text:
    McShane v. Recordex Acquisition Corp.

      Alan M. Feldman, for plaintiffs.

      David Zalesne, Mary E. Williams, Don Foster, Joseph Bradica, Ira Lefton and Andrew Soven, for defendant.
    July 9, 2004
   BERNSTEIN, J.,

— Before the court is a claim for class action certification deriving from allegedly unlawful charges by defendant contract pursuant to its various health care providers to provide medical records. Pursuant to Pennsylvania Rule of Civil Procedure 1710(a), this court accompanies its order with the following findings of fact, conclusions of law, and discussion.

Plaintiffs claim that the charges billed for the production of medical records by defendant are in excess of the maximum permissible charges pursuant to the Medical Records Act, 42 Pa.C.S. §6152, effective 1998. This Act provides maximum per page charges which may be charged by any health care provider or employee of a health care facility for “paper copies” and for “copies from microfilm.” It is agreed by all parties that the defendant herein, pursuant to its contract with numerous Philadelphia area hospitals, charged the maximum rate permissible “for copies from microfilm” rather than the lower permissible maximum charges for paper copies for all records electronically retrieved.

Plaintiffs McShane are plaintiffs in a personal injury lawsuit whose attorneys were charged the microfilm copy rates for electronically retrieved medical records and eventually paid the higher rates when their lawsuit was resolved. Plaintiff Liss and Marion P.C. paid the microfilm rate on many copies retrieved by defendant electronically for them on behalf of their clients.

DISCUSSION

The sole issue before this court is whether the prerequisites for certification as set forth in Pa.R.C.P. 1702 are satisfied. The purpose behind class action suits is “to provide a means by which the claims of many individuals may be resolved at one time, thereby eliminating the possibility of repetitious litigation and providing claimants with a method to seek compensation for claims that would otherwise be too small to litigate.” DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 397, 676 A.2d 1237, 1239 (1996). For a suit to proceed as a class action, Rule 1702 of the Pennsylvania Rules of Civil Procedure requires that five criteria be met:

“(1) the class is so numerous that joinder of all members is impracticable;
“(2) there are questions of law or fact common to the class;
“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;
“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and
“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.”

Rule 1708 of the Pennsylvania Rules of Civil Procedure requires:

“hi determining whether a class action is a fair and efficient method of adjudicating the controversy, the court shall consider among other matters the criteria set forth [below]
“(a) Where monetary recovery alone is sought, the court shall consider
“(1) whether common questions of law or fact predominate over any question affecting only individual members;
“(2) the size of the class and the difficulties likely to be encountered in the management of the action as a class action;
“(3) whether the prosecution of separate actions by or against individual members of the class would create a risk of
“(i) inconsistent or varying adjudications with respect to individual members of the class which would confront the party opposing the class with incompatible standards of conduct;
“(ii) adjudications with respect to individual members of the class which would as a practical matter be dis-positive of the interests of other members not parties to the adjudications or substantially impair or impede their ability to protect their interests;
“(4) the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues;
“(5) whether the particular forum is appropriate for the litigation of the claims of the entire class;
“(6) whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate actions;
“(7) whether it is likely that the amount which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action.
“(b) Where equitable or declaratory relief alone is sought, the court shall consider
“(1) the criteria set forth in subsections (1) through (5) of subdivision (a), and
“(2) whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class.
“(c) Where both monetary and other relief is sought, the court shall consider all the criteria in both subdivisions (a) and (b).”

The burden of showing each of the elements in Rule 1702 is initially on the moving party. This burden “is not heavy and is thus consistent with the policy that ‘decisions in favor of maintaining a class action should be liberally made.’ ” Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 45, 501 A.2d 635, 637 (1985). The moving party need only present evidence sufficient to make out a prima facie case “from which the court can conclude that the five class certification requirements are met.” Debbs v. Chrysler Corp., 810 A.2d 137, 153-54 (Pa. Super. 2002) (quoting Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982)).

In other contexts, the prima facie burden has been construed to mean “some evidence,” “a colorable claim,” “substantial evidence,” or evidence that creates a rebut-table presumption that requires the opponent to rebut demonstrated elements. In the criminal law context, “the prima facie standard requires evidence of the existence of each and every element____” Commonwealth v. Martin, 727 A.2d 1136, 1142 (Pa. Super. 1999), alloc. denied, 560 Pa. 722, 745 A.2d 1220 (1999). However, “the weight and credibility of the evidence are not factors at this stage____” Commonwealth v. Marti, 779 A.2d 1177, 1180 (Pa. Super. 2001).

In the family law context, “the term ‘prima facie right to custody’ means only that the party has a colorable claim to custody of the child.” McDonel v. Sohn, 762 A.2d 1101, 1107 (Pa. Super. 2000). Similarly, in the context of employment law, the Commonwealth Court has opined that a prima facie case can be established by “substantial evidence” requiring the opposing party to affirmatively rebut that evidence. See e.g., Williamsburg Community School District v. Commonwealth of Pennsylvania, Pennsylvania Human Relations Commission, 99 Pa. Commw. 206, 512 A.2d 1339 (1986).

Courts have consistently interpreted the phrase “substantial evidence” to mean “more than a mere scintilla,” but evidence “which a reasonable mind might accept as adequate to support a conclusion.” SSEN Inc. v. Borough Council of the Borough of Eddystone, 810 A.2d 200, 207 (Pa. Commw. 2002). In Grakelow v. Nash, 98 Pa. Super. 316 (1929), a tax case, the Superior Court said: “To ordain that a certain act or acts shall be prima facie evidence of a fact means merely that from proof of the act or acts, a rebuttable presumption of the fact shall be made; ... it attributes a specified value to certain evidence but does not make it conclusive proof of the fact in question.”

Class certification is a mixed question of fact and law. Debbs v. Chrysler Corp., 810 A.2d 137, 154 (Pa. Super. 2002). The court must consider all the relevant testimony, depositions and other evidence pursuant to Rule 1707(c). In determining whether the prerequisites of Rule 1702 have been met, the court is only to decide who shall be the parties to the action and nothing more. The merits of the action and the plaintiffs’ right to recover are excluded from consideration (1977 explanatory comment to Pa.R.C.P. 1707). Where evidence conflicts, doubt should be resolved in favor of class certification.

Accordingly, this court must refrain from ruling on plaintiff’s ultimate right to achieve any recovery, or the substantive merits of defenses raised. In making a certification decision, “courts in class certification proceedings regularly and properly employ reasonable inferences, presumptions, and judicial notice.” Janicik, 305 Pa. Super, at 128, 451 A.2d at 454.

“The burden of proof to establish the five prerequisites to class certification lies with the class proponent; however, since the hearing on class certification is akin to a preliminary hearing, it is not a heavy burden.” Pro fessional Flooring Co. v. Bushar Corp., 61 D.&C.4th 147, 153 (Montg. Cty. 2003), citing Debbs v. Chrysler Corp., 810 A.2d 137, 153 (Pa. Super. 2002); Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 130, 451 A.2d 451, 455 (1982). See also, Baldassari v. Suburban Cable TV Co. Inc., 808 A.2d 184, 189 (Pa. Super. 2002); Cambanis v. Nationwide Insurance Co., 348 Pa. Super. 41, 501 A.2d 635 (1985). The prima facie burden of proof standard at the class certification stage is met by a qualitative “substantial evidence” test. Where any contrary evidence is presented it is of course the moving party who bears the risk of non-persuasion.

Our Superior Court has instructed that it is a strong and oft-repeated policy of this Commonwealth that decisions applying the rules for class certification should be made liberally and in favor of maintaining a class action. Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 407, 615 A.2d 428, 431 (1992). See also, Janicik, 305 Pa. Super, at 128, 451 A.2d at 454, citing and quoting Esplin v. Hirschi, 402 F.2d 94, 101 (10th Cir. 1968) (“in a doubtful case... any error should be committed in favor of allowing the class action”).

Likewise, the Commonwealth Court has held that “in doubtful cases, any error should be committed in favor of allowing class certification.” Foust v. SEPTA, 756 A.2d 112, 118 (Pa. Commw. 2000). This philosophic approach is further supported by the consideration that “[t]he court may alter, modify, or revoke the certification if later developments in the litigation reveal that some prerequisite to certification is not satisfied.” Janicik, 305 Pa. Super, at 129, 451 A.2d at 454.

Within this context, the court will examine the requisite factors for class certification.

A. The Proposed Class of Individuals on Whose Behalf Medical Records Were Requested

The evidence demonstrates that it was always law firms, acting on behalf of clients, who ordered records, were billed for records and paid allegedly excessive fees. As defendant correctly stated in its memorandum contra certification: “The law firms request the records, in part, to advance their own economic interests in pursuing personal injury claims. And the law firms are the entities that are in contractual privity with Recordex. Any claims of the McShanes — or any other clients of firms included in the alleged class — would simply be derivative of the claims of the lawyers.” There is no evidence of any direct orders for records from, or allegedly excessive billing to, any individual plaintiffs.

The members of the injured plaintiff class cannot be identified: “except through the law firm who were in direct contractual privity with both Recordex and their clients. The request that Recordex receives, and the invoices it generates, identify the requesting law firm, not the client of the firms; the patient name is not necessarily the name of the client, who may be a spouse, parent, or a surviving family member. Identifying the class members who are clients of the firms would require the firms themselves to provide information from their files, including not only the identities of the clients, but whether the clients reimbursed the law firms for the cost of obtaining the records.” All reimbursements, should there be any, will necessarily be made through the appropriate law firm.

Whether one views the individual injured plaintiff’s claims as “derivative” of the law firm’s class claims because the law firms paid the charges or conversely one views the law firm class claims as derivative of the injured plaintiff’s claims because all charges paid were on behalf of their clients, the two proposed classes are clearly presenting identical claims. Any potential claims of the proposed class of individual plaintiffs are entirely overlapping and duplicative of the claims of the second proposed class of attorneys and law firms.

Clearly, the proposed class of injured parties whose records were requested by their lawyers present serious management difficulties. The interests of the members of this class can and will be fully protected by the other proposed class, the attorneys who requested and paid for medical records because they represented the injured plaintiffs in their original cases.

Accordingly, certification is denied as to the proposed class of injured plaintiffs whose medical records were requested and for the reasons set forth below, granted as to the other proposed class.

I. Numerosity

To be eligible for certification, appellant must demonstrate that the class is “so numerous that joinder of all members is impracticable.” Pa.R.C.P. 1702(1). A class is sufficiently numerous when “the number of potential individual plaintiffs would pose a grave imposition on the resources of the court and an unnecessary drain on the energies and resources of the litigants should such potential plaintiffs sue individually.” Temple University of the Commonwealth System of Higher Education v. Pennsylvania Department of Public Welfare, 30 Pa. Commw. 595, 603, 374 A.2d 991, 996 (1977) (123 members sufficient); ABC Sewer Cleaning Co. v. Bell of Pa., 293 Pa. Super. 219, 438 A.2d 616 (1981) (250 members sufficient); Ablin Inc. v. Bell Telephone Company of Pennsylvania, 291 Pa. Super. 40, 435 A.2d 208 (1981) (204 plaintiffs sufficiently numerous). Appellant need not plead or prove the actual number of class members, so long as he is able to “define the class with some precision” and provide “sufficient indicia [to the court] that more members exist than it would be practicable to join.” Janicik, 305 Pa. Super, at 132, 451 A.2d at 456.

With respect to the lawyer and law firm class, plaintiffs have offered exhibit no. 14 revealing the percentage of provided records which are billed according to the schedule for paper retrieval even though retrieved electronically. This exhibit reveals that in excess of 700,000 pages of electronically retrieved medical records were billed at the microfilm rate. While no evidence whatsoever was presented of record as to the number of law firms involved, defendant herein was the provider of medical records for 17 major hospitals in the Philadelphia area. From this fact the court concludes that the individual attorney and attorney firm class meets the requirement of numerosity. Additionally, it is noted that, while the defendants challenge the possibility of a proper class action, generally they do not contest the claim of numerosity.

Defendant does claim that no class should be certified because of a lack of privity between the individuals on whose behalf attorneys ordered records and the defendant. This claim goes to the substance of the matter and is not a proper basis on which certification may be denied. The court notes that whether or not any claim is presented due to lack of privity is a matter properly resolved by preliminary objection, judgment on the pleadings or summary judgment which have either already been ruled upon or by decision never filed.

The attorneys for whom a class is herein certified ordered records on behalf of their clients. Any “overpayments” on cases which have been resolved have been passed on as costs to individual clients and therefore any recovery would likewise necessarily be transmitted to the “overcharged” clients. This court may rely on the professional and legal obligations of the bar to perform this function. Any individual law firms that are unable or unwilling to disgorge any recovery herein to its rightful recipient, clients or others who have been overcharged, may and should avail themselves of the opportunity to opt out of this class action.

Since the defendant herein provided exclusive medical records services to major hospitals and always charged the same rates, numerosity as to law firms has been demonstrated.

II. Commonality

The second prerequisite for class certification is that “there are questions of law or fact common to the class.” Pa.R.C.P. 1702(2). Common questions exist “if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the class opponent.” Janicik, supra at 133, 451 A.2d at 457. Thus, it is necessary to establish that “the facts surrounding each plaintiff’s claim must be substantially the same so that proof as to one claimant would be proof as to all.” Weismer by Weismer v. Beech-Nut Nutrition Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). However, wheie the challenged conduct affects the potential class members in divergent ways, commonality may not exist. Janicik, supra at 133 n.5, 451 A.2d at 457 n.5. “While the existence of individual questions is not necessarily fatal, it is essential that there be a predominance of common issues shared by all class members which can be justly resolved in a single proceeding.” D ’Amelio v. Blue Cross of Lehigh Valley, 347 Pa. Super. 441, 452, 500 A.2d 1137, 1142 (1985). In examining the commonality of the class’ claims, a court should focus on the cause of injury and not the amount of alleged damages. “Once a common source of liability has been clearly identified, varying amounts of damages among the plaintiffs will not preclude class certification.” See Weismer by Weismer v. Beech-Nut Nutrition. Corp., 419 Pa. Super. 403, 409, 615 A.2d 428, 431 (1992). (emphasis in original) Where there exists intervening and possibly superseding causes of damage, however, liability cannot be determined on a class-wide basis. Cook v. Highland Water and Sewer Authority, 108 Pa. Commw. 222, 231, 530 A.2d 499, 504 (1987).

Plaintiffs argue that questions of law and fact common to the class exist. Defendants claim that individual issues of law and fact exist and predominate. After reviewing the class action complaint filed in this matter along with testimony, documents, exhibits and the argument of counsel, this court finds that individual issues of law and fact do not predominate.

The only claim presented herein is a single question of law as to the proper interpretation of 42 Pa.C.S. §6152. This question of statutory interpretation presented is, did the legislature, in enacting the Medical Records Act, which all parties concur is applicable to these charges, intend electronically retrieved copies not explicitly mentioned in the Act, to be charged at the rate for paper copies or the rate for copies of microfilm. Beyond that question of interpretation of law the only issues presented are the mathematical calculation of overcharges to and overpayment by each member of the class. The only issue presented is the interpretation of the law to the charges incurred for electronically retrieved records.

The claim presented satisfies the commonality requirement of Rule 1702(a)(2).

III. Typicality

The third step in the certification test requires the plaintiff show that the class action parties’ claims and defenses are typical of the entire class. The purpose behind this requirement is to determine whether the class representatives’ overall position on the common issues is sufficiently aligned with that of the absent class members to ensure that pursuit of their interests will advance those of the proposed class members. DiLucido v. Terminix International Inc., 450 Pa. Super. 393, 404, 676 A.2d 1237, 1242 (1996).

The named law firm is typical of all law firm claimants having paid allegedly higher rates for the electronically retrieved records. The requirement of typicality is met.

IV. Adequacy of Representation

For the class to be certified, this court must also conclude that the plaintiffs “will fairly and adequately assert and protect the interests of the class.” Pa.R.C.P. 1702. In determining whether the representative parties will fairly and adequately represent the interests of the class, the court shall consider the following:

“(1) whether the attorney for the representative parties will adequately represent the interests of the class,
“(2) whether the representative parties have a conflict of interest in the maintenance of the class action, and
“(3) whether the representative parties have or can acquire adequate financial resources to assure that the interests of the class will not be harmed.” Pa.R.C.P. 1709.
“[U]ntil the contrary is demonstrated, courts will assume that members of the bar are skilled in their profession.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458. Here, defendants do not challenge plaintiffs’ counsels’ skill. The court presumes that counsel is skilled in their profession.
“[C]ourts have generally presumed that no conflict of interest exists unless otherwise demonstrated, and have relied upon the adversary system and the court’s supervisory powers to expose and mitigate any conflict.” Janicik, 305 Pa. Super, at 136, 451 A.2d at 458. Defendants argue that there are conflicts of interest between the representative of the class and other class members because of the relationship between the named plaintiff law firm and counsel for the class. This court has reviewed the claims of conflict and cáse law presented and finds the named class representatives’ interests do not conflict with those of the proposed class and that no conflict exists between plaintiff’s counsel and the named class representative or the class that precludes representation. The requirement of adequacy of representation has been met.

V. Fair and Efficient Method of Adjudication

The final criteria under Pa.R.C.P. 1702 is a determination of whether a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708. Since the court has determined that a class satisfies the other requirements of Pa.R.C.P. 1702 and plaintiffs also request equitable relief, it is necessary also to consider subdivisions (a) and (b) of Rule 1708.

1. Predominance of common questions of law and fact

The most important requirement in determining whether a class should be certified under 1702(a)(5) and 1708(a)(1) is whether common questions of law and fact predominate over any question affecting only individual members. In addition to the existence of common questions of law and fact, plaintiffs must also establish that the common issues predominate. The analysis of predominance under Rule 1708(a)(1) is closely related to that of commonality under Rule 1702(2). Janicik, supra at 141, 451 A.2d at 461. The court adopts and incorporates its analysis of commonality and concludes that the requirement of predominance has been satisfied. As stated above, the only claim presented is the interpretation of statute, and if any overbilling has occurred, the mathematical calculation of refunds owing.

2. The existence of serious management difficulties

Under Pa.R.C.P. 1708(2), a court must also consider the size of the class and the difficulties likely to be encountered in the management of the action as a class action. While a court must consider the potential difficulties in managing the class action, any such difficulties generally are not accorded much weight. Problems of administration alone should not ordinarily justify the denial of an otherwise appropriate class action, for to do so would contradict the policies underlying this device. Yaffe v. Powers, 454 F.2d 1362 (1st Cir. 1972). Rather, the court should rely on the ingenuity and aid of counsel and upon its plenary authority to control the action to solve whatever management problems the litigation may bring. Id. (citing Buchanan v. Brentwood Federal Savings & Loan Assoc., 457 Pa. 135, 320 A.2d 117 (1974)). Defendants argue that class treatment would not be fair and reasonable since there are individual fact issues which render class treatment unmanageable. However, the only individual issue presented is the simple mathematical calculation of the amount of overbilling, if any, attributable to each class member. No other individual issues whatsoever have been presented to the court. Whatever management problems remain, this court will rely upon the ingenuity and aid of counsel and upon the court’s plenary authority to control the action. Janicik, 305 Pa. Super, at 142, 451 A.2d at 462.

3. Potential for inconsistent adjudications

Pennsylvania Rule 1708(a)(3) also requires a court to evaluate whether the prosecution of separate actions by or against individual members of the class would create a risk of inconsistent or varying adjudications with respect to individual members of the class. In considering the separate effect of actions, the precedential effect of a decision is to be considered as well as the parties’ circumstances and respective ability to pursue separate actions. Janicik, 305 Pa. Super, at 143, 415 A.2d at 462. There should be no risk of inconsistent final adjudications since the only claim presented is the interpretation of statute. Nonetheless, as a certified class one case will determine liability and a multiplicity of litigation is rendered unnecessary and the potential for inconsistent adjudications at the trial level is eliminated.

4. Extent and nature of any preexisting litigation and the appropriateness of this forum

Under Pa.R.C.P. 1708(a)(4) and (a)(5), a court should consider the extent and nature of any litigation already commenced by or against members of the class involving any of the same issues. This court has not been advised of any other litigation and finds that this forum is appropriate to litigate the claims presented.

5. The separate claims of the individual plaintiffs are insufficient in amount to support separate claims or their likely recovery

Rule 1708 also requires the court to consider the amount of damages sought by the individual plaintiffs in determining the fairness and efficiency of a class action. Thus, a court must analyze whether in view of the complexities of the issues or the expenses of litigation the separate claims of individual class members are insufficient in amount to support separate amounts. Pa.R.C.P. 1708(a)(6). Alternatively, the rules ask the court to analyze whether it is likely that the amounts which may be recovered by individual class members will be so small in relation to the expense and effort of administering the action as not to justify a class action. Pa.R.C.P. 1708(a)(7). This criteria is rarely used to disqualify an otherwise valid class action claim. See Kelly v. County of Allegheny, 519 Pa. 213, 215-16, 546 A.2d 608, 609 (1988) (Trial court erred in refusing to certify a class on the grounds that the class members’ average claim was too small in comparison to the expenses incurred.). However, in Klusman v. Bucks County Court of Common Pleas, 128 Pa. Commw. 616, 631, 564 A.2d 526, 534 (1989), the court said: “Where the issue of damages does not lend itself to a mechanical calculation, but requires separate mini-trials of a large number of individual claims, courts have found that the staggering problem of logistics make the damage aspect of the case predominate and renders the class unmanageable as a class action. State of Alabama v. Blue Bird Body Co. Inc., 573 F.2d 309 (5th Cir. 1978).”

“To verify that each of the 108,107 claims suffered actual damages would present an administrative nightmare because of the overwhelming number of transactions between parties that would be required to be examined. Mekani v. Miller Brewing Co., 93 F.R.D. 506 (E.D. Mich. 1982). Petitioners argue these determinations go to the merits. This evaluation of the question of manageability, though ultimately involved with the merits, must be examined in order to determine the efficiency of the class action. In re Industrial Gas Litigation, 100 F.R.D. 280 (N.D. Ill. 1983). We recognize that numerous courts have certified classes of large numbers with small amounts of potential recovery.” Klusman, 128 Pa. Commw. at 632, 564 A.2d at 534. (footnote omitted) The court therein refused to certify a class whose average recovery would have been $3.55.

Herein, the amounts claimed will vary tremendously. Some sole practitioners in Philadelphia may have only one “overbilling” which may amount to only a few dollars. Other large law firms may be owed thousands of dollars over the several years involved in obtaining records from 16 major hospitals. For many class members, the amounts involved may not warrant individual litigation and thus class litigation is the only remedy. For other class members, the amounts may be substantial. This criteria for certification has been fulfilled.

Appropriateness of equitable or declaratory relief

Since plaintiffs seek equitable relief in the form of an order requiring defendant to obey the law of Pennsylvania once that law has been interpreted and ambiguity removed, it is necessary to consider the criteria set forth in Pa.R.C.P. 1708(b). Under Pa.R.C.P. 1708(b)(2), where equitable relief is sought, a court should consider whether the party opposing the class has acted or refused to act on grounds generally applicable to the class, thereby making final equitable or declaratory relief appropriate with respect to the class. The defense concedes that it will obey the proper interpretation of the applicable Act once ambiguity of interpretation is eliminated. Nonetheless, the simplicity of this claim does not bar class treatment nor prohibit the request for injunctive relief. Class action treatment is appropriate.

Having weighed the Rule 1702 requirements, this court finds that a class action is a fair and efficient method for adjudicating plaintiffs’ claim and an appropriate order is issued herewith.

CONCLUSIONS OF LAW

(1) The class of attorneys and law firms is sufficiently numerous that joinder of all its members would be impracticable.

(2) There are questions of law and fact common to the class.

(3) The claims presented by the individual law firm plaintiff is typical of the class claims.

(4) Plaintiffs will fairly and adequately assert and protect the interests of the class under the criteria set forth in Pa.R.C.P. 1709.

(5) Allowing a class claim provides a fair and efficient method for adjudication of the criteria set forth in Pa.R.C.P. 1708.

CONCLUSION

For these reasons, this court grants plaintiffs’ motion for class certification in part. Plaintiffs’ counsel are appointed as counsel for the class. The parties shall submit proposals for a notification procedure and proposed forms of notice for class members within 30 days from the date of this order.

A contemporaneous order consistent with this opinion is filed.

ORDER

And now, July 9, 2004, upon consideration of plaintiffs’ motion for class certification, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the contemporaneous memorandum opinion, it hereby is ordered and decreed as follows:

(1) Plaintiffs’ motion for class certification is granted in part.

(2) This action is hereby certified as a class action. This class shall consist of:

“All individuals and entities who, with respect to a request or subpoena for medical records or charts of health care provider or employee of any health care provider licensed under the laws of the Commonwealth of Pennsylvania, were billed for or paid to one or both of the defendants either or each of the following: (1) a charge for copies of records greater than the amounts prescribed by the Secretary of Health under the Medical Records Act, 42 Pa.C.S. §6152 et seq.; and (2) an unauthorized and/or unreasonable charge for copies from media not specifically provided for in the MRA. The class shall exclude class counsel, their law firm, and any lawyer or employee of their law firm.”

(3) The law firm of Liss and Marion P.C. is the class representative.

(4) Alan M. Feldman and Thomas More Marrone shall serve as counsel for the class.

(5) Certification is denied as to other proposed classes.

(6) The parties shall submit proposals for a notification procedure and proposed forms of notice for class members within 30 days from the date of this order.

(7) A case management conference for trial is scheduled for September 13, 2004, beginning at 9:30 a.m. in room 530 City Hall.

      . Preliminary objections have been overruled.


source: Caselaw Access Project

author: RAUP, P.J.,

license: Public Domain

text:
    Fitzwater v. Gouldin

      James F. McBride, for plaintiffs.

      J. David Smith, for defendants Judith A. Gouldin, M.D. and Williamsport Hospital.

      Joseph Lach, for defendant William G. Hamm, M.D.

      March 14, 1988
   RAUP, P.J.,

Before the court is plaintiffs’ motion to preclude expert testimony.

On July 23, 1981, plaintiffs filed a complaint alleging medical malpractice against defendants. The complaint alleges that plaintiff consulted his family physician in April 1980, complaining of heartburn with pain and numbness in his left arm. The family physician referred plaintiff to defendant Dr. Gouldin, a certified internist who has a sub-speciality in nuclear medicine. Dr. Gouldin treated the plaintiff for hyperthyroidism. On May 10, 1980, plaintiff returned to the emergency room at the Williamsport Hospital complaining of the same symptoms. Defendant Dr. Hamm examined plaintiff and discharged him. Later that evening, plaintiff returned to the hospital, where an electrocardiogram was conducted and showed the occurrence of a myocardial infarction. The complaint asserts that at that time, Dr. Joseph Calder became plaintiffs treating physician and continues to act in that capacity.

During discovery, counsel for the defendants Williamsport Hospital and Dr. Gouldin informed plaintiffs counsel by letter that Dr. Calder had been retained as an expert on behalf of defendants. Plaintiffs then filed a motion to preclude Dr. Calder’s expert testimony and to prohibit defense counsel from engaging in ex parte communication with Dr. Calder.

It is plaintiffs’ position that a treating physician owes a patient a duty to assist the patient in litigation, and to refuse assistance to the patient’s opponent. Plaintiff relies on Alexander v. Knight, 25 D. & C. 2d 649 (1961), affirmed, 197 Pa. Super. 79, 177 A.2d 142 (1962). In Alexander, a medical doctor, hired by defense attorneys, interviewed the plaintiffs treating physician. While the court did refer to a physician’s “duty to aid the patient in litigation,” it is clear that this is merely dicta. As the court stated at the outset of its discussion of this aspect of the case:

“We do not consider the entire Ezickson matter' as significant in this case, but we deem it advisable to briefly refer to our view of this incident.” (emphasis supplied.)

Defendants contend that 42 Pa. C.S. §5929 permits Dr. Calder’s testimony. That section states:

“No physician shall be allowed, in any civil matter, to disclose any information which he acquired in attending the patient in a professional capacity, and which was necessary to enable him to act in that capacity, which shall tend to blacken the character of the patient, without consent of said patient, except in civil matters brought by such patient, for damages on account of personal injuries.”

Defendants’ position is that Dr. Calder’s testimony would not “tend to blacken the character” of plaintiff, and further more, that section 5929 permits the testimony because plaintiffs action is for damages ón account of personal injuries. This same issue arose in Rost v. Kraus, Civil Action no. 83-00144, Lycoming County (Wollet, J.) (1985). The court there held that section 5929 would not preclude testimony of plaintiffs treating physician. As Judge Wollet stated:

“[T]his action is one for damages on account of-personal injuries. Moreover, the information or testimony which the defendants seek does not ‘tend to blacken the character’ of the plaintiffs decedent. Therefore, the testimony of Drs. Bair and Dale regarding their examination or treatment of the decedent is not prohibited by the physician/patient privilege as enunciated in section 5929.

“The court finds that the case law (including Alexander v. Knight, supra) cited by the plaintiff does not establish such a separate physician/patient duty or privilege. Rather, we agree with the defendants that section 5929 affords the sole and exclusive physician/patient privilege in Pennsylvania. To the extent that the dicta in Alexander v. Knight is contrary to our conclusion, we respectfully disagree that such a view of the physician’s duty would preclude the admission of testimony sought by the defendant in this case. To rule otherwise would severely limit the defendants, as well as the trier of fact, from exploring facts necessary to the appropriate resolution of this case.” Rost, supra.

Based on Judge Wollet’s reasoning in Rost, supra, plaintiffs’ motion to exclude Dr. Calder’s testimony is denied.

ORDER

And now, March 14, 1988, for the reasons set forth in the foregoing opinion, plaintiffs’ motion to exclude expert testimony is denied.


author: DOMITROVICH, J.,

text:
    Carnes v. Carnes

      Judith E. Wilson, for defendant.

      Richard T. Ruth, for American Civil Liberties Union.

      Thomas S. Kubinski, for the County of Erie.

      Michael M. Palmisano, for Erie County Public Defender’s Office.
    October 23, 1990
   DOMITROVICH, J.,

This matter is before the court on the statement of matters complained of filed by appellant, the County of Erie, Pennsylvania, on September 14, 1990.

On March 23, 1990, plaintiff filed a petition for civil contempt for violation of a support order entered on June 19, 1986. On April 16, 1990, defendant filed a petition for appointment of counsel, in which he alleged that he was indigent, on public assistance* and without income or assets sufficient to pay an attorney. Defendant further alleged that he had been denied representation by the Public Defender’s Office and Northwestern Legal Services.' Defendant argued that he was entitled to court-appointed counsel because of his indigence and because he was at risk for the loss of his personal liberty in the contempt proceeding.

Counsel for defendant and for the County of Erie filed briefs on the right-to-counsel issue and, on June 8, 1990, along with the public defender and the American Civil Liberties Union, presented oral argument to this court.

On August 8, 1990, upon review of the arguments presented in light of the balancing test established to analyze due process protections by the United States Supreme Court in Mathews v. Eldridge, 420 U.S. 319 (1976), this court found that defendant was entitled to be represented by counsel; and counsel was appointed for him by this court.

Appellant filed a notice of appeal on September 5, 1990. On September 6, 1990, this court issued an order pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), requesting appellant to file a concise statement of the matters complained of on appeal. Appellant contends that the weight of the Mathews factors would not require that free counsel be appointed to represent indigent defendants in contempt proceedings in non-support actions.

In Mathews v. Eldridge, the United States Supreme Court enunciated a three-part balancing test for the analysis of the constitutional sufficiency of the due process protections accorded in a particular situation. 424 U.S. at 334. The factors which should be considered are (1) the private interest to be affected by the official action; (2) the risk of erroneous deprivation of that interest through the procedures used and the probable value of additional procedural safeguards; and (3) the governmental interest involved, including the fiscal and administrative burdens the additional procedural requirements would entail. Id. at 335. Where the additional procedural safeguard under scrutiny is the entitlement to court-appointed counsel, the court has found, based upon examination of its own precedent, that there exists a presumption that an indigent litigant has a right to appointed counsel only when, if he loses, he may be deprived of physical liberty. Lassiter v. Department of Social Services, 452 U.S. 18, 26-7, reh’g. denied, 453 U.S. 927 (1981). It is against this presumption that the net weight derived from the balancing of the three Mathews criteria must be measured. 452 U.S. at 27.

Moreover, the right of the indigent defendant to be afforded court-appointed counsel where his or her personal liberty is at stake is unaffected by the styling of the proceeding as civil rather than criminal. Id. at 25-6. The right to counsel turns not on whether the proceeding may be characterized as civil or criminal but whether the litigant may be deprived of personal liberty as a result of the proceeding. Ridgway v. Baker, 720 F.2d 1409, 1413 (5th Cir. 1983); Sevier v. Turner, 742 F.2d 262, 267 (6th Cir. 1984); Walker v. McLain, 768 F.2d 1181, 1183 (10th Cir. 1985), cert. denied, 474 U.S. 1061 (1986). The Superior Court of this Commonwealth has stated, in determining whether a due process right to be afforded court-appointed counsel exists, that the potential deprivation of liberty renders the distinction between criminal and civil proceedings meaningless. Corra v. Coll, 305 Pa. Super. 179, 451 A.2d 480 (1982). Any technical distinction between civil and criminal violations is overshadowed by the reality of the threat of incarceration, which demands that the protection of legal advice and advocacy be given those persons facing that threat. Tetro v. Tetro, 86 Wash. 2d 252, 544 P.2d 17 (1975).

In Corra v. Coll, the Superior Court of this Commpnwealth has found, pursuant to Mathews and Lassiter, that it is inconsistent with due process to deny counsel to indigent defendants in civil paternity actions. The higher court first determined that there was a strong presumption that court-appointed counsel for the indigent defendant was constitutionally required. The court reasoned that there was a future risk of loss of liberty should defendant fail to comply with the order of support that would be entered as a consequence of an adjudication of paternity. The court was not dissuaded from this conclusion by the argument that the future risk of loss of liberty was too remote from the paternity action to justify appointment of counsel. Id.

Proceeding to an analysis of the Mathews factors, the court, in Corra, determined that the private interests — the creation of a parent-child relationship, the res judicata effect of a finding of paternity, and the property interests involved — were sufficiently weighty alone to justify appointment of counsel. Second, the combination of these private interests with' the not-inconsiderable risk that the absence of counsel might lead to an erroneous determination of paternity, the court found, literally mandated appointment of counsel. Third, the court found that the state’s interest would also be best served by appointment of counsel because future administrative burdens would be lessened by a correct determination of paternity and the beneficial aspects of having counsel present outweighed the added expense the state would incur. Finally, when the court measured the net weight of its Mathews analysis against the presumption, it found that the conclusion that due process required the appointment of counsel for indigent defendants in paternity cases was inescapable. Id.

This court finds that conclusion equally inescapable in non-support contempt proceedings. The defendant in non-support contempt matters is clearly at risk for the loss of his personal liberty since he may be incarcerated if found in contempt. In fact, the contempt proceeding in these cases is precisely that point in time when the future risk of loss of liberty relied upon in Corra becomes a present potential for loss of liberty. Thus, the presumption that the defendant must be afforded the right to counsel in the contempt proceeding is no less weighty than the presumption found to exist in the context of a paternity action.

The balancing of the Mathews criteria also weighs in favor of the defendant. First, the private interest at stake in the contempt proceedings — the defendant’s personal liberty — is substantial.

Second, the risk of erroneous deprivation of that interest, absent the presence of counsel, increases as the defendant’s ability to articulate the reasons for his failure to comply with the support order decreases. While this court does not mean to imply that indigent defendants are incapable of representing themselves, it is apparent that the assistánce of counsel familiar with the law would greatly reduce the defendant’s risk. Counsel would inform the defendant ahead of time to prepare for a purge if found in contempt, and advise him of his responsibilities to his child/children and his obligation to comply with court orders, and the danger in not complying with a court order where defendant is capable of working and paying the support ordered. This court specifically rejects the county’s argument that the right to counsel should somehow be qualified because the defendant who is incarcerated in a contempt matter has the keys to the prison and may be released upon payment of the purge amount. The keys are only available to that defendant who can pay the delinquent support amount set as a purge. Ridgway, 720 F.2d at 1414; Walker, 768 F.2d at 1183. The indigent defendant’s case must be properly presented to the court by an attorney appointed to represent the defendant so that the court may make its determination of a purge amount with which the defendant has the present ability to comply. Barrett v. Barrett, 470 Pa.

253, 368 A.2d 616 (1977). Otherwise, defendant must remain in confinement for the definite period ordered by the court if the purge figure is not paid by defendant. Error is less likely to occur if counsel is present to aid the defendant in establishing his financial picture and in ensuring that he or she is not incarcerated improperly.

Fundamental fairness requires that an indigent defendant faced with a loss of personal liberty needs an attorney to advise him as to the meaning and requirements of applicable laws, particularly where the state’s representative is well versed in the laws relating to support and contempt powers of the court. Mead v. Batchlor, Michigan Supreme Court, no. 81950, slip op., August 28, 1990. Even a modest reduction in the risk of erroneous deprivation of defendant’s liberty interest justifies appointment of counsel. Young v. Whitworth, 522 F.Supp. 759, 763 (S.D. Ohio 1981).

Third, this court does not recognize that the mere affording of the appointment of counsel for indigent defendants in non-support contempt matters will create a heavy, unquantified, administrative or fiscal burden on the county. The notice of contempt in Erie County informs the defendant that, if he desires counsel, he must meet financial eligibility requirements in order to receive counsel. Defendant must go to the Public Defender’s Office and make application for counsel. From this court’s experience, the number of defendants seeking counsel is very minimal. However, even if it were a fiscal burden, this court also recognizes a countervailing governmental interest in the efficiency of its court system, which interest would be benefited by the assistance of counsel familiar with the procedural aspects of the contempt proceeding and the need for respecting the court’s orders in the community.

It is axiomatic that, once it has been determined that the indigent defendant has a right to court-appointed counsel, he or she must be informed of that right and that, once informed, may knowingly and intelligently waive that right. Walker, 768 F.2d at 1185; Hickland v. Hickland, 56 A.D.2d 978, 393 N.Y.S.2d 192, 195 (1977); Ferris v. Maass, 75 Wis.2d 542, 249 N.W.2d 789, 791 (1977); Tetro, 544 P.2d at 20.

Therefore, the notice which the court provides to defendants in support contempt proceedings states, in pertinent part, as follows:

“(5) You have a right to an attorney at this hearing. However, the judge will proceed with your case whether or not you have an attorney. If you do not have an attorney, go to or telephone the office set forth below to find out where you can get legal help:

Lawyers Referral Service

501 Sassafras Street

Erie, Pennsylvania 16507

(814) 459-3111

“If you cannot afford an attorney and meet certain financial eligibility requirements, an attorney will be appointed, for you. You should go to or telephone the office set forth below to schedule a financial eligibility interview:

Public Defender’s Office

509 Sassafras Street

Erie, Pennsylvania 16507

(814) 451-6322”

Thus, it is clear that, once notified 'of his right to counsel, the defendant must act affirmatively to exercise that right by seeking his own attorney or attempting to establish indigence to qualify for appointed counsel. Failure of the defendant to act to exercise the right to counsel constitutes a waiver of that right. Once the defendant makes application, the application for counsel must be approved based on a review of the defendant’s financial background by the county’s investigator in the Public Defender’s Program, who does similar investigations for criminal defendants.

Thus, it is clear that the balancing of the Mathews criteria requires this court to find in favor of the defendant. When the net weight of the result of this analysis is'combined with the presumption in favor of the right to counsel, this court is compelled to conclude that the indigent defendant in support contempt proceedings is entitled to court-appointed counsel. Such a decision is supported by Commonwealth ex rel. Brown v. Hendrich, 220 Pa. Super. 225, 283 A.2d 722 (1971). In that’proceeding the appellant, who had been incarcerated for failure to comply with a support order, contended that although he may not have been entitled to counsel at the support hearing, due process entitled him to counsel when his liberty was at stake in the contempt proceeding. The Superior Court, citing Cooke v. United States, 267 U.S. 517, 537 (1925), noted that the Supreme Court had held that due process in the prosecution of contempt required that the accused be afforded a reasonable opportunity to defend against the charges, which would include, if requested, the assistance of counsel. The development in the law since that 1925 decision, the Superior Court stated, would eliminate the “if requested” condition where the rights of indigents were involved. Hendrich, supra.

Therefore, for the reasons stated above, this court finds that an indigent defendant is entitled to court-appointed counsel in non-support contempt proceedings in which the defendant’s personal liberty is at stake.


author: LOWE, J.,

text:
    Blasy v. Chester County Mutual Insurance Co.

      Roger J. Harrington, for plaintiffs.

      James H. Heller, for defendant.
    June 27, 1990
   LOWE, J.,

On August 1, 1986, defendant, Chester County Mutual Insurance Company, issued to plaintiffs, William and Leontine Blasy, a homeowners policy. The coverage was to commence August 1,1986 and expire August 1, 1987. Defendant was at all times willing tó renew the policy, as long as plaintiffs paid the renewal premium on or before August 1, 1987. Plaintiffs failed to pay the premium on or before the due date. In fact plaintiffs have never paid the premium, and have purchased homeowners insurance through another company. Unfortunately for plaintiffs, their new policy did not provide coverage until August 6, 1987. On August 3, 1987, the plaintiffs’ home suffered water damage and plaintiffs notified Chester County Mutual Insurance Company of the loss, expecting it to pay for their loss. Under both Pennsylvania law, 40 P.S. §1171.5, and the conditions of the plaintiffs’ insurance policy, Chester County Mutual Insurance Company would have had to follow certain procedures in order to cancel the plaintiffs’ insurance policy. Due to these requirements the insurance company did not complete its cancellation procedure until October 6, 1987. Defendant argues that this was not relevant, because plaintiffs through their actions effectively canceled the policy. The trial court agreed and issued an order for summary judgment.

Plaintiffs have filed a concise statement which alleges that they made no overt action which would have canceled their policy with Chester County Insurance Company. Therefore, plaintiffs did not effectively cancel their policy and the insurance company should be obligated to follow the procedures set forth in 40 P.S. §1171.5 in order to terminate its policy. Inasmuch as defendant did not fulfill the procedural requirements of the law until October 6, 1987, plaintiffs argue their homeowners policy was still in effect on August 3, 1987.

The essence of plaintiffs’ first two allegations is that the mere non-payment of a premium should not be considered an overt act calculated to inform defendant that they were canceling their insurance policy. Unless plaintiffs took such an overt action, the policy remains in effect until defendant completes the procedures outlined in 40 P.S. §1171.5.

Plaintiffs cite Paul v. Dwyer, 410 Pa. 229, 188 A.2d 753 (1963), a case in which the Pennsylvania Supreme Court found that an insurance policy which required a mailing or delivery of notice of cancellation remained in effect regardless of payment of premiums, until such mailing or delivery of notice occurs. What plaintiffs fail to acknowledge is that the purpose of the notice requirement on the insurance policy, and the purpose of 40 P.S. §1171.5, is to insure that policy owners do not unknowingly find themselves without coverage.

The public policy concern is the reason that insurance companies must follow so many procedures before canceling an insured’s coverage and the reason that the insured must make a clear, unequivocal overt act before the revocation becomes effective. The important consideration in this scenario is that the insured was aware of the fact that he no longer had coverage. If such an awareness exists, then there is no need for the insurance company to confirm the insured’s knowledge. See Coppola v. Insurance Placement Facility of Pennsylvania, 386 Pa. Super. 413, 563 A.2d 134 (1989).

That plaintiffs were aware that their policy was no longer in effect was evidenced by the fact that they did not pay their premium on time; have not paid their premium to this date; and in fact purchased insurance from another company. Such a deliberate refusal to pay a renewal premium can constitute an overt act sufficient to cancel an insurance policy. Federal Kemper Insurance Company v. Commonwealth Insurance Department, 509 Pa. 1, 500 A.2d 796 (1985).

in circumstances similar to those of the Blasys, the insured in Federal Kemper, supra, was given a chance to renew his automobile insurance policy, knowing that without payment his coverage would run only up to the date of renewal. When the insured in Kemper had an accident afte.r the renewal date, the fact that he had not paid his renewal fee on time was sufficient to cancel his insurance policy. Even though plaintiffs’ case deals with homeowners rather than automobile insurance, and the statutes outlining the procedures for cancellation are different for the two types of insurance, the public policy that lies behind the two statutes is the same.

The purpose behind 49 P.S. §1171.5 for homeowners insurance, and 40 P.S. §1008.6 for automobile insurance, is that the insured be informed when his policy is no longer viable. Since it is the insured’s knowledge and not the insurer’s notification that we are concerned with, the overt act requirement should be interpreted to mean an action in which the insured makes a conscious decision to discontinue his or her insurance coverage.

The Blasys’ decision not to pay the premium was a conscious and calculated move on their part. They should not now be heard to contend that the insurance company’s denial of coverage came as a shock to them. As the court found in Coppola v. Insurance Placement Facility of Pennsylvania, supra, the fact that an insurance company is not notified of a cancellation is irrelevant in determining whether an insured manifested an intent to cancel. By purchasing another policy from a different company, and refusing to pay the renewal premium on the old policy, the Blasys evinced an unequivocal intent to cancel.

One condition of plaintiffs’ policy is that they pay the premium. Not only did plaintiffs fail to do this when the premium was due, they have yet to do it. The insureds should not be allowed to insist that the insurance company scrupulously follow each of its obligations while the insureds renege on the one obligation that is required of them. As the court observed in Butler v. Bankers Mutual Fire Insurance Co., 76 D.&C. 352, 354 (1951), an insured “cannot insist on the portion of the policy which is favorable to him and repudiate the remainder.” Plaintiffs want the protection that the homeowners policy would provide but they refuse to pay for that protection. When plaintiffs refused to pay their premium, they breached the contract, and thereby rendered the insurer’s obligations null and void. .

The order of this court awarding summary judgment to defendant Chester County Mutual Insurance Company should be affirmed.


text:
    Stiver v. LeFevre

      Patrick J. Redding, Alan L. Carb and Eric F. Solomon, for plaintiffs.

      Edward E. Knauss IV, for defendant Lisa S. Mallery.
    December 14, 1989
   WALKER,/.,

On June 16, 1986 at approximately 7 p.m., defendant, Jeffrey E. LeFevre, struck two girls who were riding their bicycles while he was driving a car owned by Lisa S. Mallery. Mr. LeFevre had been riding around and drinking with Lisa Mallery and two other friends the night before the accident.

Statements taken in deposition indicate that on June 15, 1986, Lisa Mallery stopped her car and parked in a parking lot so that she could go across the street to talk to some friends. She claims that she left the key in the ignition so that her best friend, Sherry Radie, could listen to the radio if she wanted to. Ms. Radie and Mr. LeFevre remained in the car. Ms. Mallery also left her purse in the car.

A short time later, Ms. Radie asked Mr. LeFevre to drive her to a restaurant so that she could use the bathroom. He drove her to the restaurant without the permission of Lisa Mallery, and left with the car after Sherry Radie got out. Mr. LeFevre kept the car that night, the next day, and was still in possession of the car the next night, when the accident in question occurred.

Plaintiffs filed suit against Lisa Mallery on a claim of negligent entrustment. Ms. Mallery filed a motion for summary judgment. This issue was briefed and argued and is now ripe for determination.

DISCUSSION

Summary judgment may be granted pursuant to Pennsylvania Rule of Civil Procedure 1035(b) if the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, indicate that there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Greenspan v. Edrondale Inc., 47 D.&C. 3d 453 (1986).

When ruling on a motion for summary judgment, the court must view the record in the light most favorable to the non-moving party, in this case, the plaintiffs. Hower v. Whitmak Associates, 371 Pa. Super. 443, 538 A.2d 524 (1988), alloc. denied 559 A.2d 527. The moving party bears the burden of proving that there is no genuine issue of material fact. Hower, supra.

The pertinent facts in the case before the court indicate that Lisa Mallery was driving around with Mr. LeFevre and Ms. Radie the night before the accident. Ms. Mallery parked her car to cross the street and talk to some friends. She left her purse in the car, and left the car keys in the ignition although the motor was off. Mr. LeFevre and Ms. Radie were still in the car. Ms. Mallery was aware that Mr. LeFevre had been drinking, as had she, but according to the deposition of Ms. Mallery, Ms. Radie had had no alcoholic beverages that evening. While Ms. Mallery was talking to her friends, Mr. LeFevre drove the car to a restaurant so that Ms. Radie could use the bathroom. He left with the car after dropping Ms. Radie off, and kept the car, getting into the accident with the bicyclists nearly 24 hours later.

With'in an hour of the car being taken, Ms. Mallery reported the car stolen. Mr. LeFevre was subsequently charged and found guilty of unauthorized use of an automobile. Briefly stated, the issue here is whether, as a matter of law, Lisa Mallery is liable in negligence to plaintiffs for the injuries caused by Mr. LeFevre’s alleged reckless operation of her car when he had no permission to operate her car but when she left her keys in the ignition of-the car while she allowed her two friends to remain in the vehicle in her absence.

Both plaintiffs and additional defendants raise the argument that it is premature to grant summary judgment in this matter when the deposition of Mr. LeFevre had not been taken. The deposition of Mr. LeFevre was subsequently taken on October 5, 1989, and has been reviewed by the court; therefore, those arguments are moot.

Plaintiffs next argue that Lisa Mallery is negligent per se for violating 75 Pa.C.S. §3701 which they quote as follows:

“(a) General Rule — No person driving or in charge of a motor vehicle shall permit the vehicle to stand . . . without . . . removing the key from the ignition. . .”

If the statute was read only as stated by plaintiffs, Ms. Mallery would be negligent per se because it is uncontroverted that she left the keys in the car when she went across the street to talk with friends. The entire statute, however, reads as follows:

“(a) General rule —— No person driving or in charge of a motor vehicle shall permit the vehicle to stand unattended without placing the gear shift, lever in a position which under the circumstances impedes the movement of the vehicle, stopping the engine, locking the ignition in vehicles so equipped, removing the key from the ignition and, when standing upon any grade, turning the front wheels to the curb or side of the highway and effectively setting the brake.

“(b) Penalty — Any person violating this section is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $5.” 75 Pa.C.S. §3701. (emphasis supplied)

Once the statute is read in its entirety, particularly the word “unattended,” which was omitted by plaintiffs, it is clear that this statute does not apply to the instant case because the facts show that the car was not left unattended. While it is true that the driver left the vehicle, two passengers, Mr. LeFevre and Mrs. Radie, still remained. A vehicle containing two passengers cannot by any stretch of the imagination be construed to be unattended.

Plaintiffs álso raise the argument that Lisa Mall-ery was negligent in leaving the keys in the car when she knew that Mr. LeFevre was intoxicated and had criminal propensities. The criminal conduct cited was the use of marijuana. Contrary to the plaintiffs’ allegation, the depositions of both Mr. LeFevre and Ms. Mallery indicate that no drugs other than alcohol were taken by either of them on June 15, 1986.

Plaintiffs direct the court to the cases of Wertz v. Kephart, 374 Pa. Super. 274, 542 A.2d 1019 (1988), alloc. denied 554 A.2d 510; and Anderson v. Bushong Pontiac Company, 404 Pa. 382, 171 A.2d 771 (1961), in support of their arguments in opposition to this summary judgment motion.

In Wertz, the owner of a car gave permission for the defendant, her girlfriend’s male friend, to drive the car, despite the fact that the people she w;as entrusting her car to had both been drinking. The defendant was involved in an accident 18 hours later. The court in that case held that it was a jury question as to whether the owner of the car had knowledge that the defendant was intoxicated when she gave him permission to drive her car.

In Anderson, keys to a car on a used car lot were stolen. The owner of the lot did nothing to prevent the car from being taken, despite the fact that he knew that the keys had been stolen and that children frequently played there. The court held that under the circumstances it was foreseeable that the car would be stolen by one who was incompetent to operate it properly. Two days after the keys were stolen, a 14-year-old used the keys to drive the car away. The car was later involved in an accident.

The facts in the present case can be distinguished from, those of Wertz and Anderson. In the present case there may be a question as to whether or not Mr. LeFevre was intoxicated, or whether Lisa Mall-ery knew that, but unlike Wertz, no permission was ever given for him to drive her car. Unlike Anderson, the court finds that in the case at bar it was not foreseeable that Mr. LeFevre would drive her car. The evidence shows that he had never driven her car before, that Lisa Mallery allowed no one to drive her car.

Ms. Mallexy refers the court to three cases in support of her motion for summary judgment, Liney v. Chestnut Motors Inc., 421 Pa. 26, 218 A.2d 336 (1966); Henneman v. McBride, 34 D.&C. 3d 458 (1984); and Greenspan v. Erondale Inc., 47 D.&C. 3d 453 (1986).

The Pennsylvania Supreme Court in Liney stated that the negligent driving of an automobile thief is an intervening, superseding cause and is not foreseeable to the owner of the automobile. In that case, the car was left double-parked outside of a garage in Philadelphia, an area known to have a great number of automobile thefts. The keys had been left in the car which was dropped off for repairs. The court in Liney held that even if the garage was negligent in leaving the car unlocked with the keys inside that this negligence was not the proximate cause of the accident. The court found that the thief s negligent operation of the stolen vehicle superseded the negligence of the garage.

In Greenspan, the facts are similar to those in Liney. The owner of a car left it unlocked with the keys inside while it was parked on the street in front of an apartment he was visiting. The car was stolen, and the thiefs negligent driving caused serious injury to the plaintiff. The court held that the thiefs inability to operate the vehicle safely was unforeseeable to the owner.

The court in Henneman, relying on the precedent set by Liney, held that an owner of a car was not negligent for an accident caused by a thief who had stolen his car. In that case, the car was parked in an alley near a fire company and left with the motor running when it was stolen.

While the facts in the instant case differ somewhat from those in the cases cited above, the court considers the reasoning of those cases and finds that it was not foreseeable that Mr. LeFevre would steal Lisa Mallery’s car and be involved in an accident nearly 24 hours later. The evidence indicates that Ms. Mallery did not give permission for anyone to drive her car. When she left the car with the keys inside, she also left her purse, Mr. LeFevre, and Mrs. Radie, her best friend, in the car. Despite the fact that Mr. LeFevre had been drinking, Ms. Radie had not been drinking.

The court finds that even if it is assumed that Lisa Mallery knew that Mr. LeFevre was incompetent to drive because he was intoxicated that it was not foreseeable that he would take her car since he had never driven her car before and since Ms. Radie, her best friend, was also in the car. The court also finds that no causal connection exists between any negligence of Lisa Mallery and the accident the next day. The actions are too remote. The alleged negli-gént operation of the car by Mr. LeFevre is an intervening, superseding cause to any negligence on the part of Lisa Mallery.

Based on the above analysis, the court finds that there was no “entrustment” because Lisa Mallery never gave permission for her car to be driven, and that it was not foreseeable that Mr. LeFevre would steal her car merely because she left the keys in the car in her absence.

Examining the record in the light most favorable to the non-moving party, the court finds that it is free from doubt that Lisa Mallery has sustained her burden of proving that there is no genuine issue of material fact. The court, therefore, grants Lisa Mallery’s motion for summary judgment on this negligent entrustment claim.

ORDER OF COURT

December 14, 1989, the court hereby grants Lisa Mallery’s motion for summary judgment- on this negligent entrustment claim.


author: CHRONISTER, J.,

text:
    Brooks v. Heimberger

      John P. Hohenadel, for plaintiffs.

      Donald H. Yost, for defendant.

      January 17, 1989
   CHRONISTER, J.,

This matter is before the court on defendant’s preliminary objections in the nature of a demurrer to count 3. The complaint alleges that plaintiff Bobbie Jo Brooks, a minor, was crossing the street and was hit by defendant’s car. It further states that the accident occurred in front of plaintiffs’ home; that plaintiff Connie Ann Brooks, mother of Bobbie Jo, heard the accident; that her son informed her that his sister had been hit by a car; that the mother ran outside to find her daughter lying on the highway; and that as a result of hearing the events, learning immediately of the accident, and seeing her daughter on the highway, the mother has suffered emotional distress. Defendant has demurred, stating that plaintiff seeks damages for negligent infliction of emotional distress when she failed to observe the alleged negligent conduct. '

Plaintiffs argue that three lower court cases, Anfuso v. Smith, 15 D. & C. 3d 389 (1980); Kratzer v. Unger, 17 D. & C. 3d 771 (1981); and Ruane v. Moyers, 55 Northum. Leg. J. 48 (1983) support their theory of recovery based on Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). That case enunciated a three-part test to determine whether an action would lie for negligent infliction of emotional distress:

“(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it.

“(2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence; and

“(3) Whether plaintiff and the victim were closely related as contrasted with the absence of any relationship or the presence of only a distant relationship.” 486 Pa. at 170-1, 404 A.2d at 685. (emphasis supplied) Plaintiffs position is that the “sensory and contemporaneous observance” requirement is satisfied by the mother’s auditory perception of the accident.

Defendant counters that Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986) is controlling. That case held that a mother who arrived at the scene of the accident and.observed her daughter injured in the street after being informed by telephone of a collision involving her daughter was not entitled to recover on a theory of negligent infliction of emotional distress. Defendant points out that all the cases cited by plaintiffs were decided prior to Mazzagatti, and also that Mazzagatti clearly answered the question of whether a cause of action will be recognized where the close relative does not observe the accident. We find the facts at bar to be governed by Mazzagatti and therefore grant defendant’s preliminary objections.

Mazzagatti was an opportunity for the Supreme Court to expand the Sinn holding, and it specifically declined to do so. The Mazzagatti court reasoned that “at some point along the causal chain, the passage of time and the span of distance mandate a cut-off point for liability.” 512 Pa. at 273, 516 A.2d at 676. The court noted that the Sinn holding had been limited to cases where plaintiff alleged psychic injury as a result of actually witnessing defendant’s negligent act. In reviewing the first and second criteria stated in Sinn, the Mazzagatti court stated:

“The corollary of these two criteria is thát when a plaintiff is a distance away from the scene of the accident and learns of the accident from others after its occurrence rather than from a contemporaneous observance, the sum total of policy considerations weigh against the conclusion that that particular plaintiff is legally entitled to protection from the harm suffered.” Id. at 279, 516 A.2d at 679. (emphasis supplied)

The terms used in both Sinn and Mazzagatti — “contemporaneous observance”; “observed”; and “witnessed” — require knowledge that an accident occurred in which plaintiffs child was harmed. Here the only allegation is that plaintiff had knowledge of an accident, and later fotind out her child was involved in the accident. Therefore, she cannot recover under a theory of negligent infliction of emotion distress.

ORDER

And now, January 17, 1989, defendant’s preliminary objection in the nature of a demurrer to count 3 is granted.


author: ESHELMAN, T.J., /.,

text:
    Borough of Boyertown v. Grim

      Jeffrey Howell, for plaintiff.

      Gene M. Venzke, for defendants.
    July 19, 1990
   ESHELMAN, T.J., /.,

Appellants have appealed our order dated April 18, 1990, which granted summary judgment in favor of Borough of Boyertown and against appellants (hereinafter referred to as the Grims). This opinion is in support of our order pursuant to Pa.R.A.P. 1925.

The Grims own real estate located at 206 West Philadelphia Avenue, Boyertown, Berks County, Pennsylvania, which is situate in an R-l Single Family Residential zoning district under the terms and conditions of the Boyertown Borough Zoning Ordinance of 1966, as amended.

The property is improved with a three-story building, which prior to adoption of the zoning ordinance, contained one apartment on the second and third floors and a storage area on the first floor. A detached, two-car garage is also located on the site.

The Grims had purchased the property in 1983, at which time they converted the first and third floors into living quarters. They converted a portion of the second floor into an office for a building contractor.

On December 29, 1986 the Grims applied to and received from the borough a building permit to install a “kitchen and bath” on the property. At that time the Grims converted the office and living quarters into two apartment units.

■ On June 4, 1987, the borough notified the Grims that their use of the property violated the zoning ordinance. On June 22, 1987, the Grims filed an application with the Borough of Boyertown Zoning Hearing Board to request a special exception or variance from the zoning ordinance.

On July 20, 1987, the zoning hearing board held a hearing to consider the Grims’ request. Thereafter the zoning hearing board issued a decision which denied the Grims’ request.

On October 6, 1987, the Grims filed a notice of appeal to the Court of Common Pleas of Berks County docketed to no. 74 October 1987 A.D. On August 23, 1988, this court issued an opinion and order which affirmed the decision of the zoning hearing board.

On September 27, 1988, the Grims filed a second application to the zoning hearing board for an interpretation of the zoning ordinance or a special exception to permit a change of use on the property. The board scheduled a hearing on the second application for. December 19, 1988, due to the sudden illness (to which he eventually succumbed) of Robert I. Cottom, Esq., counsel for the zoning hearing board, who had been.hospitalized in Spain until October 25, 1988 and again in Reading from November 13, 1988 until November 29, 1988.

On December 16, 1988 the Grims filed a complaint in mandamus docketed to no. 239 December 1988 A.D. against the borough and the zoning hearing board to require the borough to give public notice of a “deemed” approval of the Grims’ second application pursuant to the Pennsylvania Municipalities Planning Code, 53 P.S. §10908(9).

On December 16, 1988, this court entered an order enjoining the zoning hearing board , from conducting any further proceedings pertaining to the Grims’ second application before the zoning hearing board.

On November 22, 1989, the borough commenced an equity action to compel the Grims to conform the use of the property to the zoning ordinance.

The mandamus and equity actions have been consolidated by court order. Plaintiff and defendants have filed cross-motions for summary judgment, and, after due consideration, the court entered summary judgment in favor of the borough.

The Pennsylvania Municipalities Planning Code of 1968, as amended, provides, in pertinent part, that zoning hearing board hearings “shall be held within 60 days from the date of applicant’s request, unless the applicant has agreed in writing to an extension of time.” 53 P.S. §10908(1.2). If the board does not hold a hearing within 60 days from-the date of the applicant’s request, the decision “shall be deemed to have been rendered in favor of the applicant.” 53 P.S. §10908(9).

No trial or appellate court appears to have addressed the issue of the effect of a board’s failure to hold a hearing within 60 days nf an applicant’s request. However, two cases decided by the Pennsylvania Commonwealth Court impel the conclusion that a “deemed approval” sanction will' not be imposed inexorably where extenuating circumstances cause a hearing to be held more than 60 days after filing of an applicant’s request.

In Joseph Ciccone & Sons Inc. v. Lower Saucon Township Zoning Hearing Board, 115 Pa. Commw. 238, 539 A.2d 942 (1988), the applicant filed an appeal with the zoning hearing board on February 21, 1986. The board set a hearing date for March 17, 1986. The applicant’s attorney agreed to postpone the hearing until April 21, 1986. At that time the board could not muster a quorum. The board did convene on May 5, 1986, a total of 73 days after the applicant filed his appeal. The Commonwealth Court, affirming the trial court, held that including the 35 days between March 17 and April 21 in the 60-day time limit prescribed by statute was not justified “in light of the purpose of the statutory provision, which is to eliminate procrastination by the board.” 115 Pa. Commw. at 240, 539 A.2d at 943. The court refused to invoke section 10908(9) to have a “deemed” decision rendered in favor of the applicant.

Similarly, in Price v. Zoning Hearing Board of Hanover Township, 72 Pa. Commw. 5, 455 A.2d 1267 (1983), the applicants filed a validity challenge to a zoning ordinance, which allegedly did not allow use of land within the township for buying and selling scrap metal, on March 13, 1981. The zoning hearing board scheduled a hearing on April 22, 1981. The applicants appeared and objected to the notice given by the board, which, consequently, rescheduled a hearing for May 27, 1981. The applicants did not appear at the May 27 hearing, which occurred 75 days after the filing of the application. Instead, they filed a mandamus action to compel a “deemed” approval pursuant to section 10908(9). The trial court held that the board’s meeting within 40 days of filing of the application satisfied the requirements of this section. On appeal, the Commonwealth Court held that section 10908(9) did not apply to a validity challenge but, if it did, the zoning hearing board had complied with the time limitations prescribed by this section.

The Price court referred to the purpose of this sanction as an assurance to applicants of “timely decisions on their zoning applications . . . [zoning hearing boards] can no longer-effectively frustrate or prohibit lawful land uses by refusing to act on zoning applications.” 72 Pa. Commw. at 9, 455 A.2d at 1269, quoting Appeal of Emmanuel Baptist Church, 26 Pa. Commw. 427, 364 A.2d 536 (1976). Importantly, the court explained this conclusion with the reasoning that “[t]he record in this case reveal[ed] a zoning hearing board conscientiously pursuing the purpose of a timely disposition of the appellants’ matter.” 72 Pa. Commw. at 9, 455 A.2d at 1269.

In summary, the Price and Ciccone cases support the principle that extenuating circumstances may excuse literal compliance with the 60-day time limit prescribed by section 10908(9) where the zoning hearing board conscientiously pursues timely disposition of a zoning request. In the case sub judice, the Boyertown Zoning Hearing Board conscientiously attempted to hear and decide the Grims’ second application. The Grims filed the second application on September 27, 1988. On October 3, 1988, Robert I. Cottom, the board’s solicitor, received a copy of the application from the zoning officer. On October 4, 1988, Cottom advised the Grims’ attorney that he would be in Spain from October 4 until October 12 and that he would contact him as soon as he returned. Unfortunately Cottom, who became ill in Spain, was hospitalized there until October 25. In late October Cottom returned to work on a part-time basis until November 13, when he was admitted to a local hospital, where he remained until November 29, 1988.

During this time the Grims were kept apprised of these developments. Cottom’s secretary wrote to the Grims’ attorney on two occasions. In addition, on November 10, 1988 the zoning officer called Mrs. Grim to advise her of the hearing set for December 19, 1988.

Although the board did not convene on or before November 26, 1988, when the 60-day period expired, the board made diligent effort to convene a hearing, which essentially would have reiterated the presentation made to the board by the Grims several months earlier. The Grims’ first application to the board included a claim of vested rights, a request for a variance and special exception to change from one non-conforming use to another under section 704.4 of the zoning ordinance. The second application requested an interpretation under section 704.3(a) and a special exception to permit change from one non-conforming use to another. This later section of the zoning ordinance allows non-conforming uses to be expanded within certain guidelines. The second application simply restated the arguments advanced by the Grims and rejected by the board at the first hearing.

The Grims attempted to circumvent the bar of res judicata by relying upon “additional evidence” and a “change in circumstances.” Specifically, the Grims referred to a special exception supposedly granted by the zoning hearing board in 1977 to a nearby property. The Grims intended to present evidence of this prior special exception as part of the record in the second application. This evidence would not be admissible. Evidence of zoning relief granted to other properties is not relevant. North Huntingdon Township Board of Adjustment v. Drop, 6 Pa. Commw. 64, 293 A.2d 144 (1972). See also, Municipalities Planning Code, 53 P.S. §10908(6) (board may exclude evidence which is “irrelevant, immaterial and unduly repetitious”).

Even if this evidence were relevant, the Grims did not allege that the information could not have been discovered prior to the hearing by use of reasonable diligence. Absent such circumstances, after-discovered evidence cannot support reconsideration of a valid determination by the board. See Lazarus v. Goodman, 412 Pa. 442, 195 A.2d 90 (1963).

The Grims also claim to have additional information to present concerning parking. Otherwise stated, having been turned down by the zoning hearing board and the Court of Common Pleas of Berks County, the Grims simply wanted a second opportunity to prove their case.

The Grims cite Atlantic Richfield Co. v. City of Bethlehem, 69 Pa. Commw. 6, 450 A.2d 248 (1982) and Wudkwych v. Borough of Canonsburg, 84 Pa. Commw. 468, 479 A.2d 82 (1984) to support the proposition that Pennsylvania appellate courts have recognized only a literal interpretation of section 10908(9) of the Municipalities Planning Code of 1968, as amended, 53 P.S. §10908(9). In actuality, neither Atlantic Richfield nor Wudkwych provides any dispositive guidance for the precise issue before the court.

For example, in Atlantic Richfield, the Commonwealth Court held that the zoning hearing board had complied with section 10908(9) by holding a hearing within 60 days. Initially, the applicant had filed a request for a special exception in 1978 to expand a lawful non-conforming use as a service station to include a “mini-market.” The zoning hearing board denied the request. The applicant took no appeal.

In 1980 the applicant filed a similar application, which the zoning hearing board denied without a hearing by invoking the principle of res judicata. The applicant filed a mandamus with the common pleas court to obtain a “deemed” approval. After resolving some thorny procedural issues, the court ultimately concluded that, to apply the doctrine of res judicata, the zoning hearing board needed to convene a second hearing and to make findings of fact and conclusions of law, which the court, on appeal, could review. The Commonwealth Court remanded the entire matter for this purpose.

Although the board did not take testimony, the court ruled that the convocation of the members to hear arguments of counsel within 60 days of the second application satisfied the requirement of section 10908(9). The court, therefore, did not need to detail the consequences of a failure by the board to convene a hearing. See note 4, 69 Pa. Commw. at 13, 450 A.2d at 252.

Similarly, in WucLkwych, the applicants filed a variance petition on January 5, 1982 on a form supplied by the borough. The borough rejected the application as insufficient. On February 22, 1982, the applicants submitted additional information with a request for a hearing. In response, the zoning officer advised them to file a new variance petition. On April 7, 1982, the day after refusing them an occupancy permit, the zoning officer returned the variance petition as unacceptable.

On April 8, 1982, the applicants filed a mandamus action against the borough. In response, the borough, acting upon the same allegedly inadequate variance petition, advertised a hearing on April 17, and convened to hear the request on April 21.

The trial court decided that the board convened within the required 60-day period because of the applicants’ failure to reqúest a hearing until February 22. The trial court considered the 60-day period to be triggered by a written request for á hearing, not the date of application. The trial court also ruled that the applicants failed to prove that borough officials deliberately or negligently refused to set a hearing date.

On appeal, the Commonwealth Court held that, in the absence of an ordinance provision which requires a written request for a hearing, the mere filing of a zoning application constitutes a request for a hearing. In Wudkwych, the zoning ordinance did not have any such requirement. The Commonwealth Court concluded that, accordingly, the trial court erred in computing the 60-day period from February 22, when the applicants actually requested a hearing. The proper date should have been January 5, when the applicants filed the variance petition.

Importantly, the Commonwealth Court did not review the trial court’s alternative holding, which addressed the issue of the applicant’s failure to prove that borough officials deliberately or negligently refused,to set a hearing date. This issue, recognized by the trial court in Wudkwych, has not been resolved by Pennsylvania appellate courts other than in the Joseph Ciccone & Sons and PHce cases referred to in the borough’s brief.

The trial court in Wudkwych, notwithstanding the borough’s obstructive pattern of conduct rejecting an application which, without amendment, the borough later accepted with objection after the applicants had filed a mandamus action, concluded that' the applicants had failed to prove that the borough deliberately or negligently refused to set a hearing date. Clearly, the trial court recognized that extenuating circumstances do affect whether a violation of section 10908(9) has occurred. The trial court considered the conduct of the borough in scheduling a hearing as pivotal to that issue.

In the case before us, the pleadings and the material in support of the motion for summary judgment show a persistent attempt on the part of the borough to schedule a hearing and to advise the Grims of the difficulties in doing so. The ultimate inability of the borough to meet the 60-day requirement of section 10908(9) should not be distorted into a penalty for the citizens of Boyertown and a windfall gain to the Grims. To sanction the Grims’ illegal use of the property with a “deemed” approval where the zoning hearing board and the court of common pleas have already reviewed and rejected the Grims’ previous arguments will encourage du-plicative applications to the zoning hearing board to obtain by procedural error what cannot be achieved by substantive right.

To conclude, in the case sub judice, extenuating circumstances — including the sudden and protracted illness of the zoning hearing board solicitor and Grims’ assertion of a second application barred by res judicata, as well as the board’s conscientious efforts to hear and decide Grims’ request — should excuse literal compliance with the 60-day time limit of section 10908(9). This court could not properly consider the Grims’ application to be “deemed” to have been approved.

      . Cf. section 10908(10) of the code. Despite this unequivocal language requiring notice to the applicant, within 24 hours, courts have construed this provision as directory, rather than mandatory. See Heisterkamp v. Zoning Hearing Board of City of Lancaster, 34 Pa. Commw. 539, 383 A.2d 1311 (1978).

      . Section 10908(9) also imposes constraints upon the amount of time in which zoning hearing boards may consider an application after hearings have been concluded. A board must issue a written decision within 45 days of the last hearing. If the board fails to do so, the application is “deemed” to be approved. 53 P.S. §10908(9).
      This particular provision of section 10908(9) has received considerable attention in Pennsylvania trial and appellate courts. Although these courts have agreed that the requirement is mandatory, technical violations have been excused. See, for example, Atlantic Richfield Co. v. Harrisburg Zoning Hearing Board, 18 D.&C. 3d 564 (1981) (no deemed approval of application where decision issued on 47th day and 45th day occurred on Saturday); Swedeland Road Corp. v. Zoning Hearing Board of Upper Merion Township, 107 Pa. Commw. 611, 528 A.2d 1064 (1987) (no deemed approval where applicants’ tardy submission of evidence prevented board from issuing written decision by required date); Slifer v. Zoning Hearing Board of Edgmont Township, 43 D.&C. 3d 175 (1985) (no deemed approval where written decision mailed but not received within 45-day period); Pae v. Hilltown Township Zoning Hearing Board, 35 Pa. Commw. 229, 385 A.2d 616 (1978) (no deemed decision even though zoning hearing board-violated Sunshine Law); Giant Food Stores Inc. v. Zoning Hearing Board of Whitehall Township, 93 Pa. Commw. 437, 501 A.2d 353 (1985) (no deemed approval where zoning hearing board issued decision signed by only two board members within 45 days of last hearing). Clearly, courts have resisted attempts to apply this section mechanically without regard to extenuating circumstances.