author: DOBSON, J.,

text:
    Bailey v. Abbott

      C.P. of Mercer County,
    no. 1999-1171.

      William J. Schenck, for plaintiff.

      Wallace J. Knox II, for defendant.
    January 12, 2001
   DOBSON, J.,

The matter before this court for disposition is defendant Bruce Abbott D.P.M.’s motion for summary judgment. For the reasons set forth, Dr. Abbott’s motion will be denied.

Pennsylvania Rule of Civil Procedure 1035.2 provides that any party may move for summary judgment in whole or in part as a matter of law:

“(1) whenever there is no genuine issue of material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to the jury.” Pa.R.C.P. 1035.2.

A court may grant a motion for summary judgment only where the right is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 134-35, 589 A.2d 205, 206 (1991). “The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.” Id. at 135, 589 A.2d at 206.

The non-moving party “must adduce sufficient evidence on [all] issue[s] essential to his case on which he bears the burden of proof such that a jury could return a verdict in his favor. Failure to adduce this evidence establishes that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996), cert. denied, 519 U.S. 1008 (1996).

Viewed in the light most favorable to the non-moving party, the facts are summarized as follows: plaintiff Sally Bailey consulted with Dr. Abbott regarding a bunion deformity on her left foot. Dr. Abbott recommended surgery. Dr. Abbott performed a crescentic bunionectomy with akin osteotomy surgery on Bailey’s left foot on March 8, 1996. Following the surgery, Bailey began experiencing pain and swelling in her left leg. Bailey consulted with Dr. Abbott on numerous occasions following the surgery for these symptoms, and Dr. Abbott continued to assure Bailey that the surgery was successful and that her symptoms were due to normal healing and excessive use of her leg. Bailey last visited Dr. Abbott on June 10, 1996.

Plaintiff consulted with her primary care physician, Dr. John Hatzentonis on June 14, 1996 regarding the continued swelling of her left leg. Dr. Hatzentonis ordered x-rays along with an ultrasound. Bailey was admitted to the hospital for anticoagulation therapy for a blood clot. Bailey was discharged from the hospital on June 21, 1996. During her time in the hospital Bailey was told that she had a blood clot, but there was no explanation as to the causation of the clot nor was she told that there was any connection between the blood clot and the bunionectomy surgery.

Bailey was admitted to the hospital a second time on July 7, 1996, after complaining of chest pain. She was diagnosed with having pulmonary embolism. She was discharged from the hospital on July 13, 1996. Again, Bailey was not told that there was a connection between the pulmonary embolism and the bunionectomy.

On April 23, 1997 Bailey visited Dr. John Young because she did not have any relief from the continued swelling of her leg. Dr. Young explained to Bailey that Dr. Abbott may have been at fault in performing the surgery and that Dr. Abbott could have done something both prior to and following the surgery to prevent the problems with the blood clots from occurring. Dr Young informed Bailey that inactivity created blood clots and that any surgeon that has a patient with a history of blood clots, as she had, should place that patient on a blood thinner prior to surgery for preventative measures. Bailey sought legal advice on February 8, 1999 and the present medical malpractice action was initiated on April 22, 1999. Dr. Abbott alleges that the statue of limitations had expired prior to Bailey filing this action and summary judgment should be entered in his favor.

In Pennsylvania, the statute of limitations for medical malpractice actions is two years. 42 Pa.C.S. §5524(2) (West 1999). The statute of limitations begins to run as soon as the right to institute and maintain a suit arises; lack of knowledge, mistake or misunderstanding do not toll the running of the statute of limitations. Dalrymple v. Brown, 549 Pa. 217, 223, 701 A.2d 164, 167 (1997). Once the prescribed statutory period has expired, the party is barred from bringing suit unless it is established that an exception to the general rule applies which acts to toll the running of the statute of limitations. Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 85, 468 A.2d 468, 471 (1983).

The “discovery rule” is an exception to the general rule that once the statutory period has expired, the party is barred from bringing suit. Murphy v. Saavedra, 560 Pa. 423, 426, 746 A.2d 92, 94 (2000). The discovery rule provides that where the existence of the injury is not known to the complaining party, and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible. Id. Under the discovery rule, the statute of limitations begins to run when “the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct.” Haggart v. Cho, 703 A.2d 522, 526 (Pa. Super. 1997).

The party seeking to invoke the discovery rule bears the burden of establishing the inability to know of the injury despite the exercise of reasonable diligence. Dalrymple, 549 Pa. at 224, 701 A.2d at 167. The standard of reasonable diligence is objective, not subjective. Id. It is not a standard of reasonable diligence unique to a particular plaintiff, but instead, a standard of reasonable diligence as applied to a “reasonable person.” Id.

Pennsylvania has also developed the doctrine of fraudulent concealment. If, through fraud or concealment, the defendant causes the plaintiff to relax his vigilance or deviate from his right of inquiry, the defendant is estopped from invoking the bar of the statutory limitation of the action. Schaffer v. Larzelere, 410 Pa. 402, 405, 189 A.2d 267, 269 (1963). Moreover, defendant’s conduct need not rise to fraud or concealment in the strictest sense, that is, defendant need not have acted with an intent to deceive; unintentional fraud or concealment is sufficient. Colonna v. Rice, 445 Pa. Super. 1, 9, 664 A.2d 979, 982 (1995). Mere mistake, misunderstanding or lack of knowledge, however, is insufficient. Id.

An injury which is initially discovered, but is not appreciated as such because of assurances by a physician that the injury will be completely remedied in time, will toll the statute of limitations. Stein v. Richardson, 302 Pa. Super. 124, 135, 448 A.2d 558, 563 (1982). However, reliance upon the word of one physician when the patient’s own common sense should lead one to a different conclusion is unreasonable. DeMartino v. Albert Einstein Medical Ctr., 313 Pa. Super. 492, 506, 460 A.2d 295, 302 (1983). The burden on proving the existence of such fraud or concealment is upon the asserting party by evidence that is clear, precise and convincing. Colonna, 445 Pa. Super. at 9, 664 A.2d at 982.

Dr. Abbott performed Bailey’s bunionectomy surgery on March 8, 1996. Following the surgery, Bailey developed swelling in her leg and continued to consult with Dr. Abbott for these symptoms. Dr. Abbott assured Bailey that the surgery was successful and that her symptoms were due to normal healing and excessive use of her leg. Shortly following her last visit with Dr. Abbott, Bailey was admitted to the hospital on two different occasions for blood clots and a pulmonary embolism. At no time during her hospitalization was Bailey informed of any connection between either the blood clot or the pulmonary embolism and the bunionectomy performed by Dr. Abbott.

Bailey asserts that although she did assume that her problems with the pain and swelling were related to the bunionectomy surgery, it was not until her visit with Dr. Young on April 23, 1997 that she suspected Dr. Abbott had done anything wrong during the surgery. Bailey claims she did not suspect Dr. Abbott had done anything wrong prior to meeting with Dr. Young because Dr. Abbott told her that some people heal quicker than others and that it could take over a year for all of the swelling to go down. Bailey considered her symptoms to be a matter of healing.

This court believes that there is sufficient evidence to support a finding that it was not reasonably possible for Bailey to discover her injuries at the time of Dr. Abbott’s surgery or immediately thereafter. Therefore, a jury could find that the statute of limitations was tolled under the discovery rule. Moreover, the court believes that a jury could find that the statute of limitation, based on the assurances given to Bailey by Dr. Abbott, was also tolled under the doctrine of fraudulent concealment.

Having concluded that the statute of limitations was tolled, the court must determine how long Bailey was entitled to the continued benefits of tolling. “Whether the statute of limitations is tolled because of the discovery rule or the doctrine of fraudulent concealment, it begins to run as soon as the plaintiff, exercising reasonable diligence, knew or should have known of the injury and its cause.” Bohus v. Beloff, 950 F.2d 919 (3d Cir. 1991). See also, Crouse v. Cyclops Industries, 560 Pa. 394, 404, 745 A.2d 606, 611 (2000) (under the discovery rule, the statute of limitations is tolled until the point where the complaining party knows or reasonably should know that he has been injured, and that his injury has been caused by another party’s conduct); Dudley v. W.C.A B. (Township of Marple), 80 Pa. Commw. 233, 471 A.2d 169, 173 (1984) (where statements made by a defendant lull a claimant into a false sense of security, those statements, whether intentional or unintentional, toll the running of the limitation period. That period reasonably should not begin until the claimant knows, or with reasonable diligence could know, of his deception).

Dr. Abbott performed the bunionectomy surgery on Bailey on March 8, 1996. Throughout the time following the surgery, Bailey continued to suffer from pain and swelling of her left leg. Bailey consulted with Dr. Abbott for aftercare on April 1, 1996, April 8, 1996, April 30, 1996, May 16, 1996, May 23, 1996, and June 10, 1996. During these consultations, Dr. Abbott assured Bailey that the bunionectomy surgery on March 8,1996 was successful and that her symptoms were due to normal healing and the excessive use of her leg. Bailey’s last visit with Dr. Abbott was on June 10,1996.

Bailey continued to suffer from pain and swelling of her leg following her visits with Dr. Abbott. On June 14, 1996 Bailey consulted with Dr. Hatzentonis, her primary care physician, concerning the swelling. Dr. Hatzentonis ordered x-rays and an ultrasound of Bailey, diagnosing her as suffering from a blood clot and ordering Bailey to be hospitalized. Bailey admitted that she thought the swelling on June 14, 1996 was a result of the surgery because she had not had it prior to the surgery, but Bailey was neither told the cause of the blood clot nor that there was a relationship between the blood clot and the bunionectomy surgery. Bailey was released from the hospital on June 21, 1996.

Bailey returned to the hospital on July 7, 1996 and was diagnosed as having a pulmonary embolism. Again, Bailey thought that the pulmonary embolism was somehow related to the bunionectomy surgery, but none of her physicians told her that there was an association between the two. Bailey was discharged on July 13, 1996.

Bailey, in her deposition, asserted that the reason she believed there was a connection between the bunionectomy surgery and the blood clot was based on representations made by Dr. Abbott. Bailey asserted that Dr. Abbott told her that “some people heal quicker than others .. . it could take a year, year and a half for all the swelling to go completely down ... some people take a little longer.” Bailey thought that based on Dr. Abbott’s representations the continued swelling was just a matter of healing following the surgery and eventually the swelling would go down.

Although Bailey thought that the blood clot and pulmonary embolism were somehow related to her surgery, she did not suspect at any time prior to the time that she saw Dr. Young that Dr. Abbott may have done something improper in the surgery. Dr. Young informed Bailey that there were things that Dr. Abbott could have done before and after the surgery that might have prevented her problems from occurring. Dr. Young informed Bailey that immobility created blood clots, that she should have been placed on a blood thinner prior to the surgery and that she was more susceptible to blood clots because she had had one previously in 1985.

The evidence is not sufficient to show Bailey was unaware of her injury prior to April 23,1997. However, it is sufficient to support a finding that she was not aware prior to that date that Dr. Abbott was the cause of her injuries.

During Bailey’s hospital stays in June and July of 1996 nothing was said that should have awakened her suspicions or intensified her inquiry as to the source of the problems from which she was suffering. Bailey was given no reason to doubt Dr. Abbott’s prognosis by the physicians she consulted until April 1997, when Dr. Young suggested that Dr. Abbott had done something wrong in performing the surgery. In fact, Bailey consulted with a Dr. Towle from the Greenville Medical Center where Bailey’s primary care physician, Dr. Hatzentonis, is associated prior to visiting with Dr. Young and Dr. Towle told Bailey that she was going to have to learn to live with the swelling.

The court believes that a jury could find that Bailey did everything reasonably possible to discover her injury and who caused it. Bailey sought additional medical opinions immediately after leaving Dr. Abbott’s care, but none of the physicians ever told Bailey that there was a relationship between her blood clot and the bunionectomy surgery. There is also no uncontroverted written documentation detailing the true cause of Bailey’s injury, which she could have discovered prior to her visit with Dr. Young. Therefore, there is no evidence to contradict Dr. Abbott’s assurances to Bailey that her pain and swelling were due to overuse and just a matter of healing, and reliance on such assurances was reasonable.

In Held v. Neft, the Superior Court found that the plaintiff’s reliance on the defendant physician’s assurances became unreasonable as soon as the plaintiff lost confidence in the defendant’s professional ability. Held v. Neft, 352 Pa. Super. 195, 201, 507 A.2d 839, 842 (1986). The Held court found that the plaintiff lost confidence in the defendant’s professional ability because the plaintiff discontinued treatments with the defendant, and the plaintiff decided that the defendant was not a very good surgeon. Id. at 201, 507 A.2d at 842. The plaintiff also decided that the defendant did not have plaintiff’s best interest at heart. Id. at 202, 507 A.2d at 842.

In this case, there is no indication that Bailey lost confidence in Dr. Abbott’s professional ability, other than the fact that she discontinued treatments with him. No facts have been presented as to Bailey’s motivation in discontinuing treatment with Dr. Abbott and seeking treatment from other physicians. Furthermore, none of Bailey’s physicians, with the exception of Dr. Young, brought to Bailey’s attention the possible relationship between the blood clot and the bunionectomy surgery. Therefore, the court believes that a jury could find that Bailey was justified in relying on Dr. Abbott’s assurances, and that there is sufficient evidence from which a jury could find that the cause of Bailey’s injury was not discoverable prior to her visit with Dr. Young on April 23, 1997.

Under the discovery rule, the statute of limitations begins to run when the plaintiff knows, or reasonably should know: (1) that he has been injured, and (2) that his injury has been caused by another party’s conduct. Haggart, 703 A.2d at 526. In this case, Bailey, although she suffered from pain and swelling of her left leg immediately following her bunionectomy surgery, may not have known that she was injured. The court believes that had Bailey exercised reasonable diligence she should have known that the pain and swelling to the leg were in fact injuries. The court, however, believes that Bailey did not know and, in reliance upon the assurances Dr. Abbott provided to Bailey in regards to her care, could not determine with reasonable diligence that Dr. Abbott caused Bailey’s injuries.

In Stein, the Superior Court held that an injury that is initially discovered, but is not appreciated as such because of assurances by a physician that the injury will be completely remedied in time, will toll the statute of limitations. Stein, 302 Pa. Super. at 135, 448 A.2d at 563. The court believes that Dr. Abbott’s assurances to Bailey caused her to relax her vigilance and deem that the pain and swelling she suffered from was just a matter of the healing process. The court also believes that Bailey’s own common sense would not have led her to a different conclusion. Bailey had bunionectomy surgery performed on her left foot and it is reasonable to expect some pain and swelling following the surgery. Furthermore, Dr. Abbott told Bailey that such swelling could last for over a year.

Bailey, under the doctrine of fraudulent concealment, has the burden of proving that Dr. Abbott’s fraud or concealment was clear, precise, and convincing. The court believes that a jury could find by clear, precise and convincing evidence that Bailey, in reliance on the assurances provided to her by Dr. Abbott, neither knew nor should have known the cause of her injuries prior to meeting with Dr. Young on April 23,1997. Since Bailey filed suit within two years of that date, her action is not barred by the statute of limtations. Therefore, considering the facts in light most favorable to the non-moving, party Dr. Abbott’s motion for summary judgment will be denied.

Hence, this order:

ORDER

And now, January 12, 2001, it is hereby ordered that defendant Bruce Abbott D.RM.’s motion for summary judgment is denied.


source: Caselaw Access Project

author: FIELD, J.,

license: Public Domain

text:
    Bennyhoff v. Pappert

      Rudolph V. DeGeorge II, for plaintiffs.

      Thomas A. Kuzmick, for defendants.
    March 1, 2001
   FIELD, J.,

Defendants appeal from judgment entered on a jury verdict for the plaintiffs, rendered June 21, 2000. Defendants base their appeal on several issues. These can be grouped as follows. First, the defendants allege that the court erred in its evidentiary rulings. Second, the defendants argue that the trial court erred in charging the jury. Finally, the defendants assert the amount that the verdict was speculative, excessive and punitive. For the following reasons, these arguments are without merit, and judgment in favor of the plaintiffs should be affirmed.

A jury trial commenced in this matter on June 19, 2000. After three days of trial, the jury returned a verdict for the plaintiffs in the amount of $3,002,000; awarding $3,000,000 to Ms. Bennyhoff and $2,000 to her husband on a consortium claim. The jury further found that 67 percent of the causal negligence was attributable to the defendants and 33 percent was attributable to Ms. Bennyhoff. The court molded the verdict accordingly, to $2,011,340.

The facts established at trial are as follows. On June 16, 1997, Christine Bennyhoff was traveling on her bicycle north on Broad Street, to the right of traffic in the right hand lane. She stopped for a red light at the intersection of Broad and Locust Streets. Her intended destination was on the opposite side of Broad Street. In order to get there she needed to cross four lanes of traffic, which at that time was very heavy. Ms. Bennyhoff testified that she thought that the safest way to accomplish this was to pedal into the crosswalk and cross the street with pedestrians. As she entered the crosswalk, she was struck by a truck and pushed to the right. She was then struck a second time on her shoulder.

Francis Pappert, the driver of a Brinks security truck, testified that his truck was the fourth vehicle from the intersection in the right-hand northbound lane on Broad Street, and was proceeding to the intersection with the intent to turn right on Locust Street, which is one way, eastbound. As he approached the intersection, he signaled a right turn. As he made this turn, his passenger and co-worker, Lenny James Jenkins, yelled at him to stop. Mr. Jenkins testified (by deposition) that he yelled in reaction to the yelling of bystanders who were shouting, “Stop!” Upon exiting the truck, both men, saw Ms. Bennyhoff and her bicycle on the ground.

Ms. Bennyhoff testified that she was able to get up and cross the street to The Sporting Club, her original destination. At that facility she went to a physical therapist who applied ice to both knees. Afterwards she went home and felt worse. She then went to the hospital emergency room where her knees were x-rayed. She was treated and released. Three days later she went to see Dr. Segal, a chiropractor who ordered both an MRI and an x-ray of her neck. Noting the severity of her injuries, Dr. Segal referred Ms. Bennyhoff to Dr. Lieberman, an orthopedic surgeon. In the following two years, Ms. Bennyhoff underwent various treatments to her knees, including injections and two surgeries. At the time of trial, she still suffered the effects of the accident. Ms. Bennyhoff testified at length about how her injuries have limited her enjoyment of life and adversely affected her employment. At the time of the accident, Ms. Bennyhoff was 31 years old.

Defendants have raised five issues regarding evidentiary rulings made at trial. A reversal based on an erroneous evidentiary ruling is warranted only where the ruling has caused actual prejudice. Aldrige v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000). No such prejudice occurred.

The first error alleged is that the court improperly allowed photographs of the accident scene, taken not at the time of the accident, but taken at a later date to illustrate the logistics of the accident. At no time was the jury led to believe that these were actual photographs taken at the time of the accident. Moreover, no significant changes to the area had occurred in the intervening period. Additionally, these photographs had been provided to defense counsel during discovery, and defense counsel had utilized them in examining the plaintiff. The court properly found that the probative value of the pictures outweighed any possible prejudice. Hence, the exhibits were properly admitted.

The second evidentiary error alleged was the admission of photographs of Ms. Bennyhoff receiving injections in her knees. These were presented by the plaintiffs to rebut any defense evidence that her knees were “fine,” to demonstrate to the jury what Ms. Bennyhoff had experienced since her accident and to corroborate Dr. Lieberman’s testimony. The photographs were therefore relevant under Pa.R.E. 401 and properly admitted.

The third evidentiary error alleged was the admission of certain medical bills. The only bills presented were those which were for “out of network” providers and thus not “paid or payable” within the meaning of 75 Pa.C.S. §§1719 and 1722. Plaintiff was entitled to recover for these expenditures. Hence, the bills were properly admitted.

Fourth, defendants objected to the admission of an itemization of plaintiff’s earned income. This objection, too, is without merit. Ms. Bennyhoff testified that her injuries reduced her ability to work. A specific wage claim loss was not presented at trial; rather, the income evidence was presented to substantiate her claim of decreased activity. As such, its admission was proper.

Finally, defendants’ fifth evidentiary complaint is that the court erred in allowing the testimony of Dr. Lieberman because his report was submitted after the initial deadline and that, pursuant to Pa.R.C.P. 4003.5, his testimony should have been precluded. While defendants are correct in that Rule 4003.5 allows for such a sanction, it does not mandate it. Instead, the trial court is required to balance all the facts and circumstances of the case to determine the prejudice, if any, caused by each discovery violation. Wolloch v. Aiken, 756 A.2d 513 (Pa. Super. 2000).

Factors to be considered included whether there was surprise, whether there was bad faith, and whether the prejudice, if any, could be cured. Id., quoting Feingold v. SEPTA, 512 Pa. 567, 517 A.2d 1270 (1986). In the instant matter, Dr. Lieberman was called not only as an expert, but as a treating physician. His identity was not a surprise. An extension had been requested because during discovery Ms. Bennyhoff was still undergoing treatment. Under these circumstances, preclusion of Dr. Lieberman’s testimony was not warranted.

Defendants next seek a new trial based on alleged defects in the court’s instructions to the jury. In determining the adequacy of jury instructions, the charge must be viewed as a whole. A new trial is not warranted so long as the charge in its entirety adequately and accurately reflects the law. Von der Heide v. PennDOT, 553 Pa. 120, 718 A.2d 286 (1998).

Defendants assert that the court erred by rejecting their proposed point for charge relating to negligence per se. The question of plaintiff’s negligence was properly one for the jury to determine, and it would have been error to include, rather than to exclude, such a charge. Similarly, defendants object to instructions given regarding admissions by a party and the medical expenses submitted. When viewed in its entirety, the charge accurately reflects prevailing law and was proper.

The remaining allegations of error pertain to the verdict itself. Defendants assert, inter alia, that the verdict was excessive, speculative, punitive, against the weight of the evidence and against the charge of the court. When reviewing a jury’s verdict, the evidence must be viewed in the light most favorable to the verdict winner. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). A jury’s determination is not to be disturbed as long as there is sufficient evidence on the record to support it. Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984). It is the province of the jury to determine the credibility of each witness. Commonwealth v. Glover, 399 Pa. Super. 610, 582 A.2d 1111 (1990). The jury may decide to accept all, some or none of a witness’s testimony. Id.

In light of the evidence recited above, including Ms. Bennyhoff’s previously active lifestyle, her multiple treatments and surgeries, and her relative youth at the time of the accident, the verdict, while large, is not so excessive as to shock the court. There is sufficient evidence on the record to support the jury’s verdict. Neither a new trial as to damages nor a remittitur is warranted.

For all of the foregoing reasons, judgment as entered on October 30, 2000, should be affirmed.


author: ACKERMAN, J.,

text:
    Kuether v. Loev

      Jonathan Wheeler, for plaintiffs.

      Matthew Corso, for defendant Loev.

      Mark R. Zolfaghari, for defendant Snyder.

      Lise Luborsky, for defendant PPCIGA.
    January 30, 2001
   ACKERMAN, J.,

This is an appeal from the order entered by this court in this medical malpractice matter on December 18, 2000 denying plaintiffs’ petition to enforce settlement after consideration of such petition and the answer of Pennsylvania Property and Casualty Insurance Guaranty Association.

This case was settled for the “gross amount of $385,000” without prejudice to the right of the plaintiffs to litigate a certain setoff issue with PPCIGA. (TR 3, January 13, 1999.)

In this case, PPCIGA asserted a statutory setoff of $20,640.25 and paid to the plaintiffs the sum of $179,359.75 ($200,000 representing the admitted gross statutory primary coverage limit on behalf of defendant, Marvin Loev M.D., pursuant to the provisions of the Pennsylvania Property and Casualty Insurance Guaranty Act). Plaintiffs were paid all of the $385,000 settlement except the disputed setoff amount of $20,640.25.

Plaintiffs assert that because the disputed setoff sum of $20,640.25, admittedly already paid to plaintiffs by their health insurance carrier pursuant to their health insurance policy, was also claimed in the settled medical malpractice case, there was no legal basis for such setoff pursuant to 40 Pa.C.S. §991.1817(a).

The issue involved in this case and other malpractice cases involving PIGA concerns the interpretation of the Pennsylvania Property and Casualty Insurance Guaranty Act “nonduplication of recovery” (40 Pa.C.S. §991.1817(a)) which states the following:

“Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance, whether it is first-party or third-party claim, and shall include, without limitation, accident and health insurance workers’ compensation, Blue Cross and Blue Shield and all other coverages except policies of an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of recovery under other insurance.”

40 Pa.C.S. §991.1801 Purpose states in relevant part as follows: “to . . . avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.”

The case of McCarthy v. Bainbridge, 739 A.2d 200 (Pa. Super. 1999), decided by our Superior Court, held that the nonduplication provision of the statute in question only prohibits recovering duplicatively, i.e., twice for the same loss, that is, in order to provide a setoff for PPCIGA, there must be some relationship between the claim against PPCIGA and the claim under the other insurance. In McCarthy, the Superior Court held that PIGA could not set off money owed to a claimant, for life insurance proceeds received by the claimant because life insurance covered different risks and losses than the amounts claimed in a medical malpractice case. The McCarthy case is before the Supreme Court, which has just heard argument on its granting of allocatur.

Unlike the McCarthy case, where life insurance was not specifically set forth in the statute but was argued as covered by the reference “all other coverages,” this case involves a setoff of amounts already received by plaintiffs under health insurance specifically set forth by the statute.

It appears to this court that the plain meaning of the statute alone compels the setoff by PPCIGA in this case.

In the alternative, assuming the test asserted by the Superior Court is upheld by the Supreme Court, it is also clear that the source of payment to the plaintiffs, i.e., health insurance (which is also claimed in this medical malpractice case), involves the same risks and losses involved in the instant settled case and bears the necessary reasonable relationship between the claim against PPCIGA and the claim under the health insurance.

Conceivably, the “necessary relationship” test asserted by the Superior Court might only apply to cases involving, payment under the less specific statutory language of “all other coverage” and/or “any kind of insurance.”

The case of Strickler v. DeSai, PICS no. 01-0096, was recently decided by a panel of the Superior Court. In that case, a health insurance carrier, U.S. Healthcare, paid the plaintiffs $423,374.48. The trial court denied the plaintiffs’ motion to compel PIGA to pay its liability limits of $200,000. The Superior Court held that PIGA was entitled to a setoff because the complaint and pretrial statement of plaintiffs explicitly claimed as damages the costs of medical expenses incurred. Thus, plaintiffs could not duplicate recovery by receiving payment from PIGA.

This court sees no distinction between the facts of the case at bar and those in Strickler. See also, Panea v. Isdaner, 39 D.&C.4th 129 (1999), decided by Philadelphia Common Pleas Court Judge Mark I. Bernstein. There is no issue in this case as to whether the settlement included all damages. The release expressly states that it covers “all... losses and damages” and “any further injuries, losses and damages . . . .” See release ¶1 and¶3, exhibit “A” to plaintiffs’ petition to enforce. The health insurance payments therefore were for the loss covered by the settlement.

Accordingly, this court properly denied plaintiffs’ petition to enforce settlement in this case where a set-off was required under the facts and law.


author: SHEPPARD JR., J.,

text:
    Red Bell Brewing Co. v. Buchanan Ingersoll P.C.

      Mark J. Krum, for plaintiff.

      Paul R. Rosen, for defendants.
    March 13, 2001
   SHEPPARD JR., J.,

Defendants Buchanan Ingersoll PC. and Kevin Silverang have filed preliminary objections to the complaint of plaintiff Red Bell Brewing Company. For the reasons set forth in this opinion, the court is issuing a contemporaneous order essentially overruling the objections.

BACKGROUND

Red Bell is a Philadelphia microbrewery that was formed by several investors, including James R. Bell, on June 29, 1993. In November 1997, Red Bell began discussions with GS Capital L.P. regarding a possible joint venture involving GSC, Red Bell and an employee stock ownership plan to be established in the future. This venture was to involve joint ownership of a microbrewery and restaurant at Reading Terminal Market that would be managed and operated by Red Bell (terminal site). During the course of these discussions, GSC was represented by Silverang, who was working at Kaufman, Coren, Ress, Weidman & Silverang P.C. (Kaufman Coren) at that time.

In November 1997, Silverang resigned his position at Kaufman Coren and became a partner at Buchanan. However, Silverang continued to represent GSC and began representing Red Bell in the venture discussions as well. The parties ultimately entered into a letter of intent under which GSC agreed to provide venture capital for the construction and operation of the terminal site. In exchange, Red Bell agreed: (a) to assign ownership of the leases of the terminal site to GSC and an entity to be formed, (b) to grant GSC a right of first refusal on all future Red Bell brewpubs and restaurants, and (c) to enter into a management agreement.

At about this time, Buchanan and Silverang began representing Red Bell in other financial ventures and corporate transactions. From December 1997 through March 1999, the defendants represented Red Bell in acquisitions, initial public offering discussions, securities registration compliance and explorations of recapitalization options. Red Bell alleges that the defendants became intimately familiar with Red Bell’s confidential business and financial information, including Red Bell’s business structure, capitalization needs and contracts.

During the time that the defendants were representing Red Bell, they continued providing legal services to both GSC and Red Bell in connection with the venture. Among these services was the formation of RBGSC. Investment Corp. a wholly-owned subsidiary of GSC responsible for the operation of the terminal site, and finalization and execution of the management agreement. Silverang and Buchanan also assisted GSC and Red Bell in additional joint ventures between the two companies, including the establishment of a brewpub/ restaurant at the Philadelphia International Airport. The complaint asserts that the defendants either knew or should have known that these actions would create a conflict of interest.

In July 1998, Red Bell began planning an initial public offering of its stock and received a written engagement letter from Buchanan regarding representation of Red Bell in this endeavor. In the engagement letter, Buchanan disclosed its representation of GSC and stated that it would continue this relationship “even though this representation may conflict with [Red Bell’s] position as a party to the [management] agreement.” Red Bell, however, alleges that neither Buchanan nor Silverang ever fully disclosed “the adverse nature of the concurrent representations” or provided a “full and clear explanation that they [would] be loyal only to [GSC]....” Complaint at ¶24.

Between July and November 1998, GSC hired Nicholas Sommaripa to oversee the construction and operation of the terminal site without Red Bell’s knowledge or consent. On November 16, 1998, Red Bell informed the City of Philadelphia of allegedly wrongful conduct by GSC and Sommaripa. Later that day, Buchanan unilaterally withdrew and purportedly terminated its representation of Red Bell due to a “business conflict.” Red Bell alleges that this was done so that Buchanan could continue its relationship with GSC and “abandon” its relationship with Red Bell in the face of an irreconcilable conflict of interest.

Buchanan and Silverang drafted a settlement agreement to resolve the smoldering disputes among Red Bell, GSC and RBGSC. The settlement agreement provided for the mutual release of all parties from claims arising from the operations at the terminal and airport sites and the resignation of Red Bell as construction manager of the terminal site. Red Bell signed the settlement agreement on December 10, 1998, allegedly “under coercion or threat of cessation of funding from [GSC].” Complaint at ¶33. In the months immediately following the execution of the settlement agreement, Silverang and Buchanan resumed their representation of Red Bell and counseled it relative to business plans and strategies, as well as capitalization alternatives.

On March 17, 1999, Silverang and Buchanan, acting on behalf of GSC, notified Red Bell that it was in default under the management agreement. Based on this alleged default, the defendants informed Red Bell of GSC’s intention to withhold payment of management fees. At the same time, the defendants proposed a resolution whereby GSC would terminate Red Bell’s interest in the terminal and airport sites. In a second letter, dated April 15, 1999, the defendants proposed a “settlement letter of intent,” which, it appears, was never executed. On May 3, 1999, GSC terminated the management and license agreements.

Red Bell commenced an action against GSC, RBGSC and other GSC entities in May 1999. Ultimately, Judge Pamela Pryor Dembe entered an order directing GSC and its affiliates to comply with the terms of the agreements and denying Red Bell’s motion to disqualify Buchanan from representing the Red Bell action defendants.

On September 16, 1999, GSC caused RBGSC to file for bankruptcy. During the course of the bankruptcy proceeding, RBGSC sold its interest in the airport and terminal sites. All of these actions are alleged to have been adverse to Red Bell and to have been effected on the advice of the defendants.

On the basis of these allegations, Red Bell alleges causes of action against the defendants for breach of contract negligence, breach of fiduciary duty, fraud and vicarious liability. The defendants counter that the claims are not legally sufficient and that the allegations in the complaint are not adequately specific.

DISCUSSION

Because Silverang is not a signatory to the engagement letter, he cannot be held liable for alleged breaches of the engagement letter, and the breach of contract action against him is dismissed. The remaining objections are, however, without merit and, accordingly, are denied.

When a court is presented with preliminary objections based on legal insufficiency,

“ ‘[I]t is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit recovery. If there is any doubt, it should be resolved by the overruling of the demurrer.’ ... Put simply, the question presented by demurrer is whether, on the facts averred, the law says with certainty that no recovery is possible.” Bailey v. Storlazzi, 729 A.2d 1206, 1211 (Pa. Super. 1999).

I. With the Exception of Bell’s Affidavit, the Court May Consider the Documents Attached to the Objections

For the purposes of reviewing the legal sufficiency of the complaint, “all well-pleaded material, factual averments and all inferences fairly deducible therefrom” are presumed to be true. Tucker v. Philadelphia Daily News, 757 A.2d 938, 942 (Pa. Super. 2000). A court may rely also on documents “forming in part the foundation of the suit,” even where a plaintiff does not attach such documents to its complaint. Conrad v. Pittsburgh, 421 Pa. 492, 495 n.3, 218 A.2d 906, 907 n.3 (1966). The use of such collateral information, however, should be strictly limited. See 220 Partnership v. Philadelphia Electric Co., 437 Pa. Super. 650, 655-56, 650 A.2d 1094, 1096-97 (1994) (cautioning against broad use of collateral facts).

Buchanan contends that the following documents not attached to the complaint are essential to Red Bell’s case and may be considered by the court in reviewing the objections:

(1) The settlement agreement;
(2) A series of orders issued in connection with the bankruptcy proceeding;
(3) An affidavit given by Bell in connection with the Red Bell action; and
(4) An order issued by Judge Dembe on August 12, 1999 in connection with the Red Bell action.

This court submits that the settlement agreement can be said to form part of the basis for Red Bell’s claims. The essence of the complaint is that Buchanan and Silverang engaged in fraud and conduct that violated their contractual and fiduciary duties to Red Bell. One of the ways in which the defendants’ alleged improper conduct was manifested was through Buchanan and Silverang’s advice that executing the settlement agreement was in Red Bell’s best interest. Complaint at ¶33. Examination of the settlement agreement itself is important to evaluate properly this allegation. Consequently, the complaint is based on the settlement agreement, in part, and the settlement agreement may be considered by the court when considering the objections asserting legal insufficiency.

Similarly, Red Bell alleges that RBGSC’s filing for bankruptcy and the defendants’ representation of GSC in the bankruptcy proceedings were adversed to Red Bell. Complaint at ¶43. As such, the writings related to RBGSC’s bankruptcy can be said to form part of the basis for the complaint and may be considered in the context of the legal insufficiency objections. In addition, the defendants need not rely on case law to introduce the August 1999 order, as the complaint incorporates this document by reference. Complaint at ¶39.

Of the attached documents, only the Bell affidavit can be said to have, at best, a tangential relation to the complaint. As the Bell affidavit was made on May 24, 1999, after the termination of Red Bell’s relationship with the defendants on May 3, 1999, it does not serve as a basis for any of Red Bell’s claims. In addition, Bell’s affidavit was not incorporated into the complaint by reference. As a result, the court should not consider Bell’s affidavit in evaluating the objections asserting insufficient specificity. However, it may examine the balance of the attached documents.

II. The Settlement Agreement Does Not Require Dismissal of the Complaint

The defendants next argue that Muhammad v. Strassburger, McKenna, Messer, Shilobod and Gutnick, 526 Pa. 541, 587 A.2d 1346 (1991), precludes negligence actions against attorneys by former clients and requires that the complaint be dismissed. This court disagrees.

In Muhammad, the Pennsylvania Supreme Court limited a client’s right to bring a cause of action against his or her attorney:

“Simply stated, we will not permit a suit to be filed by a dissatisfied plaintiff against his attorney following a settlement to which that plaintiff agreed, unless that plaintiff can show he was fraudulently induced to settle the original action. An action should not lie against an attorney for malpractice based on negligence and/or contract principles when that client has agreed to a settlement. Rather, only cases of fraud should be actionable.” 526 Pa. at 546, 587, A.2d at 1348.

The breadth of this holding later was narrowed in McMahon v. Shea, 547 Pa. 124, 700 A.2d 1329 (1997). There, the court noted that Muhammad was based on Pennsylvania’s public policy of encouraging the settlement of disputes and preventing “Monday morning quarterback suits.” 547 Pa. at 130, 700 A.2d at 1182. In limiting Muhammad to the facts of that case, the McMahon court concluded that the plaintiff’s allegations that his attorney failed to advise him of a contract’s controlling law constituted grounds for a permissible claim for negligence.

Our Superior Court reconciled the Muhammad and McMahon decisions in Banks v. Jerome Taylor & Associates, 700 A.2d 1329 (Pa. Super. 1997), extracting the following principles:

“In cases wherein a dissatisfied litigant merely wishes to second-guess his or her decision to settle due to speculation that he or she may have been able to secure a larger amount of money, i.e. ‘get a better deal’ the Muhammad rule applies so as to bar that litigant from suing his counsel for negligence. If, however, a settlement agreement is legally deficient or if an attorney fails to explain the effect of a legal document, the client may seek redress from counsel by filing a malpractice action sounding in negligence.” 700 A.2d at 1332.

The allegations in this complaint are more similar to the facts in McMahon than Muhammad. Red Bell alleges that the defendants failed to protect Red Bell’s legal rights and to provide accurate material facts on which Red Bell’s decisions were made. Complaint at ¶¶33-34, 43. The complaint also asserts that Buchanan and Silverang failed to disclose adequately the conflict of interest between Red Bell and GSC. Complaint at ¶¶20, 24. In summary, under the principles set forth in Muhammad, McMahon and Banks, Red Bell may proceed with its claims.

III. Collateral Estoppel Does Not Preclude the Plaintiff from Asserting Its Claims Against the Defendants

The doctrine of collateral estoppel precludes a party from raising a particular issue when the following conditions are met:

“[T]he issue decided in the prior adjudication was identical with the one presented in the later action, there was a final judgment on the merits, the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication, and the party against whom it is asserted has had a full and fair opportunity to litigate the issue in question in the prior adjudication.” In re Iulo, _ Pa. _, _, 766 A.2d 335, 337 (2001) (citing Safeguard Mutual Insurance Company v. Williams, 463 Pa. 567, 574, 345 A.2d 664, 668 (1975)).

The defendants assert that the August 1999 order, which, in part, denied Red Bell’s motion to disqualify Buchanan from representing GSC, estops Red Bell from raising any claims based on a conflict of interest here.

While the defendants’ argument may have merit, none of the documents that this court may consider in reviewing the objections speaks to the basis for Red Bell’s motion to disqualify or allows the court to conclude that the issue therein is identical to that presented here. Also, in examining the Red Bell action as a whole, there is no express mention of either of the defendants in the complaint. Thus it cannot be said, with certainty, that the Red Bell action focused on Red Bell’s allegations of the defendants’ misconduct. Furthermore, the bankruptcy proceeding court dissolved the August 1999 order, preventing it from being considered a final order. Defendants’ exhibit 9, order at ¶3. Consequently, the August 1999 order does not estop Red Bell from bringing its claims. Cf. Pompei v. Williams, 731 A.2d 133, 135 (Pa. Super. 1999) (party held responsible for breach of sales agreement is not estopped from bringing a claim against counsel based on allegations of inadequate legal representation).

Defendants argue further that the RBGSC’s bankruptcy decisions estop Red Bell from seeking damages for the value of the terminal and airport site leases and attorneys’ fees. In its relevant part, the bankruptcy court opinion states as follows:

“We reject all claims by [Red Bell] that certain provisions of the [settlement agreement, license agreement and management agreement] cannot be enforced against them because [Red] Bell was pressured into signing these contracts and that they manifested improper attempts by GS to wrest control of the sites away from [Red Bell],...
“We find that any inequality of bargaining power between the Bell entities and the GS entities was slight and that no provisions of any of the contracts are so unreasonably or grossly favorable to the GS entities as to [be] substantively unconscionable.” Defendants’ exhibit 8 at 9, 12.

While these excerpts show that the bankruptcy court addressed the conscionability of the agreements, they do not relate to the issues presented by this complaint, namely the defendants’ improper conduct and recovery on that basis. In sum, none of defendants’ arguments are persuasive. Red Bell is not estopped from presenting the claims set forth in the complaint.

IV. The Complaint Alleges That Red Bell Has Suffered Damages

Claims for breach of contract, negligence and fraud require that the plaintiff suffer damages as a proximate result of the defendant’s conduct. See Skipworth v. Lead Industries Association Inc., 547 Pa. 224, 231, 690 A.2d 169, 172 (1997) (“a plaintiff, in order to recover, must establish that a particular defendant’s negligence was the proximate cause of her injuries”); Gruenwald v. Advanced Computer Applications Inc., 730 A.2d 1004, 1014 (Pa. Super. 1999) (to prove fraud, a plaintiff must show injury that was proximately caused by reliance on the defendant’s misrepresentation); Logan v. Mirror Printing Co., 410 Pa. Super. 446, 448, 600 A.2d 225, 226 (1991) C‘[i]n order to recover for damages pursuant to a breach of contract the plaintiff must show a causal connection between the breach and the loss”).

Red Bell alleges that its damages include deprivation of leasehold interests in the sites, loss of investments made in the sites and legal fees. These damages, it asserts, were proximately caused by the defendants’ improper actions, as set forth in the complaint. This court submits that this claim of proximate causation is tenable and that the complaint supports Red Bell’s claim for damages.

V. Red Bell’s Claim for Breach of Contract Is Legally Sufficient

Next, the defendants narrow their argument and attack Red Bell’s breach of contract claim. A successful breach of contract action requires “(1) the existence of a contract, including its essential terms, (2) a breach of a duty imposed by the contract and (3) resultant damages.” CoreStates Bank N.A. v. Cutillo, 723 A.2d 1053, 1058 (Pa. Super. 1999). (citation omitted) Some Pennsylvania cases hold that a plaintiff presenting a legal malpractice claim based on a breach of contract theory must show that the defendant-attorney “failed to follow a specific instruction of the client.” Rogers v. Williams, 420 Pa. Super. 396, 401, 616 A.2d 1031, 1033 (1992). See also, Duke & Co. v. Anderson, 275 Pa. Super. 65, 70, 418 A.2d 613, 616 (1980) (a legal malpractice suit brought in assumpsit must allege that the attorney failed to follow specific client instructions). More recent cases, however, set a more expansive standard:

“[A]n assumpsit claim based on breach of the attorney-client agreement ... is a contract claim and the attorney’s liability in this regard will be based on terms of that contract. Thus, if an attorney agrees to provide his or her best efforts and fails to do so an action will accrue. Of course an attorney who agrees for a fee to represent a client is by implication agreeing to provide that client with professional services consistent with those expected of the profession at large.” Bailey v. Tucker, 533 Pa. 237, 251-52, 621 A.2d 108,115 (1993). See also, Florentino v. Rapoport, 693 A.2d 208, 213 (Pa. Super. 1997) (if [an] attorney agrees to provide his or her best efforts and fails to do so, an action in assumpsit will accrue”).

According to the engagement letter between Buchanan and Red Bell, Buchanan’s goal “is to deliver to you quality legal services,” and Red Bell’s account “will be handled with the utmost of professionalism and proficiency at all times.” Red Bell memorandum exhibit B at 2, 5. The complaint alleges facts that would establish a breach of each of these contractual promises. As a result, Red Bell’s claim for breach of contract may proceed.

VI. The Complaint Is Sufficiently Specific

To determine if a pleading meets Pennsylvania’s specificity requirements, a court must ascertain whether the allegations are “sufficiently specific so as to enable [a] defendant to prepare [its] defense.” Smith v. Wagner, 403 Pa. Super. 316, 319, 588 A.2d 1308, 1310 (1991). See also, In re Barnes Foundation, 443 Pa. Super. 369, 381, 661 A.2d 889, 895 (1995) (“ ‘[a pleading] should ... fully summariz[e] the material facts,’ ... and ‘[a]s a minimum, a pleader must set forth concisely the facts upon which [a] cause of action is based’ ”). Allegations of fraud are held to a higher standard. Pa. R.C.P. 1019(b); see also, Martin v. Lancaster Battery Co. Inc., 530 Pa. 11, 18, 606 A.2d 444, 448 (1992) (an allegation of fraud must “explain the nature of the claim to the opposing party so as to permit the preparation of a defense” and be “sufficient to convince the court that the averments are not merely subterfuge”).

The allegations in the complaint are sufficient to allow Buchanan and Silverang to prepare a defense. In addition, the detail of the allegations convinces this court that Red Bell’s assertions represent more than mere subterfuge. As a result, the objections asserting insufficient specificity are denied.

VII. The Defendants’ Position as Agents Relieves Silverang, but Not Buchanan, of Liability

The defendants cite Perlman v. Pittsburgh Cabinets & Builders Supplies Inc., 191 Pa. Super. 234, 156 A.2d 373 (1959), for the principle that, “[w]here one deals with an agent who acts within the scope of his authority and reveals his principal, the principal alone is liable for a breach of the contract.” 191 Pa. Super. at 236, 156 A.2d at 374. Because Red Bell knew that Buchanan and Silverang were acting as GSC’s agent, they argue, they are protected from liability.

Under Pennsylvania law, “[a]n agent who does an act otherwise a tort is not relieved from liability by the fact that he acted at the command of the principal or on account of the principal.” Cosmas v. Bloomingdales Bros. Inc., 442 Pa. Super. 476, 487, 660 A.2d 83, 88 (1995). See also, Eckert v. Merchants Shipbuilding Corp., 280 Pa. 340, 347, 124 A. 477, 480 (1924) (“[t]hat a defendant was an agent acting for another is no defense in a suit to recover for his own or his servant’s torts”). Thus, neither defendant is shielded from tort liability due to its relationship with GSC.

Furthermore, Buchanan’s argument on the breach of contract claim ignores the defendants’ additional role as Red Bell’s counsel. An agent’s liability for breach of contract is limited only where “an agent for a disclosed principal is not a party to the contract.” Perlman, 191 Pa. Super. at 236, 156 A.2d at 374. Here, the defendants are being sued in their capacity as Red Bell’s counsel not GSC’s agent. In addition, Buchanan is a party to the engagement letter, and Red Bell alleges that Buchanan breached the engagement letter through a litany of tortious acts. Red Bell’s claims against Buchanan, therefore, must be allowed to stand.

While the specific allegations against Silverang allow the tort counts against him to proceed, Red Bell has not pled any contract to which Silverang is a party. In this respect, the Perlman language applies and protects Silverang, an agent of Buchanan, from liability. As a result, the breach of contract claim cannot continue and must be stricken as to him.

CONCLUSION

Because Silverang is not a signatory to any contract with Red Bell, the breach of contract claim against him is stricken. The balance of the complaint is legally sufficient and adequately specific, and the objections are overruled.

This court will enter a contemporaneous order consistent with this opinion.

ORDER

And now, March 13, 2001, upon consideration of the preliminary objections of defendants, Buchanan Ingersoll RC. and Kevin J. Silverang Esquire to the complaint of plaintiff, Red Bell Brewing Company, and plaintiff’s opposition, the respective memoranda, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered that:

(1) Kevin J. Silverang Esquire’s objections to the plaintiff’s breach of contract count is sustained, and that count is stricken as to Silverang, only;
(2) The remaining objections are overruled; and
(3) Defendants are directed to file an answer within 20 days of the date of entry of this order.

      . The breach of contract claims as to defendant Silverang only, is dismissed.

      . The complaint is silent as to Red Bell’s representation.

      . Under the management agreement, as conceived at the time, Red Bell would earn base and incentive management fees and would retain an option to convert its management fee into an ownership interest, subject to certain conditions and GSC’s termination rights.

      . Although it is referenced in the complaint, the settlement agreement is not attached to the complaint.

      . Red Bell Brewing Co. v. GS Capital L.P., C.P. Phila., May 1999, no. 2759.

      . In re RBGSC Investment Corp., no. 99-31799 (DAS). This matter is referred to as the “bankruptcy proceeding.”

      . These documents are referred to collectively as the “attached documents.”

      . The complaint also incorporates RBGSC’s bankruptcy petition and “related legal papers” by reference. Consequently, even if the bankruptcy documents do not form the basis for the complaint, in part, they may considered incorporated by reference.

      . Even if this were not the case, Red Bell would be permitted to proceed with its fraud count, since Muhammad does not act to bar claims for fraud.

      . Collateral estoppel is an affirmative defense that is properly pled as a new matter in an answer to a complaint, not in preliminary objections. Kituskie v. Corbman, 452 Pa. Super. 467, 476, 682 A.2d 378, 382-83 (1996). Where aparty responding to preliminary objections does not object to the maimer in which collateral estoppel is raised, however, an objection to the inclusion of collateral estoppel arguments in preliminary objections is waived. Commonwealth v. Desiderio, 698 A.2d 134, 138 (Pa. Commw. 1997).

      . At least one Pennsylvania case holds that a breach of contract action does not require proof of damages or, consequently, causation. See Grabowski v. Quigley, 454 Pa. Super. 27, 41, 684 A.2d 610, 617 (1996) (“[a] cause of action [for breach of contract] exists even if no compensable loss can be shown because any breach gives rise to at least nominal damages”). However, this case appears to be an isolated example, with the general standard requiring damages resulting from the breach of the contract.

      . The complaint alleges that Silverang, “at all relevant times, was engaged in the practice of law as a partner, member, shareholder, employee and/or agent of Buchanan.” Complaint at ¶3.


author: BAER, J.,

text:
    Groover v. Harrison
    C.P. of Allegheny County,
    no. AR 99-1671.

      Anne M. McArdle, for plaintiffs.

      Dana L. Bacsi, for defendant.
    January 10, 2001
   BAER, J.,

Plaintiff, Norma Groover was driving on Pittsburgh’s Parkway East nearing the Squirrel Hill Tunnels when traffic forced her to slow. Defendant Russell Harrison Jr. hit her from behind, allegedly injuring her. Groover sued seeking compensation for pain and suffering, loss of enjoyment of life, embarrassment and humiliation. Her husband, Ernest Groover, sued claiming loss of consortium. Harrison admitted that his negligence caused the automobile accident, but denied that the automobile accident was the cause of any injuries the Groovers claimed to have suffered. A jury returned a verdict for Groover in the amount of $2,500, and the Groovers filed post-trial motions. By order of even date herewith, we deny the post-trial motions, and write to explain our ruling.

The decision as to whether a post-trial motion should be granted must be based on a review of all evidence of record. Gill v. McGrow Electric Co., 264 Pa. Super. 368, 399 A.2d 1095 (1979). We proceed by conducting that review. At the time of the accident, Groover and her husband had been married about 19 years and were the parents of two children, ages 13 and 11. Groover was the sales and marketing manager for student loans for Mellon Bank, with whom she had been employed since 1978. She was required to drive a great deal, as part of this employment.

Groover has had back and neck problems for much of her life, and has availed herself of chiropractic treatments in search of relief. Medical tests administered to her in early 1995 revealed that she suffered from degenerative changes in her neck as well as scoliosis in her back. Both the degenerative condition and the scoliosis can cause intermittent pain and impairment of functionality without other impetus.

In 1980, Groover sprained her back, and missed 10 days’ work. On June 6, 1993, Groover was in an automobile accident that resulted in soft tissue injury to her back, and brought her under the care of an orthopedic surgeon. The doctor prescribed physical therapy. Groover did miss some work as a result of this accident. In March of 1994, Groover was in another automobile accident which was remarkably similar to the one resulting in this case. Her car was hit in the rear and pushed into another street. Groover was taken from the accident scene to the hospital by ambulance. It was determined eventually that she suffered soft tissue injuries to her neck, lower back, legs and shoulders. She became the patient of Dr. Rodney G. Gordon, an orthopedic surgeon.

Dr. Gordon ordered physical therapy for her and prescribed various medicines. On June 6, 1994, Groover experienced leg weakness causing her to lose her balance and to break a toe. While she was reluctant during questioning at trial to tie this difficulty to her prior history, every inference leads to the conclusion it resulted from the degenerative changes in her neck, the scoliosis in her back and the 1993 and 1994 automobile accidents.

After almost nine months of treatment, Groover still had not obtained complete relief. Accordingly, Dr. Gordon ordered a series of x-rays that revealed the degenerative problems in Groover’s neck and scoliosis in her back referenced above. When the x-rays uncovered these maladies, Dr. Gordon suggested a bone scan, but Groover declined to undergo this test. She obtained no further testing or treatment from Dr. Gordon after February of 1995 until the occurrence of the accident resulting in this case in October of 1997.

In September 1995, Dr. Gordon wrote a report stating that Groover continued to have neck and back problems because of the degenerative conditions and scoliosis, as exacerbated by the March 1994 accident. Groover testified at trial that the 1994 accident caused her neck problems while working, traveling in an automobile and speaking on the telephone.

The accident that led to the instant litigation occurred on Thursday, October 23, 1997. Groover was hit from behind while slowing in traffic. There was significant damage to the involved vehicles. Groover did not lose consciousness. Indeed, she immediately used her cell phone to call her husband seeking direction, and, upon his advice, called the police. She got out of her car, exchanged information with Harrison and then drove her car from the scene and to her office before going home. She began experiencing pain that evening, and did not go to work on Friday, October 24, 1997. She made a doctor’s appointment for Monday, October 27, 1997, with a Dr. Beasley, and received a prescription for various medicines on that date. She went to work on Tuesday, October 28,1997, although she testified that at that juncture she was working despite being in pain.

Groover saw Dr. Beasley again on November 7,1997 and on November 11, 1997, presented at the Shadyside Hospital emergency room complaining of back pain and requesting that x-rays be taken. An x-ray was taken of her lower back, and she was referred to Dr. Gordon, the orthopedic surgeon who had treated her after the 1994 accident. She saw him the next day, November 12,1997, and complained of both back and neck pain.

Dr. Gordon prescribed various medicines and a course of physical therapy. He saw her again on December 17, 1997. Groover told the doctor that her neck and back pains were improving, and then, for the first time, mentioned an arm problem. Groover completed a regimen of 20 physical therapy visits on December 31, 1997, and saw Dr. Gordon once more on January 28,1998. At that juncture, Groover said she was largely better, and Dr. Gordon released her from further treatment. Groover’s total bills for hospital treatment, doctor treatment and physical therapy were $2,118.67.

Against this factual backdrop, Groover brought suit against Harrison contending that the October 27, 1997 accident resulted in back, neck and arm problems causing her significant pain, suffering, loss of enjoyment of life, annoyance and inconvenience. Mr. Groover sued for loss of consortium. Harrison conceded that he was negligent and that his negligence was the cause of the accident. He denied vigorously that the accident was the cause of any of the Groovers’ damages, citing Groover’s degenerative condition, scoliosis, 1980 back strain as well as her 1993 and 1994 accidents.

The case went to trial on September 13 and 14, 2000. The jury was called upon to decide whether the 1997 accident was a substantial factor in the causation of Groover’s injuries, and, if so, the extent of those injuries and the appropriate award to compensate Groover for them. After deliberations, the jury returned a verdict for the exact amount of the special damages, $2,118.67. From the bench, after the jury returned this verdict, we held that the recent case of Davis v. Mullen, 755 A.2d 693 (Pa. Super. 2000), required under these facts that some award be made for pain and suffering and that, therefore, a supplemental charge and further jury deliberations would be necessary.

In accordance with the instructions contained in Judge Eakin’s dissenting opinion in Davis, we gave a supplemental charge explaining to the jury that it must award something for pain and suffering. After further deliberations, the jury awarded $382 for pain and suffering, entering a revised verdict of $2,500.

Groover contends initially that the verdict of $382 for pain and suffering was clearly inadequate, and should shock the conscience of the court. See Trent v. Trotman, 352 Pa. Super. 490, 508 A.2d 580 (1986). Groover mistakenly bases this argument on the assumption that because Harrison admitted that he was negligent, the jury was required to return a verdict for her. This argument fails to distinguish between Harrison’s concession of negligence and a concession of general liability. While Harrison conceded his negligence in this matter, he did not concede liability. Instead, he argued that his negligence was not a substantial factor in bringing about any of Groover’s injuries. Under these facts, a defense verdict could have been entered. Moreover, as explained in note 1, the verdict initially entered in this case clearly could have been the result of a compromise among jurors. Under these facts, the jury’s $2,500 verdict was not clearly inadequate and should not be overturned.

Groover next argues that our supplemental charge and re-charge after objections were confusing and suggested to the jury that it could return a verdict in a minimal amount for pain and suffering. Specifically, Groover complains that when we borrowed from the dissent’s reasoning in Davis v. Mullen, supra, by explaining to the jury that if its verdict had been for $10 more or less, further deliberations might have been unnecessary, we suggested to the jury that it should award $10 for pain and suffering.

That portion of our charge was not directed to the amount of damages to be awarded for pain and suffering. Rather, it was to explain to the jury what was wrong with the verdict as entered, and therefore why the jury was required to deliberate further in this matter. After Groover pointed out her concern with this portion of our supplemental instructions, we again spoke to the jury, and told them that an award for $10 more or less might still have required a new trial. We explained further that we were not setting a ballpark figure for pain and suffering, and that it was the jury’s obligation to consider Groover’s claims carefully, and to make a just and fair award. We stated that the award could be in any amount, from $100 to $1,000,000 and that we did not intend to suggest any particular' sum. We believe strongly that when our supplemental charge is read in its totality, it makes sense, is not confusing and fairly instructed the jury as to its obligations in this case.

Groover next argues that the supplemental charge failed to inform the jury that it must enter an award for loss of consortium. Initially, we note that at no time during the discussion between the jury’s initial verdict and our new instmctions to the jury nor at the conclusion of our delivery of these new instructions did Groover’s counsel request any additional charge regarding loss of consortium. Under these facts, this argument is waived. See Pa.R.C.P. 227.1 and the note which follows (error does not constitute grounds for post-trial relief unless timely objection is made).

Moreover, we reject that the jury had any obligation to award for loss of consortium under the facts of this case. The loss, of consortium is the loss of the right of a spouse to the society, cooperation, affection and aid of the other spouse. It is the loss of the spouse’s services. Cleveland v. Johns-Manville Corp., 547 Pa. 402, 690 A.2d 1146 (1997). When Mr. Groover testified in this case and was asked how Groover’s injuries affected him, he said that he had to bring takeout food into the house because Groover was not cooking for the family; had to drive the children to more activities than usual; and had to do a few unspecified tasks around the house. He said the biggest inconvenience was the replacement of their vehicle. Under these facts, the jury could well have concluded that any loss of consortium in this case was de minimis, and did not require compensation.

Finally, we note that in our supplemental charge we asked the jury to again consider “other elements of damages . . . and with specificity the element of pain and suffering. . . .” We then requested that the jury “try to again discuss what amount of other damages and specifically pain and suffering you think occurred as a result of the injury that was attendant to these medical bills and make a fair award for that.” Thus, we did not preclude reconsideration of loss of consortium, we simply did not emphasize it.

Groover makes two other claims, almost in passing, that can be dealt with summarily. Initially, she argues that we committed an error of law when we refused her point for charge requiring that we explain to the jury during the initial charge that pursuant to Davis v. Mullen, supra, it had an obligation to award for both actual damages and pain and suffering. As stated earlier in this opinion, we are not convinced that we were correct in charging regarding the “rule” of Davis v. Mullen at all.

Assuming arguendo that we should have given this instruction, we believe the better methodology for handling this situation is to await the need, deliver a supplemental instruction and have the jury redeliberate. This keeps already complex charges as simple as possible, and does not prejudice plaintiffs. Indeed, one could argue that it gives a plaintiff two opportunities for a jury to consider damages: once, when the case is considered for the first time, and again when the judge instructs the jury that it must redeliberate regarding other elements of damages and make an award for pain and suffering.

Finally, Groover mentions in passing the serious allegation that there was racial prejudice in this verdict. There is no support whatsoever for such a claim. Groover was evidently African-American. We have no idea what the array of the jury was. There was no objection to the jury’s demographics at the time it was picked or when the trial began. The simple fact is that this jury disappointed Groover. There is not, however, any basis to conclude that race or any other inappropriate criteria had anything to do with the verdict rendered in this case.

ORDER

And now, to-wit, January 10,2001, in accordance with the opinion filed of even date herewith, it is hereby ordered, adjudged and decreed that plaintiffs’ post-trial motions are denied. Judgment in the amount of $2,500 is entered on behalf of plaintiffs. Prothonotary to send Rule 236 notice.

      . Dr. Gordon testified that he did not know about Groover’s 1993 accident when he was writing this report. The record does not reflect whether Dr. Gordon was aware of the 1980 back strain.

      . After the opportunity for thoughtful deliberation, we are not convinced our ruling was correct in this regard. There is nothing in the Davis opinion that indicates that the defendant argued that any of plaintiff’s injuries were the result of something other than the accident. Thus, in Davis, the defense admitted liability, and implicit in that admission was a concession that defendant both was negligent, and that his negligence was a substantial factor in bringing about all of the damages suffered by the plaintiff. In the instant case, the defense conceded only negligence, and not that this negligence was a substantial factor in the causation of any injuries to plaintiff. Thus, it cannot be said that the jury’s original verdict in this case was not a compromise among jurors who wanted to return a defense verdict or a minimal amount disbelieving Groover’s contentions and jurors who wanted to award more than the eventual verdict amount. If, in fact, this verdict was a compromise rather than a determination that Harrison’s negligence was the cause-in-fact and proximate cause of all of Groover’s injuries resulting in the special damages, then Davis would be inapplicable. As the defense has not appealed our decision that the jury redeliberate and award something for pain and suffering, we need not concern ourselves with whether we erred in delivering the supplemental charge.

      . We frankly do not remember her race and the record does not reflect it. We accept Groover’s counsel’s representation in this regard.


author: SCANLON,

text:
    Palcsey v. Palcsey

      C.P. of Allegheny County,
    no. FD 95-8366-004.

      John M. Smith, for plaintiff.

      Jeffrey S. Weiss, for defendant.
    June 19, 2000
   SCANLON,

Theresa Palcsey, appellant (Mother), appeals this court’s December 29, 1999, order granting Mark Palcsey, appellee (Father), unsupervised partial custody of his younger son, Philip, subject to a certain condition imposed in the order.

The order of December 29, 1999, sets forth an exhaustive history of the custody litigation between these parties. Some portion of that history is worth reciting herein.

The parties hereto were married on May 8,1982, separated in early 1995, and were divorced June 23, 1997. The parties have two children, Matthew (dob July 19, 1987) and Philip (dob October 18, 1991). Shortly after separation, a custody consent agreement was executed which was then incorporated into an order of court dated April 13, 1995. This agreement gave primary physical and legal custody of the boys to Mother, while Father was granted partial visitation rights with the minors only under the supervision of the Mother or maternal grandparents, Veronica and Albert Santillo, according to a schedule to be worked out between the parties. Father was unrepresented by counsel at the time the agreement was negotiated and executed. The provisions for supervised visitation were incorporated into the agreement because Mother alleged that Father had sexually abused the oldest son, Matthew. The initial report of sexual abuse was apparently made to a physician in February 1995, and was then brought to Allegheny County Children and Youth Services on March 21,1995. An agency determination of “indicated” was communicated on June 9, 1995, even though Father had been advised by correspondence on May 23, 1995, that the case had been closed. A criminal prosecution followed and after preliminary hearing, formal arraignment, and the scheduled commencement of trial, the charges against Father were withdrawn.

The two pending petitions before this court were Father’s September 16, 1996 petition for modification of custody order seeking primary physical custody of both children, and Father’s petition for modification of custody order seeking unsupervised partial custody of both boys.

Following two days of testimony, this court denied Father’s request for primary physical custody of both children; denied Father’s request for unsupervised partial custody of Matthew; terminated the supervised visitation order; and granted Father unsupervised partial custody of the younger son, Philip.

Mother first complains on appeal that this court erred in allowing Father’s expert witness, Dr. Richard Gardner, to testify in violation of Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

While this court permitted Dr. Richard Gardner to testify, he was found to be biased, not credible, and his opinions and testimony were completely disregarded by this court in opinion and order of December 29, 1999. Accordingly, there would not appear to be any further need to respond to this first complaint of Mother.

Mother next complains that this court erred in not releasing the medical and psychiatric evaluations of Father performed at St. Francis Hospital after Father committed himself there in February 1995. It is further asserted that it was error to not consider these evaluations in the court’s final decision.

It should be noted that counsel for Mother presented a motion to obtain records in motions court on July 30, 1998, requesting that the records of St. Francis Mental Health Facility of Father’s February 1995 admission, be released to the court. While this motion was denied as presented on July 30, 1998, we noted on the order that this issue would be resolved at a subsequent conciliation. Indeed, a custody conciliation was held on August 27, 1998, and in a consent order signed by the parties and counsel that day, Father was directed to execute an authorization for release of the St. Francis Hospital records to be turned over to this court for an in camera review. Those records were subsequently furnished to this court, but neither litigant ever brought the subject up again. The records were not identified in the pre-trial statement filed on behalf of Mother. Further, they were neither referred to at trial nor was there any effort to seek their admission into evidence.

Mother next complains that this court erred in barring its own court-appointed expert, Robert Tedder, L.S.W., from testifying about the diagnostic evaluations he made in his evaluations of Mother, Father, and Matthew.

The parties were ordered in December 1996 to participate in family therapy with Mr. Robert Tedder, a pastoral therapist with a master’s in social work. Accordingly, he would hardly be considered a court-appointed expert. Moreover, the testimony sought by Mother to be elicited from Mr. Tedder, involved the diagnosis of Matthew’s psychological and medical condition. (Tr. at pp.183-86.) We excluded this testimony on the basis of the lack of competency of a social worker to render medical and/or psychological opinions and, further, because Matthew’s condition had already been described at trial by psychologists and/or psychiatrists.

The law regarding the qualifications of witnesses as experts is well established. Whether a witness has been properly qualified to give expert opinion testimony, is vested in the discretion of the trial court. Abbott v. Steel City Piping Co., 437 Pa. 412, 421, 263 A.2d 881, 885 (1970). Moreover, the Pennsylvania standard of qualification for an expert witness is a liberal one, and if a witness has any reasonable pretension to specialized knowledge on this subject under investigation, he/she may testify, and the weight to be given to the testimony is for the fact-finder. Kuisis v. Baldwin-Lima-Hamilton Corp., 457 Pa. 321, 338, 319 A.2d 914, 924 (1974). We are to determine if the witness has “sufficient skill, knowledge, or experience in that field or calling as to make it appear that his [/her] opinion or inference will probably aid the trier in his search for truth.” Dambacher by Dambacher v. Mallis, 336 Pa. Super. 22, 36, 485 A.2d 408, 415 (1984).

Mr. Tedder, as a licensed social worker, has no reasonable pretension to specialized knowledge to be testifying with regard to psychological and/or psychiatric diagnoses. Accordingly, it was proper to preclude him from so testifying.

Moreover, the court had heard from two psychologists and two psychiatrists as witnesses on behalf of Mother with regard to these issues.

The substance of the next three complaints by Mother are that this court refused to decide a factual question as to whether or not Matthew had been sexually abused by Father, and yet allowed Father to have partial custody of the younger brother, Philip, under a best interest of the child standard.

It is axiomatic that the paramount concern in a child custody proceeding is the best interest of the child. McMillen v. McMillen, 529 Pa. 198, 602 A.2d 845 (1992). In dealing with visitation rights or partial custody cases, however, the more restrictive “grave threat” standard has long been applied. Scott v. Scott, 240 Pa. Super. 65, 368 A.2d 288 (1976); Scarlett v. Scarlett, 257 Pa. Super. 468, 390 A.2d 1331 (1978).

Visitation has been granted parents who have ignored their children for a long period of time, Commonwealth ex rel. Turner v. Strange, 179 Pa. Super. 83, 115 A.2d 885 (1955); who have failed to support their children, Scott v. Scott, 240 Pa. Super. 65, 368 A.2d 288 (1976); who have engaged in marital misconduct or have lived with lovers, Commonwealth ex rel. Sorace v. Sorace, 236 Pa. Super. 42, 344 A.2d 553 (1975); to parents whose children did not want to see them, Fernald v. Fernald, 224 Pa. Super. 93, 302 A.2d 470 (1973). Further, even in cases when the trial court found that sexual abuse had occurred between a parent and a child, that court still found that it was in the best interests of the child to continue to have contact with the parent, but under supervised visitation limitations and these findings were upheld by the appellate court. See S.H. v. B.L.H., 392 Pa. Super. 137, 572 A.2d 730 (1990).

The court declined to make a finding one way or the other with regard to the alleged sexual abuse, as it did not appear to be necessary. Matthew was bom on July 15, 1987; so by the time he testified in court he was 12 years old. Even if the allegations of sexual abuse were trae, the time period during which they allegedly occurred was approximately the summer of 1994 to perhaps early 1995. (See respondent exhibit 10, testimony before District Justice Mary Ann Cercone of August 1, 1995.) Thus, the alleged events had occurred more than four and one-half years prior to trial.

As we wrote the decision in December 1999, the supervised visitation status had been in place for almost five years. The critical area of inquiry involved the best interests of Matthew and Philip for the future, and whether or not Father posed a grave threat to them. We found that Matthew was clearly suffering from anxiety and depression, based not only upon the opinions of the medical and psychological witnesses who testified on behalf of Mother, but also the court’s own observations of Matthew in chambers. The court further found, based again upon the collective judgment of all of Mother’s witnesses, that ongoing contact, supervised or not, was contra-indicated with regard to the mental, emotional, and physical condition of Matthew. This obviated any need to find whether or not any sexual abuse had actually occurred.

With regard to the younger son, Philip, we had no evidence of inappropriate contact between Father and him, nor did we have any evidence to suggest that Philip was suffering from any physical or emotional type problems. To the contrary, the only evidence was that Philip and his Father interact well, play happily, and that Philip has a positive experience during the visits. Further, Father has remarried and has a stepson, Derrick, who is the same age as Philip. Father’s new wife, Melanie Palcsey, presented very credible testimony concerning the relationship between her son and Father, and her own observations of Father during the two years of their marriage. She indicated that her son had a very positive relationship with Father. She described how the two of them play games, and that Father bathes her son, gives him a snack, says prayers with him, and reads books nightly before bed. It was obvious from her testimony, and given the level of contact her son has with Father, that she has absolutely no reservation about her husband nor his interaction with her son. She further testified that her son and Philip have been together on occasion and that the visits and their interaction was great. She further presented emotional testimony that she has observed her husband over the last two years, praying nightly for the return of a relationship with his sons, and that he has often cried in her arms about this situation. She testified that he has worked several jobs and she changed her employment in order to help support the household so that this battle for custody could continue. We found her testimony to be very credible in all of these regards.

Further, because of the nature of the supervised visitation between Philip and his Father, two hours every other weekend for almost five years, we believed it was in Philip’s best interests to ease him into a more significant relationship with his father. Accordingly, the court ordered that Father, Mother, and Philip be referred to the parent and child guidance center program of “families in transition” for counseling, including three separate sessions between Father and Philip. The court further directed that unsupervised visitation commence only after completion of the five counseling sessions, and that for eight weeks, the unsupervised visitation be limited to four hours duration and always in the presence of Father’s new wife, Melanie Palcsey. Thereafter, for a period of four weeks, the court provided for unsupervised visitation on Sundays for eight hours in duration. The court then provided for partial custody every other weekend, and one off-week visitation on Wednesdays, summer custody, holidays, etc.

In child custody proceedings, it has been established in Pennsylvania that “[e]very parent has the right to develop a good relationship with the child, and every child has the right to develop a good relationship with both parents.” In re Constance W., 351 Pa. Super. 393, 398, 506 A.2d 405, 408 (1986). A parent “should seldom be denied” visitation with a child. Costello v. Costello, 446 Pa. Super. 371, 376, 666 A.2d 1096, 1099 (1995). There being no finding that Father suffers from severe mental or moral deficiencies that constitute a grave threat to Philip, he should not be denied visitation with him. Father had quite a restrictive form of visitation with Philip for almost five years. It was time for Philip to have an opportunity to create a relationship with his father.

Mother next complains that this court erred in allowing Melanie Palcsey, Father’s current wife, to serve as a supervisor during the initial visits between Father and Philip because she had no training or experience in the field of child sexual abuse, child development, or visitation supervising, and because she is biased.

While we did not specifically “label” Melanie Palcsey a supervisor, we did direct that the initial eight consecutive four hours of visitation, be conducted in her presence. We were mindful of the fact that Philip was familiar with Melanie, that her status as a stepmother in Philip’s future would be important, and it was our way of easing Philip away from the paid supervisor into a family-style environment with his father. Melanie presented testimony before this court, and in the court’s view, she was a compassionate and caring person who showed no bias one way or the other, and she could easily serve the purpose we intended of creating a comfort zone for Philip so as to facilitate the development of a relationship with his father.

Mother next asserts as error that the court denied her motion for reconsideration and did not grant a stay in the proceedings. For all of the above reasons, we believe that reconsideration and stay were not warranted and were contrary to the express intention of the decision of the court. Mother’s request for stay, made to the Superior Court, was likewise denied.

In her last three complaints of error, Mother asserts that this court did not give proper weight to, nor consider, the criminal charges brought against Father for allegedly sexually abusing Matthew.

The court was provided with the transcript of the testimony of the preliminary hearing before the district magistrate (respondent exhibit no. 10), as well as conflicting evidence as to why the criminal charges were not pursued to conclusion. Based upon the evidence before the district magistrate, Father was held for court on charges and a formal arraignment date was set. Thereafter, the charges were withdrawn by the Commonwealth at the time of trial in December 1995. There was conflict in the evidence as to what precipitated the withdrawal of the charges, but for the court’s purposes, we were then left only with the fact that charges had been filed by Mother. This court gave ample consideration to this evidence as it was presented, and while Mother suggests in one of her complaints of error that the prosecutors dropped the charges to protect Matthew from the trauma of testifying at a criminal trial, there remains only the fact that the charges were dropped.

For the foregoing reasons, the order of court dated December 28, 1999, should be affirmed.

      . References to the pages of the transcript of the October 26,1999 hearing are referred to as “Tr. at_.”