author: GORBEY, J.,

text:
    In re A.M.

      Michael McHale, for appellant.

      Deborah E. Spivack, for appellee.
    July 12, 2012
   GORBEY, J.,

Procedural and Factual History

A. M. R. (mother) is the mother of A. M., bom September 22, 1996, R. G., Jr., bom June 29, 1999 and S. T. F., bom November 27, 2008. A.’s father is R. M.-R., whose whereabouts are unknown. R.’s father is A. H., whose whereabouts are also unknown. S.’s father was thought to be S. L. R, about whom little is known except that he has a criminal history. But he was excluded by a genetic test, and mother now says that S.’s father is K. B., about whom little information is available. Mother has been involved with a child social service agency since 2003, when A. and R. were found to be dependent by the Berks county court, on account of unstable housing, mother’s mental health problems, lack of parental skills, inappropriate physical discipline, anger management issues, lack of parental supervision and tmancy. Berks county provided home services from February of 2003 to November of 2006, when the children moved to live with an uncle, where mother rarely visited. On July 23, 2007, A. and R. were placed in the legal and physical custody of the Berks county agency because the uncle had returned the children to mother, who still experienced the initiating problems. Mother had been diagnosed with Bi-polar and post traumatic stress syndromes but was not following medical recommendations.

Mother’s history with the Berks county agency did not proceed well. She missed visits with the children and was inappropriate when she did come. In May of 2008, she threatened to have the father of her two other children killed; criminal charges were filed and she was incarcerated between May 8,2008 and May 24,2008. She was discharged from Berks advocates against violence in December of 2008 as non-compliant. S. was born on November 27, 2008.

A.’s history showed a very troubled child. While living in a foster home, he urinated all over the bathroom, stored urine and feces, stole food and money, destroyed property, threatened other children, including R., and refused to do his homework. In 2007, he was partially hospitalized and medicated for disruptive behavior at school and he threatened suicide. He was placed in a therapeutic foster home, but his aberrant behavior continued. In July of2009, urine and feces were found stored in his room, and his refusal to close the shower door caused the foster home bathroom floor to collapse.

R. ’s behavior was equally troubling. In his Berks county foster home, R. urinated in inappropriate places, and cried himself to sleep every night. He has been diagnosed with ADHD, oppositional defiant disorder and depressive disorder.

On October 13, 2009 A. and R. were returned to mother under protective supervision, on the condition that mother cooperate with the children’s mental health treatment. In February of 2010 mother moved with the children to Lancaster county and the case, now concerning all three children, was referred to the Lancaster county children and youth social service agency (the agency). The children needed mental health treatment and were on various medications. After investigation, the agency learned that mother had not only stopped her own mental health treatment, but was no longer giving R. and A. their medications. The children’s behavior in school was out of control and mother would not cooperate with the school. Her parenting was inappropriate. When the agency told mother she needed services, mother ordered the caseworker out of her house and refused to cooperate.

In March of 2010, R.’s behavior in school became maximally disruptive. He showed seizure-like behavior, rolling on the floor. On one occasion the other students had to be removed for their safety. When he received an in-school suspension, he entered a closet and wouldn’t come out. His violent behavior continued to escalate. Mother did not answer the school’s calls. R. now has an aid assigned to him. Between October of, 2009 and March of 2010, R. had 29 unexcused absences, 7 tardies and 8 days of suspension. During the same period, A. had 20 unexcused absences, 49 unexcused tardies and 3 days of suspension, one of which was for inappropriate sexual comments toward his teacher.

A dependency petition for all three children was filed on April 1, 2010. The Lancaster county court granted the agency’s request for protective supervision on April 5, 2010, and the children were found to be dependent as of May 3, 2010. Mother failed to cooperate on her family service plan and the three children were placed in foster care on August 30, 2010.

Review hearings were held on August 30, 2010, December 20, 2010, February 28, 2011, July 22, 2011, October 31, 2011, December 2, 1022, April 13, 212 and May 14, 2012.

Mother’s compliance with her permanency plan was not consistent. At the review hearing on August 30, 2010 her progress was noted to be minimal in that she refused to sign releases for her mental health providers, canceled appointments for treatment and refused to provide documentation showing stable housing. She had also stated that she developed cancer of the knee, which understandably interfered with her activities. The children were removed from mother’s home. At the permanency reviews on February 28,2011, and May 16,2011, she was said to have made substantial progress, but subsequently it was discovered that mother had a boyfriend, Manuel Iguina (Manny), and had been involving him with her children, a fact she had not disclosed to the agency. The agency had negative information concerning Manny both as to criminal activity and a histoiy with the agency, and did not approve his contact with the children. Mother was specifically told that if she continued to live with Manny, the children could not be returned to her.

By the October 31, 2011 hearing, mother was again making only minimal progress. She was evasive with caseworkers. She had stopped therapy. She and Manny were living together and had applied for a marriage license, despite the agency’s concerns about him. By December 2, 2011, mother had not only discontinued her mental health treatment but her personal parent trainer had terminated their relationship, because of mother’s failure to cooperate. Family based services received through PA counseling were stopped by the provider because mother had canceled several appointments with the family based workers. Mother still needed to provide proof of income and housing. After the May 14, 2012 hearing, the goal for S. and R. was changed to adoption, and the goal for A. was changed to APPLA.

The court had difficulties with mother’s credibility throughout this matter. She professed to have cancer of the knee, but never presented any proof to the court. She lied in denying that Manny was living with her. She lied about her lack of cooperation, promising the court that she would sign waivers and perform various other tasks that were not completed. On other occasions, she stated she had done things required of her on her plan, which the court found out later she had not done. She lied about attending therapy sessions and blamed others for her shortcomings. She missed a couple of hearings, — once professing to have to attend chemotherapy and another time telling the caseworker before leaving the courthouse that she was finished fighting for her children. Given this history, it was difficult to make a decision as to the truthfulness of mother’s testimony. Mother very well may have had cancer but because of how untruthful she has been over the length of the case, everything she says and does is suspect.

On June 13, 2012, mother filed her appeal of the May 14th, 2012 order to the superior court, and it is pursuant to this appeal that this opinion is being written.

ISSUES

Whether a change of goal from reunification to adoption is appropriate where Mother has a nine year history with a children & youth agency because of her lack of proper parenting, suitable living arrangements, her refusal to commit to therapy for her substantial mental health problems, and her failure to cooperate sufficiently with a parent trainer so that the trainer dismissed her as a client, her substantial non-compliance with her agency plan, her living with and planning on marrying a man with a history of involvement with children and youth agency and of criminal activity, and where the children had been in foster care for at least 24 months as of March, 2012, and who were showing improvement in their behavior as a result of their placement and appropriate remedial treatment for their mental health problems.

ANALYSIS

A dependent child is:

one who is without proper care or control, subsistence, education as required by law, or other care or control necessary for his physical, mental or emotion health, or morals. A determination that there is a lack of proper parental care or control may be based upon evidence of conduct by the parent, guardian or other custodian that places the health, safety or welfare of the child at risk, including evidence of the parent’s, guardian’s or other custodian’s use of alcohol or a controlled substance that places the health, safety or welfare of the child at risk. 42 Pa.C.SA. § 6302

Given the facts of this case, which include mother’s troublesome behavior since 2003, it is clear to the court that these are dependent children. Once dependency has been decided, the court must consider the statutorily mandated factors of 42 Pa.C.S.A. § 6351 (f) at a subsequent permanency review hearings These are:

1. [To] determine the continuing necessity for and appropriateness of the placement;

2. [To] determine the appropriateness, feasibility and extent of compliance with the permanency plan developed for the child;

3. [To] determine the extent of progress made toward alleviating the circumstances which necessitated the original placement;

4. [To] determine the appropriateness and feasibility of the current placement goal for the child;

5. [To] project a likely date by which the goal for the child might be achieved;

6. [I]f the child has been in placement for at least 15 of the last 22 months or the court has determined that aggravated circumstances exist and that reasonable efforts to prevent or eliminate the need to remove the child from the home or to preserve and reunify the family need not be made or continue to be made, [to] determine whether the county agency has filed or sought to join a petition to terminate parental rights and to identify, recruit, process and approve a qualified family to adopt the child....

(In re N.C., 909 A.2d. 818, (Pa. Super 2006)

This last paragraph reflects the approach of the federal adoption and safe families act, which considers the amount of time a child has been in care as a specific and important element in a goal change decision.

“Essentially, the ASFA directs the emphasis away from the paramount importance previously enjoyed by parental rights to establish unequivocally that the goals for children in the child welfare system are safety, permanency and well-being... The legislative histoiy of ASFA reveals that this act was designed to curb an inappropriate focus on protecting the rights of parents when there is a risk of subjecting children to long term foster care or returning them to abusive families.” In the Interest of C.B. and A.L., Minors, 861 A.2d 287, 295 (Pa. Super 2004)

The court considered all of the above-cited elements. There is no doubt that A., R. and S. need to remain in placement at this time. Mother’s compliance with the plan is far from complete, and given the length of time she has been non-cooperative with her plan, the court has no way of predicting how long the children will remain in placement. At the moment, it appears that mother’s lack of cooperation with the agency and lack of commitment to her plan dictate that the children will not return to her.

Once a child has been adjudicated dependent, additional decisions are made according to his best interest. In re J.S.W, 651 A. 2d 167 (Pa. Super 1994) The court cannot believe that prolonging the current difficult situation which has no discernible end in sight will serve these three children’s best interests. Clearly, the intent of the legislature in providing the statutory instructions of section 6351(f) is to provide a reasonable amount of time — i.e., at least 15 months — for a parent to regain control of his or her life in order to have his or her child returned. But, the section also indicates that past fifteen months, the court must consider whether the odds are for or against the parents’ regaining that control within a reasonable period of time so the child need not live with the uncertainty of where he or she will live. The odds are not in mother’s favor.

As noted above, the court had difficulties with mother’s credibility. Among the doubtful facts, was her unproven cancer of the knee. Also, she asserted that she missed two hearings first because she told her caseworker that she was undergoing treatment for that unproven cancer, and second that she was finished fighting for her children. She lied in denying that Manny was living with her. She lied about her lack of cooperation, promising the court that she would sign waivers and perform various other tasks that were not completed. She lied about attending therapy sessions when she did not. She blamed others, mainly the caseworkers, for her shortcomings. It was difficult to make a decision as to the truthfulness of mother’s testimony; there were so many doubtful instances in this regard, that the court' could not give great weight to her averments absent independent corroboration.

S. and R. have been in the custody of the agency since March of 2010, a matter of at least 24 months on this latest placement. Mother has exhibited problems both physically and psychologically detrimental to the children since 2003, when the Berks county agency became involved with her. There is nothing to indicate to the court that she has conquered her difficulties. Despite some progress noted on two occasions, her regression to her troubled state indicates the inconsistency of her attempts to recover her children and leaves open the question of whether she will revert to non-cooperation. The court cannot today determine in the face of mother’s unstable behavior whether any progress she makes is a real sign of progress and recovery, because past progress has never lasted. The behavior of all three children has improved in their current placements, and the court is not willing to risk that a return to mother in her current state will cause a mental health relapse for all three.

After examining the requirements of the statute, the court concludes that the children’s current foster care placement is appropriate and feasible. The existing goal of reunification, given the children’s difficulties and mother’s lack of progress, is neither appropriate nor feasible. Mother had multiple opportunities to change her situation but chose not to, despite nine years of agency assistance. In fact, she made matters worse by adding Manny to the mix and being determined to marry him despite her knowledge that such an action will obviate the return of the children to her. The court is unable to provide a likely date for the goal of reunification to be achieved, and faced with only long-term negative behavior on mother’s part as set out above, and the improvement in the children’s behavior while in the agency’s custody, hereby changes the goal of R. and S. to adoption and that of A. to APPLA.

      . Because of appellant’s attorney’s delay in timely ordering the transcripts, this opinion is being written without the benefit of verbatim testimony.

      . A. had decided that although he did not want his mother’s parental rights terminated, he wanted to live permanently with his current foster parents, a plan approved by the court, upon the recommendation of the agency.

      . On May 1, 2012, the court had terminated mother’s rights to S. and R. That decision was appealed to the superior court concurrently with this appeal, on June 13, 2012.


source: Caselaw Access Project

author: REIBMAN, J.,

license: Public Domain

text:
    Zangrandi v. Kay Builders

      _, for plaintiff.
    _, for defendant.
    July 24, 2012
   REIBMAN, J.,

Plaintiff, Gelson Zangrandi, has brought suit seeking recovery for damages alleged to have resulted when he slipped and fell off a roof upon which he had been laboring in the course of his employment with defendant Lima Construction, LLC (“Lima”), which had been hired by defendant Kay Builders (“Kay”) to perform work on a home under construction. Kay moves for summary judgment, arguing there is no evidence indicating it retained sufficient control over the work being performed by the subcontractor that employed plaintiff so as to incur liability for plaintiff’s injuries resulting from the fall. For the reasons explained below, the motion will be granted.

H — I

Kay owned a building lot and had hired Lima as independent contractor to provide framing services on a newly constructed home to be built in accordance with blue-print specifications provided by Kay. (See dep. of plaintiff, at def. mot. sum J. ex. A; see also id. ex. C.) Consistent with that arrangement, Lima hired various workmen, including plaintiff, to frame the structure and install plywood sheathing on the roof. (See id.; see also dep of A. Silva, at def. mot sum J., ex. B.) On January 29, 2010, plaintiff was working on the roof and lost his footing. (Ibid.) Because no “cleat” had been nailed on the roof as a safety precaution to arrest the descent of a fallen worker, plaintiff cascaded off the ledge and incurred injuries including broken wrists as a result of his fall. (See pi. complaint.)

Plaintiff’s employer, Lima, enjoys workers’ compensation immunity for any damages. Plaintiff, however, seeks recovery from Kay, alleging that it was responsible for the worksite and, through its personnel who provided daily inspections to ensure conformance of the work to the plans, retained control over the work. As such, plaintiff maintains Kay is liable for common-law negligence based, in part, on alleged noncompliance with OSHA regulations, found at 29 C.F.R. § 1926.16, which impose joint responsibility on prime and subcontractors for worksite safety. Kay counters that the record in this matter fails to present an issue of material fact sufficient to support a conclusion that it retained control to the extent required under the decisional law so as to incur liability for an injury sustained by an employee of a subcontractor.

II.

Summary judgment is appropriate when there exist “no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.” Sphere Drake Ins. v. Phila. Gas Works, 566 Pa. 541, 545, 782 A.2d 510, 512 (2001). In applying this test, the court must view the record “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.” Washington v. Baxter, 553 Pa. 434, 440, 719 A.2d 733, 736 (1998). Additionally, summary judgment should be granted “only in those cases which are free and clear from doubt.” Id. Summary judgment is proper, however, when a “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 a jury.” Pa. R.C.P. No. 1035.2 (2); Ertel v. Patriot News Co., 544 Pa. 93, 100, 674 A.2d 1038, 1041-42 (1996). Furthermore, a trial court is not required to scour the record to identify facts of record precluding entry of summary judgment when the non-moving party has failed to do so. See Harber Philadelphia Center City Office Ltd. v. LPCI Ltd. Partnership, 764 A.2d 1100, 1105 (Pa. Super. 2000).

It has long been the general rule in Pennsylvania that “an owner of property does not have a duty to protect the employees of an independent contractor from risks arising from or created by the j ob contracted. ” LaChance v Michael Baker Corp. 869 A.2d 1054, 1057 (Pa. Cmwlth. 2005) (citing Celender v Allegheny County Sanitary Authority, 222 A.2d 461, 463 (Pa.Super. 1966)). In LaChance, Penn-DOT had awarded a road-construction contract to Baker Heavy & Highway, Inc. Id. at 1055. Plaintiff, an employee of Baker, was fatally injured when a trench collapsed pressing him against a pipe on which he had been working. Id. at 1055. In determining whether the record included evidence sufficient to impose liability on PennDot, the court examined Section 414 of the second restatement of the law on torts rather extensively. It noted that in the event an owner retains control over the work, liability will result from the failure to exercise such control with reasonable care. However, in scrutinizing this provision of the restatement, the court underscored the following points contained in comment c of section 414, noting:

In order for the rule stated in this section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.

Id. at 1058-59 (emphasis supplied by LaChance). Thus, notwithstanding the fact that PennDot had exercised its contractual “inspection rights... to assure itself that Baker performed its work safely,” had engaged in “contractor performance reviews,” and even had a field inspector direct that the subject pipe work be performed so as to comply with contract specifications, the court declined to find that such activities constituted sufficient control over the manner of work to satisfy section 414’s requirements, especially where there was no evidence that PennDOT directed the activities relating to inadequate bracing of the trench that resulted in the accident.

Id. at 1061-62.

Likewise, the issue of sufficient retention of control was squarely confronted by the Pennsylvanian Supreme Court in Hader v. Coplay Cement Co., 410 Pa. 139, 189 A.2d 271 (1963). In that case, the defendant hired an independent contractor to install a stone crusher and surrounding building on its premises. Id. at 273. In the course of the project, the plaintiff, an employee of the contractor, sustained injuries when he fell from the structure. Id. at 274. Although barred from tort recovery against his employer by the workers compensation act, he sued the defendant, contending it had retained sufficient control of the premises and project so as to incur liability. Id. at 277-78. More specifically, the plaintiff argued that defendant’s plant manager and its vice president visited the job-site frequently to observe the progress of the work and that the defendant had another employee on-site continuously to ensure that the work was being done according to the agreed-upon plans and specifications. Id. at 278.

Rejecting the notion that such measures constituted sufficient retention of control in order to result in liability, the Supreme Court observed: ‘”It is normal for an owner or an interested party to visit the scene of new construction to observe the progress of the work. Such inspections of finished work furnish no evidence of a right to control the workmen[;] . . . inspection of the finished work shows only an interest in ‘the result to be obtained.”’ Ibid. The court acknowledged there existed evidence in that case of a continuous presence of a defendant’s “watchdog” employee, who, on three occasions, advised the workers on how to install plates, set a pin, and ensure proper fit of the crusher. Ibid. However, the court further noted that the employee never gave explicit orders and, thus, did not interfere with the subcontractor’s control of the work. Ibid. Therefore, liability would not attach. As the court explained: “[0]ne who employs an independent contractor may also employ a person to ascertain that the work of the independent contractor is being done according to plans and specifications and the employment of such person in no way indicates that the independent contractor is being subjected to control.” Ibid, Accordingly, the Court upheld the entry of a nonsuit against the plaintiff. Id. at 279.

Conversely, where an owner exercises control, liability may attach. For instance, in Bullman v Giuntoli, 761 A.2d 566 (Pa. Super. 2000), the plaintiff sustained injuries when she fell off a plank into a basement as she was being escorted by the owner on a visit to the property-owner’s construction site. There, the court held a question of material fact precluded summary judgment where the record indicated that the homeowner played “far more than a passive role in overseeing construction of house” and may not have relinquished full possession of the area where the fall occurred. Id. at 577-78. Similarly, in Byrd v. Merwin, 456 Pa. 516, 317 A.2d 280 (1974), the owner retained control over the selection of subcontractors and the order in which they performed work on the overall renovation project. Consequently, the owner remained subject to liability for injuries to electrical subcontractor hurt when another subcontractor dropped a staircase on him. Id. at 282. There, the evidence supported inference of negligence by the homeowner both in the selection of stair installers — teenage boys who were previously reported to owner as “clowning around’ on the job” — and in directing that their work be performed after, instead of prior to, the electrical work undertaken by the plaintiff. Ibid.

Finally, in relation to tort recovery premised on alleged violations of OSHA and shared regulatory obligations by prime-and subcontractors, our Supreme Court has instructed that, as a threshold matter, it must first be established that a defendant had control over the work performed by plaintiff, and absent that element, “liability does not attach.” See Leonard v. Commonwealth. 565 Pa. 101, 107, 771 A.2d 1238, 1241 (2001) (interpreting 29 C.F.R. § 1926.16 to subject prime-contractors only to “enforcement provisions” of OSHA and holding tort liability governed by decisional law respecting control of work). In the present matter, the operative question thus becomes whether there exists any evidence that the conduct of Kay went beyond the presence of personnel to ascertain that the work of Lima and its employees, such as plaintiff, was being performed according to plans and specifications. If, as in LaChance and Hader, the record viewed in the light most favorable to plaintiff indicates nothing more and provides no evidence from which it may reasonably be inferred that Kay subjected Lima and its workers to control over the manner of the framing and roofing work, as opposed to only the “result to be obtained,” summary judgment must be entered in favor of Kay.

III.

In resisting the motion for summary judgment, plaintiff emphasizes the presence of Kay personnel at the worksite. Specifically, he points to deposition testimony indicating that Kay employees “would inspect the work and check all facets of the work everyday,” “supply all materials,” “make changes to the plans,” and in one instance stopped another independent contractor’s work because it deemed it unsafe.” (See PI. brf [unpaginated] (citing dep. of Joe Alban).) Plaintiff further insists that a Kay employee, Joe Alban, “walked the work, site constantly checking for things such as contract adherence, progress, adherence to drawings scheduling and safety issues.” In support of that conclusion, he cites the following deposition testimony:

[PI. counsel] Q.... Now, earlier I asked you to give me kind of a brief overview of your job responsibilities as rough supervisor. You said overseeing the independent contractors during breaking of the ground through drywall. Can you be a little more specific in what your daily responsibilities were in terms of overseeing these independent contractors?
[Joe Alban] A. Depending on which contractor. It varied. But, for the most part, it was to make sure that they were complying with the blue print and making sure that the materials were there and that they had the right amount of materials, and to see if there was any discrepancies between the blueprint and change orders, that I would convey those changes and we would make them. Pretty much that’s about it.
Q. And would you visit each job site each day?
A. I would try to, yes. Understand I had 20 to 30 houses under construction. So, sometimes I didn’t get to all of them.
Q. Who provided the blueprints?
A. Kay Builders.
Q. Okay. And who provided the building materials?
A. Kay Builders.
Q. Now, did any of your daily duties have anything to do with enforcing safety issues?
A. Yes, it did. It pertained to, if I was bringing in a potential client or apotentialhomeowner or ahomeowner or one of my employees or fellow employees, to go in, make sure that there was fall protection at the stairwells, windows were railed off, see that there wasn’t a lot of debris laying around. If the mason was working out front, for example, make sure the door was taped off and planked.
You know, that type of thing.
Q.Wereyouresporisibleforscheduling when contractors would work at let’s say Windsor woods project?
A. When it pertained to the rough end of construction, yes.
Q. Would you coordinate the work among the subcontractors or the independent contractors?
A. Say that again, please.
Q. Would you coordinate the work-was there ever a time during the rough stages where there would be more than one contractor working at the property?
A. Yes
Q. And would you be responsible for coordinating the work?
A. Yes.
Q. And did you schedule the deliveries?
A. Yes.
Q. And I think you already told us that you would walk through the site to evaluate the progress?
A. Yes.
Q. And you would walk through the property to evaluate the progress to make sure that it was done on schedule or at least the work was on schedule?
A. Yes.
Q. And to make sure that the work was being done properly?
A. Just that it met what Kay standards was building.
Q. When you say met what Kay’ standards was building, what do you mean by that?
A. Well, that they were following the blueprint.
Q. Did you ever see any independent contractors, while you were with Kay, erect ladders inside the house, homemade ladders?
A. Yes.
Q. On, approximately, how many occasions did you see that?
A. Once.
Q. And what did you do when you saw it?
A. Stopped it.
Q. Had you ever seen a written agreement with Kay and any independent contractors?
A. No
Q. Did anyone tell you from Kay that you didn’t have responsibility to make sure that the independent contractors were performing safely?
A. I don’t recall it — I don’t recall.

[Plaintiff’s counsel] Q. Did — was Kay able to shut down the job site at Windsor Woods at anytime they wanted?

[Kay president R. Koze] A. I suppose. We have never done it, but I suppose, yeah.

(See PL brf. [unpaginated] (quoting Dep. testimony of Alban and Koze).)

Viewing this deposition testimony cited by plaintiff and even accepting, arguendo, his characterizations of that testimony, the record evidence does not admit of a reasonable inference that Kay controlled the manner in which the work was to be performed by Lima. Instead, as in LaChance and Hader, Kay charged its on-site employees only with inspecting the work and ensuring the “result to be obtained.’” Thus, like the defendant in Hader, at most, Kay’s representative constituted a continuous presence of a “watchdog” employee. But, as in Hader, there is no indication Kay’s personnel gave explicit orders to Lima’s employees so as to interfere with that subcontractor’s control of the work. At most, on these facts viewed in the light most advantageous to plaintiff, Kay employed a person to ascertain that the work of the independent contractor was being performed in accordance with plans and specifications, and the employment of such personnel did not subject Lima to the control of Kay to the extent necessary for liability to arise.

Nor, unlike the situation prevailing in Bullman, supra, is there any plausible basis here to conclude that Kay failed to relinquish control over the part of the property where plaintiff sustained his injury. Unlike Bullman, this is not a case in which a visitor was injured as a result of the property-owner/construction-manager’s failure to exercise reasonable care to his invitee in relation to property still under his control. The record cited by Kay renders it evident and uncontested that Lima was the subcontractor in charge of installing the roof sheathing upon which its employee, plaintiff, lost his footing and fell. Further, unlike Byrd, supra, there can be no contention that the order in which the subcontractors performed their work at the behest of Kay caused the injury in question. Therefore, in the absence of a record from which it may reasonably be inferred, under the controlling principles of decisional law, that Kay controlled the manner of work so as to incur liability for injury to a subcontractor’s employee, summary judgment must be entered in favor of Kay.

IV.

For the foregoing reasons, no genuine issue of material fact exists to warrant submission of the present matter to the finder of fact. Kay is, therefore, entitled to judgment as a matter of law pursuant to the accompanying order, which directs the entry of summary judgment in its favor.

ORDER

And now, July 24, 2012, upon consideration of defendants’ motion for summary judgment, filed on February 15, 2012, and plaintiff’s response thereto, filed onMay 15,2012, and after argument held on July 20,2012, and for the reasons set forth in the accompanying opinion, it is ordered that said motion is granted and plaintiff’s claims are hereby dismissed with prejudice.


author: SIBUM, J.,

text:
    Sajdak v. Goicochea.

      Mary Louise Parker, for plaintiff.

      Richard Kovacs, Michael Mancuso, & John E. Toczydlowski, for defendant.
    June 8, 2012
   SIBUM, J.,

This matter comes before the court on defendants Robert and Brígida Goicochea’s preliminary objections to plaintiffs’ complaint. Plaintiffs commenced this action with the filing of an erit of summons on May 11, 2011. Plaintiffs then filed a complaint on March 5, 2012, alleging several counts of intentional misrepresentation, intentional failure to disclose, negligent misrepresentation, and violations of the unfair trade practices act and real estate disclosures act. Essentially, plaintiffs allege that they were defrauded during the purchase of real property. Defendants Robert and Brígida Goicochea filed preliminary objections on April 5, 2012, raising six motions for legal insufficiency of a pleading (demurrer), as well as a motion to strike for failure to conform to a rule of court. Defendants filed a brief in support of their position on April 20, 2012. Plaintiffs filed a brief in opposition on May 2, 2012. Oral argument was heard on May 7,2012. We are now prepared to decide this matter.

DISCUSSION

Pursuant to Pa. R.C.P. § 1028(a), preliminary objections may be filed by any party to any pleading on several grounds, including:

(2) Failure of a pleading to conform to law or rule of court or inclusion of scandalous or impertinent matter;
(3) Insufficient specificity in a pleading;
(4) Legal insufficiency of a pleading (demurrer).

Pa. R.C.P. 1028(a)(2), (3), (4), In ruling on preliminary objections, we recognize that the court must accept as true “all well-pleaded allegations and material facts averred in the complaint, as well as all reasonable inferences deducible therefrom....” Wurth by Wurth v. City of Philadelphia, 584 A.2d 403, 407 (Pa. Cmwlth. 1990). The court need not accept as true, however, “conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion.” Myers v. Ridge, 712 A.2d 791, 794 (Pa. Cmwlth. 1998).

When ruling on a preliminary objection that would dismiss the action, we are mindful to sustain the objection only in the cases which are clear and free from doubt. King v. Detroit Tool Co., 682 A.2d 313, 314 (Pa. Super. 1996). In determining whether the factual averments of a complaint are sufficient to state a cause of action, all doubts must be resolved in favor of the sufficiency of the complaint. Slaybaugh v. Newman, 479 A.2d 517, 519 (Pa. Super., 1984). A demurrer will be sustained only where the complaint demonstrates with certainty that under the facts averred within, the law will not permit a recovery. Id.; see also Cianfrani v. Commonwealth, State Employees’ Retirement Bd., 505 Pa. 294, 297, 479 A.2d 468, 469 (1984). If any theory of law will support the claim raised by the complaint, dismissal is improper. Slaybaugh, supra; Cianfrani, supra. Alternatively, a motion to strike a pleading may be granted when lack of conformity to a law or a rule of court occurs. Pa.R.C.P. § 1028(a)(2).

The relevant facts of the case, as alleged in the complaint, are as follows. This action arises out of the purchase of real estate located at 66 Pine Ridge Road, Lake of the Pines, East Stroudsburg, Pennsylvania 18302, by plaintiffs Marcella and Catherine Sajdak (buyers). Defendants Robert and Brígida Goicochea (sellers) were the sellers of the real estate. Defendant Acclaim Realty, Inc. doing business as Weichert Realtors Acclaim was the real estate broker responsible for the transaction and defendant Marco C. Pither was the agent for the sellers. Defendant Joel W. Schachter is the principal member of Precise Home inspections LLC and performed a home inspection for buyers prior to closing.

An agreement of sale was signed by buyers and sellers on October 12, 2009. Pursuant to the Real Estate Seller Disclosure Act, 68 Pa. C.S.A. 7301 (RESDA), sellers signed and delivered to buyers a sellers’ property disclosure statement which buyers acknowledged receiving on October 12, 2009. A property inspection was performed on October 17,2009, and a report was delivered to buyers the next day. An addendum to the agreement of sale indicating that the property was being sold “As is” was signed by sellers and buyer Marcela D. Sajdak on October 17,2009. Buyer Catherine M. Sajdak signed the addendum on October 21, 2009. Closing occurred on November 24, 2009.

In the disclosure statement, sellers indicated, inter alia, that:

a. While they were aware of water leakage, accumulation and dampness in the basement or crawl space, they did not know of any repairs or attempts to control these conditions;
b. They were unaware of problems with the walls, foundations, or other structural components of the property;
c. They were unaware of water damage to the property;
d. They had not made any additions, structural changes, or other alterations to the property during their period of ownership;
e. They had replaced some plumbing to repair problems with the water supply, plumbing system and related items;
f. They were not aware of any sliding, settling, earth movement, upheaval, subsidence, or earth stability problems that had occurred or affected the property;
g. They were not aware of any past or present drainage or flooding problems affecting the property; and
h. They were not aware of any material defects, as defined in the disclosure statement, to the property, dwelling, or fixtures that were not disclosed in the disclosure statement.

Buyers allege that after closing, they realized that they had purchased a home with serious structural defects, as well as continuing problems of water infiltration and mold infestation. They allege that sellers knowingly made false representations regarding the condition of the home on the disclosure statement. Further, buyers allege that sellers hired contractors to actively conceal structural and other defects in the home, and then made knowingly false representations about these actions in the disclosure statement. Specifically, buyers allege that sellers and/or their agents:

a. Built an interior cosmetic wall to conceal a large and serious crack in the foundation wall;
b. Replaced the deteriorated and rotting first floor deck including floor joists, main support beam, sub-floor, and supporting knee-wall;
c. Deposited debris from decking and flooring work into the lower level crawl space where it was left to rot and decompose;
d. Installed insufficient footers and support beams in the crawl space.

Buyers allege that they justifiably relied upon the representations made in the disclosure statement as well as the appearance of the condition of the property created by the deceitful actions of sellers, and were thereby induced to purchase the property at a price of $132,950. Buyers allege that as a direct and proximate result of this reliance, they suffered losses in excess of $60,000. Buyers allege six counts against the sellers, including: intentional misrepresentation, intentional failure to disclose, negligent misrepresentation, punitive damages, violation of the Unfair Trade Practices Act and Consumer Protection Law, and violation of the Real Estate Disclosure Act.

In the matter now before the court, sellers raise six motions for legal insufficiency of a pleading (demurrer), one for each count alleged against them. They also raise a motion to strike counts 8, 9 and 10 of the complaint for failure to conform to a rule of court.

I. Fraud Claims-Counts 1-5

As each of sellers’ demurrer motions involve the same argument, save for count 6 regarding punitive damages, there is no need to address them separately. Sellers argue that due to the “As is” language in the addendum to the agreement of sale, buyers cannot make out a prima facie claim against sellers. Sellers aver that all claims against them sound in fraud, and that the elements of fraud include justifiable reliance on a material misrepresentation. Sellers argue that as a matter of law, neither materiality of the alleged misrepresentations nor justifiable reliance on same can be maintained by buyers, where their agreement expressly removes the condition of the property from consideration and the purchase is “As is.” We disagree.

First, we do agree with sellers that all of buyers’ claims sound in fraud and that the elements of fraud include justifiable reliance on a material misrepresentation. In real estate transactions:

[Fjraud arises when a seller knowingly makes a misrepresentation, undertakes a concealment calculated to deceive, or commits non-privileged failure to disclose. Fraud is a generic term used to describe anything calculated to deceive, whether by single act or combination, or by suppression of truth, or suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or silence, word of mouth, or look or gesture.

Blumenstock v. Gibson, 811 A.2d 1029, 1034 (Pa. Super. 2002). The specific elements of fraud are as follows:

(1) a representation;
(2) which is material to the transaction at hand;
(3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false;
(4) with the intent of misleading another into relying on it;
(5) Justifiable reliance on the misrepresentation; and
(6) the resulting injury was proximately caused by the reliance.

Gibbs v. Ernst, 538 Pa. 193, 208, 647 A.2d 882, 889 (1994). A misrepresentation is material if the party would not have entered the agreement but for the misrepresentation. Eigen v. Textron Lycoming Receperating Engine Division, 874 A.2d 1179 (Pa. Super 2005). To be justifiable, reliance upon the representation of another must be reasonable. Drelles v. Manufactures Life Insurance Co., 881 A.2d 822 (Pa. Super. 2005).

While there is no law directly on point to the factual scenario of the instant case, the most analogous case, and the case primarily relied on by Sellers, is Youndt v. First National Bank of Port Allegany, 868 A.2d 539 (Pa. Super. 2005). In Youndt, commercial property purchasers brought an action against a vendor, alleging that the vendor intentionally and fraudulently failed to disclose problems with the property’s water and sewage system. Id. at 542. The buyers brought claims for fraudulent misrepresentation, fraudulent concealment, and fraudulent nondisclosure. Id. The agreement of sale contained an “As is” disclaimer as well as an integration clause. Id. at 543. Seller allegedly made an oral representation that there were no problems with the property, which buyer alleged constituted fraud. Id. at 545. The court devoted much of the opinion to discussion of the parole evidence rule and the sale agreement’s integration clause, issues not relevant to the case at hand. However, the court then turned to the issue of fraudulent nondisclosure and whether or not such a cause of action was barred by the “As is” language in the sale agreement. Id. at 550-51. The court held that such an action was barred, as the buyers had assumed the risk of defects by agreeing to the “As is” language, and therefore, the sellers had no duty to disclose the defects. Id. Finally, the court emphasized that the buyers waived their claim that the defect “was not readily apparent to a layperson” was meritless.

Youndt is distinguishable from the instant case for several reasons. First, in Youndt, the fraudulent misrepresentation at issue was an offhanded, oral comment by the seller that “there were not problems” with the property. Youndt, 868 A.2d at 549 (42 Pa Super. 2005). The court held that this statement was barred from evidence by the parole evidence rule and stated that “a seller of commercial real estate must be permitted to contractually limit liabilities arising from the condition of the property sold by means of specific contractual provisions, and that the other party may not circumvent such provisions by a vague allegation of fraud in the inducement.” Id. Thus, the Youndt court never reached the question of whether or not the “As is” language barred the fraudulent misrepresentation claim, only that the parole evidence rule barred the introduction of the oral evidence. Further, the court specifically limited its holding to sellers of commercial real estate and emphasized that contractual provisions may not be circumvented by “a vague allegation of fraud in the inducement.”

In the instant case, the real estate was for residential, not commercial purposes. More importantly, the alleged fraudulentmisrepresentation was not a vague, oral comment barred by the parole evidence rule. Indeed, buyers allege that sellers presented them with a disclosure statement that contained several written, specific representations as to the condition of the property that turned out to be false. If anything about the agreement was vague and offhanded, it was the “As is” clause, a handwritten statement scrawled onto the last page of the typed agreement. We find that the facts here, in which Sellers allegedly presented buyers with a disclosure statement that contained multiple written, specific fraudulent misrepresentations as to the condition of the property, is a much different factual scenario than that of Youndt discussed above.

Next, in dismissing the buyers’ claim for fraudulent concealment, the Youndt court held that the buyers had failed to aver any attempt by the sellers to conceal the condition of the sewer system. Id. at 550. Here, buyers aver that sellers constructed an interior wall solely to hide the existence of a large foundational crack, despite the fact that sellers stated in the disclosure statement that they were unaware of any problems with the foundation. While the construction of this wall was not a verbal misrepresentation, the law is clear that any action calculated to deceive may be considered a misrepresentation constituting fraud. Blumenstock, 811 A.2d at 1034 (339 PA Super. 2002). Again, the facts of the instant matter are vastly different than those of Youndt.

Further, the Youndt court dismissed the buyers’ fraudulent nondisclosure claim, holding that because of the contract’s “As is” clause, the buyers had assumed the risk of defects and that the sellers had no duty to disclose defects known to them. Id. at 551. However, significant for the instant matter, the Youndt court did not hold that the “As is” language disclaimed all warranties, only that it disclaimed any implied warranties and released the sellers from their duty to disclose any defects known to them. Id. To wit:

First, there is the typewritten clause stating that appellants were purchasing the property “As is.” This is part of a provision in which National Bank, as the seller, warranted the condition of the water pipes to the motel. And if there was any doubt that the bank was not making any other warranties, the final paragraph of the agreement states that appellants have “agreed to purchase it in its present condition unless otherwise specified herein.” Thus, through their bargaining, the parties agreed that the bank would warrant the condition of one part of the property (the water pipes to the motel), but that appellants would accept the remainder of the property in its present condition and without warranty.

Id. Thus, the court held that the express warranty as to the water pipes remained in force, but the “As is” language meant that the buyers would accept the rest of the property without warranty.

Turning to the instant matter, sellers argue that Youndt stands for the proposition that the “As is” language in the contract expressly removes the condition of the property from consideration. We do not agree. While “As is” language releases sellers from their obligation to disclose defects and disclaims any implied warranties, it does not remove from consideration express statements or actions made by sellers as to the condition of the property. In other words, while it allows sellers to remain silent as to the existence of defects, it does not give them free reign to make express misrepresentations as to the existence of defects or to conceal those defects. To accept Sellers’ argument is to give an “As is” clause the effect of crossing one’s fingers while making a promise. We are not inclined to hold that sellers of residential real estate may provide buyers with page upon page of false statements as to the condition of the property, and then disclaim any liability by simply hiding two magic words somewhere in the paperwork.

This interpretation is supported both by statute and case law. The Pennsylvania commercial code states that “all implied warranties are excluded by expressions like “As is.” 13 Pa. C.S.A. § 2316. Further, the commercial code states that whenever possible, an express warranty should be construed to be consistent with language tending to negate or limit warranties. Id. Thus, it is clear that “As is” language does not negate an express warranty, and indeed should be read in conjunction with that warranty to negate any implied warranties. Courts interpreting this provision have come to the same conclusion. For example, in Morningstar v. Hallett, 858 A.2d 125 (Pa. Super. 2004), the buyer of a horse brought suit for fraud and misrepresentation against the seller. The sales contract stated that the horse was 11 years old and that the buyer was buying the horse “As is.” It was later determined that the horse was in fact 16 years old. In holding for the buyer, the court stated:

[W]e conclude that the “As is” clause is inconsistent with the express warranty created by the description of the horse as provided in the sales agreement and hold that the “As is” language contained in the sales agreement is insufficient to disclaim the express warranty that the horse was 11 years old....Thus, the “As is” language contained in the sales agreement does not necessarily preclude an action by Hallett for fraud, misrepresentation, deceptive trade practices, or mistake.

Likewise, in the case at hand, we hold that the “As is” clause in the addendum to the agreement of sale is insufficient to negate the express warranties created by sellers’ statements as to the condition of the property in the disclosure statement. Nor does the “As is” clause give sellers license to actively conceal defects with the property. We conclude that this holding is consistent with the law as set forth in Youndt for the reasons discussed above, namely that Youndt did not contemplate the affect of an “As is” clause on express, written warranties such as those present here. As such, we find that as a matter of law, the “As is” language in the addendum to the agreement of sale does not preclude buyers from proving that the alleged misrepresentations in the disclosure statement were material or that their reliance on said misrepresentations was justified.

Nevertheless, because an “As is” clause does disclaim any implied warranties and serves to release sellers from their duty to disclose known defects, as a matter of law, a claim for failure to disclose must fail if “As is” language is present in the contract. Here, buyers have labeled count II of the complaint “intentional failure to disclose.” However, reading the averments ofthat count, it is obvious that Buyers are actually making a claim for fraudulent concealment. Paragraph 19 of the complaint reads; “In addition to the knowingly false representations...Goicochea took action to intentionally conceal facts relating to the condition of the property.” The count goes on to detail the ways in which Sellers allegedly concealed underlying problems with the property. For the reasons discussed above, an “As is” clause does not preclude a cause of action for fraudulent concealment. We are not inclined to dismiss this count simply because buyers have mislabeled it or were unaware that a fraudulent concealment claim is distinct from a claim for intentional failure to disclose.

Finally, sellers argue that the home inspection report put buyers on notice as to problems with the property, and that this would further prevent buyers from justifiably relying on the sellers’ representations in the disclosure statement. For example, the home inspection report noted that there were problems with moisture and rot in the crawl space, that the sump pump was in disrepair, and that the decks were in need of a complete overhaul as their foundations were inadequate. While we agree that the disclosures in this report will certainly impact whether or not buyers’ reliance on the disclosure statement was justified, we do not find that as a matter of law this report takes that determination out of the province of the jury. Several of the more serious defects buyers allege were not disclosed in the home inspection report, such as the large foundational crack concealed by an interior wall.

Further, many of buyers’ allegations involve the conduct of the sellers, not necessarily the condition of the property itself. The disclosures in the home inspection report are irrelevant to these allegations. For example, in the disclosure statement, sellers stated that they had not made any “structural changes or other alternations to the property during their period of ownership.” Yet, in the complaint, buyers allege that sellers installed insufficient footers and support beams in the crawl space. Moreover, sellers stated in the disclosure statement that they were not aware of any present drainage or flooding problems. However, in the complaint, buyers allege that sellers took steps to actively conceal underlying problems with flooding. As these allegations involve actions taken by sellers, not the condition of the property itself, the disclosures in the home inspection report are irrelevant to buyers’justifiable reliance on the disclosure statement.

Thus, for the reasons discussed above, we hold that as a matter of law buyers have met their burden of establishing a prima facie case as to the elements of common law fraud, including materiality and justifiable reliance. As such, they may move forward with their claims for intentional misrepresentation, intentional failure to disclose, negligent misrepresentation, and violations of the unfair trade practices act and real estate disclosures act. We acknowledge that in light of the “As is” clause and the home inspection report that buyers may face great difficulty in convincing a jury that they were defrauded by clear and convincing evidence. However, they need not meet that burden now. The law is clear that at this stage all doubts must be resolved in favor of the sufficiency of the complaint and that a demurrer will be sustained only where the complaint demonstrates with certainty that the law will not permit a recovery. Staybaugh, 479 A.2d at 519 (330 Pa. Super. 216). We are not certain that the law will not permit a recovery here, and thus sellers’ motions for legal insufficiency of a pleading as to counts 1, 2 3, 9, and 10 are overruled.

II. Punitive Damages-Count 6

Sellers argue that count eight of the complaint for punitive damages fails to state a claim upon which relief may be granted as no independent cause of action for punitive damages exists. Sellers make no other argument as to why punitive damages are inappropriate in this case.

Under Pennsylvania law, punitive damages may be awarded only if a defendant’s conduct is outrageous because of the defendant’s evil motive or his reckless indifference to the rights of others. Feld v. Merriam, 506 Pa. 383, 475 A.2d 742 (1984). Reckless conduct is considered outrageous conduct which can give rise to punitive damages. Id. at 748. Allegations to support a claim for punitive damages must be plead with a high degree of precision and specificity. Smith v. Brown, 423 A.2d 743 (Pa. Super., 1980). Pennsylvania does not allow an award of punitive damages for mere inadvertence, mistakes, or errors of judgment which may constitute ordinary negligence.

In the instant case, Buyers allege that sellers intentionally concealed defects on the property and then expressly lied abouttheir actions in the disclosure statement. Buyers allege that sellers went so far as to construct an interior wall for the purpose of concealing a large crack in the foundation of the house. Sellers then allegedly stated that they were not aware of any problems with the foundation or structure of the property. These allegations, if proven, tend to show that sellers’ alleged actions were not simply mistakes or errors in judgment, but calculated actions designed to deceive and defraud buyers. If these allegations are true, sellers were at best recklessly indifferent to the rights of buyers. Thus, we hold that the claim for punitive damages is appropriate. Sellers’ motion for legal insufficiency of a pleading as to count 8 is overruled.

III. Motion to Strike-Count 7

Sellers argue that counts 8, 9, and 10 of the complaint should be stricken as buyers grouped together all defendants in a single count, in violation of Pa.R.C.P. 1020(a).

Pa. R.C.P. 1020(a) states:

The plaintiff may state in the complaint more than one cause of action cognizable in a civil action against the same defendant. Each cause of action and any special damage related thereto shall be stated in a separate count containing a demand for relief.

As nothing in this rule prohibits plaintiffs from grouping multiple defendants together in a single count, sellers’ motion to strike is overruled.

Accordingly, we enter the following order.

ORDER

And now, June 8,2012, after consideration of defendant Robert and Brigida Goicochea’s preliminary objections, plaintiffs’ response thereto, the pleadings of record, and oral argument heard in the matter on May 7, 2012, it is ordered that defendants’ preliminary objections are overruled. Defendants Robert and Brigida Goicochea are granted twenty (20) days leave in which to file an answer to plaintiffs’ complaint.

      . Buyers also bring several counts against Weichert Realtors, Marco C. Pither, Precise Home Inspections LLC, and Joel W. Schachter. However, as defendants Robert and Brígida Golcochea’s preliminary objections are the only matter presently before the court, we will not address these counts.

      . Buyers argue that violations of the unfairtrade practices act and the real estate disclosure act do not require plaintiffs to prove the elements of common law fraud. As we hold that buyers may move forward with their fraud claims, we need not discuss this issue. However, we note that the Superior Court and the Commonwealth Court have both held otherwise. See Mancini v. Morrow, 458 A.2d 580 (Pa. Super. 1983); Hammer v. Nikol, 659 A.2d 617 (Pa. Cmwlth. (1995).

      . We acknowledge that the commercial code is not applicable to the sale of real property and is not controlling here. However, we can find no law or precedent to support the idea that “As is” language has a different meaning in the context of the purchase of real property. In the absence of controlling authority of the point of law at issue here, we refer to the commercial code only as a persuasive reference.

      . See discussion above as to why in actuality this is a claim for fraudulent concealment.


author: NEALON, J.,

text:
    Fratzola v. Klepadlo.

      Wayne Gracey, for plaintiff.

      Gary E. Hartman, for defendant.
    August 7, 2012
   NEALON, J.,

ORDER

Plaintiff Ryan Fratzola (“Fratzola”) has appealed the special trial master’s discovery order dated May 21, 2012 granting the defendants’ motion for sanctions and ordering Fratzola to pay the $625.00 cancellation fee of Robert W. Mauthe, M.D. who was retained by the defendants to conduct a physical examination of Fratzola pursuant to Pa.R.C.P. 4010. The parties have filed their supporting and opposing memoranda of law, and following the completion of oral argument on My 23, 2012, Fratzola’s appeal was submitted for a decision.

FACTUAL BACKGROUND

On August 25, 2008, Fratzola was a passenger in an automobile that was operated by defendant Kristen Oakley (“Oakley”) and which was involved in an accident with a motor vehicle driven by defendant Jamie Klepadlo (“Klepadlo”). At the time of the accident, Klepadlo and Oakley were both insured by State Farm Mutual automobile insurance company (“State Farm”). Fratzola commenced this personal injury suit against Klepadlo and Oakley on January 7, 2010 seeking to recover economic and noneconomic damages related to neck and back injuries that he allegedly sustained in the accident. (Docket entry no. 2).

At the direction of State Farm, counsel for Klepadlo scheduled a physical examination of Fratzola by Dr. Robert W. Mauthe, 4676 Route 309, Center Valley, Lehigh County, Pennsylvania on September 23, 20ll. (Defendant’s motion for sanctions, exhibit C). By letter dated August 12, 2011, Klepadlo’s counsel advised Fratzola’s attorney of the date and time of the examination by Dr. Mauthe and enclosed directions to Dr. Mauthe’s office on Route 309 in Center Valley. (Id., exhibit A). In his letter informing Fratzola of the scheduled examination, Fratzola’s counsel inadvertently identified Dr. Mauthe’s office address as 4676 Route 209 rather than 4676 Route 309. (Docket entry no. 29, exhibit E).

Upon arriving at 4676 Route 209 on September 23, 2011 and discovering that it was not the location of Dr. Mauthe’s office, Fratzola contacted Dr. Mauthe’s office in order to inform them that he was approximately twenty minutes away. (Id., Exhibit K, ¶¶4-5). When Fratzola advised Dr. Mauthe’s staff that he would arrive at their office within twenty minutes, Dr. Mauthe’s staff informed Fratzola that his examination was being cancelled. (Id., ¶5). Dr. Mauthe subsequently charged State Farm a cancellation fee and State Farm has, in turn, demanded payment of that fee by Fratzola. (Id., Exhibit F).

On March 30, 2012, defense counsel rescheduled the examination by Dr. Mauthe for April 30, 2012, but later postponed that examination to June 12, 2012. (Id., exhibits I, J). On May 21, 2012, Klepadlo and Oakley presented a motion for sanctions to the special trial master who ordered Fratzola “to pay a cancellation fee of six hundred twenty-five dollars ($625.00), to be divided equally between the defendants.” (Id., Nos. 24, 27). Fratzola filed the instant discovery appeal on May 25, 2012. (Id., No.25). In the interim, Fratzola appeared for his rescheduled examination by Dr. Mauthe on June 12, 2012, but was advised by Dr. Mauthe’s staff that his examination had been cancelled by State Farm. (Id., no. 29, exhibit K, ¶6). At the time of oral argument on July 23,2012, counsel for the parties confirmed that Fratzola’s examination by Dr. Mauthe has been rescheduled yet again for September 10, 2012.

DISCUSSION

Under Lacka, Co. R.C.P. 4000.1, all discoveiy motions must initially be presented to and decided by the court-appointed special trial master whose ruling “may be appealed de novo” to the court of common pleas. Local rule 4019(a) similarly provides that “[a]ny party seeking sanctions pursuant to Pa.R.C.P. 4019 for violation of an order of the special trial master pursuant to Lacka. Co. R.C.P. 4000.1(a), of an order of the court pursuant to Lacka. Co. R.C.P. 4000.1(b), or otherwise pursuant to Pa.R.C.P. 4019 shall, in all circumstances, initially do so by motion to the special trial master pursuant to Lacka. Co. R.C.P. 4000.1.” Lacka. Co. R.C.P. 4019(a).Notunlike local rule 4000.1(b), Lacka. Co. R.C.P. 4019(b) states that “[a]ny order of the special trial master granting or denying a sanction may be appealed de novo” to the court of common pleas. Under the de novo standard of review, our scope of judicial review is plenary, see, Saylor v. Skutches, 40 A.3d 135, 139 (Pa. Super. 2012), rather than an “abuse of discretion” standard which requires “a showing of manifest unreasonableness, partiality, prejudice, bias, ill-will, or such lack of support in the law or record for the award to be clearly erroneous.” Samuel-Bassett v. Kia Motors America, Inc., 34 A.3d 1, 51 (Pa. 2011), cert. denied, 2012 WL 2368701 (U.S. 2012).

The “imposition of sanctions for a party’s failure to comply with discovery is subject to the discretion of the trial court, as is the severity of the sanctions imposed.” Anthony Biddle Contractors, Inc. v. Preet Allied American Street, L.P, 28 A.3d 916, 926 (Pa. Super. 2011). The enforcement of our discoveiy rules “is governed by the facts and circumstances of each particular case,” City of Philadelphia v. Fraternal Order of Police Lodge No. 5 (Breary), 604 Pa. 267, 285, 985 A.2d 1259, 1270 (2009), and the discovery sanction must be commensurate with the culpable party’s violation of the discovery rules. See, Reilly v. Ernst & Young, LLP, 929 A.2d 1193, 1200 (Pa. Super. 2007); Baranowski v. American Multi-Cinema, Inc., 455 Pa. Super. 356, 358 n. 2, 688 A.2d 207, 208 n. 2, 455 Pa. Super. 356 (1997), app. denied, 550 Pa. 675, 704 A.2d 633 (1997). Pennsylvania jurisprudence governing discovery sanctions has recognized each of the following factors as a “necessary consideration,” but not a “necessary prerequisite” when considering a request for sanctions based upon a discovery violation:

1. The nature and severity of the discovery violation;
2. The defaulting party’s willfulness or bad faith in failing to comply with discovery;
3. The resulting prejudice to the other party;
4. The non-offending party’s ability to cure any prejudice; and
5. The number of discovery violations by the noncomplying party

Fraternal Order of Police Lodge No. 5 (Breary), 604 Pa. at 286, 985 A.2d at 1270-71; Anthony Biddle Contractors. Inc., supra.

Application of the foregoing factors does not support the imposition of sanctions against Fratzola in connection with his scheduled examination under rule 4010. Fratzola did not act in bad faith by willfully refusing to attend a scheduled examination, and to the contrary, merely arrived at the wrong destination due to erroneous directions provided by his counsel. Fratzola offered to attend the scheduled examination, albeit twenty minutes late, but Dr. Mauthe declined to accommodate Fraztola and later demanded payment of a cancellation fee. State Farm arguably engaged in more egregious conduct by cancelling Fratzola’s rescheduled examination and neglecting to advise him of that cancellation before he travelled to Center Valley on June 12, 2012.

The defense has not lost its opportunity to have Fratzola examined by Dr. Mauthe, and in fact has rescheduled his examination for September 10, 2012, more than five months prior to the scheduled jury trial on February 11,2013. As a result, any ostensible prejudice to State Farm’s insureds in their defense of this suit has been cured. The only detriment suffered by the defense has been economic in nature and State Farm has not demonstrated, nor even alleged, that its payment of the $625.00 cancellation fee will present a financial hardship to it. Cf., Locker v. Henzes, 2012 WL 485466, at * 4-5 (Lacka. Co. 2012) (denying defendants’ request for plaintiff’s payment of their counsel fees and travel expenses for videotape trial deposition in Texas and reasoning that “[t]he parties’ relative financial conditions indicate that [plaintiff] lacks the means to pay defense counsel’s requested costs, whereas [defendants’ insurers] are fully capable of paying those expenses if they wish to have Lackawanna County counsel cross-examine Dr. Greenway rather than Austin, Texas counsel.”).

The defense does not contend that Fratzola committed any other discovery infractions except for his unintentional tardiness on the day of his scheduled examination. Based upon the lack of any willfulness or bad faith on the part of Fratzola, the absence of any incurable prejudice suffered by the defense, and the modest nature of Fratzola’s sole and temporary non-compliance with discovery, the assessment of sanctions against Fratzola clearly is not warranted in this case. Consequently, Fratzola’s de novo appeal will be granted and the defense request for sanctions will be denied.

And now, August 7,2012, upon consideration of the de novo appeal of the special trial master’s discovery order of May 21, 2012 granting the defendants’ motion for sanctions, the exhibits and memoranda of law submitted by the parties, and the oral argument of counsel, and based upon the reasoning set forth above, it is hereby ordered and decreed that:

1. Plaintiff’s de novo appeal of the special trial master’s order of May 21, 2012 is granted pursuant to Lacka. Co. R.C.P. 4019(b); and

2. Defendants’ motion for sanctions seeking an order directing plaintiff to pay the cancellation fee of Robert W. Mauthe, M.D. is denied.

      . In Kapp v. Oasis Enterprises. Inc., 83 Lacka. Jur. 190 (1982), former Lackawanna county (now senior U.S. district) judge James M. Munley held that a plaintiff could not be compelled to attend a rule 4010 examination in another county when similarly qualified expert witnesses were located in the forum county. Id., at 192 (“With regard to the plaintiff Robin Kapp, we do think that there is merit in her objection to traveling 18 miles to Kingston, Pennsylvania to be examined by Dr. Sgarlat, an orthopedic surgeon, when the affidavits filed by the plaintiffs establish that there are eleven medical doctors in the city of Scranton who have this specialty....We order that the defendant select an orthopedic surgeon from the city of Scranton to physically examine the plaintiff Robin Kapp.”). Compare, Meeker v. Sarris, 40 D. & C.2d 643, 644 (1966) (“We are of the opinion that there is nothing unreasonable in requiring plaintiff to travel some 20 miles to the city of Pittsburgh for the purpose of an examination.”). There is no indication in the record submitted for review that Fratzola objected to an examination in Lehigh county, nor does the record reflect why State Farm selected Dr. Mauthe rather than a Lackawanna county physician. But see, Johnson v. Duffy, 2012 WL 620070, at * 2-3 (M.D. Pa. 2012) (“Defendant largely relies upon his expert, Dr. Robert Mauthe, to support his contention that there is no scientific evidence to show that post-traumatic fibromyalgia exists and that there is no science to show a causal link between trauma and whole body pain.”); Combs v. Barnhart, 2005 WL 1995457, at * 2 (E.D.Pa. 2005) (“Dr. Robert Mauthe, M.D. opined that combs was capable of performing light or sedentary work, despite his reflect sympathetic dystrophy diagnosis.”); Sell v. UNUM Life Insurance Company of America, 2002 WL 31630707, at * 2 (E.D.Pa. 2002) (“UNUM ordered an independent medical examination by Dr. Robert Mauthe” who “found that sell could perform sedentary to light duty work, despite a diagnosis of disc disease, depression, myofascial pain, and other conditions.”).

      . On February 21, 2012, Fratzola filed a certificate of readiness for a trial judge assignment and trial listing pursuant to local rule 214 which provides that “[n]o certificate of readiness may be filed until all discovery in the case has been completed and all depositions for use at trial have been scheduled or completed.” Lacka. Co. R.C.P. 214(b). Following a status conference on March 15, 2012, judge Carmen D. Minora scheduled this matter for a jury trial on February 11, 2013. (Docket entry nos. 21,23).

      . In cases where evidence has been excluded as a discovery sanction, the courts have also weighed the importance of the precluded evidence and the extent to which waiver of the exclusionary sanction would disrupt the orderly and efficient trial of cases in the court. See, Rohm and Haas. Co., v. Lin, 992 A.2d 132, 142 (Pa. Super. 2010), reargument denied (May 7, 2010), cert. denied, 132 S.Ct. 852 (U.S. 2011); Hodin v. Frekey, 2011 WL 2552474, at *8 (Lacka, Co. 2011).


author: MINORA, J.,

text:
    Condi v. Viteritti.

      DavidAikens, Jr. for plaintiff.

      Candy, Barr Heimbach, for defendant.
    June 28, 2012
   MINORA, J.,

I. Introduction

Currently before the court are the collective preliminary obj ections of defendants, John J. Viterritti, D.O. (hereinafter “Viterritti”) and Mercy Hospital, Scranton, Pennsylvania; Mercy Health Partners, Regional Hospital of Scranton (hereinafter “Mercy”).

In the interests of judicial economy, we will dispose of both sets of preliminary objections in this comprehensive memorandum and order.

By way of background, this medical malpractice action arises out of the care and treatment of Loretta Condi by defendants on December 12, 2009. The Condi plaintiffs filed a complaint on November 15, 2011.

According to plaintiffs’ complaint, Mrs. Condi presented to the Mercy Hospital emergency room with slurred speech, facial droop and left-sided facial paralysis on December 12, 2009 at approximately 3:23 p.m. [See plaintiffs’ complaint at ¶ 10]. Nursing examination was significant for elevated blood pressure, and the nursing diagnosis was altered tissue perfusion, cerebral. [See plaintiffs’ complaint at ¶ 11-12].

At approximately 3:50 p.m. on the same day, defendant Viterritti examined Mrs. Condi and noted elevated blood pressure, left facial paralysis and weakness. Diagnosis included questionable stroke. [See plaintiffs’ complaint at ¶ 13]-

Ultimately, defendant Viterritti diagnosed Mrs. Condi. as suffering from Bell’s palsy, and discharged her to home at approximately 7:50 p.m. on the same day. [See plaintiffs’ complaint at ¶ 17].

Mr. and Mrs. Condi returned to the emergency room the next morning on December 13,2009 because Mrs. Condi’s symptoms had worsened overnight to include numbness, slurred speech, difficulty walking and left arm weakness. [See plaintiffs’ complaint at ¶ 18]. At that time, defendant Viterritti diagnosed Mrs. Condi as suffering from a stroke. [See plaintiffs’ complaint at ¶ 20].

As to defendant Viterritti, plaintiffs essentially allege that Viterritti failed to diagnose the stroke from which Mrs. Condi was suffering when she had initially presented in December 12, 2009. As a result, the stroke continued to progress without treatment overnight and into the next morning.

As a result of the progression, Mrs. Condi was left with significant and permanent impairments that she would not have suffered had the stroke been timely diagnosed. [See plaintiffs’ complaint at ¶¶28-33 and ¶¶[35-40].

As to the Mercy defendants, plaintiffs allege vicarious liability. Mr. Condi has asserted a claim for negligent infliction of emotional distress as well as a claim for loss of consortium. He claims he was present with Mrs. Condi at the emergency room on December 12, 2009 when the alleged negligence occurred. He remained with Mrs. Condi afterwards, and was again present when the stroke was properly diagnosed on December 13, 2009. [See plaintiffs’ complaint at ¶¶ 48-54].

On or about December 19,2011, the Mercy defendants filed preliminary obj ections. Mercy contends that plaintiffs’ allegations of vicarious liability are insufficiently specific as per Pa. R.C.P. 1028(a)(3) and Pa. R.C.P. 1019.

The Mercy defendants also claim that plaintiffs have failed to state a claim upon which relief can be granted and demurred to their claim for negligent infliction of emotional distress per Pa. R.C.P. 1028(a)(4).

On December 23, 2011, defendant Viterritti filed preliminary objections as well. His preliminary objections were in the nature of a motion to strike the “inter, alia.” language in paragraph 9 and the “included” language in the introductory portion of paragraph 28 and subparagraphs 28(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (I), (n), (q), (r), (s), (u), (v), (w) and (x) of plaintiffs’ complaint for insufficient specificity pursuant to Pa. R.C.P. 1019 and Pa. R.C.P. 1028(a)(3).

Defendant Viterritti also demurred per Pa. R.C.P. 1028(a)(4) to plaintiffs’ claim for negligent infliction of emotional distress.

All parties have filed briefs to support their positions and the undersigned heard oral arguments on March 27, 2012. The matter of the collective preliminary objections of defendants is now ripe for disposition.

II. Issues

1. Are the allegations of vicarious liability against the Mercy defendants insufficiently specific as per Pa. R.C.P. 1028(a)(3) and Pa. R.C.P. 1019?

2. Should the Mercy defendants’ demurrer under Pa. R.C.P. 1028(a)(4) be granted as to plaintiffs’ claim for negligent infliction of emotional distress?

3. Should defendant Viterritti’s motion to strike the “inter, alia.” language in paragraph 9 and the “included” language in the introductory portion of paragraph 28 and subparagraphs 28(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (1), (n), (q), (r), (s), (u), (v), (w) and (x) of plaintiffs’ complaint be granted for insufficient specificity pursuant to Pa. R.C.P 1019 and Pa. R.C.P. 1028(a)(3)?

4. Should defendant Viterritti’s demurrer under Pa. R.C.P. 1028(a)(4) be granted as to plaintiffs’ claim for negligent infliction of emotional distress?

III. Discussion

A. Are the allegations of vicarious liability against the Mercy defendants insufficiently specific as per Pa. R.C.P. 1028(a)(3) and Pa. R.C.P. 1019?

Pennsylvania is a fact-pleading state and “the material facts on which a cause of action or defense is based shall be stated in a concise and summary form.” See Pa. R.C.P. 1019(a).

In pleading its case, the complaint need not cite evidence but only those facts necessary for the defendant to prepare a defense. Unified Sportsman of Pennsylvania v. Pennsylvania Game Commission, 950 A.2d 1120 (Pa.Cmwlth.2008).

A complaint must not only give the defendant notice of what the plaintiff’s claim is and the grounds upon which it rests, but it must also formulate the issues by summarizing those facts essential to support the claim. Unified Sportsman of Pennsylvania v. Pennsylvania Game Commission, supra. See also Commonwealth ex.rel. Pappert v. TAP Pharmaceuticals Products, Inc., 868 A.2d 624 (Pa.Cmwlth.2005).

To determine if a paragraph or paragraphs contain the appropriate specificity, the court looks not only to the particular paragraph(s) at issue, but also to that paragraph(s) in the context of the other allegations in the complaint. Yacoub v. Lehigh Valley Medical Associates, P.C., 805 A.2d 579, 589 (Pa.Super.2002).

The trial court has broad discretion in determining the amount of detail that must be pleaded since this is not something capable of precise measurement. Pike County Hotels Corp. v. Keifer, 396 A.2d 677 (Pa.Super.1978).

Moreover, it is not necessary to plead evidence which can be developed through discovery. Local No. 163 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America v. Watkins, 417 Pa. 120, 207 A.2d 776 (1965); Commonwealth v. Schlittler, 104 Lacka. Jurist 112, 115-116 (C.C.P. Lack. Cty. — per judge Minora 2003); Kapacs v. Martin, 81 Pa. D.&C.4th 509, 516 (C.C.P. Lack. Cty.—per judge Minora 2006).

In the case at hand, the Mercy defendants claim that the allegations set forth in paragraphs 42-46 of plaintiffs’ complaint to the effect that the Mercy defendants acted by and through their various (unnamed at the pleading stage) “agents, ostensible agents, servants, employees and/or principals” is insufficiently specific. The Mercy defendants contend that the lack of specificity prejudices their ability to respond to the allegations.

This is not so. We have addressed this issue several times in the past. In Kapacs v. Martin, 81 Pa. D.&C.4th 509, 2006 WL 4663417 (C.C.P. Lack. Cty. per judge Minora 2006) we allowed a plaintiff to allege an agency relationship regarding unnamed nurses, medical and technical personal. We again recognized that it was not necessary to plead evidence which can be developed through discovery. See Local No. 163 International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery Workers of America v. Watkins, supra.; Kapacs v. Martin, 81 Pa. D.&C.4th 509, 516 (C.C.P. Lack. Cty.—per judge Minora 2006).

At the pleading stage, much of this information is in the exclusive knowledge of the Mercy defendants and must be revealed through discovery.

Therefore, the Mercy defendants’ preliminary objections based on alleged insufficient allegations of vicarious liability per Pa. R.C.P. 1028(a)(3) and Pa. R.C.P. 1019 will be overruled and dismissed.

B. Should the Mercy defendants’ demurrer under Pa. R.C.P. 1028(a)(4) be granted as to plaintiffs’ claim for negligent infliction of emotional distress?

We first must note the standards applied in ruling on a preliminary objection in the nature of a demurrer under Pa. R.C.P. 1028(a)(4).

A preliminary objection in the nature of a demurrer under Pa. R.C.P. 1028(a)(4) can only be granted where the contested pleading is legally insufficient. Preliminary objections in the nature of a demurrer require the court to resolve the issues solely on the basis of the pleadings. No testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true. The impetus of our inquiry is to determine the legal sufficiency of the complaint and whether the pleading would permit recovery if ultimately proven. Most importantly, preliminary objections in the nature of a demurrer can only be sustained where the case is free and clear of doubt. Kirschner v. K&L Gates, LLP, A.3d, 2012 WL 1662075 (Pa. Super. 2012); Boyada Nurses, Inc. v. Com. Dept. of Labor and Industry, 607 Pa. 527, 8 A.3d 866 (2010).

With those standards in mind, we now examine whether the plaintiffs have pled a cause of action for negligent infliction of emotional distress (NIED).

In Pennsylvania, a cause of action for NIED is recognized in four sets of circumstances:

(1) situations where the defendant owed the plaintiff a pre-existing contractual or fiduciary duty;
(2) the plaintiff was subjected to a physical impact;
(3) the plaintiff was in the zone of danger, thereby reasonably experiencing a fear of impending physical injury; or
(4) the plaintiff observed a tortuous injury to a close relative.

Toney v. Chester County Hospital, 961 A.2d 192, 197-198 (Pa.Super.2008), aff’d 36 A.3d 83 (Pa.2011).

In the case at hand, plaintiffs’ are obviously proceeding under the fourth category of potential recovery commonly known as the “bystander rule.” Their theory is based on failure to diagnose or negligent inaction (acts of omission) as well as the scenario where plaintiff husband had no contemporaneous understanding that the medical care provided or not provided constituted negligence.

It is obvious that plaintiff Leonard Condi has pled his relationship of spouse to Loretta Condi. He has also pled that he personally witnessed the actions or inactions of defendants and the worsening of his wife’s conditions over the fateful days of December 12,2009 and December 13, 2009. Mr. Condi also alleged physical manifestations of his emotional distress he pleads are a direct result of defendants’ failure to timely diagnose and treat the CVA suffered by his wife, Loretta Condi. (See plaintiffs’ complaint at ¶¶ 47-54).

Initially, the viability of an NIED claim under the bystander rule required that:

(a) the plaintiff was located near the scene of the trauma, as contrasted with one who was a distance away from it;
(b) the shock resulted from a direct emotional impact upon theplaintiff from the sensory and contemporaneous observance of the trauma, rather than learning about it from others after its occurrence; and
(c) the plaintiff and the victim were closely related, as opposed to the absence of a relationship or the presence of only a distant relationship.

Sinn v. Burd, 486 Pa. 146, 170-171, 404 A.2d 672, 685 (1979).

As the law further progressed on the second element of the bystander theory, the basis for NIED became the traumatic impact of viewing the negligent injury of a close relative. A person who did not experience a sensory and contemporaneous observance of the injury did not state a cause of action for NIED. In formulating the rule, the Supreme Court contemplated a discreet and identifiable traumatic event to trigger recovery. In the absence of such an event, no recovery was permitted. Huddleston v. Infertility Center of America, 700 A.2d 453, 462 (Pa. Super. 1997).

Now it is obvious that the collective defendants, Mercy and Viterritti, are “demurring” to the claim of NIED since they contend that:

(1) Mr. Condi has not identified a discrete traumatic event that he observed;
(2) Plaintiffs allege negligent inaction or omission in failure to properly diagnose and treat the CVA at issue;
(3) Plaintiffs did not aver that defendants inflicted a traumatic injury on Mrs. Condi and;
(4) Mr. Condi did not aver he realized defendants’ conduct was negligent at the time it happened.

But these contentions are misplaced.

In Bloom v. DuBois Regional Medical Center, 597 A.2d 671 (Pa.Super. 1991), the majority opinion of our Superior Court indicated that although they denied the claim of NIED in Bloom they instructed the following:

“We hasten to add, however, that we do not intend to fashion a rule that excludes recovery to all plaintiffs who allege negligent infliction based on their observance of a negligent omission by defendants. There are certainly circumstances where an omission might be construed as a traumatic infliction of injury on the plaintiff’s relative and, if the plaintiff observed that occurrence, recovery could be had. Take, for example, the situation where a husband plaintiff seeks to admit his wife to an emergency room for medical care. Because of inaction by the emergency room personnel, the wife is left to languish in the outer office and expires there. Husband has viewed the entire event. The omission by the emergency room personnel in this scenario might create a sufficiently traumatic situation to be the basis for recovery for negligent infliction.”

See Bloom v. DuBois Regional Medical Center, 597 A.2d 671 (Pa.Super. 1991). [Emphasis in the original].

Another case where an act of omission supported a claim of NIED was Love v. Cramer, 606 A.2d 1175 (Pa.Super.1992), app. denied 612 A.2d 580 (Pa Cmwlth. 1992). In that case, a daughter accompanied her mother to medical appointments and expressed concern to the treating physician, Dr. Cramer, that her mother was experiencing heart problems. Dr. Cramer did not order any testing or hospitalization in an effort to diagnose the mother’s condition. Several weeks later, the mother died of heart failure in her daughter’s presence. See Love, 606 A.2d at 1176 (Pa. Super. 1992).

In reversing the lower court’s denial of the NIED claim, the Superior Court concluded that the daughter’s “observance of the lack of medical care, along with her observance of her mother’s heart attack is enough to sustain her claim for negligent infliction of emotional distress.” See Love, 606 A.2d at 1178.

The Love court further opined that:

“This is not the simple situation wherein the plaintiff did not observe the traumatic event, but nevertheless sought to recover for emotional distress. Rather, [daughter] witnessed the traumatic event and the earlier negligence of the doctor. Her recovery, if proven, would be based upon the fact that her emotional injury was due to her first hand observation of her mother’s heart attack, an event caused by Dr. Cramer’s negligence, which she had also witnessed.”

Id.

In the case, Mr. Condi alleges he was with his wife during the entire ordeal of December 12-13, 2009. According to the complaint, he personally witnessed the negligent omissions or inactions of the defendants in failing to properly and timely diagnose and treat Mrs. Condi’s CVA. He alleged he personally observed his wife’s deteriorating condition due to her CVA with all the attendant emotional and physical manifestations of distress he suffered.

In giving Mr. Condi all reasonable inferences due him on the well-pleaded facts in count III of the complaint for NIED, such a fact pattern could, if proven, support a claim for NIED.

In any event, it is not clear on a matter of law that Mr. Condi has not pled a cause of action for NEID. See Kirschner v. K&L Gates, supra.

Therefore, both defendants demurrer to count III of plaintiffs’ complaint for NIED will be overruled and dismissed.

C. Should defendant Viterritti’s motion to strike the “inter, alia.” language in paragraph 9 and the “included” language in the introductory portion of paragraph 28 and subparagraphs 28(a), (b), (c), (d), (e), (f), (h), (i), (j), (k), (I), (n), (q), (r), (s), (u), (v), (w) and (x) of plaintiffs’ complaint be granted for insufficient specificity pursuant to Pa. R.C.P 1019 and Pa. R.C.P. 1028(a)(3)?

Paragraph 28 of plaintiffs’ complaint delineates the specific alleged acts of negligence. The introductory language of that paragraph states that the negligence “included” specific acts of negligence. Plaintiffs voluntary agreed to strike the word “included” from their complaint. (See plaintiffs’ brief filed February 28, 2012 at pg. 8).

As to the “inter.alia.” language in paragraph 9 of plaintiffs’ complaint, we have previously addressed the standards for pleading above under Pa. R.C.P. 1019 and refer the reader thereto. [See section III(A) at pg. 5 of this memorandum].

Paragraph 9 states:

“At all times relevant hereto, defendants held themselves out as providers trained and skilled to provide competent diagnosis, monitoring and/or treatment of inter.alia. cerebrovascular accidents, cerebral artery occlusions and/or cerebral infractions.”

This objection is totally frivolous. Obviously, the plaintiffs’ are referring to the level of expertise and training of the defendants, matters which can be fleshed out with discovery as to the health care providers’ qualifications and training. See Kapacs v. Martin, supra.

This is in no way an open ended allegation of negligence (i.e. otherwise negligent under the circumstances) disfavored by Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983) which would leave theories of liability open-ended and violate statute of limitations concerns.

Therefore, defendant Viterritti’s motion to strike the inter.alia. language of paragraph 9 will be overruled and dismissed.

D. Should defendant Viterritti’s demurrer under Pa. R.C.P. 1028(a)(4) be granted as to plaintiffs’ claim for negligent infliction of emotional distress?

Based on the same inclusive and comprehensive analysis of NIED set forth above at section III part B at pg. 7 of this memorandum, the demurrer of defendant Viterritti as to plaintiffs’ claim for NIED is overruled and dismissed.

A comprehensive order consistent with this memorandum follows.

MEMORANDUM AND ORDER

And now to wit, June 28,2012, upon due consideration of the collective defendants’ preliminary objections, the able verbal and written arguments of counsel and in accordance with the foregoing memorandum, it is hereby ordered and decreed as follows:

(1) The word “included” in the introductory language of paragraph 28 of the plaintiffs’ complaint is stricken.
(2) All other preliminary objections of the collective defendants are overruled, dismissed and denied.

      . See also Moore v. Dwonczyk, PICS #09-0071 (judge Minora holding that plaintiff need not specially indicate by name the allegedly negligent agents of a hospital because hospital has greater knowledge than plaintiff). Johannes v. Curley, 103 Lack. Jurist 55 (2002) (denying preliminary objections on basis that although the plaintiffs did not allege the exact names of the agents, the defendants possess more knowledge than the plaintiffs do regarding the presence of the agents/employees on the specific dates averred in the complaint.

      . See our colleague, honorable Terrence R. Nealon’s opinion (attached to plaintiffs’ supplemental brief), Mellon v. O’Brien, et al., Lackawanna County term no. 2011 CV 5741 decided January 11, 2012 for a similar analysis of NIED dismissing a demurrer to NIED on the “omission/traumatic event” issues.

      . Inter.alia comes from the Latin adverb meaning “among other things.” See Black’s Law Dictionary (7th Edition 1999) at pg. 815.