author: LASH, J.,

text:
    Orbegozo v. Orbegozo
    C.P. of Berks County,
    no. 97-3486.

      Jaimee A.M. Dautrich, for plaintiff.

      Daniel I. Sager, for defendant.
    December 12, 2006
   LASH, J.,

This court held a custody trial on December 7, 2006. The issue was primary custody of the parties’ minor children, Starr Ashley Orbegozo and Katherine Orbegozo. This matter came to the court through a petition of plaintiff, Luis Orbegozo (Father), filed October 13, 2006, seeking a writ of ne exeat to enjoin defendant, Edna Orbegozo (Mother), from moving to Florida with the two minor children. On October 26, 2006, Mother filed a petition requesting permission to relocate to Florida with the two minor children. In lieu of proceeding to a hearing on the petitions, this court scheduled a trial to enable the parties to present all evidence sufficient to establish whether either of the petitions should be granted and whether the custody order entered in this case on December 15, 1999, shall be modified or remain in full force and effect.

The court makes the following findings of fact:

I. FINDINGS OF FACT

(1) Plaintiff, Luis Orbegozo, is an adult individual who currently resides at 1220 North Sixth Street, First Floor, Reading, Berks County, Pennsylvania.

(2) Defendant, Edna Orbegozo, is an adult individual who currently resides at 2834 Somerset Park Drive, Tampa, Florida.

(3) The parties are the natural parents of Starr Ashley Orbegozo, bom April 17,1994, and Katherine Orbegozo, bom December 12, 1996.

(4) The parties were married, but separated in either late 1996 or early 1997, becoming divorced in March 1998.

(5) In March of 1999, Mother married Jacob Maldonado, divorcing him in June 2006. Through this marriage, Mother bore two other children, Shenayah Maldonado, bom September 4, 1999, and Shanti Maldonado, born July 22, 2003.

(6) Mother relocated to her home in Florida on or about October 31,2006. Prior to that, she resided in Pottstown, since 1997.

(7) Mother’s two other children, Shenayah and Shanti, have relocated with Mother to Florida, by agreement between Mother and the children’s father, Jacob Maldonado. A custody arrangement has been agreed upon whereby Jacob Maldonado will have custody of his two children during the summer months.

(8) Father currently resides with his fiancée, Sanira Baez. The couple have resided together for approximately three years.

(9) On or about December 15, 1999, the Honorable Elizabeth Ehrlich entered an order setting forth that the parties would have joint legal custody of the minor children, with Father to have primary custody of Starr Ashley and Mother to have primary custody of Katherine. Additionally, the parties would alternate custody of the minor children every weekend from Friday at 5 p.m. to Sunday at 7 p.m., so that the children would be together each weekend. With the exception of some adjustments on pickup time, the parties have followed the terms of this order.

(10) The custody arrangement changed temporarily and by necessity when Mother relocated in Florida in October 2006. Starr Ashley remained at Father’s residence, but Mother was unable to exercise her partial custody rights, based upon the relocation. Mother was prohibited from taking Katherine with her pursuant to a temporary writ of ne exeat issued by this court on October 13,2006, in furtherance of the relief sought by Father within his petition for writ of ne exeat. Because Katherine expressed that she did not want to reside with her Father, she temporarily moved in with the maternal grandmother, Maria E. Oquendo, who resides at 601 South Nineteen Street, Reading, Berks County, Pennsylvania, and began attending the 16th and Haak Elementary School in the Reading School District. Father retained his partial custody of Katherine on weekends.

(11) Mother is currently employed at Adecco as an administrative assistant, working Monday through Friday from 8 a.m. to 5 p.m., with her first day of work being December 11, 2006.

(12) While Mother resided in Pottstown, she was employed by Verizon. Based on conversations with Verizon, Mother expected and believed she was promised a position with Verizon at her new home in Florida. Upon arrival, Verizon informed Mother that they have a policy that they cannot hire someone who resigned from Verizon, for a period of six months. As a result, Mother was unemployed for roughly a two-month period.

(13) Father is employed at Gabe’s Lee Myles Transmissions, working Monday through Friday from 8 a.m. to 5 p.m. He also has a hobby working in his garage doing automotive repairs for his family and friends, which he does on weekends when he does not have the children.

(14) Mother currently resides in the Hillsborough School District in Hillsborough County, Florida.

(15) Father currently resides in the Reading School District.

(16) Starr Ashley has attended parochial school at St. Margaret’s Roman Catholic School. Katherine attended public school in Pottstown until this past September when, as stated, she began attending the 16th and Haak Elementary School.

(17) Both parties have relatives living in or near Berks County, Pennsylvania.

(18) Mother has some distant relatives and acquaintances who reside in Florida in the proximity of Hills-borough County.

(19) If Mother has custody of the children, she would have baby-sitting service available for them during the period that they are home from school until she returns from work. The baby sitter, Sonya Melendez, would be available for the entire day, if necessary.

II. DISCUSSION

In determining primary custody, this court considered the testimony of the parties, Father’s fiancée, Sanira Baez, Mother’s ex-husband, Jacob Maldonado, the maternal grandmother, MariaE. Oquendo, Father’s nephew, Mario Bolivar, a friend of the family, Mary Kreider, an in camera conference with the minor children, and the exhibits of the parties.

Mother presented first. She states that she decided she wanted to move to Florida because it is a quiet, safer area, compared to Reading, which is too busy. The cost of living is lower. She wants to provide an attractive environment to rear her children.

During the course of her deciding whether to move, Mother approached Father to advise him of her thoughts. Her hope was that Father would agree and work out an arrangement where he would see the children during the summers, much as her other ex-husband, Jacob Maldonado, did. According to Mother, however, Father wanted to move to Florida with her and renew their relationship. When Mother made it clear that she was willing to work with Father for the children, but had no interest in him romantically, then Father would not agree to an arrangement. At some point, the parties were close to agreeing that Mother would move with Katherine and Father would maintain primary custody of Starr Ashley. At this time, the parties each want to have custody of both children.

Mother testified that Katherine has no relationship with her father. For a short time after the parties separated, Father had custody of both children. Unfortunately, during this time, when Katherine was approximately seven months old, she was scalded and suffered second- and third-degree bums. It was determined by Children & Youth Services that Father negligently supervised the children, and the children were removed from Father’s care. Since that time, Mother has had custody of Katherine. Mother testified that Father belittles Katherine, calling her “fat” and insisting that she become more active in sports to help her to lose weight. Mother states that she and Katherine are extremely close and that it would be difficult for her to be separated from Mother for any length of time.

According to Mother, Father advised Mother that Katherine wanted to reside with him. Mother questioned Katherine on this, who became very upset, and stated she never said this.

Regarding Starr Ashley, Mother initially was prepared to move without her, however, through recent developments, it became apparent to Mother that she and Starr Ashley are developing a much closer bond and that Starr Ashley would thrive in her care. Mother states that Starr Ashley is unable to approach Father regarding personal issues, including her pubescence. Mother believes that Starr Ashley is not doing well in school and this is due to Father’s failure to properly supervise her educational activities.

Mother also notes that if the children are not permitted to reside with her, they would have limited access to their two half sisters, who will be residing with Mother during the winter months and with their father in the summer. If Father has the subject minor children during the school year, the children would almost never be able to interact with the other children.

Mother promises to work with Father to provide him access to the children as often as possible. As stated, she is proposing that the children reside with Father during the summer months. She also states she would allow him to visit with the children whenever he could come to Florida and would also work with him for the Christmas and spring vacations, including flying the children back to Berks County, so long as she is not required to pay the expense. She will provide unlimited phone access.

On the other hand, Mother believes that Father would restrict the children’s access to Mother if he had primary custody. She has had problems with him in the past. Fie presents as a person who wants to maintain full control and autonomy. She has been denied phone call access. In the same vein, he has made legal custody decisions without consulting her, such as enrolling Starr Ashley in a parochial school, which Mother opposes.

Father’s initial argument is that Mother has failed to meet the burden required of her by the holding in Gruber v. Gruber, 400 Pa. Super. 174, 583 A.2d 434 (1990), and because of this, he should have primary custody of both children. Additionally, he believes that the children’s best interests are served by awarding him primary custody. He believes that the. separation caused by the distance between the parties is harmful to the children. He states that he is a better caretaker of the children, overseeing their school responsibilities. Father believes that St. Margaret’s Catholic School provides better instruction because the classes are smaller and more attention can be devoted to each individual student. He also emphasizes school activities, such as basketball and soccer, urging that fitness is important to the welfare of the children. However, with the exception of the relocation, Father does not have any extensive complaints about Mother’s parenting.

The paramount concern in a child custody proceeding is the best interests of the child. Costello v. Costello, 446 Pa. Super. 371, 375, 666 A.2d 1096, 1098 (1995). A determination of what is in the best interests of a child is “made on a case-by-case basis, [and] must be premised upon consideration of all factors which legitimately have an effect upon [a] child’s physical, intellectual, moral and spiritual well-being.” Alfred v. Braxton, 442 Pa. Super. 381, 385, 659 A.2d 1040, 1042 (1995).

We also recognize that, due to Mother’s relocation, this court must, in determining the best interests of the minor children, include the analysis established in Gruber v. Gruber, supra. In Gruber, the Superior Court set forth the standard to be utilized when the custodial party moves to a new residence a substantial distance from the other party. In such cases, the relocating party has the burden of production to show:

“(1) The potential advantages of the proposed move, economic or otherwise, and the likelihood the move would improve substantially the quality of life for the custodial parent and the children and is not the result of a monetary [sic] whim on the part of the custodial parent;

“(2)The integrity of the motives of both the custodial and noncustodial parent in either seeking the move or seeking to prevent it; and

“(3) The availability of realistic, substitute visitation arrangements which will foster adequately an ongoing relationship between the child and the noncustodial parent.

“White v. White, supra, 437 Pa. Super. [446] at 451, 650 A.2d [110] at 113, quoting Gruber v. Gruber, supra, 400 Pa. Super. at 184-85, 583 A.2d at 439. The factors to be considered are refinements of the basic standard which remains the best interest of the child. Lee v. Fontine, 406 Pa. Super. 487, 594 A.2d 724 (1991); see also, Pa. Family Law Prac. and Proc. [(3d ed.), §28-15, at 324], supra. Moreover, the fact that considerable distance will increase the cost and logistical problems of maintaining contact between the child and the noncustodial parent does not necessarily preclude relocation when other factors militate in favor of it. Id.” Gancas v. Schultz, 453 Pa. Super. 324, 331, 683 A.2d 1207, 1210 (1996).

It is apparent that the benefits of Mother’s move are minimal, and are more than offset by the disruption the move causes. There is little or no economic benefit. Mother is making less money and for a period of time was unemployed. She does enjoy a lower cost of living. The other reasons she gives, that the community is more peaceful and quiet than her previous residence in Pottstown, may well be true, but are not sufficient for her to meet her burden under the Gruber analysis. Further, there are locations within close proximity to Father’s residence which could provide improvement on the quality of life issues.

On the other hand, her move has set in motion a separation between the two subject minor children and one of the parents, and potentially from the other two children who reside with Mother. In fact, the only resolution in which the four children would get to reside together would be if the court grants Mother’s request, but that would also mean uprooting Starr Ashley from her primary home and limiting Father’s contact with the minor subject children, for reasons insufficient under the Gruber analysis. Additionally, Mother is residing in a two-bedroom home, very likely too small for four minor children and herself.

While the benefits are not substantial, Mother’s motives appear to be pure. Her goal is to provide a “better place to live” for her children, not to deny their father access. Mother’s other ex-husband testified that Mother is a very good mother, and he was more than willing to work with her on her move, so long as he would have liberal access to his children, including having them for the entire summer. Father was not able to articulate any concerns with Mother’s parenting. Apparently, his objection is simply that he would no longer be living in close proximity to the children.

Beyond that, Father’s motives are unclear, particularly with Katherine. Until the relocation issue came up, Father never sought custody of Katherine. He has no bond with her. According to Mother, Father was willing to agree to Katherine moving with Mother, until Father spoke with his attorney. Even after Katherine was required to remain in Pennsylvania due to this court’s issue of the writ of ne exeat, Katherine has not resided with Father, but with the maternal grandmother. He has not provided this court with any reason why Katherine would benefit from remaining in Pennsylvania with him.

Because of the terms of the prior custody order, and the relationship between the parties and the children, this court must address each child separately. With regard to Katherine, while the relocation would provide her with only minimal benefit, and would separate her from her father, requiring her to remain in Pennsylvania, living with her father full-time could have serious adverse consequences. It is very apparent that Mother and Katherine have a very strong, loving bond. While at Father’s house, Katherine appears to do little more than exist. No one has been able to establish that an extensive separation from her father would have any adverse impact on Katherine, because she has no relationship with Father at this time. Interestingly, Father has no current access to Katherine during the week, because he has no phone number for the maternal grandmother. Apparently, he and the maternal grandmother do not get along. Thus, despite the fact that the maternal grandmother has no custody rights to Katherine, Father has no problem with having no contact with Katherine, except every other weekend, as he had under the terms of the custody order.

In Tripathi v. Tripathi, 787 A.2d 436, 441 (Pa. Super. 2001), the Pennsylvania Superior Court reiterated the important principle that in determining child custody cases, the best interest of the child is paramount, even when the presence of a relocation warrants review of the other factors enumerated in Gruber. The Superior Court states:

“The Gruber court took pains to assert that ‘achieving “the best interests of the child” remains the ultimate objective in resolving all child custody and related matters,’ but only emphasized ‘that the best interests of the child are more closely allied with the interests and quality of the custodial parent and cannot, therefore, be determined without reference to those interests.’ Id. [400 Pa. Super.] at 183, 583 A.2d at 437-38.

“While we acknowledge the refinements posited in Gruber in relocation cases, they do not create a new standard and we hasten to stress the polestar of our analysis in this case, just as it was in Gruber and a legion of prior custody cases, remains the best interests of the child,....”

Under the circumstances of this case, it would be improper for this court to end Mother’s primary custody of Katherine because of the circumstance of relocation. This court can find no positive reason for separating Katherine from her mother or in placing Katherine with her father, other than the fact that Katherine would reside with her sister, Starr Ashley. We will not overlook the obvious needs of the child in favor of a robotic application of the Gruber standard.

In Starr Ashley’s case, however, Father has been primary custodian. The evidence has established factors both in favor of and opposing Starr Ashley’s relocation with her mother. The biggest argument in Mother’s favor is that this would enable Starr Ashley to reside with her sister and her two half sisters, while if she resides with Father, the contact, particularly with her half sisters, would be extremely limited. Other factors in Mother’s favor include the fact that Starr Ashley wants to develop a better relationship with her mother and that Starr Ashley is not thriving academically in her current setting. On the other hand, Father, overall, has provided a satisfactory home for Starr Ashley. Father’s paramour appears to be a positive role model for her and can be a resource, when Mother is not available. Starr Ashley also appears to be someone who would prefer Mother’s more lenient approach to discipline, which may not be entirely beneficial.

The Superior Court in Tripathi also states: “when the petitioning parent is not the custodial parent and, as here, never has been the primary custodial parent, short of a determination that the custodial parent is unfit or that there is some unique and highly beneficial benefit to the child in relocation, the burden faced by the noncustodial parent seeking relocation of the child is a very heavy one.” Tripathi, at 442.

On balance, the evidence does not support a relocation for Starr Ashley. The court, therefore, awards continued primary custody with Father, with Starr Ashley to have extensive time with Mother during the summer months, at Christmas and spring holidays, and at other times as the parties can arrange.

The court’s rulings mean that the children will live separate and apart, at least during the school year. Because of this, this court will split the summer such that the children will reside together for the entire summer, half of the time at Mother’s residence and half at Father’s residence. Unfortunately, this court cannot fashion a remedy under the law which would permit Starr Ashley to spend any significant time with her half sisters. Hopefully, during the time in the summer when Starr Ashley and Katherine reside at Father’s home, arrangements can be made between Father and Jacob Maldonado, perhaps with Mother as an intermediary, to enable the four children to spend some time together.

This court also instructs the parties that the best situation for the children would be if the children all resided within close proximity of each other. This would mean, however, that Father would have to agree to allow Starr Ashley to move to Florida or Mother would have to decide to relocate back to Pennsylvania. As the parties begin to settle into their new schedules, they should closely examine the benefits and problems with this new arrangement to determine whether some other alternative is more appropriate. In any event, the parties should work together so that the children can interact with all members of their family.

We enter the following order:

ORDER

And now, December 12,2006, after trial held, custody of the parties’ minor children, Starr Ashley Orbegozo, born April 17,1994, and Katherine Orbegozo, bom December 12, 1996, shall be as follows:

(1) The parties shall share legal custody.

(2) Plaintiff, Luis Orbegozo (Father), shall have primary custody of Starr Ashley during the school year.

(3) Defendant, Edna Orbegozo (Mother), shall have primary custody of Katherine during the school year.

(4) The parties shall share custody during the summer months by splitting the time equally. This court recognizes that the school schedule may differ between Florida and Pennsylvania, so the parties should adjust accordingly to enable both of them to have equal time with the two children and to enable the two children to spend as much time with each other as possible. Accordingly, it would be most feasible if the child whose school year ends first would travel to the home of the noncustodial parent for the first half of the summer. However, the parties can work out the schedule to their mutual satisfaction.

(5) The parties should share custody during the Christmas and spring break vacations from school, such that the children could reside together for both vacation periods. The parties shall alternate these two vacations, such that Father should have the children for the Christmas vacation for one school year with Mother to have the spring vacation for that same school year, alternating every other year.

(6) Either party may travel to the location of the other party to visit with the children upon giving 48 hours notice.

(7) The parties shall share transportation expenses equally.

(8) Both parties shall provide unlimited access of the noncustodial parent to the children, either through telephone, or e-mail.

(9) The petition of plaintiff, Luis Orbegozo, for writ of ne exeat and the petition of defendant, Edna Orbegozo, requesting permission to relocate to Florida are both denied as moot. The order entered October 13, 2006 granting a temporary writ of ne exeat is vacated.

(10) The attached appendix shall be made apart of the within order.

APPENDIX TO ORDER

Certain rules of conduct which generally apply to custody matters are set forth below and are binding on both parties, the breach of which could become the subject of contempt proceedings before this court, or could constitute grounds for modification of this order. If these general rales conflict with any specific provisions of the order, the order shall prevail.

(1) In addition to the foregoing rights, both parties shall also have the following rights with respect to the children:

(A) The right to reasonable telephone contact with the children when they are in the other parent’s custody.

(B) The right to be fully informed concerning the progress of the children in school and the children’s medical status, including the right to obtain the necessary information directly from the children’s school or medical practitioner; and

(C) The right to be informed in advance before any important decisions are made concerning the children and the opportunity to participate in those decisions.

(2) In the event of any serious illness of the children at any time, any party then having custody of the children shall immediately communicate with the other party by telephone or by any other means, informing the other party as to the nature of such illness, and during such illness, each party shall have the right to visit the children as he or she desires consistent with the proper medical care of the children.

(3) Neither party shall alienate nor permit to attempt to alienate the children from the other party. While in the presence of the children, neither parent shall make any remarks or do anything which is derogatory or uncomplimentary to the other and it shall be the duty of each parent to uphold the other parent as one the children should respect and love.

(4) Both parties shall provide each other with their addresses and telephone numbers of their residences and anytime they take a trip with the children out of the jurisdiction of Berks County in excess of three days.

(5) The parties shall not conduct arguments or heated conversation when they are together in the presence of their children.

(6) The parties shall, at all times, consider the children’s best interests, and act accordingly. It is in a child’s best interest to understand that he or she is trying to desperately cope with the fact of his or her parents’ separation, and needs help in loving both parents, rather than interference or censure.

(7) Neither party shall question the children as to the personal lives of the other parent except insofar as necessary to insure the personal safety of the children. By this we mean that the children will not be used as spies on the other party. It is harmful to a child to be put in the role of spy.

(8) The parties should remember that they cannot teach their children proper moral conduct by indulging in improper conduct themselves. Children are quick to recognize hypocrisy, and the parent who maintains a double standard will lose the respect of his or her child.

(9) Weekend and evening visitation shall be subject to:

(A) Arrangements will be worked out beforehand between the parties without forcing the children to make choices and run the risk of parental displeasure. However, the children shall be consulted as to their schedules when appropriate.

(B) Visitation rights shall be exercised at reasonable hours and under circumstances reasonably acceptable to the other party and to the need and desire of the minor children.

(C) If a party finds himself or herself unable to keep an appointment, he or she should give immediate notice to the other party, so as to avoid subjecting the children to unnecessary apprehension and failure of expectations.

(D) The party having custody of the children should prepare them both physically and mentally for the transfer of custody to the other party and have them available at the time and place mutually agreed upon.

(E) If either party or a child has plans which conflict with a scheduled visit and wish to change such visitation, the parties should make arrangements for an adjustment acceptable to the schedules of everyone involved. Predetermined schedules are not written in stone, and both parties should be flexible for the sake of the children.

(F) If a party shows up for a visit under the influence of alcohol or drugs, the visit may be considered forfeited on those grounds alone.

(10) If either party feels the other party has violated this order, they may petition the court as set forth in Pa.R.C.P. 1915.12.


source: Caselaw Access Project

author: LESKINEN, J,

license: Public Domain

text:
    Greene v. GuideOne Mutual Insurance Co.

      C.P. of Fayette County,
    no. 1497 of 2002, G.D.

      William M. Radcliffe III, for plaintiff.

      Jeffrey T. McGuire, for defendant.
    September 13, 2006
   LESKINEN, J,

Before the court is the defendant’s concise statement of matters complained of on appeal, filed August 11, 2006. This court previously entered findings of fact, conclusions of law and a verdict on July 1, 2005 after a non-jury trial on November 23,2004. Defendant’s post-trial motions were denied without opinion on June 14, 2006, which order was filed on June 22, 2006. This opinion is authored to supplement the above, and the factual scenario will not be repeated here. (The court notes that the original findings are inaccurate in referring to this as an “uninsured” motorist’s claim at various points, when the reference should have been to an “urac/erinsured” motorist’s claim.)

The concise statement sets forth six separate grounds. The first complaint challenges this court’s factual findings that GuideOne’s chosen legal counsel had recommended a settlement of at least $10,000, and that Guide-One had no reasonable basis for disregarding that recommendation. In this regard, the court reviewed Attorney Ferry’s original letter, and found that it was more credible, and gave it more weight, than his subsequent actions and testimony.

Attorney Ferry claimed he was subsequently persuaded that the actual evaluation of the underinsured claim should be zero. This court found that the investigation GuideOne claims it relied on was inadequate and outdated because it relied on a biased medical report that GuideOne should have known would be found to be incredible by a panel of arbitrators. While the court does not lightly find the testimony of a licensed attorney to be incredible, the court believed that Attorney Ferry’s actions and testimony were affected by loyalty to, and zeal for, his client.

It is no secret that insurance defense work is a very competitive field, and that a single failure to perform to the company’s expectations and demands can result in the loss of all future legal work for that company. In this regard, the court found that Attorney Ferry was placed in an extremely awkward position, and evidently concluded that the company’s desired position was within the realm of reason. This court disagrees.

In that regard, this court found that GuideOne did not have a “rewardable and justifiable belief’ that a zero offer was in line with its obligation to deal with its insured fairly and in good faith. This court found that the report and testimony of Attorney McCloskey was far more credible, and adopted his conclusions.

The second complaint questions the court’s finding that Adjuster Wrigley was not properly trained or experienced to handle Pennsylvania underinsured motorist’s claims, and that in the absence of such training or experience, that he should have been more closely supervised. This finding is fully supported by the testimony of record that this court found credible. Any testimony to the contrary was found to be not as credible.

The third complaint states that there was insufficient clear and convincing evidence to support a finding of outrageous conduct necessary to support the award of punitive damages. As noted above, the court relied on the credible testimony of Attorney McCloskey, and found that the opposing testimony was not as credible. To the extent that the award of punitive damages ($35,000) was less than one-half the difference between the zero offer and the $75,000 arbitrator’s award, this court in fact gave GuideOne some credit for their argument that they relied on the opinion of a licensed medical practitioner and Attorney Ferry’s revised opinion. Nevertheless, this court found it to be very clear that the refusal to make any offer was determined by the desire for profit rather than by a cool, dispassionate and thorough assessment of the actual fair value of Greene’s underinsured claim.

GuideOne asserts in its fourth complaint that they had an absolute right to rely on “the independent medical exam (IME) obtained by Nationwide,” particularly because Attorney Ferry advised them that they could rely on it. Essentially, GuideOne claims that they should be absolutely insulated from any claim of bad faith because they claim they relied on the independent judgment of a licensed medical practitioner and the independent judgment of a licensed legal practitioner.

First, this court did not believe GuideOne actually received independent legal advice. Attorney Ferry was not allowed to give an independent professional opinion. Instead, he was limited to a consideration of the evidence chosen in the course of GuideOne’s stale and inadequate investigation. The medical evidence was obtained by Nationwide, and they obviously did not find it credible when they paid 90 percent of their limit. The medical testimony was based on a single exam five years post-injury, and several years prior to the arbitration. Guide-One was not privy to the parameters Nationwide used in selecting the doctor, so had no basis for assuming it was actually “independent.” Moreover, GuideOne never even took a sworn statement from the claimant prior to hearing. A sworn statement is taken in nearly every underinsured arbitration where substantial damages are claimed. Attorney Ferry maintained loyalty to his client, but his independence was a casualty of war.

Second, the reference to an “independent medical exam” is a deliberate misnomer, as the report was clearly selected for use solely because its conclusions were biased toward GuideOne’s desired result. Clearly, a medical license does not eliminate the possibility of bias. Potential bias of a critical witness is an area that independent legal counsel would have investigated.

GuideOne cannot delegate its duty of acting fairly and in good faith, regardless of the professional licenses possessed by its carefully chosen delegates. An extreme and marginally justifiable medical opinion, combined with an extreme and marginally justifiable legal opinion obtained under pressure, do not combine to yield a reasonable, fair and good faith result. GuideOne is required by statute to exercise its own independent and well-informed judgment.

Contrary to the complaint of the defense, under all the circumstances of this case, “[rjelying on an IME” (that was clearly biased, and that should have been anticipated to be completely incredible to the prospective fact-finder) does “constitute bad faith.” Again, this court found the testimony and report of Attorney McCloskey to be far more credible than the defense testimony on these disputed factual questions.

The fifth complaint lodged, that GuideOne “had a reasonable basis to deny plaintiff’s claim based upon the advice of counsel, the IME report, the investigation performed and the judgment of the adjuster” is covered above. There was no independent advice of counsel, the medical report was not independent, there was virtually no investigation performed and the judgment of the adjuster was as biased as the sources he chose to rely on.

The sixth and final complaint asserts that the compensatory damage award is in error because it includes $25,000 in plaintiff’s attorney’s fees.

The court believes that GuideOne would have paid the balance of its limits remaining [after crediting Nationwide’s limit of $25,000] ($75,000), if it had acted fairly and in good faith and completed a thorough and unbiased investigation. Instead, Greene was forced to proceed by way of litigation, and secured the assistance of counsel to do so. Under the financial and emotional pressures of litigation, Greene evidently offered to settle for one-third of what he was fairly entitled to.

It is entirely offensive that GuideOne is now suggesting that they are entitled to the benefit of the offer they turned down; more particularly offensive because the compromise counteroffer was made by their insured as a result of GuideOne’s total bad faith denial of his claim. (The argument brings to mind the apocryphal story of the man that murdered his parents and sought mercy from the court because he was an orphan.)

The simple fact remains there was no evidence that Greene would have incurred any attorney’s fees at all if GuideOne had met its statutory responsibility of good faith and fair dealing.

This court believes that by passing the Unfair Insurance Practices Act, 40 P.S. §1171.1 et seq., the legislature emphatically stated that the resolution of insurance claims should not be a high-stakes “poker game” where the insurance carrier makes the rules, chooses most of the players, sets the odds and then “bluffs” their own insured into “folding” a “winning hand.” By passing the Act, the legislature recognized that when there is no penalty for “cheating,” insurance companies will “cheat.” That is, when the maximum the company can ever be forced to pay is the amount they are already contractually obligated to pay, they will not pay what they owe voluntarily. Instead, they will “gamble” by litigating almost every case. Even if they only win one in 10, or one in 100, the company still comes out ahead.

By contrast, the individual policyholder usually has only one case, is suffering the effect of an injury, and cannot afford to gamble. The vast majority of individual policyholders cannot “cover” a loss in one case with a win in another case. Thus, the individual policyholder is under intense financial pressure to compromise even a clearly valid claim. Figuratively speaking, if the “house” cannot lose, the policyholder cannot win. The Unfair Insurance Practices Act provides the tools to correct this imbalance, but the statute only works when the court uses those tools.

This court believes that the combination of compensatory and punitive damages imposed by its verdict is the minimum amount necessary to help deter the future abuse of Pennsylvania’s insurance policyholders. This court believes that counsel fees are an appropriate part of the compensatory damages to be awarded when an insurance company breaches its duty of good faith and fair dealing. However, if it is found to be inappropriate to include attorney’s fees as part of the compensatory damages, this court would have added the $25,000 in attorney’s fees to the punitive damages.


author: SULLIVAN, J.,

text:
    Harris v. Balanced Care of Altoona

      C.P. of Blair County,
    no. 2005 GN 3828.

      Frederick B. GiegJr, for plaintiff.

      Marc T. Levin, for defendant.
    October 24, 2006
   SULLIVAN, J.,

This matter comes before the court on plaintiff’s petition to open judgment of non pros.

FACTUAL/PROCEDURAL HISTORY

Plaintiff initiated this action with the filing of a complaint on June 28,2005 against defendant, Balanced Care at Altoona Inc. d/b/a Outlook Pointe at Altoona alleging that while the plaintiff was a resident at Outlook Pointe at Altoona, she suffered harm due to the defendant’s failure to provide proper personal, nursing and medical care. Following the defendant’s filing of preliminary objections, the plaintiff filed an amended complaint on August 16, 2005.

The defendant filed its answer and new matter on September 16,2005, and the plaintiff filed an answer to new matter on October 3, 2005. On July 5, 2006, a praecipe for entry of judgment of non pros pursuant to Rule 1042.6 was filed by the defendant and a judgment of non pros for failure to file a certificate of merit was filed on July 24, 2006.

The plaintiff filed the subject petition to open judgment of non pros on August 1,2006, followed by a memorandum in support of the petition on September 22, 2006. The defendant filed a brief in opposition to the plaintiff’s petition on August 21, 2006, as well as a reply brief in opposition to the plaintiff’s petition to open on October 4,2006. Having reviewed these submissions by the parties, we now proceed to disposition.

DISCUSSION

Pursuant to Pa.R.C.P. 3051, the plaintiff has filed a petition to open judgment of non pros requesting relief from the judgment of non pros which was entered against the plaintiff for failure to file a certificate of merit. Pa.R.C.P. 3051, titled relief from judgment of non pros, states that “[i]f the relief sought includes the opening of the judgment, the petition shall allege facts showing that (1) the petition is timely filed, (2) there is a reasonable explanation or legitimate excuse for the inactivity or delay, and (3) there is a meritorious cause of action.”

Here, the defendant’s petition to open was timely filed, as the judgment of non pros was entered on July 24,2006, served on the defendant July 26, 2006, and the petition to open was filed August 1, 2006. As there was no unreasonable delay between the date of the judgment of non pros and the date the petition to open judgment was filed, the first prong necessary to obtain relief has been met.

The second prong requires there be a reasonable explanation or legitimate excuse for not filing the certificate of merit. The plaintiff argued in her petition to open that no certificate of merit was filed because one was not required, as the defendant is in an assisted living facility and not a licensed professional, and the claims are based on negligence, negligence per se, and corporate liability, not professional liability.

The defendant argues that despite the cause of action not being labeled as a professional liability claim, the complaint nonetheless is based on its capacity as a licensed professional, and a certificate of merit was necessary, and the substance of the allegations clearly sound in professional liability, particularly in light of the defendant being a licensed professional under 40 P.S. §1303.503.

In reviewing the plaintiff’s complaint and amended complaint, the wrongdoings alleged clearly arise out of the defendant’s capacity as a licensed professional and in its capacity as a nursing home caring for the plaintiff. Included in the complaint are allegations that the defendant violated several sections of 42 C.F.R. §483, which applies to “long-term skilled nursing facilities,” that they offered “nursing care” and “medical care,” and that the defendant was in charge of caring for the plaintiff but failed in the care in that the plaintiff suffered bedsores, was not properly administered prescription medication, and was not kept in a facility with adequate sanitary conditions. (See plaintiff’s amended complaint, August 16, 2005.)

As the plaintiff’s actions sound in professional liability and the defendant is a licensed professional, a certificate of merit was necessary for the plaintiff’s claim to proceed. Dodos v. Pennsbury Manor, 878 A.2d 182 (Pa. Commw. 2005) (nursing homes expressly included as health care provider and the court concluded that the plaintiff alleged the defendant was a licensed professional and was obligated to provide a certificate of merit); Harper v. Manor Care Inc., 77 Bucks Cty. L. Rep. 444 (2004), aff’d, 867 A.2d 653 (Pa. Super. 2004), app. denied, 584 Pa. 701, 882 A.2d 1006 (2005) (in any actions based upon an allegation that a licensed professional deviated from an acceptable professional standard, a certificate of merit shall be filed); Yee v. Roberts, 878 A.2d 906 (Pa. Super. 2005) (a complaint predicated upon facts constituting medical treatment which involve care by licensed professionals, the action must be characterized as a professional negligence action). As the plaintiff has not filed for an extension of time to file a certificate of merit, and one is required, we must deny the plaintiff’s petition to open judgment of non pros.

We recognize the plaintiff argues that the defendant failed to file its praecipe for judgment of non pros in a timely manner pursuant to Whitsel v. PennDOT, 2005 WL 4122161 (C.C.P. 2005). However, there is no time limitation mandated by Pa.R.C.P. 1042.6 regarding when a defendant must file the entry of a judgment of non pros for failure to file a certificate of merit. However, Whitsel is not binding on this court and its holding that a praecipe for judgment of non pros should follow the 20-day time limitations under Pa.R.C.P. 1042.4, regarding when responsive pleadings should be filed, is incongruent with current authoritative case law.

Although the Whitsel court recommended that a praecipe for judgment of non pros should be filed within 80 days of the complaint, the Superior Court has not agreed. In Parkway Corp. v. Margolis Edelstein, 861 A.2d 264 (Pa. Super. 2004), the defendant filed a praecipe for judgment of non pros over 120 days following the filing of the complaint and had engaged in conferences with plaintiff’s counsel in the course of those 120 days. Similarly, in Dobos, supra, the praecipe for judgment of non pros was filed nearly 180 days after the plaintiff filed the complaint. Id. at 183. Neither the Superior Court nor the Commonwealth Court objected to these lapses of time before the praecipe was filed, but rather held “[n] othing requires appellees to point out to their adversaries potential procedural blunders.” Parkway Corp., 861 A.2d at 268.

Although the plaintiff argues she is prejudiced due to the defendant’s filing the praecipe subsequent to the statute of limitations running, we do not agree with her position. We recognize that the plaintiff could have refiled the complaint subsequent to a judgment of non pros had the statute of limitations not run. Gordon-Stuart Ltd. v. Allen Shops Inc., 239 Pa. Super. 35, 361 A.2d 770 (1976). However, as the Superior Court and Commonwealth Court have stated, it is not the duty of the defendant to provide the plaintiff with an opportunity to remedy her procedural failure by filing the judgment of non pros prior to the statute of limitations running. See Parkway Corp. v. Margolis Edelstein, 861 A.2d 264 (Pa. Super. 2004); Dobos v. Pennsbury Manor, 878 A.2d 182 (Pa. Commw. 2005).

Accordingly, we enter the following:

ORDER

And now, October 24, 2006, it is hereby ordered, directed and decreed that the plaintiff’s petition to open judgment of non pros is hereby denied and dismissed.

      . We note that a nursing home is a “health care provider” as defined under 40 P.S. § 1303.503, requiring a certificate of merit for all health care providers.

      . We also note that the plaintiff did not argue that a certificate of merit was unnecessary in her memorandum in support of petition to open judgment of non pros.


author: WORTHINGTON, J,

text:
    Commonwealth v. Garces

      C.P. Monroe County,
    no. 235 Criminal 2006.

      Michael T. Rakaczewski, assistant district attorney, for plaintiff.

      Fred Cutaio, public defender, for defendant.
    August 24, 2006
   WORTHINGTON, J,

Isidros Garces, defendant, was arrested on January 26,2006 and charged with two counts of rape of a child, a felony in violation of 18 Pa.C.S. §3121(c), two counts of sexual assault, a felony in violation of 18 Pa.C.S. §3124.1, one count of involuntary deviate sexual intercourse with a child, a felony in violation of 18 Pa.C.S. §3123(b), two counts of indecent assault on a person less than age 13, a misdemeanor in violation of 18 Pa.C.S. §3126(a)(7), one count of corruption of minors, a misdemeanor in violation of 18 Pa.C.S. §6301(a)(l), and one count of endangering the welfare of children, a misdemeanor in violation of 18 Pa.C.S. §4304(a). OnFebruary 13,2006, a preliminary hearing was held before Magisterial District Justice Anthony J. Mangan. Prior to the hearing, Magisterial District Justice Mangan interviewed the 4-year-old male child victim (MQ) in chambers and determined that he was unavailable to testify under the Pennsylvania tender years exception. N.T., 02/13/2006 at 3-6. As a result, statements that MQ made to Stacy Dailey and Laurie Demark were admitted at the preliminary hearing. Following the hearing, all of the charges against the defendant were bound over to the court of common pleas and they were subsequently included in the criminal information that was filed by the Commonwealth on March 27, 2006.

On April 26, 2006, defendant filed a timely omnibus pretrial motion. Defendant seeks relief in the form of a motion to suppress the hearsay statements of MQ. Defendant argues that Magisterial District Justice Mangan erred in admitting the statements MQ made to Stacey Dailey. According to the defendant, MQ’s statements were inadmissible because they failed to “provide sufficient indicia of reliability” as required by the tender years exception. 42 Pa.C.S. §5985.1(a)(1). Defendant also contends that Magisterial District Justice Mangan erred in determining that MQ was “unavailable” to testify as a witness. Defendant further avers that MQ’s statements to Laurie Demark and Dr. Taroli were testimonial in nature and, therefore, should not have been admitted through either the tender years exception or the medical treatment exception. Finally, defendant argues that the statements made by MQ to Ms. Demark and Dr. Taroli should not have been admitted through the medical treatment exception because no medical examination was performed on the child. A hearing on defendant’s omnibus pretrial motion (hearing) was held on May 15, 2006. Defendant filed a brief in support of omnibus pretrial motion on May 24,2006 and the Commonwealth filed a brief in opposition to defendant’s omnibus pretrial motion on June 8, 2006. Defendant’s motion for omnibus pretrial relief is now before us for disposition.

The facts, as presented, show that on or about January 7, 2006, MQ told Stacey Dailey, his father’s girlfriend, that the defendant had sexually assaulted him. N.T., 02/13/2006 at 11-12. Specifically, MQ related to Ms. Dailey that “Poppy [the defendant] takes his clothes off to kiss him and to put his peepee in his butt.” Id.

As a result of these allegations, MQ was immediately taken to Pocono Medical Center where he was examined by both a registered nurse and an emergency room doctor. N.T., 02/13/2006 at 13. The hospital staff reported the allegations to the Stroud Area Regional Police Department. Id.

On January 16,2006, MQ was brought by Stroud Area Regional Police Detective Susan Lyon to the Pegasus Child Advocacy Center where he was interviewed by Laurie Demark, a forensic interviewer employed by the center. During the course of the interview, MQ indicated to Ms. Demark that “Poppy put his peepee inside [his] butt.” N.T., 02/13/2006 at 22. Following the interview, Dr. Andrea Taroli, a pediatrician specializing in child abuse and forensic pediatrics, performed a medical examination of MQ. Id. at 23.

On January 24, 2006, Detective Susan Lyon interviewed the defendant at the Stroud Area Regional Police Headquarters. During the interview, the defendant admitted that he had put MQ’s penis in his mouth and that he had put his penis in between MQ’s buttocks. N.T., 02/13/2006 at 28. The defendant was subsequently arrested on January 26, 2006.

In his motion to suppress, defendant initially alleges that Magisterial District Justice Mangan committed an error of law and an abuse of discretion when he found that the statements that MQ made to Ms. Dailey were admissible evidence pursuant to the tender years exception. The tender years exception is codified at 42 Pa.C.S. §5985.1 and provides in relevant part:

“(a) General rule — An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in 18 Pa.C.S. chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:

“(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and

“(2) the child either:

“(i) testifies at the proceeding; or

“(h) is unavailable as a witness.

“(a. 1) Emotional distress — In order to make a finding under subsection (a)(2)(h) that the child is unavailable as a witness, the court must determine, based on the evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child’s ability to reasonably communicate. In making this determination, the court may do all of the following:

“(1) Observe and question the child, either inside or outside the courtroom.

“(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting.”

The purpose of the tender years exception is to allow for the admission of a child’s out-of-court statement due to the fragile nature of young victims of sexual abuse. Commonwealth v. Bishop, 742 A.2d 178, 184 (Pa. Super. 1999). Before a proffered statement can be admitted into evidence pursuant to the tender years exception, the trial court must assess the reliability of the statement and the availability of the child to testify. Fidler v. Cunningham-Small, 871 A.2d 231, 235 (Pa. Super. 2005). Any statement admitted under the tender years exception “must possess sufficient indicia of reliability, as determined from the time, content, and circumstances of its making.” Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa. Super. 2002), citing Commonwealth v. Bean, 450 Pa. Super. 574, 577, 677 A.2d 842, 844 (1996). “There are several factors a court may consider in determining reliability [for purposes of the Tender Years Hearsay Act,] including, but not limited to, ‘the spontaneity and consistent repetition of the statement(s); the mental state of the declarant; the use of terminology unexpected of a child of similar age; and the lack of a motive to fabricate. ’ ” Fidler, 871 A.2d 231, 235, citing Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005). “The main consideration for determining when hearsay statements made by a child witness are sufficiently reliable is whether the child declarant was particularly likely to be telling the truth when the statement was made.” Com monwealth v. Lyons, 833 A.2d 245, 255 (Pa. Super. 2003).

In the instant matter, we find that the initial allegations of sexual abuse by the child victim were spontaneous and unprompted. MQ first related the allegations of sexual abuse to his father’s long-term girlfriend, Stacey Dailey. N.T., 02/13/2006 at 11. According to Ms. Dailey’s testimony at the preliminary hearing, she overheard MQ ask his sister to “make out” with him. Id. When Ms. Dailey asked MQ if he knew what it meant to “make out” with someone, he replied that it meant to kiss. Id. MQ related to Ms. Dailey that he had learned how to “make out” from Poppy. Id. MQ proceeded to tell Ms. Dailey that Poppy kisses him with his clothes off and puts his peepee in his butt. Id. The questions that Ms. Dailey posed to the child after his initial disclosure were non-accusatory and non-suggestive in nature.

Furthermore, MQ has consistently repeated the allegations of sexual abuse. On January 16, 2006, more than 10 days after the initial allegation, MQ reiterated to Laurie Demark, a forensic interviewer employed by the center, that Poppy had put his peepee inside his butt. N.T., 02/13/2006 at 21-22. When Ms. Demark asked MQ how he knew that Poppy’s peepee went inside his butt, he replied that he knew that it went inside his butt because it hurt. Id. at 22. According to Ms. Demark, MQ “told me that Poppy’s peepee looked old when he saw it. It was sticking up and that Poppy spit on his peepee and the spit came out of Poppy’s peepee.” Id.

Dr. Andrea Taroli provided testimony on the issue of MQ’s mental and developmental state. Dr. Taroli first metMQ in May of2005. (Omnibus hearing, 05/15/2006.) At that time, the child was approximately 4 years of age and his verbal skills were very poor. (Omnibus hearing, 05/15/2006.) When Dr. Taroli reencountered MQ in January of 2006, approximately eight months after their initial meeting, MQ’s verbal and developmental skills had improved significantly. (Omnibus hearing, 05/15/2006.) In Dr. Taroli’s medical opinion, she did not believe that a child of MQ’s mental state could be coached or encouraged to tell a consistent story that was not true. (Omnibus hearing, 05/15/2006.) According to Dr. Taroli, children between the ages of 4 and 5 are veiy difficult to coach in any significant manner. (Omnibus hearing, 05/15/2006.) Dr. Taroli further explained to the court that people who attempt to coach a 4-year-old child cannot anticipate every type of question that would be posed to him/her, including details and sensory experiences pertaining to the sexual abuse. (Omnibus hearing, 05/15/2006.) Furthermore, Dr. Taroli testified that it would be very difficult for a child such as MQ, who was developmentally delayed and who just began speaking well within the last several months, to be able to remember fabricated details and repeat them consistently. (Omnibus hearing, 05/15/2006.) We find the testimony of Dr. Taroli to be both credible and informative and, therefore, we conclude that it is highly unlikely that a child of MQ’s mental state could be successfully coached by a third party to consistently repeat a fictitious allegation of sexual abuse.

MQ’s graphic statements regarding the alleged sexual abuse demonstrate that he is familiar with terminology and sexual concepts that would ordinarily be foreign to a child of similar age and experience. For instance, MQ has stated that the defendant put his peepee in his mouth and in his butt.

Finally, there was no evidence presented at either the preliminary hearing or the omnibus hearing to substantiate a claim that the child or any interested party had a motive to fabricate the sexual abuse allegations against the defendant. After carefully reviewing MQ’s statements regarding the alleged sexual abuse in light of the relevant case law, we find that MQ’s statements are relevant and provide sufficient indicia of reliability. Moreover, we find that it is particularly likely that MQ was telling the truth at the time he made the disclosure to Ms. Dailey.

Defendant’s second point of contention is that Magisterial District Justice Mangan committed an error of law and an abuse of discretion when he determined that MQ was “unavailable” as a witness pursuant to the tender years exception. As we have already mentioned, the tender years exception requires not only that the child’s hearsay statement be reliable, but also that the declarant testify at the proceeding or, in the alternative, be deemed “unavailable.”

“The definition of unavailability for purposes of section 5985.1 is unlike standard definitions for the term in the context of hearsay. Instead, unavailability is narrowly defined in explicit terms within the Act. The law requires the trial court to determine that, based on the evidence presented to it, the giving of testimony by the child would cause the child to suffer ‘serious emotional distress’ such that it would ‘substantially impair the child’s ability to reasonably communicate.’ 42 Pa.C.S. §5985.1 (a. 1). In making this finding, the trial court has the option of observing and questioning the child. It may also rely on testimony from others connected to the child, such as a parent, guardian, or a person who has dealt with the child in a medical or therapeutic setting. 42 Pa.C.S. §5985.1(a.l)(l) and (2). These possible avenues of inquiry are merely advisory, not mandatory.” Fidler, 871 A.2d at 237.

According to the defendant, “District Justice Mangan made his determination that MQ was unavailable to testify, not because of emotional distress, but because the child was not competently answering the judge’s questions.” Defendant’s brief in support of omnibus pretrial motion, at 7.

At the outset of the in camera hearing, Magisterial District Justice Mangan stated on the record that the attorney for the Commonwealth, the defense attorney, and MQ had convened in his chambers for an examination under the tender years exception in order to determine whether MQ was available to testify. N.T., 02/13/2006 at 3. Magisterial District Justice Mangan’s statement demonstrates that he was well aware of the applicable statute and the governing standards for determining whether a child victim is unavailable to testify. As such, Magisterial District Justice Mangan proceeded to ask MQ a series of questions. MQ’s responses demonstrated that he knew his name, age, his sisters’ names, and their respective ages. Id. at 3-5. MQ also demonstrated that he was able to identify the difference between the truth and a lie, as well as the consequences associated with the latter. Id. at 3-4. From our review of the transcript, it appears as though the only time MQ answered incorrectly was when Magisterial District Justice Mangan inquired as to whether MQ was aware of the reason why he was at the preliminary hearing. Id. at 5. After having the opportunity to observe the demeanor of the 4-year-old child victim, the magisterial district justice ultimately determined that, although the witness was very young, he believed that MQ’s statements regarding the alleged sexual abuse were probably true. Id. at 6. Additionally, the magisterial district justice decided that MQ would not testify at the preliminary hearing. Id.

After carefully reviewing the relevant portions of the transcript from the preliminary hearing, we disagree with the defendant’s assertion that the magisterial district justice erred in determining that the child was unavailable to testify. Although Magisterial District Justice Mangan did not specifically state on the record that his finding of unavailability was based on the serious emotional distress that MQ would incur as a result of testifying, he was well aware of the governing statute and the standard for determining unavailability at the time that he conducted the interview with the child. With those principles in mind, Magisterial District Justice Mangan ultimately concluded that having the child testify would result in him suffering serious emotional distress that would substantially impair his ability to reasonably communicate and, therefore, he found the child unavailable to testify.

As the Commonwealth acknowledged in their brief, our Superior Court has endorsed an in camera examination of a child victim as being the most effective means of determining whether or not a child victim is available to testify. Brief in opposition to defendant’s omnibus pretrial motions, at 7. In Fidler, our Superior Court acknowledged that:

“The [Tender Years] Act does not require the testimony of experts; it only provides that the court may consider such testimony when offered. Even though the Act does not mandate the type of evidence upon which the court must rely, it does require that some concrete evidence of serious emotional distress be presented. We believe that in the absence of expert witnesses, the trial court’s in camera examination of the child is the better practice in order to insure that the determination of unavailability is well-founded.” 871 A.2d at 238.

For the foregoing reasons, we concur with the magisterial district justice’s determination that MQ was unavailable to testify pursuant to the tender years exception. Furthermore, since we agree that the child’s statements were reliable and that the child was unavailable to testify, we ultimately find that the magisterial district justice’s decision to admit MQ’s statements to Ms. Dailey pursuant to the tender years exception was appropriate.

Defendant further contends that Magisterial District Justice Mangan erred in admitting the statements that MQ made to Ms. Demark and Dr. Taroli pursuant to the tender years exception and/or the medical treatment exception. Brief in support of omnibus pretrial motion, at 8, 12.

As we have already mentioned, the tender years exception allows the out-of-court statements of a child sexual abuse victim to be admitted as evidence at a criminal proceeding if the court determines that the statements are reliable and the child either testifies at the proceeding or is found to be unavailable as a witness. 42 Pa.C.S. §5985.1. The medical treatment exception provides as follows:

“The statements made to a medical doctor for the purpose of medical diagnosis and treatment are excluded from the hearsay rule and, thus, testimony repeating the out-of-court statements made to the doctor for such purposes are admissible as substantive evidence at trial. Commonwealth v. Fink, 791 A.2d 1235, 1246 (Pa. Super. 2002). However, before such statement can be admitted under this exception, two requirements must be met: (1) the declarant must make the statement for the purpose of receiving medical treatment, e.g., statements relating to the cause of injury, including testimony repeating statements made to nurses for the purposes of medical treatment and diagnosis; and (2) the statement must be necessary and proper for diagnosis and treatment, e.g., statements to medical personnel as to how the person sustained the injuries, but not the identity of the perpetrator. Id., citing Commonwealth v. Smith, 545 Pa. 487, 493, 681 A.2d 1288, 1291 (1996). However, statements to physicians retained solely for the purpose of trial are inadmissible under this exception. Id.” Pa.R.E. 803(4).

It is the defendant’s position that these statements were inadmissible pursuant to the tender years exception and/ or the medical treatment exception because the statements were testimonial in nature. Brief in support of defendant’s omnibus pretrial motion, at 8, 12.

“In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L. Ed.2d 177 (2004), the United States Supreme Court overruled prior precedent and established a new framework for analyzing claims relative to the Confrontation Clause of the Sixth Amendment. Prior to Crawford, any out-of-court statement could be admitted without offending the Confrontation Clause as long as ‘the evidence [fell] within a firmly rooted hearsay exception or . . . contained] particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statements’ reliability.’ Lily v. Virginia, 527 U.S. 116, 124-25, 119 S.Ct. 1887, 1894, 144 L. Ed.2d 117 (1999), citing Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L. Ed.2d 597 (1980). Crawford rejected the general framework set forth in Roberts with respect to prior testimonial statements, holding that out-of-court statements by witnesses that are testimonial are barred under the Sixth Amendment to the United States Constitution unless ‘the declarant is unavailable, and . . . the defendant has had a prior opportunity to cross-examine,’ regardless of whether such statements are deemed reliable by the trial court.” Commonwealth v. Charlton, 902 A.2d 554, 560 (Pa. Super. 2006).

Under the test announced in Crawford, a critical distinction is drawn between hearsay which is testimonial in nature and hearsay which is not. Commonwealth v. Eichele, 204 WL 2002212, 66 D.&C.4th 460 (2004). Unfortunately, the United States Supreme Court failed to articulate a comprehensive definition of “testimonial”; therefore, the exact meaning of the term remains uncertain among the courts. Crawford, 124 S.Ct. at 1374. However, “[t]he hallmark of testimonial statements appears to be solemn declarations or affirmations made in a formal proceeding or formal manner, or in an official setting, for the purpose of establishing or proving some fact which the declarant expects or reasonably should expect will be used for further legal proceedings.” Eichele, 2004 WL 2002212, 66 D.&C.4th at 466, citing Crawford, 124 S.Ct. at 1374.

In the instant matter, it is undisputed that the Stroud Area Regional Police were responsible for retaining the services of the Pegasus Child Advocacy Center. Dr. Taroli testified that the underlying purpose of the center is to evaluate the allegations of child abuse in a child friendly environment. (Omnibus hearing, 05/15/2006.) According to Dr. Taroli, the center attempts to have everyone that is involved in the investigation, such as the police and the assigned Children and Youth caseworker, present at the assessment center at the time of the interview and physical examination so that the child does not have to be unnecessarily traumatized by having to reiterate the allegations of abuse to various individuals. Id. Dr. Taroli farther testified that the physical examination is performed to ensure that the child is healthy and that he/ she has not sustained any injuries or infectious diseases as a result of the alleged sexual abuse. Id. She also acknowledged that most of the police departments in Monroe County utilize her services and expertise in child abuse investigations. Id.

We note that this exact issue was addressed in Commonwealth v. Rapp (683 Criminal 2005, opinion December 13, 2005) and Commonwealth v. Ramsour (1245 Criminal 2005, opinion August 8,2006). In both of those cases, the trial court determined that the child victim’s statements to Dr. Taroli were not admissible at trial since they were testimonial in nature.

After carefully reviewing the record, we conclude that the primary purpose of MQ’s statements to Dr. Taroli and Ms. Demark was to aid the police in obtaining information relevant to the Commonwealth’s investigation into the alleged sexual assault, rather than for medical diagnosis and treatment. Although Dr. Taroli maintained that she does not conduct the interviews and examinations on behalf of the police, we find that the police retained the services of the center as part of their investigative work. Therefore, we conclude, as did our colleagues, that in such circumstances the child victim’s hearsay statements to Dr. Taroli and Ms. Demark are testimonial and, therefore, may not be admitted at trial.

We draw attention to our Superior Court’s holding in Commonwealth v. Charlton, 902 A.2d 554 (Pa. Super. 2006). In Charlton, our Superior Court allowed the Commonwealth to introduce a child victim’s out-of-court statements to a police officer and a Children and Youth caseworker pursuant to the tender years exception. However, the child victim in Charlton, unlike the child in the case at bar, testified at length regarding the underlying events at both the pretrial competency hearing and the jury trial; therefore, the defendant had more than ample opportunity to confront and cross-examine the child victim. Id. at 4.

In the instant matter, if the Commonwealth calls MQ to testify as a witness at the time of trial, the defendant will have the opportunity to cross-examine MQ and the concerns of Crawford will not be implicated. Moreover, if MQ testifies, his out-of-court statements to Ms. Demark and Dr. Taroli can be admitted as evidence at trial. As such, defendant’s motion to suppress the hearsay statements of the child victim to Ms. Demark and Dr. Taroli is denied without prejudice; however, the defendant may raise this issue again at the time of trial if the Commonwealth attempts to admit these hearsay statements without calling MQ to testify.

Finally, defendant avers that MQ’s statements to Ms. Demark and Dr. Taroli were inadmissible through the medical treatment exception because no medical examination was performed on the child. Brief in support of defendant’s omnibus pretrial motion, at 12. We find this argument to be without merit because Ms. Demark testified that on January 16,2006, Dr. Taroli performed a medical examination of MQ. N.T., 02/13/2006 at 23.

Accordingly, we enter the following:

ORDER

And now, August 24,2006, in consideration of defendant’s omnibus pretrial motion, we enter the following order:

(1) Defendant’s motion to suppress the hearsay statements of the child victim to Ms. Dailey is denied.

(2) Defendant’s motion to suppress the hearsay statements of the child victim to Ms. Demark and Dr. Taroli is denied without prejudice and the defendant may raise this issue again at the time of trial if the Commonwealth fails to call the child victim to testify.

      . In addition, the defendant seeks relief in the form of a habeas corpus motion to dismiss; however, he failed to address this issue at the hearing or in his brief in support of omnibus pretrial motion; therefore, the issue is deemed waived.

      . The defendant is the ex-boyfriend of MQ’s grandmother. The testimony presented at the preliminary hearing established that MQ considers the defendant to be his grandfather and he refers to him as “Poppy.” N.T., 02/13/2006 at 9, 10,25.

      . Dr. Taroli is the medical director at the center. N.T., 05/15/2006


author: McINERNEY, J,

text:
    Brechbiel v. Redman Homes Inc.

      C.P. of Philadelphia County,
    May Term 2005,
    no. 3669.

      Alan Starker, Andrew D. Swain, Joseph L. Messa Jr. and William Francis Goodrich, for plaintiffs.

      John Joseph Delany III, for defendants Redman Homes Inc. and Champion Home Builders.

      Tracey Granger Benson, for defendant Larry Homes of PA.

      Thomas W. McBride, for defendant Kiddie, Inc.
    August 22, 2006
   McINERNEY, J,

Defendants Red-man Homes Inc., Champion Home Builders Co. and Larry’s Homes of PA Inc. appeal this court’s orders of February 17, 2006 and February 27, 2006 denying defendants’ motions to transfer venue for forum non conveniens.

On October 12,2003, a fire in a Redman Shadowridge A-147 manufactured home located in Huntingdon County killed all of its occupants. Those persons were Kevin Brechbiel and his companion, Anita P. Mayo; and their five minor children, Dexie, Kayla, Abby, Justin and Jason. Plaintiffs commenced a wrongful death and survival action in the Philadelphia County Court of Common Pleas on May 26,2005. On August 30,2005, an amended complaint was filed. The amended complaint alleges that the manufactured home was purchased from defendant Larry’s Homes located on Route 522, Beaver Springs, in Snyder County, Pennsylvania, and manufactured by Redman Homes Inc. of Arizona, and Champion Homes Inc. of Auburn Hills, Michigan. Redman Homes Inc. maintains a regional office inEphrata, Pennsylvania. Snyder County, Pennsylvania is contiguous with Huntingdon County.

On January 6, 2006, defendants Redman and Champion filed a motion to transfer venue based upon forum non conveniens. On January 20,2006, defendant Larry’s Homes filed its own motion to transfer venue based on forum non conveniens. By order dated February 17,2006, the trial court denied defendants Redman and Champion’s motion to transfer venue. By order dated February 27,2006, the trial court denied defendant Larry’s Homes’ motion to transfer venue.

On March 15, 2006, moving defendants filed a joint motion for reconsideration/request for appellate certification of the trial court’s refusal to transfer venue. We denied the motion. Moving defendants then filed a petition for review in the Superior Court requesting the court to hold that the trial court erred when it refused to certify for appeal the orders of February 17,2006 and February 27, 2006. On June 29, 2006, the Superior Court granted defendants’ petition for review pursuant to Pa.R.A.P. 123 and the instant appeal was filed.

This court properly denied the motion to transfer venue for forum non conveniens because defendants failed to establish that the plaintiffs’ chosen forum was oppressive or vexatious. Petitioners contend that evidence available in or near Huntingdon County includes the Brechbiel home, its utility hookups and evidence related to the home’s compliance with building codes. In addition, petitioners allege that the vast majority of witnesses live in or near Huntingdon County, including anyone involved in the delivery, installation, servicing or testing of the alleged defective furnace and oil burner suspected of causing the plaintiffs’ asphyxiation and, in addition, Harry Kamerow M.D., the pathologist of Blair Memorial Hospital, who conducted the autopsy; the 911 emergency staff; volunteer firemen and ambulances that fought the fire; and staff at the J.C. Blair Memorial Hospital.

However, contrary to petitioners’ assertions, many of the medical, fire and police witnesses mentioned by defendants as inconvenienced have agreed to appear in Philadelphia. In addition, affidavits from plaintiffs Ruth Brechbiel and Susan Brechbiel, mother and sister respectively of decedent Kevin Brechbiel, who discovered the bodies; Edwin Brechbiel, Duane Brechbiel and Constance C. Mayo-Collier attest to their willingness to appear in Philadelphia. Other affidavits of potential witnesses also attested to their willingness to appear in Philadelphia, including Calvin Anderson, uncle of Anita Mayo; Ronald Morder, deputy coroner of Huntingdon County who was involved in the autopsies of the deceased; Dan Long, pastor of the Calvary Independent Baptist Church; and Daniel Sneath, Pennsylvania State Police criminal investigator.

Petitioners’ evidence, affidavits of inconvenience from three former employees of Larry’s Homes, who would allegedly be needed to supplement records because defendant went out of business in 2001 or 2002, and one from the pathologist Harry Kamerow M.D. are insufficient to meet their burden.

In arguing for a change of venue the defendants are ignoring the fact that the products liability case against the defendant manufacturers and their agents primarily involves the defective design of the mobile home, the toxic materials utilized in its manufacture, and the installation of allegedly defectively designed smoke detectors manufactured by defendant Kidde. Plaintiffs will require testimony from defendant manufacturer witnesses who will be coming from many parts of the country, including Michigan, North Carolina, and Arizona, as well as experts who will be traveling from Colorado, Rhode Island and Kentucky. Holding trial in Philadelphia, a major metropolitan area, will actually make it easier to arrange travel plans and allow for less inconvenience and shorter stays for the majority of witnesses.

The cases defendants cite in support of their request are distinguishable. In Dulaney v. Consolidated Rail Corporation, 715 A.2d 1217 (Pa. Super. 1998), the court allowed a transfer from Philadelphia to Pittsburgh where all the plaintiff’s witnesses, including his medical provider and co-workers, as well as all defendant’s witnesses were located in Ohio, West Virginia and Western Pennsylvania. That is not at all the situation we have here. Defendant also cited to Borger v. Murphy, 797 A.2d 309, 312 (Pa. Super. 2002), a medical malpractice claim brought in Philadelphia against Lehigh County doctors. In Borger, the alleged tort occurred in Lehigh County and the court accommodated the needs of the doctors in transfering that case. However, that issue has since been addressed by our Supreme Court Rules and the Pennsylvania Legislature. On March 20,2002, the Medical Care Availability and Reduction of Error Act took effect. Section 514(a) of the Act limits venue to the location of the alleged negligent medical care, no such requirement applies in this case.

Defendants’ arguments simply do not reach the high burden established in Cheeseman v. Lethal Exterminator Inc., 549 Pa. 200, 212, 701 A.2d 156, 162 (1997) “[Tjhis court’s intent [is] that the plaintiff’s choice of forum should rarely be disturbed by the grant of a Rule 1006(d)(1) petition.”

Rather than travel hours to Huntington County, the greater number of witnesses likely to be called by both sides will not be unduly inconvenienced by traveling to Philadelphia County. Plaintiffs’ choice of Philadelphia County is not vexatious or oppressive under the facts of this particular case and it was not an abuse of discretion to deny the motion.

For all of the foregoing reasons, this court’s decision should be affirmed.

      . An additional defendant is Kidde Inc. d/b/a Kidde Incorporated a/k/a Kidde and Kidde Supply.


author: KISTLER, J.,

text:
    Boscaino v. Centre Medical and Surgical Associates

      C.P. of Centre County,
    no. 2005-1757.

      Craig E. Frischman and James A. South, for plaintiff.

      Darryl R. Slimak, for defendants.
    September 20, 2006
   KISTLER, J.,

Presently before this court is defendants Centre Medical and Surgical Associates and Dr. Theodore J. Hovick Jr.’s motion to limit Dr. O’Shea’s deposition testimony. In consideration of the briefs and sur briefs submitted by the parties and after oral argument, this court determines defendants’ motion is denied.

PROCEDURAL AND FACTUAL BACKGROUND

On or about May 11,2005, plaintiff Antoinette Boscaino filed a medical malpractice complaint against defendants Medical Surgical Associates and Theodore J. Hovick Jr. M.D. In her complaint, plaintiff alleges she suffered second- and third-degree burns to her labia as a result of Dr. Hovick’s use of a cryogenic device.

On October 28, 2003, plaintiff presented to Centre Medical Surgical Associates for treatment of vaginal bleeding and discharge. At that time, and following an initial examination, Dr. John O’Shea recommended plaintiff undergo a surgical procedure, whereby a cryogenic surgical device would be utilized to treat plaintiff’s condition. The procedure consisted of, in essence, the insertion of a probe into plaintiff’s vagina and the application of a cryogenic tip upon the affected area for a series of cryogenic “freezes” of the suspicious lesion.

On November 14, 2003, plaintiff did undergo the procedure prescribed by Dr. O’Shea. However, because Dr. O’Shea was unavailable to perform the procedure, Dr. Theodore J. Hovick Jr. performed the procedure in Dr. O’Shea’s absence. During the procedure, plaintiff claims she experienced “excruciating” pain, which she continued to experience well after the procedure and her arrival home. At the conclusion of plaintiff’s procedure under Dr. Hovick’s care, plaintiff was advised to go home and follow a certain prescribed treatment regime, which included the use of ice to decrease swelling. Plaintiff did go home and claims she did follow the instructions given her. However, she also claims the pain she was experiencing never ceased and “she noted that her vulva, labia, and perianal region appeared red, swollen and appeared to be burned.” (Plaintiff’s brief at 3.)

Some 10 days subsequent to the cryo procedure, on or about November 24,2003, plaintiff returned to Centre Medical Surgical Associates, noting the same pain, swelling and redness. This time plaintiff was attended to by Dr. O’Shea. Dr. O’Shea, after examining plaintiff, concluded and noted in his physician’s notes that plaintiff had suffered second- and third-degree burns, with ulcerations to her vulva and perianal region. (Plaintiff’s brief at 3-4.) Dr. O’Shea also attributed plaintiff’s burns as being caused by either a chemical reaction or direct contact with nitrous oxide. Thereafter, plaintiff continued her care with Dr. O’Shea through February 18, 2004, which consisted of six additional office visits and additional prescribed treatment.

On April 12,2006, defendant filed this instant motion seeking to preclude Dr. O’Shea from testifying as to his medical opinions formed during his subsequent treatment of plaintiff for burns she claims she received.

This litigation is presently in the discovery phase of the trial process.

DISCUSSION

Defendants’ motion seeks to preclude Dr. O’Shea’s testimony as it relates to any and all opinions made during his treatment of plaintiff. Although Dr. Hovick actually performed the procedure which is the basis for this lawsuit, Dr. O’Shea subsequently treated plaintiff for her pain, burns and other related effects, allegedly received from Dr. Hovick’s negligent care. It was during Dr. O’Shea’s treatment of plaintiff that certain medical opinions were made by Dr. O’Shea as to what was the root cause of plaintiff’s injuries. Defendants believe that Dr. O’Shea’s opinions are both inadmissible and an improper subject for discovery through deposition. Accordingly, defendants have filed this instant motion, asking this court to preclude and/or limit Dr. O’Shea’s deposition testimony.

A. Discoverability Versus Admissibility

The defendants contend Dr. O’Shea cannot be compelled, under the law, to divulge his expert opinions, which he formed during his subsequent treatment of plaintiff. Defendants reply on the long-standing proposition that “the private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things.” Pennsylvania Company for Insurances on Lives & Granting Annuities v. Philadelphia, 262 Pa. 439, 442, 105 A. 630 (1918). Defendants also contend that Dr. O’Shea’s opinions should be precluded because they are speculative and equivocal, so that no “independently sufficient” basis exists.

Plaintiff, on the other hand, contends defendants’ arguments are misplaced and not the law in Pennsylvania. Plaintiff asserts defendants have improperly placed their argument in the realm of “admissibility” testimony when, in fact, this is a “discoverability” issue. As argued by plaintiff, a non-party expert who participated in the treatment of the plaintiff is allowed to be deposed during the discovery phase of litigation as to his or her opinions formed during the treatment of the plaintiff.

In evaluating plaintiff’s and defendants’ arguments, this court will begin by reviewing the relevant court rules. Pursuant to Pennsylvania Rule of Civil Procedure, the permissible scope of discovery in civil litigation is broad: “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....” Pa.R.C.P. 4003.1

Rule 4003.1(b) also adds that it is not an “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.” Finally, as it relates to the permissible scope of discovery through deposition, the only limitations to Rule 4003.1 are set out in Pa.R.C.P. 4011, it provides:

“No discovery of deposition shall be permitted which:

“(a) is sought in bad faith;

“(b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;

“(c) is beyond the scope of discovery as set forth in Rule 4003.1 through 4003.6;

“(d) is prohibited by any law barring disclosure of mediation;

“(e) would require the making of unreasonable investigation by the deponent or any party or witness.”

It is clear to this court that intent of the civil rules is to allow the discovery of medical opinions, even where those same opinions would otherwise be inadmissible at trial. There is no stated exception in Rule 4011, which would shield a treating physician from being deposed with regard to his treatment of a party plaintiff and opinion formed contemporaneously with a physician’s treatment. Indeed, this is the clear distinction between “admissibility” and “discoverability.”

Defendants rely heavily on case law to support their contention that Dr. O ’ Shea may not be deposed regarding his treatment of plaintiff. All of the cases defendants cite as authority, notwithstanding, preclude expert testimony at trial Simply put, the issue at this point is: may Dr. O’Shea be deposed as to his opinions, factual or otherwise, made during his treatment of plaintiff subsequent to the November 24, 2003 cryo procedure?

In its argument, defendants rely most heavily on the cases of Pennsylvania Company for Insurances on Lives & Granting Annuities v. Philadelphia, 262 Pa. 439, 105 A. 630 (1918) and Jistarri v. Nappi, 378 Pa. Super. 583, 549 A.2d 210 (1988). These cases stand for the proposition that “[t]he private litigant has no more right to compel a citizen to give up the product of his brain, than he has to compel the giving up of material things.” Jistarri, 378 Pa. Super. at 599, 549 A.2d at 218, quoting Pennsylvania Co. for Insurances, etc., Trustee v. Philadelphia, 262 Pa. 439, 442, 105 A. 630 (1918). Defendants are quite right to label the preceding as a “well-settled principle.” Nevertheless, the Jistarri principle applies to admissibility, not discoverability. Defendants, quite tellingly, fail to cite any case or court rule which precludes the discovery of opinions, formulated by a treating physician and arising out of the treatment.

Defendants have not demonstrated to this court any legal doctrine or principle of law which precludes the discovery of physician’s opinions made during the treatment of a party plaintiff. There is, however, authority that would allow Dr. O’Shea to be deposed with regard to his expert opinions. In Wimer v. Macielek, 42 D.&C.4th 347 (1999), the Court of Common Pleas in Crawford County acknowledged expert opinions are discoverable. In recognizing the intent of the discovery rules, the court stated that “[t]he general rule that opinions are discoverable cannot be read as absolute and in a vacuum.” Id., 42 D.&C.4th at 351. Although ultimately precluding the expert’s deposition concluding the expert’s testimony was irrelevant, this case demonstrates the general trend to allow the discovery of opinions, even from non-party deponents.

Finally, defendants’ argument in favor of precluding Dr. O’ Shea’s testimony also seems to ignore the fact that Dr. O’Shea is not purely a third-party expert witness but is, also, a factual witness. There is no dispute that Dr. O ’ Shea actually cared for and treated plaintiff subsequent to the cryo procedure. The previously discussed case Nappi does hold that a non-party expert witness may not be compelled to give expert testimony as to the root cause of medical injury against his or her will. Nappi, 378 Pa. Super. 583, 599, 549 A.2d 210, 218 (1988). Nevertheless, this same principle does not hold true to discovery or deposition, which is necessarily broader in scope. And, because Dr. O’Shea was a subsequent treating physician, this court concludes he may be deposed as to his treatment of plaintiff as well as to any medical opinions formed during said treatment.

In sum, the law does allow for the deposing of Dr. O’Shea with regards to his subsequent treatment of plaintiff as allowed under Pa.R.C.P. 4003.1. The scope of discovery is broad and expressly includes the discovery of expert opinions. Although Dr. O’Shea is not a party to this action, he did treat the plaintiff, and any opinions formed during his treatment would be relevant to this cause of action. Moreover, Dr. O’Shea’s testimony is clearly relevant and is not precluded by any rule of evidence or any of the limitations in Pa.R.C.P. 4011.

B. Opinions Are “Speculative” and “Equivocal”

Defendants next contend that Dr. O’Shea’s opinions must be precluded because his medical opinions are clearly “equivocal” and “speculative.” Dr. O’Shea did express certain medical opinions both during his treatment of plaintiff as well as documented in his physician’s notes. Defendants believe these opinions, although rendered during Dr. O’Shea’s treatment of plaintiff, must be precluded because these are “equivocal” and “speculative.”

This argument follows, almost identically, the same analysis as defendants’ prior argument. Generally speaking, the case law in Pennsylvania does preclude testimony of expert witnesses which is “speculative” (or theoretical) and “equivocal” (or uncertain and subject to more than one interpretation). See Cohen v. Albert Einstein Medical Center, 405 Pa. Super. 392, 591 A.2d 720 (1991), see also, Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 661 A.2d 397 (1995). Notwithstanding, each of these cases involves speculative or equivocal testimony by experts at trial, not at the discovery level. Plaintiff may explore both Dr. O ’ Shea’s subsequent treatment of plaintiff, on a factual level, and his opinions formed during this treatment.

C. Privilege

Defendants’ final contention is that Dr. O’Shea’s deposition testimony is privileged and, thus, not proper for discovery. Rule 4003.1 of the Pennsylvania Court Rules does prohibit the discovery of privileged opinions. There is no dispute as to Dr. O’Shea’s role with regard to this litigation: Dr. O’Shea is a non-party physician who treated plaintiff for her alleged injuries subsequent to the cryo procedure.

The doctrine of privilege is well-settled in Pennsylvania and, when properly invoked, will preclude testimony by any witness bound privilege. However, privilege only applies when it is asserted by the individual or party “privileged” to assert it. Doctor/patient is intended to protect and keep confidential the matters discussed by and between a doctor and his or her patient. But this privilege is for the patient to assert, to preclude a doctor willing to testify, or by a doctor in the interests of his or her patient. In the instant matter, plaintiff desires Dr. O’Shea to testify and is not asserting privilege and Dr. O’Shea, while he clearly does not want to testify, is unable to assert doctor/patient privilege because his patient has “waived” the privilege.

In addition, there is the collateral assertion of expert witness privilege. In essence, this form of privilege protects an expert witness, hired by one party, from being compelled to divulge his or her expert opinions to the benefit of an adverse party. Although an expert witness is always subject to cross-examination, this privilege protects an expert, hired by one party, from being “pirated” and utilized by an adverse party. This is a form of privilege recognized by Pa.R.C.P. 4003.1, which permits the discovery of opinion so long as these opinions are not privileged. Graham v. I.M.O. Industries Inc., 16 D.&C.4th 492, 493 (1992).

Because Dr. O’Shea has personal, firsthand knowledge about this matter, this form of privilege does not preclude or prohibit his deposing. Expert opinions formed by a treating physician, in lieu of litigation, are allowable and not subject to the preclusive effects of privilege. Kurian ex rel. Kurian v. Anisman, 851 A.2d 152 (Pa. Super 2004), see also, Ferguson v. Redstone Acoustical & Flooring Inc., 21 D.&C.3d 475 (1981). Dr. O’Shea did form his medical opinions during his treatment of plaintiff. Because Dr. O’Shea has firsthand knowledge and formed his opinions around his first-hand knowledge, privilege does not preclude his deposition testimony.

D. Conclusion

In sum, because it is permissible to discover expert opinions which are not privileged, Dr. O’Shea may be deposed as to his treatment of plaintiff and any opinions formed during said treatment. Dr. O’Shea has first-hand knowledge of plaintiff’s alleged injuries and, quite possibly, the root cause of the injuries. The Pennsylvania Rules of Court permit such discovery and Dr. O’Shea’s opinions are not protected by any legal privilege. Furthermore, Dr. O’Shea’s deposition testimony is clearly relevant to plaintiff’s case and, at least at this point, a proper subject to be explored at the discovery stage of litigation. Each of the matters decided, herein, relates to “discoverability” and not “admissibility.” This court makes no determination as to the admissibility of any of Dr. O’Shea’s opinions or medical conclusions — defendants may, where appropriate, raise these legal issues again as to the admissibility.

ORDER

And now, September 20, 2006, for the reasons articulated herein, this court determines defendants’ motion to limit Dr. O’Shea’s expert opinion testimony is hereby denied.