author: CURRAN, Member,

text:
    Office of Disciplinary Counsel v. Harmon
    Disciplinary Board Docket no. 15 D.B. 2003.
    August 27, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

CURRAN, Member,

— Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On February 5, 2003, Office of Disciplinary Counsel filed a petition for discipline against respondent, Gwendolyn N. Harmon, also known as Gwen Norman. The petition charged respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising from allegations that she engaged in a pattern of mishandling fiduciary funds in four client matters. Respondent did not file an answer to any of the counts enumerated in the petition for discipline.

A disciplinaiy hearing was held on October 20,2003, before Hearing Committee 1.16 comprised of Chair James D. Golkow, Esquire, and Members Theresa M. Italiano, Esquire, and George D. DiPilato, III, Esquire. Respondent received notice of the hearing; however, she failed to appear at the hearing. Respondent was reached via telephone during the hearing at which time she was permitted to make a statement. After respondent made her statement, the Hearing Committee advised her that the hearing would proceed as scheduled. No witnesses appeared on respondent’s behalf.

The Hearing Committee filed a report on April 29, 2004, finding that respondent violated Rules of Professional Conduct 1.4(a), 1.4(b), 1.15(a), 1.15(b), and 8.4(c), and recommending that she be suspended for two years.

This matter was adjudicated by the Disciplinary Board at the meeting of July 17, 2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, Office of Disciplinary Counsel, whose principal office is situated at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of any attorney admitted to practice law in the Commonwealth of Pennsylvania, and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the rules.

(2) Respondent was bom in 1956 and was admitted to practice law in the Commonwealth of Pennsylvania in 1982. The last known mailing address provided by respondent is 1816 North 26th Street, Philadelphia, PA 19121.

(3) At the time of the hearing, respondent was living in Las Vegas, Nevada.

(4) By order of the Supreme Court dated November 17,2000, effective December 17,2000, respondent was transferred to inactive status for failure to meet her Continuing Legal Education requirements.

(5) Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(6) Respondent has no record of prior discipline.

Charge I — Mishandling of Fiduciary Funds in General

(7) During a three-year period from March 17, 1998 to January 1, 2001, respondent mishandled fiduciary funds.

(8) Respondent’s escrow account at First Union/ CoreStates Bank was out of trust on 167 separate occasions in amounts ranging from $508.96 to $26,516.08.

(9) The cumulative balances in respondent’s escrow account and her First Union operating account were insufficient to cover the amount of fiduciary funds entrusted to respondent on behalf of her clients.

(10) Respondent made numerous transfers from her escrow account to her operating account, and several transfers were made when the operating account had a negative balance.

Charge II — Demetrius Smith Matter

(11) Demetrius Smith retained respondent to represent him in connection with a July 1999 motor vehicle accident.

(12) On or about September 9, 1999, respondent received a check in the amount of $1,996.89 from Travelers Property Casualty Insurance made payable to her client to settle the property damage claim.

(13) On September 24,1999, respondent deposited the check into her escrow account. At the time of the deposit, respondent had a negative balance of $32.80 in the escrow account.

(14) Respondent was required to hold in her escrow account $1,996.89 on behalf of Mr. Smith.

(15) On September 27, 1999, respondent transferred $65 from the escrow account to her operating account.

(16) On September 28, 1999, respondent transferred $ 1,600 from the escrow account to her operating account, leaving a balance of $299.09 in the escrow account.

(17) Prior to both transfers, respondent’s operating account registered a negative balance. Following the $1,600 transfer, respondent’s operating account registered a positive balance of $1,554.17.

(18) On September 29, 1999, respondent issued two checks from her operating account to pay her telephone bills.

(19) Thereafter, respondent converted the balance of Mr. Smith’s funds that were in the operating account by making miscellaneous withdrawals from the account until October 4, 1999, when the account became overdrawn by $417.56.

(20) Respondent attempted to use funds received on behalf of another client to satisfy her obligation to Mr. Smith. On November 7,1999, the balance in respondent’s escrow account was $2.01. On November 8, 1999, respondent deposited into her escrow account an $8,000 check made payable to another client, Vanessa Austin, which was not backed by sufficient funds.

(21) On November 8, 1999, respondent issued a check from her escrow account made payable to Mr. Smith in the amount of $1,996.89 and forwarded that check to Mr. Smith. When Mr. Smith attempted to deposit this check into his account, it was returned to him due to insufficient funds in respondent’s client escrow account.

(22) By certified letter dated November 29,1999, Mr. Smith informed respondent that he would be retaining another attorney and that his new attorney would contact her for the transfer of his file.

(23) In December 1999, Mr. Smith received the funds he was entitled to receive after renegotiating the check.

Charge III — Judy Lawson Matter

(24) Respondent was retained to represent Judy Lawson for personal injuries sustained in a June 1996 motor vehicle accident.

(25) In January 1999, respondent settled her client’s case and deposited the settlement check in the amount of $3,500 into the escrow account, which brought the balance in the account to $3,508.93.

(26) Respondent was required to hold in her escrow account approximately $ 1,900 on behalf of Ms. Lawson.

(27) Respondent did not promptly distribute the settlement funds to Ms. Lawson.

(28) On January 25, 1999, respondent transferred $500 from the escrow account to an account at First Union Bank, and $500 from the escrow account to her operating account. On January 26, 1999, respondent issued a check drawn on the escrow account made payable to “cash” in the amount of $2,450. On January 26, 1999, the end-of-day balance in the escrow account was $58.93.

(29) Approximately one month later, respondent made distribution to another client, Edward Jordan. On February 22, 1999, respondent issued a check from her escrow account in the amount of $2,666.67 made payable to Mr. Jordan in final settlement of his automobile accident. On February 26, 1999, respondent transferred $2,500 from her operating account to her escrow account in order to cover the check.

(30) From February 25, 1999 to June 5, 2000, the escrow account had a negative balance on eight occasions.

(31) By check dated June 5, 2000, made payable to Judy Lawson, and drawn on the client escrow account, respondent eventually tendered to Ms. Lawson $1,900.

(32) According to the notations on the check, the original settlement was $3,500. The “discounted” attorney fee was $1,330. The fees and expenses were $270.

(33) In September 2000, Ms. Lawson negotiated the check.

Charge IV — Michelle King Matter

(34) Respondent was retained to represent Michelle King and her two minor sons Akeem and Ateem, for personal injuries sustained in October 1998.

(35) On or about December 1999, respondent settled the Kings’ claims.

(36) On December 17,1999, Kemper Insurance Company forwarded to respondent a check in the amount of $15,000 made payable to “Michelle King and Gwen Norman as her attorney”; a check in the amount of $ 1,000 made payable to “Michelle King as the mother and natural guardian of Ateem King, a minor and Gwen Norman as their attorney”; and a check in the amount of $1,000 made payable to “Michelle King as the mother and natural guardian of Alceem King, a minor and Gwen Norman as their attorney.”

(37) On December 20,1999, respondent deposited the settlement check for Ms. King in the amount of $15,000 into her escrow account, which brought the end-of-day balance to $15,019.15.

(38) Respondent failed to promptly distribute the settlement proceeds to Ms. King.

(39) Respondent was required to hold in her escrow account not less than $10,000 on behalf of Ms. King.

(40) On December 21, 2000, respondent used Ms. King’s settlement funds to satisfy her financial obligation to two other clients, Larry Richardson and Dale Williams.

(41) On January 6, 2000, respondent deposited the settlement checks for Ateem King and Akeem King into the escrow account.

(42) After January 6, 2000, respondent made numerous transfers from her escrow account to her operating account, which caused her escrow account to drop to $331.95 by February 3, 2000, and to reach a negative balance by March 10, 2000. On December 29, 2000, respondent’s escrow account had a negative balance in the amount of $12,377.57, at which time the account was closed due to a forged endorsement claim.

(43) In February 2001, respondent forwarded to Ms. King $10,000, which she represented to be the settlement proceeds for Ms. King and her two sons.

Charge V — Nakole Williams Matter

(44) In May 1998, respondent was retained to represent Nakole Williams for injuries sustained in an automobile accident.

(45) On October 20,2000, Claims Management Center Inc., issued a check for $3,500 payable to Ms. Williams and respondent as payment and settlement of Ms. Williams’ personal injury claims.

(46) By letter dated October 26, 2000, respondent informed Ms. Williams that she negotiated a proposed settlement of her case in the amount of $3,500, enclosed a copy of the release, and requested that Ms. Williams sign the release, have it notarized, and return it to respondent.

(47) On November 2, 2000, Ms. Williams mailed the finalized release to respondent.

(48) Respondent endorsed or caused Ms. Williams’ name to be endorsed on the settlement check; however, respondent did not receive authority from Ms. Williams to endorse her name.

(49) On December 4, 2000, respondent deposited the settlement check into the escrow account, and the end-of-day balance in the account was negative $12,500.

(50) Respondent failed to deliver to Ms. Williams her settlement proceeds.

(51) On several occasions, Ms. Williams telephoned respondent’s office to inquire whether respondent had received the release and why she failed to distribute any of the funds.

(52) Respondent failed to keep Ms. Williams informed about the status of her case, failed to comply with her requests for information, and failed to disburse the settlement proceeds to her.

(53) On July 30, 2001, Ms. Williams filed a claim against respondent with the Pennsylvania Lawyers Fund for Client Security.

(54) On March 6, 2002, the fund approved Ms. Williams’ claim in the amount of $2,100.

(55) In April 2002, Ms. Williams received a check from the fund in the amount of $2,100.

(56) Respondent made a statement by telephone on the day of the disciplinary hearing.

(57) Respondent stated that a lot of the allegations were not true and she felt it was an injustice for her not to be able to defend herself.

(58) The disciplinary hearing had already been continued once by respondent’s request.

(59) Respondent did not provide an explanation for her misconduct nor did she demonstrate remorse.

III. CONCLUSIONS OF LAW

By her conduct as set forth above, respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.4(a) — A lawyer shall keep a client informed about the status of a matter and promptly comply with reasonable requests for information.

(2) R.P.C. 1.4(b) — A lawyer shall explain a matter to the extent necessary to permit the client to make informed decisions regarding the representation.

(3) R.P.C. 1.15(a) — A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property.

(4) R.P.C. 1.15(b) — Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. A lawyer shall promptly deliver to a client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.

(5) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

IV. DISCUSSION

This matter is before the Disciplinary Board on a petition for discipline charging respondent with violations of the Rules of Professional Conduct based on her mishandling of client funds. Respondent did not file an answer to the charges. She did not appear at the scheduled pre-hearing conference on July 8,2003. On July 9,2003, a telephone conference was held during which respondent participated. She requested a continuance of the August 12, 2003 hearing in order for her to travel from Las Vegas, Nevada, so she could attend the hearing and present a defense to the charges. This request was granted and the disciplinaiy hearing was rescheduled for October 20, 2003. Respondent did not appear at the hearing on that date, although the record is clear that she received notice. Respondent was contacted in Las Vegas during the hearing and permitted to make a statement.

Petitioner bears the burden of proof by clear and convincing evidence that respondent committed professional misconduct. Office of Disciplinary Counsel v. Surrick, 561 Pa. 167, 749 A.2d 441 (2000). The record demonstrates that petitioner met its burden of proof. Respondent commingled fiduciary funds with personal funds by depositing client funds into her operating account. She made numerous transfers of client funds from her escrow account to her operating account, then proceeded to use these funds to pay personal bills. Many of these transfers were made when the operating account had a negative balance. While in the Smith, Lawson and King matters, respondent eventually distributed settlement funds due and owing to her clients, in the Williams matter respondent did not communicate with her client and did not distribute her funds, forcing Ms. Williams to go to the client security fund for payment. Despite being given numerous opportunities to respond to the charges brought by petitioner, respondent failed to dispute or present any defense to the evidence establishing violation of the Rules of Professional Conduct.

What remains to be decided by the board is the appropriate sanction to be imposed on respondent in light of her misconduct. The mishandling of client funds in four matters is a serious act of misconduct. Precedent has established that unauthorized dealings with client money requires some form of public discipline due to the breach of trust involved. In re Anonymous No. 124 D.B. 97, 47 D.&C.4th 338 (1998). The appropriateness of a disciplinary sanction is based on the nature and gravity of the misconduct and the aggravating and mitigating factors present. In re Anonymous No. 85 D.B. 97, 44 D.&C.4th 299 (1999). In the instant matter, respondent’s inattentiveness to the disciplinary proceedings, as well as her failure to appear in person before the Hearing Committee, weigh against her. Although the hearing had been continued from its original date to allow respondent to travel from Nevada, she still did not appear at the rescheduled hearing. She made it clear that she believed the allegations against her were not true and that it was an injustice to allow the hearing to continue without her putting on a defense, yet she had many opportunities to put forth her defense and did not do so. She failed to file an answer and failed to appear at the pre-hearing conference. Respondent’s actions do not suggest that she is willing or eager to participate in the process against her. Her lack of prior discipline may be considered in a positive light, although, in a matter as serious as this, it carries little persuasion for mitigation.

Recent cases that are the most analogous to respondent’s matter in terms of the seriousness, pattern and frequency of the misappropriation establish that a lengthy suspension is appropriate. In the matter of Office of Disciplinary Counsel v. Foti, no. 89 D.B. 2001 (Pa. July 24, 2003), an attorney with no prior discipline engaged in conversion of $33,000 of fiduciary funds and failed to promptly deliver settlement proceeds to a client. This attorney was suspended for three years, even after the consideration of mitigating factors. The attorney in Office of Disciplinary Counsel v. Olshock, no. 28 D.B. 2002 (Pa. October 24, 2003), was suspended for three years after he misappropriated $18,000 from an estate. In the matter of In re Anonymous No. 115 D.B. 97, (Pa. March 23, 2000), an attorney with no prior history of discipline who commingled and converted client funds during a three-year period of time was suspended for three years.

Having considered all of the evidence presented in this matter, and having reviewed the prior case law, the board is persuaded that respondent should be suspended for a period of three years. A suspension of that length requires respondent to apply for reinstatement at the conclusion of the suspension period.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Gwendolyn N. Harmon a/k/a Gwen Norman, be suspended from the practice of law for a period of three years.

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

ORDER

And now, December 13, 2004, upon consideration of the report and recommendations of the Disciplinary Board dated August 27, 2004, it is hereby ordered that Gwendolyn N. Harmon a/k/a Gwen Norman be and she is suspended from the bar of this Commonwealth for a period of three years, and she shall comply with all the provisions of Rule 217, PaJRJD.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: BARATTA, J,

license: Public Domain

text:
    Pasquariello v. Godbout

      C.P. of Northampton County,
    no. C0048CV2003-000241.

      Gary S. Figore, for plaintiff.

      Candy Barr Heimbach, for defendants.
    April 27, 2005
   BARATTA, J,

STATEMENT OF REASONS

Presently before the court is the defendants’, Brett P. Godbout M.D. and CHS Professional Practice P.C.’s, motion in the nature of preliminary objections/preliminary objections nunc pro tunc, or in the alternative, petition for the transfer of venue.

I. Factual and Procedural Background

This matter arises out of alleged medical negligence against the defendants for the care and treatment of plaintiff, Umberto Pasquariello Jr.’s, right foot.

In order to understand the issue now before the court, a brief summary of the procedural background is necessary. An amended complaint was filed on April 23,2003, against defendants, Brett P. Godbout M.D. and CHS Professional Practice P.C., as well as defendants, Coordinated Health Systems and CHS Ambulatory Surgical Center. The complaint identified Dr. Godbout, CHS Professional Practice P.C. and Coordinated Health Systems as maintaining a principal place of business at 2775 Schoenersville Road, Bethlehem, Lehigh County, Pennsylvania. Defendant, CHS Ambulatory Surgical Center, is located at 2310 Highland Avenue, Bethlehem, Northampton County, Pennsylvania. Although CHS Ambulatory Surgical Center is a related business entity to Coordinated Health Systems and CHS Professional Practice P.C., they are separate and independent entities.

The complaint alleges that, on or about January 24, 2001, Dr. Godbout performed surgery on plaintiff’s right foot where plaintiff had been experiencing chronic pain. The surgery has been described as a “closing base wedge osteotomy with internal fixation and distal bun-ionectomy.” It is admitted that the operation occurred in Northampton County at CHS Ambulatory Surgical Center. After the surgeiy, the plaintiff received surgical aftercare by Dr. Godbout at his Schoenersville Road, Lehigh County office.

The pleadings were closed and this case proceeded through discovery. The last scheduling order, entered on May 21, 2004, required plaintiff’s expert reports to be filed on August 31,2004. Defendants’ expert reports were to be filed on or before December 1,2004. The record is silent as to compliance with the May scheduling order; therefore we assume compliance. On February 3,2005, all counsel entered into a stipulation for the dismissal of defendants Coordinated Health Systems and CHS Ambulatory Surgical Center. The result of the dismissal of CHS Ambulatory Surgical Center was that there is no longer a medical provider whose place of business is within Northampton County.

This matter is now ripe for trial. A pretrial conference was held on February 9, 2005, before the Honorable F. P. Kimberly McFadden. At the pretrial conference, the defendants announced that they were going to file preliminary objections based on improper venue, as a result of the dismissal of the Northampton County defendant. However, we note that it was not until April 8,2005, that these preliminary objections were filed, over two months since the entry of the stipulation, over six months after the receipt of plaintiff’s expert report and nearly two years after the amended complaint was filed.

A review of the complaint sets forth a cause of action against Dr. Godbout for negligence related to the surgery performed on January 24, 2001, in Northampton County specifically averring that the surgery was incorrectly and inappropriately performed in that it deviated from applicable medical care, thereby forcing the plaintiff into a lengthy period of recuperation and to submit to additional surgeries to correct the initial surgery done improperly. The complaint also alleges that, following the surgery, Dr. Godbout provided negligent aftercare in failing to recognize and correct an incorrect metatarsal alignment that was an unsuccessful result of the surgery. The allegations in the complaint against Dr. Godbout have not been altered by the February 3, 2005 stipulation.

The plaintiff’s memorandum of law filed on March 10,2005, in opposition to the instant preliminary objections and petition for the transfer of venue, also alleges that Dr. Godbout improperly performed the original surgery. Within that memorandum, plaintiff alleges that “the surgical intervention by the defendants was incorrectly followed in that it deviated from the appropriate standard of medical care for such procedures.... As set forth in the complaint, the plaintiff alleged that the original defendants knew, or should have known, the alignment of the surgical area in question, including, without limited to, the metatarsal alignment was incorrect and/or that the attempted internal fixation had been unsuccessful. ...” See plaintiff’s memorandum 3/10/2005, p. 2.

Defendants, in their preliminary objections and brief, baldly state that the medical malpractice as set forth by plaintiff’s experts relates only to surgical aftercare performed by Dr. Godbout at the CHS Professional Practice P.C. location in Lehigh County.

We note that the summary of the allegations against Dr. Godbout, as asserted by defendants, differs from the allegations in the complaint, as well as the allegation in plaintiff’s memorandum of law.

To summarize, the plaintiff’s complaint and brief of plaintiff allege defective surgery and aftercare, while the defendants’ preliminary objections and petition for transfer of venue allege that plaintiff’s cause of action is limited to negligent surgical aftercare in Lehigh County.

II. Discussion

There is no record before us confirming the defendants’ allegations. We have not been provided with a stipulation or expert report indicating that plaintiff has now limited his claim to a medical malpractice action existing solely in Lehigh County. Therefore, the record does not support granting the preliminary objections or preliminary objections nunc pro tunc.

Second, we find that these preliminary objections are untimely. “Improper venue shall be raised by preliminary objection and if not so raised shall be waived.” See Pa.R.C.P. 1006(e); see also, PECO Energy Co. v. Philadelphia Suburban Water Co., 802 A.2d 666 (Pa. Super. 2002) (the proper method of challenging venue in a civil action is by way of preliminary objections). Furthermore, “every pleading subsequent to the complaint shall be filed within 20 days after service of the preceding pleading. ...” See Pa.R.C.P. 1026(a). “Aparty waives all defenses and objections ... not presented... by preliminary objection. ...” See Pa.R.C.P. 1032(a).

Plaintiff argues that our Rules of Civil Procedure mandate that the defendants’ preliminary objections are untimely and that any challenge that the defendant may have to venue being improper has been effectively waived.

The defendants argue that the Pennsylvania Rules of Civil Procedure provide that the time period for the doing of any act may be extended by written agreement of the parties or by order of court. See Pa.R.C.P. 248. The decision of whether or not to grant an exception to the 20-day filing rule promulgated by Rule 1026 is within the trial court’s discretion. See Francisco v. Ford Motor Co., 397 Pa. Super. 430, 580 A.2d 374 (1990). Therefore, the defendants assert that we should exercise our discretion and allow their preliminary objections. The defendants have cited several cases in support of their contention.

First, the defendants cite Kubik v. Route 252 Inc., 162 A.2d 1119 (Pa. Super. 2000), for the proposition that preliminary objections shall be raised at the first available opportunity. We fail to see the relevance of Kubik to defendants’ argument. In Kubik, the plaintiff was injured when a chair he was sitting on at a Delaware County restaurant collapsed. Plaintiff brought suit in Philadelphia County based upon the restaurant’s sale of gift certificates over the internet. Pending the decision on the preliminary objections by the Philadelphia County Court, the defendant participated in discovery. Venue was ultimately transferred on the preliminary objections. The Superior Court affirmed. In opposite to this case, the preliminary objections in Kubik were timely brought.

The defendants also cite Gale v. Mercy Catholic Medical Center Eastwick Inc., 698 A.2d 647 (Pa. Super. 1997), where the Superior Court permitted preliminary objections to be filed two years after the complaint was filed.

In Gale, a complaint was filed in December 1994 and the defendant subsequently removed the action to federal court on January 13,1995. The matter was returned to state court on April 18,1996, after several of the named defendants were dismissed. Thereafter, on June 8,1996, plaintiff’s counsel sent a letter to the defendants stating that he would be filing an amended complaint. Plaintiff’s counsel served and attempted to file an amended complaint on August 28,1996. The amended complaint was rejected by the prothonotary for defects. Thereafter, the defendant, believing the amended complaint was filed, filed preliminary objections to the amended complaint alleging improper venue on September 17, 1996. The preliminary objections were granted and venue was transferred by an order dated October 30,1996. Shortly thereafter, by stipulation of the parties, the order granting the transfer of venue was later vacated. Then, on November 8,1996, without the plaintiff ever filing an amended complaint, the defendant filed preliminary objections to the plaintiff’s original complaint alleging improper venue. The trial court granted defendant’s second set of preliminary objections and again transferred the matter, finding that the delay in filing the preliminary objections was excusable. At the time that the preliminary objections were filed in Gale, the pleadings were still open, no answer had been filed to the complaint. Upon review, the Superior Court agreed with the trial court that the delay in filing the preliminary objections was the plaintiff’s “own doing.” Id. at 650. Therefore, the decision in Gale to transfer venue was one of discretion and would not be overturned absent abuse of that discretion. Id.

As we review Gale to the case sub judice, we are not persuaded that we should exercise our discretion. The procedural posture of this matter differs substantially from Gale. Here, the defendants filed an answer and new matter to plaintiff’s amended complaint, discovery has been completed and the matter is now ripe for trial. Further, the delay in filing the preliminary objections in Gale was attributed to the plaintiff’s “own doing.” Here, even if we accept defendants’ unsupported assertion that the plaintiff’s claim involves only the surgical aftercare occurring in Lehigh County, defendants have been on notice of the venue issue since September 30, 2004, and, further, the Northampton County defendant was dismissed on February 3,2005, yet defendants failed to file their preliminary objections until April 8, 2005. Consequently, we find that defendants have not acted timely and therefore we will not entertain these preliminary objections nunc pro tunc.

While our holding here is that the preliminary objections are untimely, we feel compelled to address the venue requirements for medical malpractice claims. The defendants contend that, as a result of the stipulation entered on February 3,2005, this matter should be transferred to the Lehigh County Court of Common Pleas, pursuant to Pa.R.C.P. 1006(a.l). Rule 1006(a.l) provides:

“Except as otherwise provided by subdivision (c), a medical professional liability action may be brought against a health care provider for a medical professional liability claim only in a county in which the cause of action arose.”

Clearly, in promulgating Rule 1006(a.l), the intent of our Supreme Court was to prevent forum shopping in medical malpractice actions. However, even if we were to accept the defendants’ unsupported claim that the surgical aftercare of Dr. Godbout is the thrust of plaintiff’s medical malpractice claim, we still would deny the request to transfer venue.

It is clear that this medical professional liability claim first arose in Northampton County. Dr. Godbout performed the surgery on plaintiff in Northampton County. The surgical aftercare was made necessary as a result of the initial surgery in Northampton County. Certainly, they are related and the cause of action gave rise as a result of the first Northampton County medical procedure.

We think the defendants’ attempt to separate the two as unrelated, independent medical procedures is an overly technical argument, which in our opinion strains logic. We refuse to accept that the surgery and the required surgical aftercare performed by the same doctor are not related and part of the same medical transaction. The surgical aftercare was required because it was part of the continuing medical transaction that began when defendant Dr. Godbout performed the surgery on plaintiff’s foot in Northampton County.

Again, we also note that the venue rule at issue was enacted to prevent forum shopping. There is nothing in this record, or alleged by the defendants, which suggests that plaintiff did not commence this action in good faith in Northampton County. Defendants acknowledge that venue existed in Northampton County when the complaint was filed. No allegations have been raised regarding forum shopping.

Finally, we address the defendants’ request for alternative relief, the petition for transfer of venue. The defendants allege that venue is improper under the new venue rule, Pa.R.C.P. 1006(a.l), as support for their petition for transfer. The defendants have not alleged the inability to hold a fair and impartial trial in Northampton County, nor have they alleged the inconvenience of parties and witnesses.

Improper venue must be raised by preliminary objection or it will be deemed waived. Pa.R.C.P. 1006(e). Therefore, we deny the petition for transfer of venue.

For the foregoing reasons, the defendants’ motion in the nature of preliminary objections/preliminary objections nunc pro tunc, or in the alternative, petition for the transfer of venue must be denied as untimely and any objection to venue has been waived.

ORDER

And now, April 27, 2005, the motion in the nature of preliminary objections/preliminary objections nunc pro tunc, or in the alternative, petition for the transfer of venue filed on behalf of the defendants, Brett R Godbout M.D. and CHS Professional Practice P.C., is hereby denied.

      . The distance between 2310 Highland Ave. and 2775 Schoenersville Road is approximately three miles.

      . The defendant’s delay in filing was the product of the federal proceedings and the confusion of the filing of plaintiff’s amended complaint.


author: GRINE, J.,

text:
    Davis v. Shawley

      C.P. of Centre County,
    no. 2004-2382.

      Bernard F. Contorna, for plaintiff.

      Carl Mollica, for defendant.
    May 25, 2005
   GRINE, J.,

Before this court is a complaint for custody brought by plaintiff Douglas J. Davis (Father) in which he seeks primary physical custody of Brittany Shawley (the child). Currently, defendant Crystal L. Shawley (Mother) and Father have been sharing custody of the child. A hearing was held in this matter over the course of two days — March 22 and March 29,2005— during which this court heard testimony from both Father and Mother, as well as the child’s paternal grandmother and paternal aunt. This court also heard testimony from several members of Mother’s family. At the conclusion of the hearing, this court ordered counsel for Father and Mother to submit suggested findings of fact, conclusions of law, and memorandums of law. Counsel for both parents filed their suggested findings, conclusions, and memorandums in a timely manner, and this court has reviewed them. Based on the testimony elicited at the hearing and the written arguments presented by counsel, this court determines that it is in the best interest of the child to grant Father’s petition for primary physical custody.

PRELIMINARY DISCUSSION

The child was bom on November 27,1995. From birth until approximately the age of two years, the child resided with both of her parents. Mother and Father’s relationship floundered when Father was sentenced to a period of incarceration on drug charges. Mother and Father have been separated ever since. Mother was relatively young when the child was bom and relied on the assistance of family members, especially following Father’s incarceration. Father’s mother and sister were Mother’s primary source of assistance during the child’s early years.

After the relationship between Mother and Father ended, Mother went to live with her parents. From that point in time until the time when the child was in her first-grade year, it is unclear exactly what custody arrangement existed between Mother, Father, and the members of Father’s family. Mother testified that her child was primarily with her, but Father and paternal grandmother testified that, up until first grade, the child resided primarily with their family. School records indicate that the child was enrolled in “headstart” in the Bellefonte Area School District, and all parties agree the child was enrolled in “headstart” by Father and his mother. The child also attended kindergarten at the Bellefonte Area School District. Mother’s family resided in a nearby community located in the Bald Eagle Area School District. As the child was considered eligible to attend the Bellefonte Area School District, it appears to this court that the child’s primary residence was with Father and his family.

The child began attending first grade in the Bellefonte District, but she ended the school year at the Bald Eagle Area School District. According to Mother, she enrolled the child in the Bald Eagle School District following a weekend visit with the child. Both Mother and paternal grandmother testified that the subject of the child’s switching schools was discussed. Paternal grandmother testified that, while she was agreeable to the child’s switching schools in order to be with her mother, she suggested to Mother that she wait until the end of the academic year before making the change. Mother testified that she did not wish to wait and saw no reason why the child could not be transferred immediately. She, therefore, decided not to return the child to paternal grandmother’s home following a weekend visit and, instead, enrolled her in the Bald Eagle Area School District the following Monday. Father’s family later relocated to the Bald Eagle Area School District in order to be closer to the child and remain a part of her life.

Mother is currently engaged to Barry Hall (fiancé).

While the child was in kindergarten in Bellefonte, Mother moved in with fiancé. The couple have another child, Kaitlyn, who is the child’s half-sister. The family resides in a trailer located on the fiancé’s family farm. During periods of time when Mother has physical custody of the child, the child resides with the family in that residence. Testimony indicates that the child and her half-sister have developed a close bond as sisters.

This custody action was originally filed on May 27, 2004, by Father. Father stated in his complaint for custody that he had concerns for the safety and care of the child. Prior to Father’s filing for primary physical custody, the child suffered a first-degree sunburn while in her Mother’s care due to the child’s not wearing sunblock. A series of conferences were held culminating in an order of court dated July 16, 2004, which outlined periods of partial physical custody to be exercised by both parents with Father having custody of the child Mondays and weekends and Mother having custody each Tuesday through Friday. This custody arrangement was generally practiced by the parties until the time of the present court hearing.

DISCUSSION

As in any custody matter, this court must look at what is in the best interest of the child and decide the matter solely on that interest. What constitutes “best interest” is a fact-specific, case-by-case analysis of “all factors which legitimately have an effect upon the child’s physical, intellectual, moral and spiritual well-being.” Sawko v. Sawko, 425 Pa. Super. 450, 454, 625 A.2d 692, 693 (1993), citing Lee v. Fontine, 406 Pa. Super. 487, 594 A.2d 724(1991).

All parties agree that the present custody arrangement is not working. Testimony indicated that Father and fiancé do not get along, and the tension between them has been the source of a number of arguments between the parents concerning the child. It was also apparent in the testimony provided by the parties that Mother and Father do not always get along, and have engaged in more than a few arguments concerning the child. Testimony by the paternal grandmother also provided evidence that the custody situation is negatively impacting the child. According to the paternal grandmother, beginning in January 2005, the child began complaining of stomachaches when the time would come for her to return to Mother’s home following a visit to Father’s home. The child’s physician suggested to paternal grandmother that the child could benefit from counseling, and the child has since been enrolled in counseling. Additionally, Mother provided testimony that the child is aware of the current “battle” being waged over her as she has asked her mother following court proceedings, “Who won me?”

In custody cases involving two parents, where neither has been alleged to be unfit, “[t]he test as to best interest ... is evaluated on a scale that is initially weighed equally as to each parent, and when that scale is tipped in favor of one of the parents, the other must come forward with evidence to reverse the balance.” Id. at 458, 625 A.2d at 695, citing In the Interest of Coast, 385 Pa. Super. 450, 561 A.2d 762 (1989). Before this court, therefore, Father and Mother are viewed as equally suitable to be the primary custodian of the child. This court must then look to which environment provided by each parent would serve the best interests of the child.

Though initially viewed as even, the “custody scale” is tipped in favor of Father for several reasons. Father resides with his mother and sister. Both of these women have been long-standing, positive influences in this child’s life. Paternal grandmother and aunt have taken the child to doctor’s appointments throughout her early years to the extent that some doctors mistook the child’s aunt for her mother. The child’s aunt continues to this day to be a resource for homework assistance when Mother is unable to assist the child. When the child began exhibiting symptoms of anxiety and stress over the present custody matter, it was the child’s paternal grandmother who took the child to the doctor’s office and arranged for the child to begin counseling to treat the problem. Grandmother and aunt have taken an active interest in this child’s growth and development even going so far as to enroll the child in extracurricular activities including twirling, Girl Scouts/Brownies, and skating.

With the scale tipped in favor of Father, the burden is on Mother to produce evidence to reverse the balance. The child’s half-sister resides with Mother and fiancé. Absent compelling reasons, it is the long-held policy of the courts of this Commonwealth that siblings should be raised together whenever possible. This policy is not diluted when the siblings concerned are only “half-siblings.” Wiskoski v. Wiskoski, 427 Pa. Super. 531, 629 A.2d 996 (1993). However, the mere fact that the child would be residing in a home with her half-sister is itself not sufficient enough of a factor to re-balance or to tip the scales in favor of Mother. The presence of a sibling in Mother’s home is just one factor that must be considered in conjunction with the remaining factors. Id.

This court has several concerns that lead to the conclusion that at this time Mother cannot tip the custody scale in her favor to warrant awarding primary physical custody of the child to her. Allegations were made at the hearing that Mother’s fiancé is verbally and physically abusive toward Mother. Though Mother denied the allegation waged by paternal grandmother that her fiancé grabbed her by the neck with force sufficient to leave a mark, Mother did admit that he did threaten to kill her “once.” Additionally, Mother admitted that her fiancé has made disparaging remarks to the child, such as calling her “fat.” Also, Mother admitted that the child and her half-sister have heard the couple use profanity as well as argue within earshot of the children. The absence of any testimony on the part of Mother’s fiancé, as well as his decision not to appear in court for a matter that would significantly alter his domestic arrangements, does little to dispel this court’s concern that granting primary physical custody to Mother might place this child in an abusive household. That potential is of concern to this court and can be used in the determination of what custody arrangement meets the child’s best interest. See Dile v. Dile, 284 Pa. Super. 459, 426 A.2d 137 (1981).

This court also has valid concerns that, should primary custody be granted to Mother, the child’s medical needs would not be met. The child has allergies to cats and smoke. Mother has two cats. Additionally, Mother and several members of Mother’s family smoke in the presence of the child. Mother readily admitted that she smoked in the child’s presence when they were in the car, but the child did not indicate to Mother that the smoke bothered her. Mother testified that the child’s allergies were under control as she took medication and only occasionally got “plugged up.” That Mother would intentionally expose the child to known allergens so long as the child had medication to combat the symptoms prompts concern that, if primary physical custody resided with Mother, the child’s medical needs might not be met. The custody scales are, therefore, still tipped in favor of Father. See Tucker v. Tucker, 41 D.&C.4th 56 (Lawrence Cty. 1998).

Also, as discussed supra, the present custody matter has resulted in the child exhibiting signs of stress and anxiety in the form of stomachaches. The child’s physician recommended the child be enrolled in counseling. Mother made it clear at the hearing that she did not believe the child needed counseling and thought the idea of counseling for the child was “stupid.” Despite the fact that Mother indicated that she would participate in counseling if it truly was necessary, this court is left with serious doubts as to whether the child would indeed receive medically-recommended treatment if Mother did not entirely agree such treatment was necessaiy. Id.

Because this court feels that at present the best interests of the child are served by granting Father’s complaint for custody, this court still believes that Mother should enjoy ample time with the child. The fact that both parents live within a close proximity to each other should only help to facilitate frequent visits and periods of partial physical custody between Mother and the child. Mother indicated at the hearing that she voluntarily changed her work schedule in order to be available when the child was not in school. Mother related her suspicions that her time with the child was compromised by the presence of paternal grandmother and aunt. Specifically, Mother indicated that, during her periods of custody, the child would receive calls from paternal grandmother or that the child would call paternal grandmother and learn of an activity or event planned for the family. The child would become so disappointed that she would be missing the activity or event that Mother felt compelled to forfeit her periods of custody in order to allow the child to spend time with Father and his family.

This court will not condone any acts of alienation on the part of any caregiver. This child is fortunate to have several people in her life that care for her and is entitled to spend time with each of them and not feel guilty or cheated at the thought of missing an activity or event with one or more of them. Though Mother relayed her suspicions to this court that she thought paternal grandmother and aunt were intentionally trying to compromise her time with the child, she could not substantiate her claims. This court does not believe that any overlapping of events or activities was deliberately orchestrated on the part of Father or his family to deny Mother time with the child. Instead, this court believes the overlapping events were due to disorganized scheduling, and trusts that, in the future, both sides of the family will make a better attempt to communicate and coordinate family events so as not to place the child in the awkward position of having to choose one side of her family over the other.

As Father’s family appears best able to provide for the child’s intellectual, emotional, physical, moral, and spiritual well-being, this court grants Father’s complaint for custody and enters the following order.

ORDER

And now, May 25,2005, after a hearing on the matter and a review of the suggested findings of fact, conclusions of law, and memorandums of law submitted by counsel, it is hereby ordered and decreed that Father’s complaint for custody in which he seeks primary physical custody of the child Brittany Shawley is granted.

Mother shall have periods of partial physical custody of the child including alternating weekends from Friday at 4 p.m. to Sunday at 7 p.m. Mother shall also have periods of partial physical custody from after school until 7 p.m. at least two nights a week during the academic school year. The exact days of the week will be determined by the parents so as to best accommodate the child’s academic and extracurricular activities.

Mother shall have physical custody of the child for five non-consecutive weeks during the summer months to be determined by the parents.

Mother shall also have a “right of first refusal” for baby-sitting purposes in the event Father or Father’s family is unable to watch the child.

Furthermore, Mother shall have periods of partial physical custody at such other times as may be agreeable between the parties.

Parents shall take steps to ensure that the child is not deliberately exposed to known allergens and that all of the child’s medical needs are addressed, including any psychological treatment and/or counseling that the child’s physician determines to be appropriate.

Custody of the child for holidays shall be determined by the parents. In the event that parents cannot agree as to how to share time for the holidays, the holidays will be divided between the parents with Father having custody of the child until 1 p.m. on the day of the holiday and Mother having custody of the child from 1 p.m. until 8 p.m. on the holiday. The holidays shall include Christmas, New Year’s Day, Memorial Day, Independence Day, Labor Day and Thanksgiving. Father shall have custody of the child on Father’s Day, and Mother shall have custody of the child on Mother’s Day.


author: SYLVESTER, J,

text:
    Rivers v. Burger

      Edward Chacker, for plaintiff.

      David Rohde, for defendant.
    March 30, 2005
   SYLVESTER, J,

FACTUAL AND PROCEDURAL HISTORY

The above-captioned matter was tried before the undersigned sitting with a jury on August 2, 2004 through August 4, 2004. The facts adduced at trial showed that on August 10,2001, plaintiff Gladys Rivers was driving on Ditman Street in Philadelphia when she stopped approximately five feet behind a truck, which was stopped for a red light. While stopped, her vehicle was struck in the rear by a vehicle being driven by the defendant, James Burger. The impact pushed plaintiff into the vehicle in front of her. Although plaintiff testified that the defendant told her that he thought the light was green, defendant testified that the accident occurred when his foot slipped off the brake as he was looking on the floor for his sunglasses. Whatever the reason, the defendant stipulated to liability for causing the rear-end collision.

Plaintiff testified that her body went backwards, forward and backwards again when struck by defendant’s vehicle. Immediately following the accident, plaintiff drove home where she put ice on her shoulder and neck. When she could barely get out of bed the next morning, plaintiff went to the emergency room at Frankford Hospital, complaining of pain in her neck, back, right shoulder and arm. She was treated and released with instructions to see her family doctor. Plaintiff’s physician, Dr. Richard Cautilli, treated her for the pain with a series of epidural injections and sent her for physical therapy. Ms. Rivers’ medical records showed physical injuries to her neck and back, resulting in radiculopathy and injuries to her nerves, and disc protrusions at C5 and C6. Defendant’s medical expert, Dr. Edward Resnick, testified that Ms. Rivers sustained strains in her neck and back as a result of the motor vehicle accident. Plaintiff, who was employed as an assistant manager with Strauss Discount Auto at the time of the accident, testified that she was unable to work for a period of six months due to the injuries she sustained in the rear-end collision.

On August 5, 2004, the jury returned a verdict in favor of the defendant, finding that the defendant’s conduct was not a substantial factor in causing any injury to Ms. Rivers. On August 12, 2004, plaintiffs filed a motion for post-trial relief on grounds that the verdict was against the weight of the evidence where both parties’ medical experts agreed that Ms. Rivers was injured as a result of the rear-end collision with defendant. On January 6, 2005, this court granted plaintiffs a new trial on the issue of damages. Unfortunately, the grant of post-trial relief did not occur within 120 days of the filing of the motion for post-trial relief, and, thus, was a legal nullity. As a result of the confusion caused by the late grant of post-trial relief by this court, both parties filed notices of appeal.

LEGAL DISCUSSION

Anew trial should be awarded where a jury’s verdict is so contrary to the evidence as to shock one’s sense of justice, and the award of a new trial is imperative so that right may be given another opportunity to prevail. Craft v. Hetherly, 700 A.2d 520 (Pa. Super. 1997); Randt v. Abex Corp., 448 Pa. Super. 224, 671 A.2d 228 (1996). Indeed, it is the duty of a trial court to grant a new trial when it believes the verdict was against the weight of the evidence and resulted in a miscarriage of justice. Burchard v. Seber, 417 Pa. 431, 438, 207 A.2d 896, 899 (1965). Atrial court has broad discretion to grant a new trial, and this decision should not be disturbed absent an abuse of that discretion or an error of law. Harman ex rel. Harman v. Borah, 562Pa. 455, 756 A.2d 1116, 1121 (2000). Although decided too late, this court properly granted post-trial relief in the form of a new trial on the issue of damages, where both plaintiffs’ and defendant’s medical experts, while in disagreement regarding the extent of Ms. Rivers’ injuries from the motor vehicle accident, nevertheless, agreed that she was injured as a result thereof.

At trial, plaintiff introduced her medical records documenting the injuries she sustained as a direct result of the accident, as well as the testimony of her treating physician, Dr. Richard Cautilli, a board-certified orthopedic surgeon. Dr. Cautilli testified in pertinent part as follows:

“Q. February 18,2002. And up until that time, doctor, she had been out of work and do you have an opinion, doctor, to a reasonable degree of medical certainty as to the cause of her being out of work and what was the cause?
“A. Yes.
“Q. What was that?
“A. Low back pain, radiculopathy and cervical pain with radiculopathy.
“Q. Was that as a result of the accident of August 10, 2001?
“A. Yes.
“Q. The automobile accident?
“A. Yes.”

Later on in his testimony, Dr. Cautilli reiterated that there was no doubt in his mind that Ms. Rivers sustained these injuries as a direct result of the accident.

Defendant’s medical expert, Dr. Edward Resnick, also a board-certified orthopedic surgeon, testified in pertinent part as follows:

“Q. Now, doctor, as a result of your examination, did you reach any conclusions or opinions with regard to her medical condition when you examined her?
“A. I did.
“Q. And could you state to the ladies and gentlemen of the jury your opinion with regard to that examination?
“A. Yes. If I may refer to my report for accuracy.
“Q. At any point, doctor, if you need to refer, please do.
“A. Thank you. I made two diagnoses that day. One was of strains of her neck and back, which she had sustained on the date of her accident, August 10, 2001, from her history; that is, from what she had told me. I said that they had objectively resolved, which means I felt that there was no evidence on my examination of anything left from those injuries physically. And the second diagnosis I made was of a possible minor right shoulder impingement syndrome, which means, for practical purposes, what people commonly call tendonitis or bursitis of the shoulder. Those were the diagnoses.”

Later on in Dr. Resnick’s testimony, he again stated that he could say “with a reasonable degree of medical certainty that the diagnosis does include strains of her neck and back, which I felt that she had sustained in that accident in August of 2001 on the basis of history and the records which I had been reviewing, and I felt again that they had objectively resolved or recovered.”

In Pentarek v. Christy, 854 A.2d 970 (Pa. Super. 2004), a case which also involved a rear-end motor vehicle accident, both the plaintiff’s and the defendant’s medical experts concluded that the plaintiff sustained some injury as a result of the accident. The jury nevertheless returned a verdict in favor of the defendant finding that, while the defendant was negligent, his negligence was not a substantial factor in bringing about the plaintiff’s injuries. The Superior Court vacated the jury’s verdict and remanded the case for a new trial on damages, reasoning that “[wjhere there is no dispute that the defendant is negligent and both parties’ medical experts agree the accident caused some injury to the plaintiff, the jury may not find the defendant’s negligence was not a substantial factor in bringing about at least some of plaintiff’s injuries.” Id. at 976. (emphasis in original) In vacating the verdict, the Pentarek court held that, in view of the evidence, the verdict was contraiy to the weight of the evidence adduced at trial:

“Here, both parties’ medical experts agreed that ap-pellee sustained some injury as a result of the accident. Therefore, the jury was not permitted to disregard the uncontroverted evidence of causation and find appellant’s negligence was not a substantial factor in causing at least some injury to appellee. Had the jury found the accident caused some injury to appellee, but declined to award damages because the jury concluded the injury was so minor as to be noncompensable, we would not have disturbed their verdict.... However, the jury’s verdict that appellee was not ‘injured’ in the accident goes against the weight of the competent evidence adduced by both parties’ medical experts at trial. . . .” Id. at 977. (citations omitted)

The instant case is indistinguishable in any significant way from Pentarek in that the defendant stipulated that his negligence caused the rear-end collision and both parties’ medical experts agreed that Ms. Rivers sustained some injury as a result of the accident. Indeed, the medical experts disagreed only to the severity of her injuries. In view of these circumstances, the jury’s determination that defendant’s conduct was not a substantial factor in bringing about any of Ms. Rivers’ injuries bears no rational relationship to the evidence adduced at trial. Accordingly, the jury’s verdict should be vacated and a new trial awarded on damages, as the verdict was clearly against the weight of the evidence.

Finally, this court properly excluded as irrelevant, evidence concerning another accident involving plaintiff which occurred approximately two days after the motor vehicle accident in question. “ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Pa.R.E. 401. Relevancy is not an inherent characteristic of any item of evidence, but exists only as a relation between an item of evidence and a matter properly provable in the case. Blancha v. Raymark Indus., 972 F.2d 507, 514 (3d Cir. 1992).

The subsequent accident occurred at work where Ms. Rivers was hit in the chin with a brake rotor. Dr. Cautilli, plaintiffs’ medical expert, stated that this second incident was unrelated to her injuries from the motor vehicle accident, while defendant’s medical expert failed to even make mention of this incident in his testimony. Accordingly, any injury which Ms. Rivers may have sustained in this second accident, and/or its connection to the medical complaints at issue in this case, was unsupported by any medical testimony. Thus, this court properly excluded this evidence as irrelevant. See Cacurak v. St. Francis Medical Center, 823 A.2d 159 (Pa. Super. 2003) (evidence that patient upon whom surgeon accidentally performed unnecessary laminectomy was receiving workers’ compensation benefits for disability resulting from unrelated neck injury was irrelevant and inadmissible for purposes of action against the medical center and physician who were responsible for the surgical mistake).

In view of the foregoing, it is the opinion of this court that the jury’s verdict should be vacated on grounds that it was against the weight of the evidence and the case remanded for a new trial on damages only.


author: VALASEK, J,

text:
    Colella v. Colella

      C.P. of Armstrong County,
    no. 1991-0994-CIVIL.

      JackJ. Steiner, for plaintiff.

      Robert Petrosky, for defendant.
    March 30, 2005
   VALASEK, J,

— Before this court is plaintiff, Michael Colella’s, petition for modification of alimony, in which plaintiff alleges that a substantial and continuing change of circumstances warrants discontinuance of his alimony payments to defendant. The court conducted an evidentiary hearing and heard argument on the petition December 29, 2004. Defendant, Nancy Colella, was represented at the hearing by Robert Petrosky as legal counsel and court-appointed guardian ad litem.

FACTS

The pertinent facts are as follows. The plaintiff and defendant married in November 1987, separated on or about July 1991, and were divorced by decree of this court on May 10, 1994. An agreement and stipulation providing for equitable distribution of the marital assets, as well as for payment of alimony to the defendant, was attached to and incorporated into the decree. Paragraph 6 of the attached agreement provided:

“Husband shall pay alimony to Wife until the death, remarriage or cohabitation of Wife in the amount of $770 per month. Said amount to be adjusted annually based upon then applicable Pennsylvania Support Guidelines. Husband to provide a W-2 and all other sources of revenue each February. Said payments to be made through Armstrong County Domestic Relations Section. Cohabitation shall not include boarding home, nursing home, hospital, community group home or such similar facility where members of the opposite sex may also reside.” Agreement, para. 6. (emphasis added)

Paragraph 7 stated, “This agreement shall be modifiable upon changed circumstances as per the Pennsylvania Divorce Code. ” Agreement, para. 7. (emphasis added)

The most recent court order setting the amount of alimony pursuant to paragraph 6 of the agreement (based upon the recommendation of the Domestic Relations Section of Armstrong County) was entered on February 19, 2004. That order included findings that defendant’s monthly net income was $266, plaintiff’s monthly net income was $3,723.61, and it directed plaintiff to pay defendant the amount of $1,086 per month alimony. (It also ordered plaintiff to pay 94 percent of defendant’s unreimbursed medical expenses that exceed $250 annually.)

Plaintiff then filed a request for a de novo hearing, claiming that, because of changed circumstances, he should no longer have to pay alimony to defendant. After a hearing on April 6, 2004, before James H. Owen, the Domestic Relations Hearing Officer, the hearing officer recommended to the court that the order of February 19 be affirmed. In his findings, the hearing officer stated:

“(6) Plaintiff, Nancy J. Colella, is a resident of the William Penn Care Center in Jeannette, Pennsylvania. She has been a patient there for two years. The plaintiff was diagnosed with MS in 1991 and has been in one care facility or another for quite some time. A printout from the Department of Public Welfare suggesting an adjustment to plaintiff’s medical assistance effective April 10,2003, appears to establish her monthly income as $324.70. Iam compelled to conclude that the determination made by the Domestic Relations Conference Officer pursuant to the annual review was supported by the facts and evidence presented at the de novo proceeding. (Notwithstanding the entry of this order, the defendant may still have some recourse to the court in the divorce proceeding to seek to modify the terms of the alimony provision in the parties’ divorce settlement.)” Hearing officer’s findings and recommendation, April 21,2004. (emphasis added)

Plaintiff did not file exceptions to the hearing officer’s findings and recommendations, choosing to file a petition for modification of alimony instead.

The record indicates that defendant, who is now 42 years of age, was first diagnosed with multiple sclerosis in the summer of 1991, somewhere around the time the parties separated. Plaintiff admits that he knew of defendant’s MS when he entered into the agreement, and that he agreed to pay defendant permanent alimony because of her MS diagnosis. A Domestic Relations enforcement officer testified that, as of the date of the hearing, the plaintiff had paid $107,372 in alimony to defendant.

It is undisputed that the defendant is now unable to care for herself due to her MS and certain mental health problems. (See medical records admitted as respondent’s exhibit A.) Defendant has lived in several nursing homes since 1995 or 1997. Defendant’s sole sources of income are $324 per month in SSI and the alimony paid by plaintiff.

According to defendant’s attorney and guardian ad litem, plaintiff’s alimony payments go in their entirety to the nursing home where defendant resides as payment for her care. Defendant’s attorney also stipulated that all but $30 per month of defendant’s $324 monthly SSI benefit is paid to the nursing home. The parties agree that the difference between what defendant pays the nursing home and the actual cost of her care has been paid and will continue to be paid by Medicaid. The parties also agree that, whether or not defendant receives alimony, she will continue to receive Medicaid benefits which will provide for her continuing care.

As to plaintiff’s situation, plaintiff testified at the hearing that he remarried in February 1995 and became the father of twins in June 1996. He indicated that he has become increasingly responsible for his widowed mother and anticipates her moving in with him “soon.” He also testified that he was having some health problems with his heart.

Although plaintiff testified that his income had increased substantially over the last several years, he also testified that he has greater responsibilities and greater financial needs. Plaintiff contends that his remarriage, the birth of his two children, and his increasing responsibility for his widowed mother constitute a substantial and continuing change of circumstance which warrants the reduction or elimination of alimony.

DISCUSSION

Because plaintiff’s obligation to pay alimony arises from the agreement signed by the parties in 1994, we first look at section 3105(c) of the Divorce Code for guidance regarding the effect of an agreement between parties. Section 3105 states:

“(c) Certain provisions not subject to modification.— In the absence of a specific provision to the contrary appearing in the agreement, a provision regarding the disposition of . . . alimony . . . shall not be subject to modification by the court.’'’ 23 Pa.C.S. §3105(c). (emphasis added)

The question then becomes whether the language contained in the agreement precludes modification of alimony. The court finds that it does not.

Both paragraph 6 and paragraph 7 of the agreement provide that alimony is modifiable. Paragraph 6 of the agreement outlines a procedure by which Domestic Relations is to annually review and, if necessary, modify the amount of alimony pursuant to Pa.R.C.P. 1910.1 et seq. (governing support actions). This provision creates a mechanism for adjusting alimony to the relative incomes of the parties, regardless of need, and is an accommodation by the Domestic Relations section of the court to the parties.

Paragraph 7 of the agreement states, “This agreement shall be modifiable upon changed circumstances as per the Pennsylvania Divorce Code.” Since the agreement itself provides for alimony to be paid to the defendant, it naturally follows that, if one of the parties to the agreement wishes to modify alimony based upon a change in circumstances, this must be done pursuant to the Divorce Code.

Moreover, in its use of the term “changed circumstances,” paragraph 7 clearly refers to section 3701(e) of the Divorce Code, which states:

“(e) Modification and termination. — An order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated or reinstituted or a new order made_” 23 Pa.C.S. §3701(e). (emphasis added) As the language of the agreement unequivocally permits modification, we hold that alimony is modifiable in this case under paragraph 7 and the provisions of the Divorce Code pertaining to alimony.

The next issue before the court is whether the plaintiff is barred by res judicata or collateral estoppel from arguing a substantial and continuing change in circumstances. “The doctrine of res judicata holds that an existing final judgment rendered upon the merits, ... , by a court of competent jurisdiction, is conclusive of causes of action and of facts or issues thereby litigated, as to the parties ..., in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.” Schultz v. Connelly, 378 Pa. Super. 98, 102 n.4, 548 A.2d 294, 296 n.4 (1988). (emphasis added) (quotations and citations omitted) Under this doctrine, “a valid and final determination by a court of competent jurisdiction settles not only the issues actually raised and determined, but also those that might have been raised.” 10 Standard Pa. Practice 2d §65:96, p. 485 (West 2004). (citations omitted)

In this instance, the doctrine of res judicata does not bar the plaintiff from pursuing his claim of a substantial and continuing change of circumstance because the issue has never been submitted to a forum capable of resolving the issue until now. The Domestic Relations conference officers entrusted with making annual adjustments to alimony pursuant to paragraph 6 of the agreement could only consider the factors outlined in the Rules of Civil Procedure relating to the payment of support and alimony pendente lite. They lacked the jurisdiction to consider changed circumstances pursuant to paragraph 7 of the agreement and 23 Pa.C.S. §3701(e). Because plaintiff properly raised the issue of changed circumstances for the first time in his petition for modification, his claims are not barred by res judicata.

“The doctrine of collateral estoppel is a broader concept than res judicata. It operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit.” Day v. VolkswagenwerkAktiengesellschaft, 318 Pa. Super. 225, 236, 464 A.2d 1313, 1318 (1983). (citations omitted)

“[A] plea of collateral estoppel is valid if, (1) the issue decided in the prior adjudication was identical with the one presented in the later action, (2) there was a final judgment on the merits, (3) the party against whom the plea is asserted was a party... to the prior adjudication, and (4) the party against whom it is asserted has had a full and fair opportunity to litigate the issue in... question in a prior action.'’’’ Schultz, 378 Pa. Super, at 102, 548 A.2d at 296. (emphasis added) (citations and quotations omitted)

As noted above, the issue of plaintiff’s substantial and continuing change in circumstance has never before been litigated. The annual reviews conducted by Domestic Relations conference officers merely considered changes in the parties’ respective incomes, which was all they were allowed to consider. Because the issues previously litigated are not identical to the issue being litigated now, the doctrine of collateral estoppel does not apply either. It being clear that neither res judicata nor collateral estoppel bar plaintiff’s assertion of changed circumstances here, this court will consider plaintiff’s claim on its merits, utilizing the factors listed in section 3701(b) as a guide.

The next question is whether the facts of this case warrant modification of alimony. Section 3701(b) states in pertinent part:

“(b) Factors relevant. — In determining whether alimony is necessary and in determining the nature, amount, duration and manner of payment of alimony, the court shall consider all relevant factors, including:...
“(3) The sources of income of both parties, including, but not limited to, medical, retirement, insurance or other benefits. . . .
“(7) The extent to which the earning power, expenses, or financial obligations of a party will be affected by reason of serving as the custodian of a minor child....
“(13) The relative needs of the parties.”

In the instant case, it is clear that the relative needs as well as the sources of income of the parties have changed in a substantial and continuing way. The defendant now is unable to work or care for herself and requires nursing home or hospital care for the rest of her life. This care has been and will continue to be paid for by Medicaid, regardless of whether or not plaintiff pays alimony to defendant. Although defendant’s need for care has increased over the years, her increased resources (in the form of Medicaid and SSI benefits) adequately meet those needs. Therefore, she has no need for alimony.

On the other hand, plaintiff, who is 51 years of age, now has two eight-and-a-half year-old children to support. In this respect, his financial needs have increased substantially. Moreover, as previously stated, his continuing payment of alimony does not in any way benefit the defendant. Given that the parties were married and living together only about three and one-half years and that plaintiff has already paid more than $ 107,000 in alimony, it is inequitable under the circumstances to require the plaintiff to continue to pay alimony.

The crucial fact is that the payment of alimony by plaintiff does not improve the quantity or quality of the care defendant receives at all: she has absolutely no need for it. The court will continue to retain jurisdiction over this case. Should the laws governing defendant’s entitlement to the governmental benefits she now relies on change so that alimony payments could significantly benefit the defendant, the court will consider reinstituting alimony at that time. With that caveat, the court will grant plaintiff’s petition for modification and order that alimony to defendant be terminated. Plaintiff will pay defendant’s reasonable counsel fees.

An appropriate order will be entered.

ORDER

And now, March 30, 2005, after consideration of plaintiff’s petition for modification of alimony, it is ordered, adjudged and decreed that plaintiff’s petition be and is hereby granted. Alimony shall be terminated effective immediately. Plaintiff shall pay defendant’s reasonable counsel fees within 60 days of the date hereof through the office of Jack J. Steiner, Esq. The court will retain jurisdiction of this case pursuant to the divorce decree of May 10, 1994.

      . The divorce decree provided that the court retained jurisdiction of any claims raised by the parties for which a final order had not yet been entered.

      . Pa.R.C.P. 1910.1, entitled “Scope. Definitions, ” states that the rules in that chapter “govern all civil actions or proceedings brought .. .to enforce a duty of support, or an obligation to pay alimony pen-dente lite.” The note to Rule 1910.1 states, “A duty of support is imposed by the following statutes: 23 Pa.C.S. §4321 and ... 62 P.S. §1973.... For alimony and alimony pendente lite, see sections 3701 and 3702 of the Divorce Code, 23 Pa.C.S. §§3701, 3702.” (emphasis added) It is clear that plaintiff no longer has a duty of support in this case.

      . Section 3701(a) states: “the court may allow alimony, as it deems reasonable, to either party only if it finds that alimony is necessary.” (emphasis added) Section 3701(e), entitled “Modification and Termination,” states, “An order entered pursuant to this section is subject to further order of the court upon changed circumstances of either party of a substantial and continuing nature whereupon the order may be modified, suspended, terminated... or a new order made.” 23 Pa.C.S. §3701(e). (emphasis added)

      . Plaintiff did attempt to raise the issue of changed circumstances in his last annual review, but, as the hearing officer noted, this was not the proper forum to do so. Therefore, his failure to file exceptions to the hearing officer’s findings and recommendations does not affect his right to raise the issue of changed circumstances in the instant petition for modification.

      . The fact that these changes arguably were voluntary and foreseeable does not prevent plaintiff from arguing that they constitute a substantial and continuing change in circumstances. See McFadden v. McFadden, 386 Pa. Super. 506, 563 A.2d 180 (1989) (husband’sknowl-edge at time of divorce of voluntary retirement almost five years in future did not automatically preclude his seeking modification of alimony payment order at time of retirement). There is no indication that plaintiff acted in bad faith by agreeing to pay alimony and then subsequently getting remarried and having children. See McFadden, 386 Pa. Super. 511 n.3, 563 A.2d at 183 n.3 (where master specifically found that husband’s retirement was made in good faith, wife should not be allowed to automatically avoid review of the original alimony award simply because original agreement did not expressly plan for retirement). The fact that plaintiff did not file for modification of the alimony award when he first remarried in 1995 or when he had twins in 1996 further supports the court’s finding that plaintiff has been acting in good faith.


author: RIZZO, J,

text:
    Korbal v. Markel American Insurance Company

      William E. Averona, for plaintiffs.

      Charles A. Harad, for defendant.
    March 23, 2005
   RIZZO, J,

Appellants, Edward and Christine Korbal, timely appealed from an order of the Court of Common Pleas of Philadelphia issued bn November 8,2004, which sustained appellee Markel American Insurance Company’s preliminary objections and dismissed the complaint with prejudice.

FACTS AND PROCEDURAL HISTORY

On or about June 11, 2002, appellants suffered property damage to their home as the result of a broken pipe. Appellants’ adjuster estimated the loss at $8,905 plus additional costs of $575 for plumbing, while appellee’s adjuster placed the loss at $2,193. When such a discrepancy arises, the appellants’ policy of insurance requires that two appraisers be appointed and those appraisers then agree to an umpire. The policy also provides that, in the event that the appraisers do not agree on an umpire, “the two appraisers will ask a judge of a court of record of the state in which the appraisal is pending to make the selection.” See page 26, para. 13 of appellants’ insurance contract with appellee attached to appellants’ complaint.

Both parties’ appraisers met and agreed that an umpire should be appointed. Appellants’ complaint states that, on October 3, 2002, appellee’s appraiser contacted appellants’ appraiser suggesting umpires. Appellee alleges that appellants’ appraiser did not respond (nor did appellants present evidence to this court that they had responded), and on November 7, 2002, appellee filed a petition to appoint an umpire. Consequently, an umpire was appointed by court order, dated December 17,2002.

Appellants filed their initial suit, April term 2003, no. 0478, alleging breach of contract and bad faith, on May 28,2003. Appellants’ basis for the bad faith claim stems from the allegation that appellants did not receive notice of the filing of the petition to appoint an umpire, and were thereby severely prejudiced. The bad faith count further states that appellee “improperly selected an umpire” with whom it had previously done business and who, therefore, could not be impartial. See specifically, exhibit “C” of appellee’s preliminary objections to appellants’ civil complaint, Korbal v. Markel American Insurance Co., April term 2003, no. 0478, at para. 26. On the date of the scheduled arbitration of the initial suit, July 7, 2004, the plaintiff filed a praecipe to settle, discontinue and end, as reflected by the docket.

Appellants then commenced a second action, the instant court term and number, July term 2004, no. 1837, by filing a writ of summons on July 14, 2004, with the complaint being filed on August 18, 2004 (instant suit). The instant suit, based upon the same incident of property damage, raised the same counts as the initial suit, but added two counts for fraud and negligence. Appellants contend that both the negligence and fraud counts in the instant suit are based on information revealed just prior to the arbitration hearing of the initial suit on July 7,2004. Appellee filed preliminary objections which this court sustained, dismissing the suit with prejudice. This court found that the negligence and fraud claims should have been raised in the initial suit, and that the instant suit only raised issues that had expired under the policy’s two-year limitations period. (See legal discussion below.)

This timely appeal followed.

SUMMARY OF ISSUES RAISED ON APPEAL

In their statement of matters complained of on appeal, appellants argue that their instant suit was filed within the statute of limitations because the negligent activity, i.e., appellee’s alleged covert filing of the petition to appoint an umpire, occurred on November 7, 2002. Further, appellants allege that the fraudulent conduct was not revealed until the arbitration hearing, scheduled to take place on July 7, 2004.

LEGAL DISCUSSION

While a statute of limitations defense is ordinarily raised in the answer and new matter, a court may rule on such issue raised as a preliminary objection where the opposing party does not object and the issue can be determined on the face of the pleading. Roycroft v. Nationwide Mutual Fire Insurance Co., 20 D.&C.4th 224, 227 (1993), citing Ranker v. Skyline Corp., 342 Pa. Super. 510, 513, 493 A.2d 706, 707 (1985).

Pennsylvania courts honor the right of parties to a contract to modify the applicable statute of limitations provided the period of time is reasonable. See Lyons v. Nationwide Insurance Co., 390 Pa. Super. 25, 567 A.2d 1100 (1989); Roycroft v. Nationwide Mutual Fire Insurance Co., 20 D.&C.4th 224, 227 (1993).

Here, the insurance policy that existed between these parties contained a two-year limitations clause. That clause states the following:

“(11) Suit against us — No suit may be brought against ‘us’ unless all the ‘terms’ of this policy have been complied with and:
“(a) Property coverages — The suit is brought within two years after the loss.
“If a law of the state where the premises is located makes this time period invalid, the suit must be brought within the time period allowed by law.”

With two years from the date of the loss falling on June 11,2004, the “initial suit” was properly filed within the prescribed time period, but the “instant suit” was raised outside the two-year limitations period imposed by the policy.

Appellants argue that the limitations period must be tolled by the revelation of fraud, which came to light at the time of the arbitration scheduled with regard to the first complaint on July 7,2004. Appellants are correct to assert that, under Pennsylvania law, a cause of action for fraud does not trigger the running of a statute of limitation until such time as the fraud has been or should have been discovered by the exercise of due diligence. Rothman v. Fillette, 503 Pa. 259, 469 A.2d 543 (1983).

This court, however, properly sustained appellee’s preliminary objection as to both Counts II and III of plaintiff’s instant suit, as both the count for fraud and the count for negligence mirrored the bad faith claim in appellants’ initial suit. The counts in both complaints argue that: (1) an umpire was decided upon without notice to appellants, and (2) that the umpire had previously worked with appellee and was therefore biased, (emphasis added)

As appellants failed to raise a “new” fraud or negligence claim in the instant suit, the statute of limitations applicable to the matter before this court is the two-year limitation as stated in the insurance policy. Thus, this court properly dismissed the instant suit with prejudice, as it was filed beyond the applicable limitations period.

Further, in violation of Pa.R.C.P. 1019, appellee’s complaint lacks sufficient specificity in that it fails to state a claim for either fraud or negligence. This court is also constrained by the filing of the previous action which was voluntarily ended. Clearly, this court rightfully dismissed with prejudice appellants’ complaint in the instant suit.

CONCLUSION

After careful review of the record, this court finds no error which would warrant its ruling to be reversed, therefore this court’s order of November 8, 2004, should be affirmed.

EXHIBIT A

ORDER

And now, December 17, 2002, upon review of the petition to appoint an umpire, it is hereby ordered and decreed that Tony Menna, P.O. Box 131, Palmyra, NJ 08065, is appointed to serve as umpire in this matter, and proceedings to resolve the issue of value of loss are to take place within 30 days of the date of this order.

EXHIBIT B

CONCISE STATEMENT OF MATTERS COMPLAINED OF ON APPEAL

Plaintiffs, Edward and Christine Korbal, by their at- • tomey, William E. Averona, Esquire allege the following matters complained of their appeal to this honorable court:

(1) No estoppel should be raised in this case, since the plaintiffs had two years from the time the defendant commenced its negligent activity, November 7,2002, the date that counsel for the defendant filed the improvident petition for appointment of an umpire.

(2) No testimony was taken at the trial of this case and no prejudice inured against the defendants.

(3) On the date of the trial, a subpoenaed witness appeared and told plaintiffs’ counsel for the first time the nature and extent of the fraudulent actions existing between the defendant, its appraiser, and its umpire.

(4) An action in fraud against the party has a five-year statute of limitations.

(5) An action for bad faith has a two-year statute of limitations from the date that the bad faith was originated, in this case, the November 7, 2002 filing of the petition for appointment of umpire, which was never sent to the plaintiffs, and a December 15, 2002 order.

(6) Since no consideration was paid in the settlement of this case, the plaintiff had a right to refile the action within the applicable statute of limitations, that is, either by November 6, 2004, for bad faith or negligence, and November 6, 2007, for fraud.

      . See attached exhibit “A,” the court order issued by the Honorable William J. Manfredi on December 17, 2002.

      . See attached exhibit “B” for appellants’ full statement of matters complained of on appeal.

      . July 7, 2004, was the date of the scheduled arbitration in the initial suit, Korbal v. Markel American Insurance Co., April term 2003, no. 0478.

      . Pa.R.C.P. 1030.


author: WETTICK JR., A.J.,

text:
    Minkus v. Sethman

      C.P. of Allegheny County,
    nos. AR04-005528 and AR04-006268 (consolidated).

      Mark A. Smith, for Minkus.

      Tina Ann Aracri, for defendants Sethman.

      John K. Bryan and Gary J. Matta, for Ecsedy.
    March 21, 2005
   WETTICK JR., A.J.,

— The subject of this opinion and order of court is the preliminary objection of Anthony Sethman seeking dismissal of plaintiff’s punitive damage claim. The issue that I address is whether boilerplate negligence allegations coupled with an allegation that the defendant was driving under the influence of alcohol supports a claim for punitive damages.

In his second amended complaint, Timothy Minkus (plaintiff) alleges that he was a passenger in an automobile driven by Sethman. He was injured as a result of a collision between the Sethman vehicle and a vehicle driven by Brenda Ecsedy. In Count I of his complaint, plaintiff alleges that the accident occurred because of Sethman’s negligence in failing to bring his vehicle to a stop at the intersection at which the accident occurred. In Count II, plaintiff alleges that the accident occurred because of Ms. Ecsedy’s negligence in failing to bring her vehicle to a stop at this intersection.

Plaintiff’s complaint alleges that Sethman was driving under the influence of alcohol. He seeks punitive damages based on this allegation.

Defendant, in seeking dismissal of plaintiff’s punitive damage claim, relies on case law holding that allegations that a defendant drove a vehicle in a wanton and reckless manner by operating the vehicle at a high and excessive rate of speed, by failing to have the vehicle under proper and adequate control, and by violating various traffic laws do not support a punitive damage claim. See e.g., Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980).

Plaintiff, on the other hand, contends that the negligent operation of a vehicle coupled with a showing that defendant was driving under the influence of alcohol is sufficient to permit a jury to award punitive damages. According to plaintiff, a jury may find that the operation of a vehicle while under the influence of alcohol constitutes a sufficient reckless indifference to the safety of others to allow the imposition of punitive damages because the potential for harm and serious injury is inherent in driving under the influence of alcohol.

Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970), appears to be the only appellate court case law that has addressed the issue of the imposition of punitive damages on a driver who was operating the vehicle under the influence of alcohol.

In that case, the defendant admitted liability. The trial court ruled that evidence of intoxication would not be admitted for the purposes of determining the amount of damages to be awarded because this evidence could not support an award for punitive damages. The Superior Court reversed. The Superior Court ruled:

“In certain factual circumstances the risk to others by the drunken driver may be so obvious and the probability that harm will follow so great that outrageous misconduct may be established without reference to motive or intent. We conclude, therefore, that, under the appropriate circumstances, evidence of driving while under the influence of intoxicating liquors may constitute a sufficient ground for allowing punitive damages.” Id. at 41-42, 268 A.2d at 161. (footnote omitted)

Since the lower court had never ruled on the offers of proof, the Superior Court remanded the case stating that on retrial “it will be the obligation of the judge to determine preliminarily whether the offers of proof warrant the submission of the question of punitive damages to the jury.” Id. at 42,268 A.2d at 161.

Opinions of common pleas courts rendered in the last 15 years have consistently held that a complaint alleging that the defendant negligently operated the vehicle while driving under the influence of alcohol may support a punitive damage claim.

In Kuehn v. Morgan, 62 D.&C.4th 509 (Lehigh Cty. 2002), the plaintiff’s truck was struck from behind by a vehicle operated by the defendant. The defendant’s counsel conceded that the defendant’s negligence caused the accident. Through a motion in limine, the defendant sought a ruling that evidence that he was driving under the influence of alcohol was inadmissible as irrelevant. The plaintiff, on the other hand, contended that evidence of intoxication was admissible to support a punitive damage claim. The court, citing Focht, denied the motion in limine. The court stated the defendant was correct in asserting that, in weighing the admissibility of intoxication on the question of punitive damages, one has to look at both surrounding circumstances and the nature of the harm that occurred. However, it ruled that this evaluation is more appropriately performed at the time of trial.

In Rossi v. Fuchs, 59 D.&C.4th 307 (Butler Cty. 2002), the plaintiff’s complaint alleged that the defendant crossed the center line, hitting her vehicle and the vehicle of her husband who was fatally injured in the accident. The complaint included a claim for punitive damages based on allegations that the defendant had a blood alcohol content in excess of the legal limit. Through preliminary objections, the defendant sought dismissal of the punitive damage claim on the ground that the facts in the complaint did not support such a claim.

The court, citing Focht, stated that driving while under the influence of intoxicating liquor may under certain circumstances be deemed outrageous conduct and a reckless indifference to the interests of others. Thus, it overruled the preliminaiy objections on the ground that at this stage of the proceedings the plaintiff had pled facts which sufficiently set forth a claim for punitive damages.

In Nunez v. Meckes, 43 D.&C.4th 557 (Monroe Cty. 1999), the court compelled the defendant to respond to punitive damages discovery, stating that the plaintiffs are entitled to bring a claim for punitive damages based on allegations that the defendant driver was intoxicated at the time of the accident.

In McIntire v. Szczyrbak, 39 D.&C.4th 190 (Greene Cty. 1998), the court overruled the defendant’s preliminary objections seeking dismissal of a punitive damage claim because of allegations within the complaint that the defendant was driving while intoxicated. The court stated that the case was analogous to Focht.

In Shetler v. Zeger, 4 D.&C.4th 564 (Franklin Cty. 1989), the plaintiff was injured in an automobile accident at an intersection. The plaintiff’s complaint included allegations that the defendant had failed to yield the right-of-way in violation of the Motor Vehicle Code, and that he was operating the vehicle with an alcohol content of greater than. 10 percent in violation of another provision of the Motor Vehicle Code. The court dismissed the defendant’s pleading seeking dismissal of the punitive damage claim, stating that punitive damages may be awarded upon a showing that a defendant violated a section of the Motor Vehicle Code governing the operation of a vehicle, while having a blood alcohol content in excess of .10 percent.

In Long v. Ohler, 1 D.&C.4th 402 (Adams Cty. 1988), the plaintiffs’ complaint alleged that the accident occurred when the defendant’s vehicle, traveling in the opposite direction, swerved in front of plaintiffs’ vehicle and caused a head-on collision on the wrong side of the highway. The plaintiffs sought punitive damages based on an allegation that the defendant was operating the vehicle while severely intoxicated. The court overruled the defendant’s preliminary objections seeking to strike the punitive damage claim, stating that the averments in the pleadings were sufficient to cause the case to proceed to trial on the issue of punitive damages.

For these reasons, I enter the following order of court:

ORDER

On March 21, 2005, it is ordered that the preliminary objections of defendant Anthony Sethman seeking dismissal of the punitive damage claim are overruled.

      . In this opinion, I am not addressing whether, or under what circumstances, a punitive damage claim based on driving under the influence of alcohol may be dismissed at the summary judgment stage of the proceedings.

      . By stipulation of counsel filed December 13, 2004, the defendant consented to the filing of the second amended complaint which named Anthony Sethman instead of Allen W. Sethman as one of the defendants.