminary objection reasoning that the case was “only in the pleading stage and... it would be difficult at best to determine whether or not the damages claimed and relief sought are impertinent.” Id.

Similarly, this case is only in the pleading stage. Therefore, it would be difficult to determine whether or not the Payment Act remedies sought by plaintiff would be impertinent, especially considering defendant has not shown any prejudice. Consequently, the court overrules defendant’s preliminary objection.

Even in a light most favorable to defendant, defendant’s preliminary objection should be overruled. As the Commonwealth Court explains Hartford Accident, even if the Payment Act remedies in the amended complaint are considered impertinent, “[the remedies] need not be stricken but may be treated as ‘mere surplusage’ and ignored.” Id. at 137, 396 A.2d at 888.

ORDER

And now, March 26, 2007, defendant Kuber Hospitality’s preliminary objection is overruled. Defendant is granted 30 days from the date of this order to file a responsive pleading.


author: WHERRY, S.J.,

text:
    Lumley v. CSX Transportation Inc.

      Mark F. McKenna, for plaintiff.

      Anthony J. Rash and Brendan B. Kelly, for defendants.

      April 12, 2007
   WHERRY, S.J.,

This case is before the court on defendant’s, CSX Transportation Inc., motion for partial judgment on the pleadings. The relevant facts, as averred by plaintiff, Douglas L. Lumley, are as follows.

During all relevant times, defendant employed plaintiff as a locomotive engineer. (Plaintiff’s brief in opposition at I ¶1.) As part of his employment duties, on March 7,2005, plaintiff was to transport a locomotive train from Willard, Ohio to New Castle, Pennsylvania. (Complaint at ¶11.) When plaintiff attempted to move the locomotive train from the Willard, Ohio train yard, he discovered that the lead locomotive engine was inoperable. (Complaint at ¶11.) Plaintiff alleges that because of the inoperability of the lead locomotive car, he was required to move that locomotive car from the main track by setting it off into the yard track at the Willard shop. (Plaintiff’s brief in opposition at I ¶2; complaint at ¶13.) In order to accomplish the required relocation of the lead locomotive car, plaintiff was required to leave the train and utilize three switches located on or about the main track to the Willard yard. (Complaint at ¶14.) The complaint specifically alleges that, “while plaintiff was ordered to transport the unfit locomotive engine he was required to throw an unsafe, outdated, unmentioned track switch. ...” (Complaint at ¶19.) Plaintiff avers that, as a result of throwing, or attempting to throw, said switches, he suffered various injuries; subsequently, plaintiff filed the instant suit against defendant and seeks recovery under the Federal Employee’s Liability Act (FELA), 45 U.S.C. §51 et seq., and the Locomotive Inspection Act (LIA). (Complaint at ¶15.)

The Pennsylvania Rules of Civil procedure state that, “[ajfterthe relevant pleadings are closed, but within such time as not to unreasonably delay the trial, any party may move for judgment on the pleadings.” Pa.R.C.P. 1034(a) (2007). Pennsylvania courts have established the standard for reviewing a party’s motion for judgment on the pleadings, specifically:

“Like all summary judgments entered without a trial judgment on the pleadings may be entered only in clear cases free from doubt where there are no issues of fact, and only where the cause is so clear that a trial would clearly be a fruitless exercise .... The party moving for the judgment on the pleadings admits for the purpose of his motion the truth of all the allegations of his adversary and the untruth of any of his allegations which may have been denied by his adversary. Goodrich-Amram 2d, § 1034(b)(1).” Beck v. Minestrella, 264 Pa. Super. 609, 611, 401 A.2d 762, 763 (1979).

Furthermore, “judgment on the pleadings is only proper where the pleadings establish evidence that there are no material facts in dispute, such that a trial by jury would be unnecessary.” Teamann v. Zafris, 811 A.2d 52, 63 (Pa. Commw. 2002), overruled on other grounds, by McCreesh v. City of Philadelphia, 585 Pa.211, 888 A.2d 664 (2005); see Travelers Casualty & Surety Company v. Castegnaro, 565 Pa. 246, 772 A.2d 456 (2001).

A federal district court held that “FELA creates a cause of action for railway employees who have been killed or injured by the railway’s negligence.” Gottshall v. Consolidated Rail Corp., 988 F.2d 355, 360 (E.D. Pa. 1993), rehearing denied, cert. denied, 510 U.S. 912, 114 S.Ct. 299, on remand, Carlisle v. Consolidated Rail Corp., 43 F.3d 1460, on remand, 56 F.3d 530. Furthermore, when an employee is injured during the course of their employment and the injury is resultant “in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence in its appliances, machinery ... or other equipment,” said common carrier is liable to the employee for damages. 45 U.S.C. §51 (2006).

A Federal District Court in the Northern District of Ohio held that “[a]n employee injured due to a violation of the LIA may bring his action under the FELA.” Reed v. Norfolk Southern R.R. Co., 312 F. Supp.2d 924, 926 (N.D. Ohio 2004) (citations omitted); see also, Grogg v. Missouri Pac. R.R. Co., 841 F.2d 210 (8th Cir. 1988). The Reed court further held that an employer is strictly liable for a violation of the LIA. Reed, 312 F. Supp.2d at 926. However, if the alleged violation of the LIA “merely creates an incidental condition or situation in which the accident, otherwise caused, results in such injury,” courts have held that the required causal link between the LIA and the employee’s injury was not established. Davis v. Wolfe, 263 U.S. 239 (1923); Green v. River Terminal Ry. Co., 763 F.2d 805, 810 (6th Cir. 1985).

In order to succeed in a claim filed pursuant to the LIA, a plaintiff must establish that their claim meets the “in use” requirement; specifically, the LIA excludes from its coverage injuries incurred “directly resulting from the inspection, repair and servicing of railroad equipment located at a maintenance facility.” Angell v. Chesapeake and Ohio Railway Company, 618 F.2d 260, 262 (4th Cir. 1980); see Rivera v. Union Pacific Railroad Company, 868 F. Supp. 294, 300 (Dist. Ct. Colo. 1994). The First Circuit has held that, in order to determine whether the “in use” requirement has been satisfied, a court must examine both the activity the injured party was engaged in at the time of the accident and the relevant locomotive’s location during the same period. McGrath v. Consolidated Rail Corp., 136 F.3d 838, 842 (1st Cir. 1998).

Defendant cites to several cases in which some event or condition on a particular locomotive, or relative to a particular railroad, caused a railroad employee to deviate from their traditional protocol, which subsequently resulted in said employee sustaining an injury by an event unrelated to the relevant railroad. In all of these cases, the plaintiffs’ claims were deemed legally insufficient in that the LIA’s “in use” requirement was not satisfied; specifically, the event caused by the railroad was not the event causally related to particular injury sustained in each event. Protopopov v. CSX Transp. Inc., no. 11137 of 2001 C.A. (Lawrence C.C.P. Nov. 5, 2004); Simpson v. Texas & New Orleans R. Co., 297 F.2d 660 (5th Cir. 1962); Green v. River Terminal Railway Co., 763 F.2d 805 (1986).

The court notes that, as pled in the complaint, plaintiff’s relevant actions were not “directly resulting from the inspection, repair and servicing of railroad equipment located at a maintenance facility.” Angell, 618 F.2d at 262. Specifically, through his complaint, plaintiff alleges that his relevant actions were undertaken while attempting to operate a locomotive train. (Complaint at ¶¶11, 13-15.) The court further notes that, as alleged within plaintiff’s complaint, plaintiff’s injuries were not the result of an intervening or superseding cause unrelated to defendant railroad. (Complaint at ¶¶11, 13-15.) Accordingly, the cases cited by defendant regarding the requirements of causation and that the relevant locomotive train was “in use” at the time of plaintiff’s injury are currently inapplicable to the instant case. See Protopopov, no. 11137 of 2001 C.A.; Simpson, 297 F.2d 660; Green, 763 F.2d 805.

The court notes that plaintiff has averred that plaintiff was required to throw the aforestated switches in the furtherance of operating a locomotive train. (Plaintiff’s brief in opposition at I ¶2; complaint at ¶¶13-14.) In accepting as true all of plaintiff’s averments set forth in his complaint, this court finds that plaintiff’s action in throwing the switches was in the course of attempting to operate a locomotive train. Beck, 264 Pa. Super. at 611, 401 A.2d at 763. Accordingly, defendant’s motion for partial judgment on the pleadings must be denied.

ORDER

And now, April 12,2007, the court having heard argument on and reviewed the parties’ briefs regarding defendant’s motion for partial judgment on the pleadings, with Mark F. McKenna, Esquire representing the plaintiff, and Anthony J. Rash, Esquire and Brendan B. Kelly, Esquire, representing the defendant, the court finds and it is hereby ordered, adjudged and decreed as follows:

(1) Defendant’s motion for judgment on the pleadings is denied as expressed in the accompanying opinion.

(2) The prothonotary shall serve notice of this order upon counsel of record for the parties, Mark F. McKenna, Esquire, Anthony J. Rash, Esquire and Brendan B. Kelly, Esquire; and if a party has no counsel, then upon said party at their last known address as contained in the court’s file.


author: KLEINFELTER, J,

text:
    McAfee v. Pinnacle Health Systems

      February 2, 2007

      Rob Bleecher, for plaintiff.

      Sarah Arosell, for defendants.
   KLEINFELTER, J,

Before the court for disposition is plaintiff’s petition to strike praecipe for judgment of non pros and, alternatively, petition to open the judgment of non pros.

Plaintiff initiated this action by writ of summons filed August 16, 2006. On November 3, 2006, plaintiff filed a complaint alleging that on August 20,2004, two radiological technicians in defendants’ employ caused injury to plaintiff’s decedent while attempting to move her into a wheelchair for the purpose of transporting her to the radiology department for a chest x-ray. On January 3, 2007, defendants filed a praecipe for entry of judgment of non pros pursuant to Rule 1042.6, averring that plaintiff had not filed a certificate of merit within 60 days of filing his complaint, as required by Pa.R.C.P. 1042.3. The prothonotary entered a judgment of non pros in defendants’ favor that same day.

On January 5,2007, plaintiff filed the instant petition to open. On January 9,2007, we issued upon defendants a rule to show cause why plaintiff is not entitled to the relief sought in his petition. Defendants filed an answer to our rule on January 29, 2007.

Plaintiff contends that the judgment of non pros should be stricken and the case re-opened because he was not obligated to file a certificate of merit pursuant to Rule 1042.3 since his complaint does not allege professional negligence. Rule 1042.3, pertaining to certificates of merit, states in relevant part:

“(a) In any action based upon an allegation that a licensed professional deviated from an acceptable professional standard, the attorney for the plaintiff, or the plaintiff if not represented, shall file with the complaint or within 60 days after the filing of the complaint, a certificate of merit signed by the attorney or party that either
“(1) an appropriate licensed professional has supplied a written statement that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm, or
“(2) the claim that the defendant deviated from an acceptable professional standard is based solely on allegations that other licensed professionals for whom this defendant is responsible deviated from an acceptable professional standard, or
“(3) expert testimony of an appropriate licensed professional is unnecessary for prosecution of the claim.” Pa.R.C.P. 1042.3(a). (notes omitted)

Plaintiff avers that “some or all of the claims” in his complaint “are not in the nature of a medical malpractice action, even though initially captioned as such.” Therefore, he concludes that Rule 1042.3 is inapplicable.

In determining the types of claims for which a certificate of merit is necessary, the court is obliged to examine the averments made in the plaintiff’s complaint. Grossman v. Barke, 868 A.2d 561 (Pa. Super. 2005). Here, plaintiff makes averments regarding injuries sustained while decedent was under the care of defendants, whom plaintiff identifies as a “licensed healthcare facility providing medical services.” (Complaint, paragraph 3.) Thus, on its surface, plaintiff’s complaint clearly alleges medical malpractice.

The distinction between ordinary negligence and medical malpractice is as follows:

“A medical malpractice claim is distinguished by two defining characteristics. First, medical malpractice can occur only within the course of a professional relationship. Second, claims of medical malpractice necessarily raise questions involving medical judgment. Claims of ordinary negligence, by contrast, raise issues that are within the common knowledge and experience of the [fact-finder]. Therefore, a court must ask two fundamental questions in determining whether a claim sounds in ordinary negligence or medical malpractice: (1) whether the claim pertains to an action that occurred within the course of a professional relationship; and (2) whether the claim raises questions of medical judgment beyond the realm of common knowledge and experience. If both these questions are answered in the affirmative, the action is subject to the procedural and substantive requirements that govern medical malpractice actions.” Ditch v. Waynesboro Hospital, 917 A.2d 317, 322 (Pa. Super. 2007).

In making such a distinction in this case, we are guided by the court’s decision in Ditch. There, plaintiff’s decedent (Ms. Verdier) suffered a stroke and was taken to the emergency department at defendant Waynesboro Hospital. While being moved from the emergency department to a hospital room for further treatment, Ms. Verdier fell from her hospital bed, striking her head on the floor. Ms. Verdier died three days later due to a subdural hematoma brought about by her head injuries.

Plaintiff’s complaint averred that the hospital, acting through its employees and agents, caused Ms. Verdier’s death by failing to properly restrain her, failing to properly train hospital staff with regard to patient transportation procedures, and in leaving Ms. Verdier alone while she was being transported. The hospital filed a praecipe for entry of judgment of non pros pursuant to Rule 1042.6 for failing to file a certificate of merit and the trial court granted this motion. Subsequently, the trial court denied plaintiff’s petition to open and/or strike the judgment of non pros, finding that the complaint raised a professional negligence claim and, therefore, required a certificate of merit. The Superior Court affirmed, holding that when a plaintiff’s case is stricken for failure to file a certificate of merit pursuant to Rule 1042.3, plaintiff cannot successfully petition to reopen the case by arguing that a certificate of merit was unnecessary because the complaint merely raised an ordinary negligence claim, where a fair reading of the entire complaint leads the court to conclude that the complaint should be characterized as one sounding in medical malpractice.

As in the case at bar, plaintiff in Ditch alleged that her action was one of ordinary negligence, akin to a slip and fall action, and that it did not raise a claim of professional negligence or assert that the hospital deviated from an accepted professional standard of care. However, the court found that even though plaintiff did not allege that Ms. Verdier was receiving medical treatment at the time she was being transferred from the emergency room to a hospital room, her claim arose out of a professional relationship because “the conduct at issue constituted an integral part of the process of rendering medical treatment.” Ditch, supra at 323.

Further, the court did not agree with plaintiff’s contention that expert testimony was unnecessary to prove that the hospital was negligent for failing to properly restrain Ms. Verdier and for failing to properly train its staff in the proper procedures in transporting patients. Specifically, the court noted that “while our courts have not explicitly reached the issue of whether expert testimony is needed to determine whether a patient should be restrained, a review of other jurisdictions reveals a majority have concluded that it is a complex medical determination which requires expert testimony to educate juries as to the proper standard of care.” Id. at 324. The court also found that a layperson would be unfamiliar with the effects of a stroke and the procedures in moving and monitoring stroke patients.

Turning to the case at bar, we find that the conduct at issue here is substantially similar to that in Ditch. Thus, we have no trouble finding that the alleged negligence occurred within the course of a professional relationship. Additionally, we note in his complaint plaintiff alleges that “[djefendant’s agents did not employ standard procedures required under the circumstances in effecting the transport of decedent and thereby failed to exercise the standard of care required.” (Complaint, paragraph 9.) Plaintiff further avers that defendants “[f]ailed to properly hire, train, and supervise those members of the radiology department who were in any way involved in transporting decedent to the radiology department” and that they “[f] ailed to follow normal and acceptable hospital policies, practices, and procedures for the transportation of patients of similar size, age, and physical condition as decedent.” (Complaint, paragraph 16.) These averments, referencing standard hospital policies and procedures, as well as an appropriate standard of care, clearly sound in medical malpractice.

Furthermore, pursuant to Ditch, we find that expert testimony will likely be necessary here to assist the fact-finder in understanding the effects of decedent’s diabetic condition and the proper procedures in moving and transporting a patient in her condition. Accordingly, we conclude that the instant lawsuit is a professional negligence action for which the certificate of merit requirement of Pa.R.C.P. 1042.3 is applicable.

While plaintiff correctly states that only claims of professional negligence are subject to the requirements of Rule 1042.3, we disagree with his assertion that his action also contains non-medical malpractice claims. Plaintiff’s complaint contains a 16-paragraph factual recitation which, as stated above, clearly sounds in medical malpractice, followed by “Count I, survival action” and “Count II, wrongful death.” Counts I and II merely incorporate by reference the previous factual recitation, aver damages and make a demand for judgment. No other claims are stated.

Finally, we find no merit to plaintiff’s contention that his non-compliance with Rule 1042.3 can be excused pursuant to Pa.R.C.P. 126. See Womer v. Hilliker, 589 Pa. 256, 908 A.2d 269 (2006) (plaintiff who made no attempt to comply with Rule 1042.3 could not have “substantially complied” with it pursuant to Rule 126 so as to be entitled to relief from a judgment of non-pros).

We enter the following:

ORDER

And now, February 2, 2007, upon consideration of plaintiff’s petition to strike praecipe for judgment of non pros and, alternatively, petition to open the judgment of non pros, it is hereby ordered that said petition is denied.

      . Decedent was admitted to the hospital for a debridement procedure on her left foot to address diabetes-related problems.

      . We also note that plaintiff captions his action “civil action-medical professional liability action ....”

      . Rule 126 states that “[t]he rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect of procedure which does not affect the substantial rights of the parties.”