author: LASH, J.,

text:
    Wachovia Bank N.A. v. Dixon

      C.P. of Berks County,
    no. 04-6251.

      Peter E. Meltzer, for plaintiff.

      Keith Dixon, pro se.
    August 1, 2006
   LASH, J.,

The matter before this court is the motion of plaintiff, Wachovia Bank N.A., for judgment or, in the alternative, to hold defendant, Keith Dixon, in contempt of court for violation of court order. The essence of the Bank’s claim is that Dixon has been obdurate, vexatious and dilatory throughout the litigation and in particular, in the responses he gave in depositions scheduled by the Bank. The Bank believes that Dixon’s improper conduct warrants the sanction of the entry of judgment and for attorney’s fees. For reasons set forth herein, we grant the Bank’s motion in part and award attorney’s fees against Dixon.

The Bank filed its complaint against Dixon in May 2004, alleging that Dixon defaulted on the payment of a $35,000 promissory note. Dixon filed his response on or about June 1, 2004.

In due course, the Bank scheduled a deposition of Dixon for October 22,2004 at the office of Bank’s counsel. Dixon did not appear. Accordingly, on or about April 21, 2005, the Bank filed a motion to compel Dixon’s attendance at the deposition. On December 5, 2005, after hearing argument, this court granted the Bank’s motion and ordered Dixon to appear for a deposition scheduled by the Bank’s counsel.

Dixon did appear for the deposition, which took place on January 9, 2006. However, according to the Bank, Dixon refused to cooperate at the deposition. On or about February 21,2006, the Bank filed a motion to hold Dixon in contempt of court and for judgment, arguing, among other things, that Dixon’s actions were an “attempt to make a mockery of the entire process and to completely evade his obligation to answer all questions truthfully and completely. In other words, this was not a case of a good faith dispute regarding a deponent’s obligation to answer one or two isolated questions. Rather, Mr. Dixon was clearly attempting to flout the entire process starting right from the beginning of the deposition.”

Dixon filed a response on April 3,2006. He also filed motion to dismiss “due to lack of standing of Wachovia Bank N.A.” Argument on Bank’s motion was held April 3, 2006.

Upon consideration of the Bank’s motion, Dixon’s responses, the record and after argument held, this court found it apparent that Dixon was evasive in his answers at the deposition. The court also found the statements contained in Dixon’s documents and his responses in argument court to be irregular. Nevertheless, this court was not prepared to impose a sanction at that time without giving Dixon the opportunity to cure his behavior through appearance at a second deposition. Accordingly, on April 3, 2006, the court directed that counsel for the Bank shall schedule a deposition and ordered Dixon to appear. The court also denied the motion to hold defendant in contempt without prejudice.

On May 12, 2006, the Bank filed a “renewed motion for judgment or, in the alternative, to hold defendant in contempt of court for violation of court order.” In the new motion, the Bank stated that Dixon did appear for the second deposition, on April 18, 2006, as required. However, Dixon continued to be obdurate and contrary in his answers. Dixon filed a response and brief to the Bank’s motion and argument was scheduled for July 10, 2006, but was not held by operation of local rule. In lieu of argument, the court considered the filings of record, including the transcripts of the depositions, and supplemental responses filed by both parties.

The Rule of Civil Procedure relating to the scope of discovery generally appears in Pa.R.C.P. 4003.1, where it states:

“Rule 4003.1. Scope of discovery generally. Opinions and contentions.

“(a) Subject to the provisions of Rules 4003.2 to 4003.5 inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party, including the existence, description, nature, content, custody, condition and location of any books, documents, or other tangible things, and the identity and location of persons having knowledge of any discoverable matter.

“(b) It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.

“(c) Except as otherwise provided by these rules, it is not ground for objection that the information sought involves an opinion or contention that relates to a fact or the application of law to fact.”

We find that the questions posed by plaintiff’s counsel in the depositions of Dixon were proper, designed to lead to the discovery of admissible evidence. We find, as well, that Dixon engaged in tactics which thwarted this purpose, as his responses were improper and evasive. His responses to many questions fell just short of an outright refusal to answer.

In the first deposition, Dixon engaged in a jousting match with the Bank’s counsel, answering questions with questions and providing circular reasoning. Additionally, he refused to acknowledge words and their plain meaning. For example, the following exchange occurred:

“Q: If there was a bank account surely there would have been deposits into the bank account?

“A: If there was a bank account, I would assume there would have been.

“Q: What would have been the source of those deposits?

“A: Again, I don’t recall.

“Q: Didn’t you say that Keith Dixon Warehouse Supply earned no money and made no income?

“A: That is right.

“Q: But there was a bank account?

“A: What’s your definition of income? Please define that.

“Q: Was there any gross income?

“A: What is gross income? Please define that.

“Q: Did it earn any money?

“A: Define money, please. I’m asking you.”

Another exchange occurred shortly thereafter:

“Q: Are you familiar with the company known as Keith Dixon Systems?

“A: Systems, is that what you’re saying?

“Q: Yes.

“A: This says ‘System’.

“Q: I’m asking you Systems?

“A: I fail to understand where ‘Systems’ has to do with Keith Dixon System in the complaint.

“Q: I’m asking if you are familiar with a company known as Keith Dixon Systems or System, either one?

“A: It was something that I probably used up until four, five years ago, maybe six, seven.

“Q: What do you mean something you probably used?

“A: I work as myself. So I put the word System behind it.

“Q: What do you do when you say you work? What is the occupation?

“A: I work as myself. I sell parts and fittings and different things to machinery, for people who own machinery.

“Q: You earn no money from doing this?

“A: What’s the definition of money?

“Q: You don’t know what money means?

“A: I’m asking you. Please provide it.”

Also, contained in the first deposition is this give and take:

“Q: Have you ever been employed?

“A: I’ve worked for someone back in the 1970s, I guess.

“Q: You have self-employed since then?

“A: If that is the conclusion you wish to draw.

“Q: I’m asking you, are you self-employed?

“A: No, I’m not self-employed.

“Q: Have you ever been self-employed?

“A: No, I work as myself.

“Q: Do you earn any income from working as yourself?

“A: No, I have no income.

“Q: How do you support yourself?

“A: I do. Income has never been defined in the title 26 of the Income Tax Code.

“Q: So you never earned any income?

“A: No. Ask the IRS.”

During the course of the second deposition, Dixon changed his tactics somewhat, but continued to refuse to answer appropriate questions. In many of Dixon’s answers he invoked the Fifth Amendment to the United States Constitution, the right against self-incrimination. However, the questions asked by counsel for the Bank were not designed, and in most cases could not result in the uncovering of evidence that could be admissible against Dixon in a criminal action. For example, the following exchange occurred:

“Q: Have you ever heard of a company called Keith Dixon Systems?

“A: I will invoke the Fifth Amendment not to be a witness against myself....

“Q: Has Keith Dixon Systems ever maintained a bank account?

“A: On a — in which bank?

“Q: Any bank.

“A: Well, I believe I did a long time ago with a bank— actually — no, I retract that, and I’m going to take the Fifth — I’m going to take the Fifth Amendment not to be a witness against myself in this proceeding on that question.”

This exchange is representative of many of the questions seeking a simple “yes” or “no” response, with neither answer providing any information that could lead to charges being filed against Dixon.

In addition, Dixon miscategorizes his Fifth Amendment rights, opining that the Fifth Amendment can protect him against civil liability. Dixon also refused to give a signature sample on the basis of the Fifth Amendment.

Under Pa.R.C.P. 4019(a)(l)(viii), the court may, on motion, make an appropriate order for sanctions if a party fails to make discovery or obey an order of court respecting discovery. Under Pa.R.C.P. 4019(g)(1), if a party has refused or failed to comply with the Pennsylvania rules for discovery, the court, after opportunity for a hearing, can enter an order compelling compliance, and if the order is not obeyed, the court on a subsequent motion for sanctions may grant the motion and require the party to pay to the moving party reasonable expenses, including attorney’s fees, incurred in obtaining the order of compliance and the order for sanctions.

In discussing the type of sanction to be imposed, the Pennsylvania Superior Court in Pride Contracting Inc. v. Biehn Construction Inc., 381 Pa. Super. 155, 553 A.2d 82 (1989), allocatur denied, 523 Pa. 643, 565 A.2d 1167 (1989), stated:

“The specific sanction to be imposed under this rule is a matter within the discretion of the trial court. Hoffman v. Memorial Osteopathic Hospital, 342 Pa. Super. 375, 385, 492 A.2d 1382, 1387 (1985) .... ‘The court is required to strike a balance between the procedural need to move the case to a prompt disposition and the substantive rights of the parties.’ Gonzales v. Procaccio Bros. Trucking Co., 268 Pa. Super. 245, 252, 407 A.2d 1338, 1341 (1979) . . . . Whether the failure to provide information represents a willful disregard of a court order is also a factor to be considered in fashioning the severity of the sanction. Roman v. Pearlstein, 329 Pa. Super. 392, 399, 478 A.2d 845, 848 (1984). See also, Calderaio v. Ross, 395 Pa. 196, 150 A.2d 110 (1959).” 381 Pa. Super. at 159, 553 A.2d at 83-84.

This court gave great consideration to granting plaintiff’s motion to enter judgment by default. Dixon’s actions were not in good faith and have hindered plaintiff’s goal of obtaining disposition in a timely manner. Nevertheless, we recognize that judgment by default is an extreme measure, to be meted out in exceptional cases only. At this juncture, the court is not prepared to deny Dixon his day in court. However, his conduct does indeed warrant an award of attorney’s fees, both as a sanction and to compel future compliance with the procedural rules. Further, if plaintiff pursues additional discovery and Dixon continues to subvert the process of discovery through his actions, a new motion for sanctions may result in imposition of judgment against Dixon.

Plaintiff has requested attorney’s fees totaling $3,040. Upon review of the itemization and in consideration of the quantity of work performed, this court finds appropriate a sanction of $2,000 to be divided equally between the two cases.

We enter the following order:

ORDER

And now, August 1, 2006, upon consideration of plaintiff’s renewed motion for judgment, or in the alternative, to hold defendant in contempt of court for violation of court order, response thereto, and upon review of the file, said motion is granted. Defendant shall be redeposed a third time, if requested by the plaintiff or its counsel. Further, sanctions are awarded in favor of plaintiff and against defendant in the amount of $ 1,000 on the above-captioned case and $1,000 to action no. 04-6250.

      . There is a separate case filed to no. 04-6250 alleging default on a separate $30,000 note.

      . This matter was not originally assigned to this court, but was assigned to the Honorable Stephen B. Lieberman, who on May 5,2005 recused himself. Subsequently, on September 30,2005, the matter was reassigned to Senior Judge Albert A. Stallone, with any matters scheduled for argument to be heard by this court.

      . Plaintiff’s motion to hold defendant in contempt of court and for judgment, paragraph 7.

      . At the scheduled time for argument, Bank’s counsel and Dixon appeared before this court. Dixon raised his concern that the Bank failed to file a brief in support of its second motion. The Bank believed it was not necessary because this court’s order of April 3, 2006 set forth that plaintiff’s motion could be refiled “upon informal application.” However, the instant motion was not a simple refiling but averred additional facts, namely, that Dixon had failed to comply with the order of April 3, 2006 by being recalcitrant in his actions and responses at the second deposition. Under these circumstances, it was incumbent upon the Bank to file a brief, and its failure to do so resulted in the matter being disposed of through Berks County Rule 211.5(b), which sets forth that upon failure of a party to file a brief, the matter shall be resolved by the documents filed in the record, without argument.

      . Notes of Deposition, January 9, 2006, p. 16.

      . Notes of Deposition, January 9, 2006, pp. 17-18.

      . Notes of Deposition, January 9, 2006, pp. 10-11.

      . Notes of Deposition, pp. 22-23.

      . Notes of Deposition, pp. 23 and 33.

      . Notes of Deposition, p. 36.

      . This court specifically rejects the first entry of 1.3 hours performed on December 5,2005, which related to work performed prior to this court granting plaintiff’s motion to compel attendance at deposition.


source: Caselaw Access Project

author: MINORA, J.,

license: Public Domain

text:
    Adriansen v. Marworth
    C.P. of Lackawanna County,
    no. 01 CV 2633

      Joseph Lenahan, for plaintiff.

      Daniel Rovner, for defendants.
    July 14, 2006
   MINORA, J.,

INTRODUCTION

The matter before the court involves a petition to appeal a decision from a special trial master regarding discovery issues in the underlying action. The special trial master decision under review is dated November 2,2005. The parties have presented both written and oral arguments to the court rendering this matter fit for adjudication.

STATEMENT OF THE CASE

A brief rendition of the factual history is required to adequately preface the issues before the court. Allegedly, Gary Williams, now deceased, was admitted to Marworth, a licensed drug and alcohol treatment facility in Waverly, Pennsylvania, on June 26, 2000. Additionally, it is asserted by the plaintiff that Marworth is affiliated with defendant Geisinger Health Systems Inc. and defendant Geisinger Clinic, which worked in conjunction with defendant Marworth to offer medical treatment to patients at the facility while undergoing drug and alcohol rehabilitation. Upon decedent’s admittance to the facility, he was entered into the Level III program, which is the highest level of treatment available. (See plaintiff’s complaint ¶15.) As declared in the complaint, the initial impression the staff received from the decedent was that he showed signs of anxiety and alcohol withdrawal upon entry. (See plaintiff’s complaint ¶16.) On the day of admittance, decedent was administered 90 mg of Phenobarbital to reduce his withdrawal symptoms of nausea, tremors, sweats, and anxiety at several intervals; 5:45 p.m., 8 p.m. and 10:30 p.m. (See plaintiff’s complaint ¶18-20.) The decedent received additional doses of Phenobarbital again on June 27, 2000 at four-hour intervals. (See plaintiff’s complaint ¶23.) Reportedly, the decedent did not exhibit positive changes after each treatment according to his patient progress report. (Id. at ¶23.)

The following day, June 28, 2000, the deceased was administered additional doses of Phenobarbital at varying times; he allegedly exhibited no improvement, but instead, delusions, disorientation and hallucinations. (See complaint ¶¶24-30.) Due to this behavior, a counselor of the Marworth staff contacted the deceased’s family to remove him from the facility, which they declined. (Id. at ¶¶30,31.) In the early evening hours of June 28,2000, members of the facility contacted a nearby hospital (Community Medical Center) regarding the decedent’s behavior/condition, yet there is no documentation of recommended course of treatment. (Id. at ¶32.) It is reported that at approximately 8:30 p.m., the decedent crawled out of his window and appeared tapping on the outside of the Marworth counseling office window. (Id. at ¶35.) After he was returned to his room, another incident occurred that evening of decedent displaying signs of confusion and disorientation. (Id. at ¶37.) During the early morning hours of June 29,2000, the decedent requested and was administered sleep medications. (Id. at ¶38.) The progress notes indicate that the decedent was asleep and in bed at 2:15 a.m. and 3:10 a.m. (Id. at ¶39.) At 6:10 a.m., on June 29, 2000, Sue Blackledge, a nurse’s aide, entered the decedent’s room to record his vital signs, but he was missing; at this time Blackledge alerted the facility staff that the decedent had “eloped.” (Id. at ¶¶40,41.) Both the Waverly police and the state police were contacted and conducted an investigation in an effort to locate the decedent.

On September 30, 2000, a group of individuals were hunting in a wooded area in Waverly when they found the decedent’s body, lying face down, in a small creek. (Id. at ¶49.) Later, an autopsy was performed on decedent, yet due to the “extensive postmortem decomposition” of the body, the cause of death was undeterminable. (Id. at ¶51.)

This cause of action was commenced by the plaintiff, Susan Adriansen, sister and administrator of the estate of Gary Williams, deceased. A writ of summons was entered on May 18, 2001, which was later reinstated on July 24, 2001. The complaint was filed on November 11, 2001, thereby instituting this wrongful death and survival action, including the following: one count of negligence against defendant, Marworth; a second count of vicarious liability asserted against Geisinger Clinic; and a third count, also asserting vicarious liability, against Geisinger Health Systems Inc. Contained within Count One asserted against defendant Marworth are allegations of negligence on the part of the medical staff, physicians and nurses in regard to the decedent’s need for medical attention, his adverse reaction to medications provided, and failure to prevent the elopement among a litany of other errors.

Petition for Appeal From Special Trial Master Decision

The main subject of this appeal concerns the personnel file of Steve Adams, RN (now deceased). Adams was the head nurse on duty at Marworth on the evening of June 28,2000, through the morning hours of June 29, 2000, which is the period of time in which the plaintiff decedent had eloped from the Marworth facility. On April 29, 2000, during the discovery phase of this litigation, the plaintiff’s counsel requested the production of said personnel file from defendant Marworth. Marworth forwarded a letter dated May 16, 2005, to plaintiff’s counsel identifying all those documents that defendant voluntarily would produce, and further identifying those requested documents it declined to produce asserting the same to be privileged and confidential. On August 5, 2005, the defendant, by counsel, forwarded a detailed log entitled “Steve Adams Personnel File Document Log With Identified Privileges,” wherein the defendant provided descriptions of all documents produced and all items withheld indicating the privilege and objections relied upon, particularly the Peer Review Protection Act (PRPA) 63 P.S. §425.1 et seq. (See defendants’ exhibit “B” to petition for appeal of the special trial master decision.) The items regarded as privileged by the defendants are the subject of the present appeal from the special trial master decision of November 2,2005. The specific items in controversy include the following:

(12) Performance improvement plan, dated April 24, 2001;

(15)-(19) Geisinger Marworth performance appraisal and development plans;

(23) Department of Nursing orientation checklist evaluation;

(31) 6/13/00 Infection control orientation checklist;

(59)-(62) Marworth telephone reference evaluations;

(66) 5/22/00 Marworth interview sheet evaluating candidates.

The plaintiff filed a motion to compel production of the personnel file of Steve Adams, deceased, which was presented to Special Trial Master Richard S. Campagna. The defendant responded to the plaintiff’s motion and STM Campagna entertained oral argument on September 12,2005. By order dated October 12,2005, Master Campagna required the defendants to submit the subject documents for an in camera review within 10 days. After the master reviewed the documents, he noted his findings in the decision and order dated November 2, 2005. Therein it was stated that the items withheld by the defendant, under the guise of peer review objections, during discovery, failed to meet the criteria necessary for peer review protection under 63 P.S. §425.1 et seq.

This court has discussed the proper scope of discovery in Yadouga v. Cruciani, 66 D.&C.4th 164, 167 (Lacka. Cty. 2004), as follows:

“The purpose of the Pennsylvania ‘discovery rules is to prevent surprise and unfairness and to allow a fair trial on the merits.’ Dominick v. Hansen, 753 A.2d 824, 826 (Pa. Super. 2000). To that end,... ‘discovery is liberally allowed with respect to any matter, not privileged, which is relevant to the cause being tried.’ George v. Schirra, 814 A.2d 202,204 (Pa. Super. 2002). A discovery request is not objectionable on the grounds that it seeks ‘an opinion or contention that relates to a fact or the application of law to fact’ or that ‘the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to discovery of admissible evidence.’ Pa.R.C.P. 4003.1(b), (c). Furthermore, any limitations or restrictions upon discovery should be construed narrowly. McAndrew v. Donegal Mutual Insurance Co., 56 D.&C.4th 1, 7 (Lacka. Cty. 2002); Schwab v. Milks, 8 D.&.C.4th 557, 558 (Lacka. Cty. 1990).”

We first note that the defendants have properly brought their discovery appeal of the decision of special trial master before this court pursuant to Lacka.Cty.R.C.P. 4000.1(b), which permits an order of an STM to be appealed de novo by presentation of a motion to the court to be filed within 10 days of the appealed decision and upon proof of payment to the court of appropriate costs. We find that the present appeal is properly before this court.

It is the defendant’s argument that the documents referenced as numbers 12,15-19,23, 31, 59-62 and 66, all not produced from Adams’ file, fall within the scope and nature of those protected by the Peer Review Protection Act (PRPA) and not subject to discovery. Peer review protection is enjoyed only by those considered a “professional health care provider.” 63 P.S. §425.2. We are satisfied that the Marworth defendant, Adams’ employer, is provided protection under the PRPA as it is licensed by the Pennsylvania Department of Health, Office of Drug and Alcohol Programs, and is accredited by the Joint Commission on Accreditation of Healthcare Organization (JCAHO).

The crux of our determination lies on the evaluation of the PRPA, specifically, the scope of the Act and its affect on confidentiality of documents. As directed by the Peer Review Protection Act and due to the nature of the practice of medicine and the level of skill necessary to practice medicine and related areas, medical professionals and healthcare facilities are in the best position to police their own activities. Corrigan v. Methodist Hospital, 857 F. Supp. 434 (E.D. Pa. 1994), re’hrg denied; Dodson v. Deleo, 872 A.2d 1237 (Pa. Super. 2005). Protection is provided under PRPA to those items of discovery subject to peer review proceedings to ensure “comprehensive, honest and potentially critical evaluations of medical professionals by their peers.” Dodson, supra at 1242; 63 P.S. §§425.1-425.4. Yet, there are limitations to the protections granted by the PRPA. The Dodson court noted that the Peer Review Protection Act, which protects documents related to peer review from discovery or introduction into evidence in civil action against a professional health care provider, does not protect non-peer review business records, even if those records eventually are used by peer review committee. 63 P.S. §§425.1-425.4. In Dodson, the discovery documerits under scrutiny were sought in a medical malpractice action and were generated and used only by the hospital’s peer review department and therefore were found to be privileged under the PRPA. The particular documents subject to the court’s review included credentialing records and reports which charted problems and potential problems with the alleged negligent doctor’s performance while working at the medical facility. The court concluded, after a review of the reports, that the documents were created as peer review material and therefore subject to protection of the PRPA.

At 65 P.S. §425.4, entitled, “Confidentiality of review organizations records” as the very first sentence the statute states, “[t]he proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a health care provider arising out of matters which are the subject of evaluation and never by such committee.” (emphasis added) Also at 65 P.S. §425.2, “peer review” is defined as, “the procedure for evaluation by professional health care providers of the quality and efficiency of services ordered or performed by other professional health care providers.” A “review organization” is any committee engaged in peer review. Despite this broad definition, the confidentiality afforded peer review organizations is not absolute nor all encompassing. At 65 P.S. §425.4 noted above, the statute goes on to say that “information, documents or records otherwise available from original sources are not to be construed as immune from discovery.” (emphasis added)

With this backdrop, this court has performed its own in camera review of the disputed documents which we should address as presented below.

Document (12) Performance Improvement Plan Dated April 24, 2001

This document does not deal at all with professional skills needing to be evaluated by other professionals. It does not deal with events of treatment nor is the document prepared for purposes of peer review. This performance improvement plan deals with Steve Adams R.N. ’s excessive use of “PTO,” which we interpret to mean paid time off. The document indicates that R.N. Adams needs to decrease his unscheduled use of PTO, which he signed, as did his supervisor who also prepared the document. Subsequently, an administrative officer also signed off on the document. The attempt to bar this document is clearly disingenuous by the defense. Their position here is totally lacking in both merit and of substance, and therefore the decision of the special discovery master is sustained. This document appears to be a human resources related document having absolutely nothing to do with peer review or the exercise of a professional health care employer or the professional skills in patient care and treatment.

Documents (15)-(19) Performance Appraisal and Development Plan

A review of this multi-page document clearly shows that it also is human resources related and oriented as opposed to the proceedings and records of a peer review committee. A rater, Nurse Adams’ supervisor rates the employee’s performance and signs as both the rater and the department head, as does the employee. The appraisal and development plan explores questions related to: patient privacy not treatment; adherence to the dress code; how the employee accepts criticism; how the employee observes hours of work attendance; and other such issues. Another part of the same appraisal and development plan deals with duties and evaluates whether the employee “meets expectations” (ME) or “needs improvement” (NI). These various duties are patient related, but generic in nature. Other questions posed by these documents include: How does the employee assess the patient’s physical, emotional and spiritual needs; how does the employee prioritize his activities to insure proper and appropriate management of workload to maximize utilization of human and material resources; how does the employee promote a team approach or document patient information generally; how are the employee’s skills in communication and taking initiative, etc.

As noted above the defendants’ position is without both substance and/or merit as this set of documents is related to human resources, not peer review.

Document (23) Department of Nursing Orientation Checklist Evaluation

This is perhaps the best example of the defendants’ disingenuous position. This checklist merely documents that an employee has received orientation in a number of areas, many unrelated to treatment, such as conduct and appearance policies, phone and fire drill procedures. The items on the checklist that are related to health care and treatment are generic and general, only documenting that the employee received his proper orientation as to hospital patient rules and regulations; infection control; nursing department procedures; medical emergency procedures, etc. It is noteworthy that the only use the orientation checklist has is that it establishes what Nurse Adams completed during his orientation. It does not state how Adams performed, only that on a date certain, this orientation was completed and it includes the initials of the person who conducted the orientation.

It is beyond cavil that such a checklist document, totally unrelated to patient care, could ever be construed as peer review since it does not even involve patient interaction, but only the orientation procedures of the new employee. This is yet another human resources department document that the defense tries to dress up in a costume of confidentiality. Once again, the defense position is totally devoid of substance and/or merit.

Document (31) Infection Control Orientation Checklist

For the reasons articulated at number 23, this document also fails as peer review protected. It is a human resources document not involving the care of an individual patient. It is a checklist documenting that the employee has had his infection control orientation. Specific matters are noted as completed, and the document is signed by the supervisor and counter-signed by the employee, as is document 23.

Document 31 was not prepared solely for peer review, but to document employee orientation and training. It is devoid of any reference to, or recording of, events regarding treatment of patients. As such, it fails miserably as protected peer review material. The defense position is once again equally devoid of any merit and/or substance.

Documents (59)-(62) Marworth Telephone Reference Check

These forms represent the hospital human resources department’s contacts made while checking the references that Nurse Adams included on his application for employment. According to the reference check materials, separate calls were made to George Slocum and Kathleen Rooney of the Northeast Veteran’s Center, assessing Steven Adams’ character and prior employment. Once again, we find these documents to be devoid of any matters prepared for the purpose of peer review. Additionally, these documents are dated prior to the incident under review. Resultantly, these documents cannot be related to treatment of the patient. Documents 59 through 62 do not bear even a remote resemblance to those provided peer review protection. Likewise, the defense position does not bear the most remote resemblance to having either substance and/or merit.

Document 66 Marworth Interview Sheet

This document was generated as a part of the interview process related to Nurse Adams’ initial employment on May 22,2000, more than one month prior to the incidents which give rise to this case. It is totally unrelated to patient care and/or peer review. It does not deal with the proceedings and records of a review committee. This document is comprised only of notes of an interview between Nurse Adams and his soon to be supervising nurse prior to the establishment of an employee/ employer relationship from a prior agency relationship. This human resources document could never be construed as peer review protected under our statutory scheme.

The exercise to review this matter, initially by our special trial master for discovery issues, and again during appeal to this court, represents a lack of candor to both tribunals by the defense counsel. The defense has caused a huge waste of time for our discovery master and now for this court, especially when it involves in camera review. Defendants’ position has never had a shred of merit or substance and was continuously disingenuous in its totality. The court could only speculate as to their real motives, whether they are dilatory or otherwise, (emphasis added) This tribunal’s only regret is that the court and discovery master cannot hold defense counsel to task for this huge waste of both the special trial master’s and this court’s time performing a second in camera review.

Upon our detailed review of the challenged decision pertaining to all the documents at issue composed of “checklists,” “plans,” and other “evaluations,” together with the scope of discovery and relevant case law, we find absolutely no basis to disturb the determination of Special Trial Master Campagna. The purpose of the appointment of a special trial master/disco very master is to assist the court with particular issues involved in a matter. We find there has been extraordinary effective assistance by the special trial master and that there has been no abuse of discretion, nor does there exist any error of law made by the capable special trial master appointed to assist all of our court in discovery issues. Therefore, absent any remotely persuasive authority by the defendant, we shall sustain Master Campagna’s decision, dated November 2, 2005.

An order consistent with this memorandum follows:

ORDER

And now, to wit, July 14,2006, upon consideration of the defendants’ petition to appeal the decision from special trial master dated November 2,2005, the verbal and written arguments of counsel, and in accordance with the preceding memorandum, it is hereby ordered and decreed that the decision of Special Trial Master Campagna is hereby sustained in its totality and the appeal of the decision of the special trial master by the defendant is denied and dismissed as totally lacking in both substance and merit. All disputed documents are to be provided within 10 days of this order.

      . Marworth is licensed by the Pennsylvania Department of Health, Office of Drug and Alcohol Programs, and is accredited by the Joint Commission on Accreditation of Healthcare Organization (JCAHO).

      . As alleged by the plaintiff, Phenobarbital is administered to help control seizures, and its typical effect is to induce sleep. Yet, the drug has an adverse reaction on some individuals causing them to experience nervousness and agitation. (See plaintiff’s complaint ¶ 21.)

      . Susan D. Adriansen was duly authorized by the Register of Wills of Bergen County, New Jersey, as personal representative of the estate of Gary Williams and issued letters of administration on December 1, 2000.

      . Steve Adams, R.N., is reportedly deceased per defendants, Marworth, Geisinger Health System Foundation and Geisinger Clinic’s petition for appeal of special trial master, ¶ 8.

      . 63 P.S. §425.2, Professional health care provider means
      “(1) individuals or organizations who are approved, licensed or otherwise regulated to practice or operate in the health care field under the laws of the Commonwealth, including, but not limited to the following individuals or organizations:
      “(i) a physician;
      “(ii) a dentist;
      “(iii) a podiatrist;
      “(iv) a chiropractor;
      “(v) an optometrist;
      “(vi) a psychologist;
      “(vii) a pharmacist;
      “(viii) a registered nurse or practical nurse;
      “(ix) a physical therapist;
      “(x) an administrator of a hospital, nursing or convalescent home or other health care facility; or
      “(xi) a corporation or other organization operating a hospital, nursing or convalescent home or other health care facility; or
      “(2) individuals licensed to practice veterinary medicine under the laws of this Commonwealth.”

      . 63 P.S. §425.4, entitled Confidentiality of review organization's records states:
      “The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review by such committee and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to any evidence or other matters produced or presented during the proceedings of such committee or as to any findings, recommendations, evaluations, opinion or other actions of such committee or any members thereof: Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee, nor should any person who testifies before such committee or who is a member of such committee, be prevented from testifying as to matters within his knowledge, but the said witness cannot be asked about his testimony before such a committee or opinions formed by him of said committee hearings.”


author: CLARK, J„

text:
    Control Board of the Harrisburg School District v. Board of School Directors of the Harrisburg School District

      C.P. of Dauphin County,
    no. 2006 CV 2489.

      Brian P. Gabriel, for plaintiffs.

      Carl P Beard, for defendants.
    June 27, 2006
   CLARK, J„

INTRODUCTION

In order to properly discuss this case, the court must briefly set forth the general historical background of school districts in this Commonwealth, and then contrast and compare a “normal” school district with one governed by The Education Empowerment Act (EEA) of 2000, Act of May 10, 2000, P.L. 44, no. 16, §8.1, as amended 24 P.S. §§ 17-1701-B — 17-1716-B, which statute will be discussed at length herein.

Initially, we begin this discussion with acknowledging that the General Assembly has created approximately 500 school districts in this Commonwealth, which districts are for the most part autonomous, and charged with carrying out the General Assembly’s responsibility to implement public education in Pennsylvania. These school districts were governed by boards of school directors who are imbued, inter aila, with Ml taxing power (which is only limited in certain distressed situations, by other legislative enactments), and are permitted to decide the method and manner to spend their tax proceeds for the general purpose of public education in their respective school districts, subject to certain legislative and regulatory requirements and restrictions.

However, it is critical to understand that these school districts and their respective school boards have no inherent, original authority, powers or prerogatives of their own. A school district is a political entity created by the General Assembly, indeed a legislative act of the Sovereign itself, by and through the independent legislative branch of state government. Any and all power vested in a school district comes to it by virtue of staMes enacted by the General Assembly, pursuant to Article III, Section 14 of the Pennsylvania Constitution. This prime constitutional mandate provides, “The General Assembly shall provide for the maintenance and support of a thorough and efficient system of public education to serve the needs of the Commonwealth.” Pennsylvania Constitution Article III, Section 14.

Thus, it is indisputable and therefore beyond the cavil of legal challenge, that the General Assembly indeed has total legislative control over public education including the manner and method of its implementation in this Commonwealth. Unfortunately, the political realization and acceptance of this most fundamental of constitutional concepts appears to be at the root of at least some of the discord which now plagues the Harrisburg School District, as illustrated by the numerous contentious issues which have been presented to our court for resolution. It is truly unfortunate that the parties, or at least some of them, are unwilling and/or unable to fully acknowledge and understand the situation that now prevails in the school district by virtue of the operation of law in this case. Regrettably, we must begin by stating the obvious to the parties, namely, to wit: in the final analysis, it does not matter if individuals affected by the General Assembly’s statutory enactments agree or disagree with said laws — they are the laws, and must be obeyed and fulfilled by every citizen. Further, we are likewise compelled to state another obvious legal axiom in this case, that is: whatever authority, power or prerogative that the General Assembly may grant to a school district by legislative enactment, it (General Assembly) can just as easily modify, condition or even revoke.

The initial instance of legislative limitations upon school districts, and the concomitant modification, conditioning or revocation of the substantial authority, powers, and prerogatives normally granted to a school district and its elected board of school directors, is found in Act no. 675 of December 15,1959, amending the Act of March 10,1949 (P.L. 30), relating to public education in this Commonwealth, 24 P.S. §6-691 et seq. This statute was originally created to reform and assist school boards that were in a severe state of fiscal crisis, with a resultant situation where the school district became so financially “distressed” that it created an intolerable burden upon the citizen taxpayers of such district, while at the same time usually failing to deliver the requisite levels of needed education for the children of the district. This particular statute provided for the revocation of the authority, powers and prerogatives of an elected school board in such a district, and placed those powers, authority and prerogatives in the hands of a specially created body, known as a Special Board of Control.

Similarly, and of more recent vintage, the General Assembly also enacted another statute to reform academically distressed school districts. This legislation is commonly known as the Education Empowerment Act (EEA), supra. This Act was created to reform and assist school districts that were distressed in certain other ways, primarily ones who were in substantial or acute academic distress, and also provided some relief for financial distress issues as well.

The EEA distinguishes between two types of academically distressed school districts. The first type of academically distressed district is one that may be described as a substantially distressed district with a “history of low test performance.” This type of academic distress qualification is met when 50 percent of the students in the district score below the basic level of performance on standardized math and reading tests for the most recent two years for which the scores are available. 24 P.S. §17-1702-B.

The second type of academically distressed school district may be described as an acutely distressed district. This type of district is defined as having a “history of extraordinarily low test performance.” This classification is deemed to have occurred when 60 percent or more of the students in the district score below the basic level of performance on standardized math and reading tests for the most recent two years for which the scores are available. 24 P.S. § 17-1702-B. The Harrisburg School District is presently in a posture where it may be properly classified as an acutely distressed district, and it (school district) is therefore subject to the most severe remedial measures mandated by the EEA.

Under the EEA, at section 17-1707-B(a. 1), an acutely distressed district is declared to be an “Empowerment District” if the following special conditions are met: (1) The city in which the school district is located is “a city of the third class that has opted under the ‘Optional Third Class Charter Law’ or 53 Pa.C.S. pt. Ill, subpt. E, to be governed by a mayor-council form of government and which has a population in excess of 45,000,” id.; and, (2) the school district is a “school district of the second class which has a history of extraordinarily low test performance.” Id. (As defined above.)

If a school district meets these acute distress qualifications under section 17-1707-B, then the Secretary of Education of the Commonwealth is required to “immediately certify the school district as an education empowerment district” (i.e., declare that the full provisions of the EEA are now applicable to that school district). Id. Therefore, as soon as a school district qualifies under section 17-1707-B, the secretary, by virtue of the mandates of the EEA, is required to immediately transform said school district into an empowerment district.

Once the Secretary of Education has declared that a school district is an empowerment district subject to the EEA, the mayor of the city in which the school district is located must appoint five residents of the school district to serve on aboard of control. Section 17-1707-B(b). The mayor does not have the discretion to refuse to appoint the control board. The statute is clear that the control board “shall be appointed by the mayor... within 14 days of the certification of the school district as an education empowerment district.” Id. (emphasis added) However, the mayor does have discretion to decide which persons he wants to appoint or dismiss from the control board. The statute specifically provides that, “Members of the board of control shall serve at the pleasure of the mayor.” Id.

Essentially, the control board is given the total authority, power and prerogative by the EEA to administer and operate the school district in the stead of the elected board. 24 P.S. §17-1707-B(C). One of the primary objectives of this interim opinion will be to more precisely define the authority, powers and prerogatives of both the control board and the elected board in the school district, when operating under the provisions of the EEA. The scope of this interim writing will be limited to a discussion and determination of those critical issues which must be addressed and resolved before the end of the current school district fiscal year, June 30,2006. A more comprehensive and final opinion will be issued in due course to comprehensively address all of the issues presented in this matter.

Unfortunately, the school district was (and apparently still is) an acutely distressed district. As a result, and as required by the mandatory provisions of the EEA, on December 19, 2000, the Honorable Stephen R. Reed, mayor of the City of Harrisburg, appointed a control board to manage and operate the school district. It is undisputed by the parties that the school district met the criteria for an acutely distressed district under the EEA at the time Mayor Reed appointed the control board.

Despite the appointment of the control board, it is likewise important to note that the elected Board of School Directors of the Harrisburg School District has not been abolished by the EEA or any other statute. In fact, under 24 P.S. §17-1706-B, the specific power to levy taxes to support the operation of the school districts in such situations has been exclusively withheld from the boards of control and remains with elected school boards. This is presumably to comply with the specific provisions of the Pennsylvania Constitution which require that only elected officials may levy taxes. Pennsylvania Constitution Article III, Section 31. Nevertheless, it is quite clear that the control boards, and not the elected boards, are intended to actually administer and operate empowerment districts under the provisions of the EEA.

Since the EEA wrested power away from the elected board and vested it with the control board, it was not surprising that the elected board has previously challenged the constitutionality of the EEA on several occasions. Although the case-law history of the EEA is a bit complicated, we will attempt to summarize it herein, albeit briefly.

When the EEA was first passed by the General Assembly on May 10, 2000, the school district initiated a legal challenge to that statute in Commonwealth Court, and also filed a motion with that court asking for a preliminary injunction to enjoin its (EEA) implementation. The motion for injunction was granted by order dated June 30, 2000, because, at that time, the provisions of the EEA relating to acutely distressed districts applied to no city other than the City of Harrisburg. The Commonwealth Court considered this to be “special legislation” in violation of Article III, Section 32 of the Pennsylvania Constitution. This injunctive relief was affirmed on appeal by the Pennsylvania Supreme Court in Harrisburg School District v. Hickok, 563 Pa. 391, 761 A.2d 1132 (2000) (Hickok I).

Subsequently, on November 22,2000, the Pennsylvania General Assembly amended the EEA to allow the provisions for acutely distressed districts to be applicable to other cities besides Harrisburg. This statute was again challenged by the elected board on numerous grounds. The Commonwealth then filed preliminary objections to the school district’s complaint. The Commonwealth Court denied certain preliminary objections and found that the EEA was again unconstitutional in Harrisburg School District v. Hickok, 781 A.2d 221, (Pa. Commw. 2001) (Hickok II).

Based upon the Commonwealth Court’s rulings in Hickok II, the school district filed a motion for judgment on the pleadings against the Secretary of Education, Charles B. Zogby. The Commonwealth Court affirmed its preliminary rulings in Hickok II, in the case of Harrisburg School District v. Zogby, 789 A.2d 797 (Pa. Commw. 2002). This time, however, the legality of the amended EEA was subsequently upheld by the Pennsylvania Supreme Court, which reversed the holding of the Commonwealth Court and found the EEA to be constitutional in Harrisburg School District v. Zogby, 574 Pa. 121, 828 A.2d 1079(2003).

And now, the control board files the instant lawsuit against the elected board claiming that the elected board has violated various provisions of the EEA. The control board has filed with the court the following actions: An action in quo warranto for the court to remove certain members of the elected board who allegedly were improperly appointed without the approval of the control board; an application for a writ of peremptory mandamus or, in the alternative, an application for the issuance of a preliminary injunction to compel the elected board to pass the 2006/2007 school tax levy and affirm certain other debts from a pending loan with Sovereign Bank; to issue a declaratory judgment establishing the authority, powers and prerogatives of the parties under the EEA; and finally, an action in equity to remove the entire elected board from public office for nonfeasance if they do not pass said tax levy and affirm said bank debt. We also note that defendants have filed various counterclaims to the averments in the complaint, amended complaint, and the various motions, petitions and applications for relief.

Due to the exigency of this case, in that the school tax levy and Sovereign Bank debt issues must be resolved before midnight on June 30,2006, we will only address the quo warranto, mandamus, request for injunctive relief, and so much of the declaratory judgment action issues as are necessary to provide the parties with instruction and direction sufficient to enable them to fulfill their respective rights and responsibilities before the expiration of the current fiscal year for the school district. As stated earlier, we will issue a full, formal opinion concerning all of the matters submitted to us for resolution in a forthcoming writing.

PROCEDURAL HISTORY

This action was originally presented to the court when the control board filed its complaint in equity, in mandamus, for declaratory relief and an action in quo warranto (original complaint), on June 8, 2006. On June 9,2006, the control board filed an emergency petition for a preliminary injunction and motion for peremptory mandamus. On the morning of June 15, 2006, the court held a status conference with the attorneys in this matter and later that day, the court filed an order scheduling briefs and a hearing. However, at the request of the parties who were attempting to possibly settle this matter, the court agreed to enter an amended briefing order and a rule to show cause on June 16,2006. The amended briefing order scheduled a hearing on the merits of this case for June 27, 2006. The rule to show cause also scheduled a hearing for June 29, 2006, to consider the request of the control board to remove the elected board should that board (elected board) refuse to adopt a tax levy to fully fund the school district’s 2006/2007 budget. Thereafter, on June 20, 2006, the control board filed an amended complaint and an amended emergency petition for preliminary injunction and motion for peremptory mandamus.

On June 21,2006, the defendants filed their answer to the original complaint. On June 23, 2006, both parties filed their original briefs and the defendants filed their answer to the amended complaint and amended emergency petition for preliminary injunction and motion for peremptory mandamus. The plaintiffs also filed on that day their reply to new matter and answer to counterclaims of the defendants. The court also filed an amended order to explain what issues would be entertained at the June 27, 2006 hearing. On June 26, 2006, the plaintiffs filed their rebuttal brief and the defendants electronically sent their brief to the court on that date, to be subsequently and formally docketed on June 27, 2006. The hearing scheduled for June 27,2006, occurred as scheduled, and this writing is a product of that proceeding.

ISSUES

The control board requests the following partial relief as summarized by the court:

(1) The three most recently appointed members of the school board should be removed through the quo warranto action because the school board had no authority to appoint them.

(2) Plaintiffs set forth a valid claim for a writ of mandamus and/or a preliminary injunction ordering the school board to perform its mandatory duties.

DISCUSSION

(1) The Three Most Recently Appointed Members of the School Board Should Be Removed Through the Quo Warranto Action Because the School Board Had No Authority To Appoint Them

In our background discussion, we have explained how a control board comes into existence. We must now amplify that discussion to delineate what authority, powers and prerogatives are granted to control boards under the EEA. As mentioned above, the control board in this case was appointed pursuant to the acutely distressed provision of the EEA, 24 P.S. § 17-1707-B. This statute grants boards of control the following powers:

“The authority granted to a board of school directors under section 1704-B(a) shall be exercised by the board of control of an education empowerment district certified under this section. The provisions of sections 1705-B(c), (d), (e) and (g), 1706-B and 1708-B(a) shall be applicable to a board of control appointed under subsection (b). The provisions of sections 693, 694, and 695 relating to special boards of control shall apply to a board of control under this section.” 24 P.S. §1707-B(c). All statutes are in title 24 and their complete citations are: section 17-1704-B, section 17-1705-B, section 17-1706-B, section 6-693, section 6-694, and section 6-695.

We will now analyze the authority, powers and prerogatives that are granted to a control board. To accomplish this analysis, we will compare the different statutes that confer those very powers, authority and prerogatives. Section 1706-B states in pertinent part,

“Except for the power to levy taxes, the board of control may exercise all other powers and duties conferred by law on the board of school directors and the powers and duties conferred by law on a special board of control under sections 693, 694, and 695.” 24 P.S. §17-1706-B(a).

Therefore, a control board is granted all the powers that an elected board has except for the power to levy taxes. The important thing to note in this particular statute is that it does not take away any of the authority, powers and prerogatives of the elected board. Further, it says the control board “may” exercise the elected board’s power. This specific statutory language would seem to imply, when viewed in a vacuum, that until the control board decides to exercise any or all of this authority, power or prerogative, that the elected board retains those same powers, and is free to act pursuant to them. FIowever, this statute also incorporates sections 693, 694 and 695, supra, and it is those provisions that give clarity and full meaning to the intent of the General Assembly in enacting the EEA.

Section 1706 must be read together with section 693. Section 693 states,

“When the special board of control assumes control of a distressed school district, it shall have power and is hereby authorized to exercise all the rights, powers, privileges, prerogatives and duties imposed or conferred by law on the board of school directors of the distressed district, and the board of school directors shall have no power to act without the approval of the special board of control....” 24 P.S. §6-6903. (emphasis added)

Unlike the permissive language of section 1706, the full language of section 693 affirmatively and conclusively divests the elected board of all power to act without the approval of the control board.

The elected board attempts to argue that when the General Assembly enacted the EEA, and thereby granted the control board the powers enumerated in section 693, it (General Assembly) did not mean to include that portion of section 693 which divests the elected board of all power, except the power to levy taxes. The elected board appears to suppose that the reason the limitation of the elected board’s powers was not divested is allegedly because those powers were only necessary when a school district is financially distressed, not acutely academically distressed.

We find no merit to the defendants’ argument on this critical issue. Indeed, to accept the position of the elected board on this fundamental issue is to endorse the concept that the General Assembly intended to create “two captains of the ship.” Such a construction and interpretation would result in a continuous battle for control between the elected board and the control board. It must be remembered that the triggering conditions for designation as an acutely distressed district came into play because the predecessor elected board, for whatever reason(s), was unable to provide the necessary leadership and control in the school district to avoid the dire academic situation which necessitated the creation of a control board. It would be bordering upon the absurd to construe these statutes to still empower the elected board to have any authority, power and prerogatives over the administration and operation of the school district in such a situation. We find that as a matter of law, sections 1706 and 1707 clearly give all the powers of sections 693, 694 and 695 to the control board. We see no reason to exclude any of the provisions of sections 693, 694 or 695 from the sweeping grant of authority, power and prerogatives vested in the control board. Further, we also find that when the statute limits the powers of the elected board, such limitation, by definition, is a grant of those same powers to the control board. Finally, we also see no reason or logic to distinguish between financially distressed or acutely academically distressed school districts. Both require a control board that has broad, sweeping authority, powers and prerogatives to reform an ailing school district.

Therefore, with regard to acutely distressed districts under the EEA, we find as a matter of law that the inclusion of section 693 means that as soon as the control board was created, it automatically divested the elected board of all its authority, powers and prerogatives, save the power to levy taxes, which was specifically exempted in section 1706. Thereafter, the elected board can do no act unless such act is approved by the control board. To put it another way, if an elected board attempts to perform an act that was not approved by the control board, that act is deemed to be ultra vires, and therefore, void ab initio. This is because the elected board had no actual authority, power or prerogative to act at the time it purports to act. We recognize that this holding may be disconcerting to some people, but we are constrained to clearly acknowledge that it is firmly within the power of the General Assembly to divest an elected board of any or all of its authority, power and prerogatives, as the General Assembly deems appropriate and necessary to effect the implementation of public education in this Commonwealth.

We also find that section 693 does not contradict section 1706. When section 1706 states that the control board “may” exercise the powers of the elected board, it merely means that the control board is not required to exercise all of its powers. However, under section 693, those powers are automatically and totally transferred to the control board.

We note that there is no limitation on the word “act” as utilized in section 693. As a result, we find that appointing a person to a vacant position as a member of the elected board is an “act” within the meaning of section 693.

The plaintiffs in the case at bar claim that the members of the elected board had no authority and/or power to appoint three persons to fill vacancies on the elected board without the approval of the control board. The plaintiffs claim that since the elected board did not have prior approval, those appointments are likewise void ab initio.

However, section 693 states, “the board of school directors shall have no power to act without the approval of the special board of control.” Id. (emphasis added) We note that the word used by the legislature in section 693 is “approval,” and does not have a modifier such as “prior.” We find that the word “approve” can be satisfied de facto, or tacitly (as opposed to a word such as “authorize,” which would require affirmative and official action). Therefore, we must analyze the facts to determine if the control board de facto approved, tacitly approved or otherwise approved, the elected board’s appointments by action and/or implication.

The facts concerning this critical matter were developed at the hearing and indicated, inter alia, that the control board never attempted to appoint persons to fill the vacancies on the elected board. It is abundantly clear that at all times pertinent to the actual appointment process, the school district’s superintendent was under the impression that it was quite proper and legal for the elected board members to appoint persons to fill the vacancies on their board. It was not until later in the spring of2006 that the superintendent made further inquires from various legal sources as to whether or not the appointment actions of the elected board were legally authorized.

In early April of 2006 (and at least a week prior to the elected board’s public meeting on April 24, 2006), in response to a request by the superintendent to confirm certain information that the superintendent had received from these “other” legal sources concerning the appointment actions of the elected board, the school district solicitor issued a current opinion concerning these matters. The solicitor did, indeed, confirm that the control board has exclusive power to appoint persons to fill vacancies in the elected board. It was also at or about that same time that the solicitor informed the superintendent and the control board that he had previously issued a similar opinion on such matter, under date of January 9, 2001, to the then-president of the elected board, Ms. Wanda Williams.

Thereafter, the superintendent and control board sought outside special legal counsel concerning such matters, and decided to institute the current legal proceedings that are now pending before this court. It also appears that at no time prior to the institution of the current lawsuit did the superintendent, control board, solicitor or any other representative of those parties ever contact any member of the elected board with regard to the issues raised in the quo warranto action now at issue. However, of critical importance to the ultimate resolution of this matter is the undeniable fact that, notwithstanding the knowledge and belief of the superintendent and control board members that the three appointed members of the elected board may not have any legal authority to hold such positions, and notwithstanding the fact that significant preparations were already being undertaken to expel them from office by means of this quo warranto action, the superintendent and control board committed pivotal acts which affected the outcome of this matter. Specifically, the superintendent and control board submitted to the elected board, en banc, several vital financial issues for formal elected board action, at a duly advertised public meeting of the elected board, which meeting was conducted on April 24, 2006, at school district headquarters.

We find that the aforesaid actions of the superintendent and control board, in submitting crucial fiscal matters to the entire elected board, including the three appointed members, knowing that the three appointed members of that elected board may have been illegally holding their offices, is irreconcilable with the position that the plaintiffs now espouse, that there was never an “approval” of their appointments. It is, quite frankly, astonishing that the superintendent and control board would now attempt to remove those appointed members of the elected board for a lack of authority to hold those positions. Additionally, it also appears that the superintendent was willing to have the en banc elected board vote on the tax levy and affirmations of other fiscal obligations for the 2006/2007 school district fiscal year while these present court proceedings were pending. In sum, the plaintiffs cannot now validly assert that the three appointed members of the elected board illegally hold their offices, and at the same time submit critical school district business to that same en banc elected board, including the three disputed members, for official action by that elected board. Therefore, we find that these actions of the superintendent and control board constituted a de facto approval of the appointment of the three disputed members of the elected board.

However, it is now equally clear that the control board is explicitly exercising its exclusive right to fill future vacancies on the elected board. Therefore, in the future, only the control board can appoint persons to fill vacancies on the elected board, unless the control board explicitly grants that power to the elected board.

(2) Plaintiffs Set Forth a Valid Claim for a Writ of Mandamus, and/or a Preliminary Injunction Ordering the School Board To Perform its Mandatory Duties

A writ of mandamus is an extraordinary writ to be only issued in the most legally and factually compelling circumstances, and where there is no alternative relief that is reasonably possible. It is not intended to be peremptory, notwithstanding the creative nomenclature affixed to the plaintiffs’ pleadings in this regard. The court finds that the current situation between the control board and the elected board is not yet ripe for consideration of this remedy, at this time, because any malfeasance or nonfeasance as alleged by the control board has not yet fully and finally occurred. The elected board’s final vote on the tax levy is not scheduled to occur until June 28,2006. Therefore, since the elected board has not yet failed to act appropriately, the court finds it cannot issue a writ of mandamus at this time. We further note that at the hearing conducted this date, the plaintiffs likewise acknowledged that this form of relief may not yet be ripe for disposition. Therefore, we decline to issue any such writ at this time.

Although we have ruled that the control board’s request for a writ of mandamus is not ripe, we find that the court can and should impose a preliminary injunction, due to the exigent nature of the case before the court. We note that in order for there to be public funding of the school district for the 2006/2007 fiscal year, the elected board must pass a resolution for an appropriate tax levy before midnight on June 30, 2006. Without the enactment of such a resolution, there may well be no funding source for the operation of the school district for the 2006/ 2007 fiscal year. It is likewise necessary for the elected board to pass a resolution affirming the pre-existing debt to Sovereign Bank, before the midnight, June 30,2006, deadline. Failure to pass these imperative resolutions could have a dire, if not catastrophic impact on the school district.

As mentioned earlier, the plaintiffs are asking for numerous forms of relief. However, due to pressing time constraints, the court has determined that, for purposes of this interim opinion and accompanying decree, it is only feasible to rule on the issues of the quo warranto action, mandamus and injunctive relief concerning the necessary tax levy and the affirmation of the Sovereign Bank loans.

The elected board appears to challenge the right of the control board to seek the court’s intervention to force the elected board to pass the tax levy and affirmation of bank loans. However, under section 694, the General Assembly has clearly empowered the control board to require the elected board to pass a tax levy and affirm debts. This section states in relevant part,

“When the operation of a distressed school district has been assumed by the special board of control, the board of school directors of the district shall, upon recommendation and with the approval of the special board of control, levy an additional tax or taxes sufficient to liquidate the indebtedness of the district----” 24 P.S. §6-694. (emphasis added)

This language clearly establishes that the elected board must raise a tax when the control board recommends it. We also note that the rest of section 694 grants the control board authority to petition the court of common pleas to issue a writ of mandamus to force the elected board to pass an additional tax.

Although there is no tax increase for the 2006/2007 school district fiscal year in the case at bar, we find that if the elected board can be compelled to pass an additional tax, it can certainly be compelled to pass its regular tax levy. This is especially true because the elected board has an independent duty to pass tax levies to fund the school district. 24 P.S. §6-601.

Aside from section 694, we also note the general provision listed in section 695. We recognize that statutes are sometimes difficult to interpret. Therefore, for the purposes of clarity, we will quote the entire section, but emphasize the critical portions thereof. This section states,

“The school directors of a distressed district may not resign their offices, except with the unanimous consent of the special board of control and shall continue in office, unless removed from office for neglect of duty under the provisions of section 318 of this Act by the court of common pleas of the county in which such district or the largest part in area is located, or unless any of such directors are elected to another position not compatible with the position of school director or are appointed to any position for which there is a requirement that said appointee shall hold no elective office, for the remainder of their terms during the time the district is operated by the special board of control and shall perform any duties delegated to them by it. The assumption of control of a distressed school district by the special board of control shall in no way interfere with the regular election or reelection of school directors for the district.” 24 P.S. §6-695. (emphasis added)

A careful reading of this statute clearly indicates that interlaced within other language concerning how an elected school director might be allowed to lawfully leave office, is the simple, yet powerful directive, “[the elected school directors] shall perform any duties delegated to them [elected school directors] by it [control board].” Id. Thus, the control board’s authority is clear. The members of the elected board must authorize whatever tax the control board directs them to levy and otherwise satisfy the other fiscal obligations of the school district.

Finally, as mentioned above, under section 693, as soon as a control board is created, the elected board loses all its authority, powers and prerogatives, save the power to levy taxes. Therefore, as also mentioned earlier, the elected board does not have the authority, power or prerogative to contest the control board’s budget and must fund said budget, notwithstanding any objections they (elected board) may have to its content or amount. Section 693 explicitly states, “the special board of control may require the [elected] board ... to increase tax levies in such amounts and at such times as is permitted by the act to which this is an amendment.” 24 P.S. 693(2).

The defendants claim that if the control board can force the elected board to raise taxes, then it is actually the control board who has the power to raise the taxes. The defendants claim that allowing an appointed board to raise taxes is a violation of the Pennsylvania Constitution, Article III, Section 31. Therefore, the defendants are raising a constitutional challenge to this aspect of the EEA.

The defendants also note that the EEA itself specifically withholds the power to levy taxes from the control board in section 1706. The defendant claims, “To argue that the legislature gave the board of control all powers except the power to levy taxes, and then to argue that the legislature intended that the board of control could dictate how the elected board of directors levies taxes would be absurd.” Defendants’ brief p. 20 The defendants then note that under the Statutory Construction Act, “it must be presumed that the General Assembly did not intend a result that was absurd or unreasonable.” Id., citing to 1 Pa.C.S. §1922(1).

However, what the defendants fail to recognize is that it would be truly absurd for the General Assembly to appoint, as we mentioned earlier, “two captains of a ship.” We fail to believe that the General Assembly created one board to have all power to administer and operate a school district and another board to have control over all of the finances. That is a recipe for discord and disaster, as the case at bar clearly evidences.

We further note that the Commonwealth Court in Hickok II, supra, has affirmed the constitutionality of the EEA’s tax provisions. While the Pennsylvania Supreme Court has not definitively affirmed Hickok II’s analysis, we will not speculate that the Supreme Court’s opinion would be to the contrary to the holding of the Commonwealth Court. Consequently, we will uphold the established legal precedent of our Commonwealth Court on this issue.

Therefore, we find that the control board is the sole entity with the authority, power and prerogatives to decide all issues pertaining to the administration and operation of the school district, particularly including a determination of all matters relating to the financial needs of the district, and the adoption of a budget to reflect those fiscal decisions by the control board. Thus, the elected board, as a matter of law, is left in the legally unenviable position of having to pass a tax levy and affirm school district debts which it (elected board) had no say in preparing or adopting. We certainly can understand that this may be a distasteful situation for some or all of the members of the elected board to accept. However, in the final analysis, this is precisely the hand that the elected board has been dealt by the General Assembly under the provisions of the EEA. Most likely, one of the primary reasons that the General Assembly did not disband the elected board altogether in situations such as these presented under the EEA was to comply, as best as possible, with the constitutional provision requiring that taxes be levied by elected officials. Hopefully, and more importantly, another reason that the General Assembly did not disband the elected board is because some day the students’ test scores will improve to the degree that a control board will no longer be necessary to run the school district and the elected board can once more resume control of the authority, powers and prerogatives normally exercised by an elected board.

The elected board claims that they are entitled to not pass the tax levy because they have not been given “enough information” by the control board. Unfortunately, there is no provision in the Public School Code that entitles an elected board to any special information that is not available to the regular public. If the elected board wishes to inquire of, or even contest, the control board’s budget, they are free to attend public meetings and ask questions like any other citizen.

The plaintiffs claim they are entitled to a preliminary injunction to compel the elected board to pass the tax levy and affirm the Sovereign Bank debt. A preliminary injunction should be granted by the court if, inter alia, (1) there is a clear right to relief, (2) the relief is necessary to prevent immediate injury, (3) a remedy at law is inadequate and (4) the injury will restore the parties to the status quo. See Summit Towne Centre Inc. v. Shoe Show of Rocky Mount Inc., 573 Pa. 637, 828 A.2d 995 (2003).

With regard to the first prong of the test for a preliminary injunction, we find that under the law, the elected board is obligated to fulfill its legal duty to pass the tax levy and affirm the Sovereign Bank debt. Our legal analysis above determined that the elected board must act upon the recommendations of the control board. Further, as we previously stated, the elected board has its own independent duty to pass a tax levy to fund the school district. Therefore, we find that the control board has a clear right to relief.

The next prong of the test is that the relief is necessary to prevent immediate harm. This is clearly the case. If the tax levy is not passed, the entire school district will be unfunded. Further, if the elected board does not acknowledge the Sovereign Bank debt, the school district will be forced to make immediate payments out of funds currently budgeted for other purposes. Therefore, we find that requiring the elected board to fulfill its legal duty to pass these resolutions will indeed prevent immediate harm.

The next issue we must determine is whether there is an adequate remedy at law. Clearly, there is no remedy at law available. If the elected board were to be sued at law, they could clearly not pay the funds required to fund the school district, and therefore equitable relief is appropriate.

The last prong of the test which must be considered is whether or not the issuance of the preliminary injunction will restore the parties to the status quo. We find that the elected board can still argue the esoteric legal issues of the exact status of their powers after the school district has been properly funded for the upcoming school year. Therefore, the elected board will not be prejudiced by being required to fulfill their legal duty to pass the necessary resolutions to enact a school tax levy and affirm the Sovereign Bank debt.

Finally, we note that the elected board and its individual members are not entitled to an automatic supersedeas under Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure. This provision states, “unless otherwise ordered pursuant to this subchapter the taking of an appeal by any party specified in subdivision (a) of this rule shall operate as a supersedeas in favor of such party.” Pa.R.A.P. 1736(b). Rule 1736(a) lists the entities that are entitled to an automatic supersedeas in 1736(b). Among the entities listed in 1736(a) is “any political subdivision.” Pa.R.A.P. 1736(a)(2). This would include the elected board and its members.

However, we find that to allow an automatic supersedeas would render moot our opinion regarding the harm occurring to the school district. We point the elected board to Central Dauphin Education Association v. Central Dauphin School District, 792 A.2d 691 (Pa. Commw. 2001), 60 D.&C.4th 300 (Dauphin Cty. 2001), for authority that a common pleas court can withdraw the automatic supersedeas of a political subdivision, including a public body such as the elected board.

To prevent the harm accruing daily to the school district, we also invoke Pa.R.A.P. 1737. This rule grants a common pleas court the authority to “require security of a party otherwise exempt from the requirement of filing security.” Pa.R.A.P. 1737(1). We will require the elected board and/or its individual members to post a bond in the instant matter should it elect to appeal our decisions herein.

We have likewise met the requirements for invoking the bond requirements under Pa.R.A.P. 1736 because: (1) we are acting at the application of a party (the control board), (2) the elected board has had notice and an opportunity to be heard on this issue, and (3) we believe that proper cause has been shown.

Wherefore, we issue an interim decree, of even date herewith, which accords the following relief:

(1) The request of the plaintiffs, in quo warranto, to remove Ms. Loretta Barbee-Dare, Ms. Kia L. Hansard and Mr. Karl Singleton from office as members of the elected board is denied;

(2) The request of the plaintiffs for a peremptory writ of mandamus is denied;

(3) The plaintiffs’ request for a preliminary injunction is hereby granted. Therefore, the court hereby orders and directs that the individual members of the elected board must fulfill their individual and collective statutory duty, as defined and clarified in this interim opinion, to fund the fiscal obligations of the school district by enacting the necessary resolution(s) to fully fund the 2006/2007 final school district budget as adopted by the control board, and to also enact such necessary resolution(s) as may be required to affirm the Sovereign Bank debt. These required actions by the members of the elected board must be performed and completed on or before June 28, 2006;

(4) We further deny the elected board and its members the right to automatically appeal these rulings at law or equity without posting an appropriate bond. Considering the overwhelming fiscal harm that may occur to the school district if there are protracted appeal proceedings which ultimately prove to be frivolous, the elected board and/or its members must post a bond equal to a substantial portion of the annual school district budget, and in this instance, that sum shall be the full amount of $100,000,000, paid into court through the prothonotary of Dauphin County;

(5) This court specifically retains full jurisdiction over any issues associated with the implementation and/or enforcement of the holdings of this interim opinion and the interim decree issued in conjunction herewith;

(6) The court will issue, in due course, a full opinion and decree concerning all matters and issues which have been submitted to us for resolution.

Issued at Harrisburg, June 27, 2006.

INTERIM DECREE

And now, to wit, June 27, 2006, after hearing and argument in the above captioned matter and pursuant to the court’s opinion of even date herewith, it is hereby declared that:

(1) The request of the plaintiffs, in quo warranto, to remove Ms. Loretta Barbee-Dare, Ms. Kia L. Hansard and Mr. Karl Singleton from office as members of the elected board is denied;

(2) The request of the plaintiffs for a peremptory writ of mandamus is denied;

(3) The plaintiffs’ request for a preliminary injunction is hereby granted. Therefore, the court hereby orders and directs that the individual members of the elected board must fulfill their individual and collective statutory duty, as defined and clarified in the interim opinion, of even date herewith, to fund the fiscal obligations of the school district by enacting the necessary resolution(s) to fully fund the 2006/2007 final school district budget as adopted by the control board, and to also enact such necessary resolution(s) as may be required to affirm the Sovereign Bank debt. These required actions by the members of the elected board must be performed and completed on or before June 28, 2006;

(4) We further deny the elected board and its members the right to automatically appeal these rulings at law or equity without posting an appropriate bond. Considering the overwhelming fiscal harm that may occur to the school district if there are protracted appeal proceedings which ultimately prove to be frivolous, the elected board and/or its members must post a bond equal to a substantial portion of the annual school district budget, and in this instance, that sum shall be the full amount of $100,000,000, paid into court through the prothonotary of Dauphin County;

(5) This court specifically retains full jurisdiction over any issues associated with the implementation and/or enforcement of the holdings of the interim opinion and the directives of this interim decree;

(6) The court will issue, in due course, a full opinion and decree concerning all matters and issues which have been submitted to us for resolution.


author: CHESLOCK, J.

text:
    Broeg v. Pivovar

      C.P. of Monroe County,
    no. 9022 Civil 2005

      Jason Leon, for plaintiff.

      Kimberly G. Krupka, for defendants.
    June 9, 2006
   CHESLOCK, J.

This matter once again comes to the court on defendant Wilkins and Associates Real Estate Inc.’s preliminary objections. Defendant objects to plaintiff James Broeg’s amended complaint. On November 14, 2005, the plaintiff filed a complaint against the defendants, Peter Pivovar (seller), Wilkins and Associates Real Estate Inc. and Anderson and Associates LLC, concerning a real estate transaction. The plaintiff averred that the seller failed to answer questions on whether the property sold to him was located in a flood zone or had flooding or drainage problems which affected the property. On February 22,2006, we sustained the defendant’s preliminary objections and granted plaintiff leave to amend the complaint in a manner consistent with that opinion. Thereafter, on March 10, 2006, the plaintiff filed an amended complaint. On April 11,2006, the defendant filed preliminary objections to the amended complaint as well as a praecipe for oral argument. This court heard oral argument June 5,2006 and we are now prepared to rule on this matter.

Pennsylvania Rules of Civil Procedure 1028(a)(3)(4) state in pertinent part as follows:

“(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds:

“(3) insufficient specificity in a pleading;

“(4) legal insufficiency of a pleading (demurrer);...

“(b) All preliminary objections shall be raised at one time. They shall state specifically the grounds relied upon and may be inconsistent. Two or more preliminary objections may be raised in one pleading.”

Preliminary objections asserting that a complaint fails to state a cause of action upon which relief can be granted is in the nature of a demurrer. Sutton v. Miller, 405 Pa. Super. 213, 592 A.2d 83 (1991). It is well established that preliminary objections in the nature of a demurrer admit as true all facts that are well pleaded allegations, including reasonable inferences deducible therefrom. Sweatt v. Department of Corrections, 769 A.2d 574 (Pa. Commw. 2001). In assessing preliminary objections in the nature of a demurrer, the court should sustain a dermurrer and dismiss a complaint only in cases which are free and clear from doubt. Leach v. Hough, 352 Pa. Super. 213, 507 A.2d 848 (1986). Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it. Emerich v. Philadelphia Center for Human Development, 554 Pa. 209, 720 A.2d 1032(1998).

In its preliminary objections, defendant alleges that plaintiff’s claim for negligent misrepresentation is legally insufficient in that it fails to set forth the necessary elements for a cause of action. In order to successfully allege negligent misrepresentation, the following elements must be satisfied:

“(1) a misrepresentation of a material fact;

“(2) the representor must either know of the misrepresentation, must make the misrepresentation without knowledge as to its truth or falsity or must make the representation under the circumstances in which he ought to have known of its falsity;

“(3) the representor must intend the representation to induce another to act on it; and

“(4) injury must result to the party acting in justifiable reliance on the misrepresentation.” Gibbs v. Ernst, 538 Pa. 193, 210, 647 A.2d 882, 890 (1994). (citation omitted)

In this matter, the defendant claims that the plaintiff has failed to state a cause of action for negligence and/or negligent misrepresentation against it in his amended complaint. In reviewing the plaintiff’s amended complaint, we find that the plaintiff avers that the seller utilized the services of the defendant as his agent in the real estate transaction. The plaintiff avers that the defendant assisted the seller in preparing the seller’s disclosure statement and as such had a duty to deal fairly with the purchasers and insure that the seller fulfilled his duty under the Real Estate Seller’s Disclosure Law by disclosing material defects in the property. Furthermore, the plaintiff alleges that defendant breached its duty by leaving substantial obvious and material portions of the document unanswered or blank, which it knew or should have known of the falsity of the incomplete, incorrect or misleading information.

As stated above, in order to successfully allege a negligent misrepresentation, there must first be a misrepresentation of a material fact. Instantly, the plaintiff alleges that as the agent of the seller, the defendant presumably visited the property prior to listing it and failed to require the seller to provide full, fair, consistent and complete answers on the seller disclosure statement. In essence, plaintiff alleges defendants assisted seller in the water misrepresentation contained in the seller’s disclosure form. The second element requires that the representor know either that the representation was false or that he should have known of its falsity. The amended complaint alleges that the seller avoided answering water related questions and that the defendant breached its duty as the agent for the seller or the Real Estate Seller’s Disclosure Law by allowing the false, incomplete, incorrect or misleading information. Again, plaintiff alleges defendant’s assistance in seller’s misrepresentation of a material fact. Further, plaintiff alleges that he relied on the disclosure statement in purchasing the property and would not have purchased the property had disclosure of the defect been made to him. Finally, as to the fourth element, the plaintiff alleges injuries as a result thereof.

While the general rule is that a principal is responsible for the misrepresentation of his agent, plaintiff here asserts that the defendant be held liable for permitting the seller to misrepresent the condition of the premises sold to him. Plaintiff makes the argument that a real estate broker can be held liable to third parties for damages, especially when the third party is a buyer. Citing Slaybaugh v. Newman, 330 Pa. Super. 216, 479 A.2d 517 (1984). We find that this is an accurate statement of the law in that real estate brokers and salesman can be held accountable for damages by third parties for misrepresentation including the failure to disclose material facts. Moreover, it is well settled that a deliberate disclosure of a material fact amounts to culpable misrepresentation no less than an intentional affirmation of a material falsity. O’Callaghan v. Weitzman, 291 Pa. Super. 471, 436 A.2d 212 (1981).

In viewing the well-pleaded allegations as true, including all reasonable inferences deducible therefrom, we believe that plaintiff has alleged a cause of action against defendants. Although we believe that additional factual allegations may be produced during discovery in the future, defendant will have the opportunity to again challenge plaintiff’s cause of action against him. Hence at this juncture of the proceedings, we will permit plaintiff’s cause of action against defendant to go forward and overrule defendant’s preliminary objections in the nature of a demurrer on this issue.

In its next preliminary objection, the defendant claims that the amended complaint lacks specificity. The defendant claims that in plaintiff’s claim for negligent misrepresentation, he must aver that the defendant knew or should have known of a material misrepresentation of fact by seller. It is well settled in the law that it is the function of a pleading to put the opponent on notice of what he will be called upon to meet at trial and to define the issues for trial. See 2 Goodrich-Amram 2d § 1019:2.1 (2001). Pennsylvania Civil Procedure 1019(a) requires the content of a pleading to set forth material facts upon which the cause of action or defense is based in a concise and summary form. “The purpose of Rule 1019(a) is to require the pleader to disclose the ‘material fact’ sufficient to enable an adverse party to prepare his case.” Baker v. Rangos, 229 Pa. Super. 333, 349, 324 A.2d 498, 505 (1974), citing Landau v. Western Pennsylvania National Bank, 445 Pa. 217, 225, 282 A.2d 335 339 (1971). The Baker court further stated that, “(allegations will withstand challenge under 1019(a) if (1) they contain averments of all of the facts the plaintiff will eventually have to prove in order to recover . . . and (2) they are ‘sufficiently specific as to enable defendant to prepare his defense.’ ” Id. at 350, 324 A.2d at 505-506. (citation omitted) “Pa.R.C.P. 1019(a) has been construed to mean that a complaint must not only apprise the defendant of the claim being asserted, but it must also summarize the essential facts to support the claim.” Krajsa v. Keypunch Inc., 424 Pa. Super. 230, 235, 622 A.2d 355, 357 (1993). (citation omitted)

In reviewing the plaintiff’s amended complaint, we find that there are sufficient facts to apprise the defendant of the action against him and they are sufficiently specific so as to enable the defendant to prepare his defense. The amended complaint alleges that the defendant forwarded the seller’s disclosure statement with obvious deficiencies and blanks which plaintiff contends defendant aided the seller in preparing thereby assisting in the misrepresentation of material and/or omission of material fact. The plaintiff’s amended complaint also alleges that the defendant presumably visited the property and upon viewing the property, in its training and experience, knew or should have known of the material defect in seller’s disclosure statement. We believe that the amended complaint sufficiently apprises defendant of the action against him and many of the specific facts can be determined through the discovery process. As we set forth above, once discovery is complete, if defendant believes that the plaintiff’s action must fail, the defendant may raise the issue at that time. However, at this juncture we are satisfied that the amended complaint is sufficiently specific and we will overrule the defendant’s objections in this regard.

Based upon the foregoing, we enter the following order:

ORDER

And now, June 9,2006, upon consideration of the defendant, Wilkins and Associates Real Estate Inc.’s preliminary objections and the response thereto, it is hereby ordered that the defendant’s preliminary objection in the nature of a demurrer and lack of specificity are overruled. The defendant shall file a responsive pleading to plaintiff’s amended complaint within 20 days from the date of this order.