author: NANOVIC, P.J.,

text:
    Leskin v. Christman

      C.P. of Carbon County,
    no. 04-3384.

      Brian B. Gazo, for plaintiff.

      Joseph V. Sebelin Jr., for defendant.
    January 20, 2006—
   NANOVIC, P.J.,

FACTUAL BACKGROUND

On August 3, 2005, David Christman (Father) instituted the present proceedings seeking to modify the terms of a stipulated custody order dated November 24,2004, and asking that primary custody of the parties’ 4-year-old daughter Mallory (Child) be awarded to him. Five days prior to the scheduled custody hearing, Father filed a motion for special relief requesting, inter alia, that he be permitted to inspect Julia Leskin’s (Mother) medical/ mental health records for the previous five years or, in the alternative, that the court conduct an in camera review of these records.

In accordance with Pa.R.C.P. 1915.5(a), the custody hearing was held as scheduled. At the time of this hearing, extensive testimony was taken regarding those factors which would legitimately affect Mallory’s physical, intellectual, moral, and spiritual well-being. The hearing also developed that the primary basis for Father’s motion for special relief was Mother’s hospitalization and treatment in a mental health facility in May 2005.

On May 9,2005, a Monday, Mother became upset following an argument with her boyfriend. During the previous six months or more she had been treating with a psychiatrist and been prescribed medication for depression. As of May 9, 2005, she was also taking prescribed pain medication for injuries sustained in a motor vehicle accident. That evening, after taking her medication, she visited a local tavern with some friends, consumed alcohol, and awoke the following morning in a hospital.

Mother had no recollection of what occurred between the time she arrived at the tavern and when she awoke. Her boyfriend testified that he had found Mother asleep in bed when he returned home after their argument and that, when he was unable to awake her, he called 911.

Not knowing what had happened, and faced with the possibility of being involuntarily committed, Mother voluntarily admitted herself into the Mental Health Unit of the Gnaden Huetten Memorial Hospital on May 10, 2005, where she remained until the following Monday, May 16,2005. At the custody hearing, Mother was questioned both by her counsel and by Father’s counsel about her existing and past mental health treatment, the circumstances leading to her hospitalization on May 9, and her present mental status. In this regard, Mother testified that she continues under the supervision of a psychiatrist and visits a therapist weekly.

At the conclusion of the hearing, we requested counsel to provide us with a legal memorandum in support of their respective positions regarding Father’s request for the medical records from Mother’s treatment at the Gnaden Huetten Memorial Hospital and the treatment records of her psychiatrist. For these purposes, and depending on our ruling, the hearing record was kept open for possible additional testimony. The memoranda requested by the court have been provided and we now address Father’s request for Mother’s medical records.

DISCUSSION

In a general sense, we have been asked to determine whether Mother’s medical records must be disclosed as relevant information in deciding the best interest of the parties’ daughter. In a more specific sense, we must determine whether Mother’s mental health records are protected from disclosure by the confidentiality provision of Pennsylvania’s Mental Health Procedures Act (MHPA), 50P.S. §7111, the psy chotherapist-patient privilege found at 42 Pa.C.S. §5944, or the constitutional right to privacy found in Article I, Section 1 of the Pennsylvania Constitution.

Psychotherapist-Patient Privilege

In Pennsylvania, the psychotherapist-patient privilege reads as follows:

“Section 5944. Confidential communications to psychiatrists or licensed psychologists
“No psychiatrist or person who has been licensed under the act of March 23,1972 (P.L. 136, No. 52), to practice psychology shall be, without the written consent of his client, examined in any civil or criminal matter as to any information acquired in the course of his professional services in behalf of such client. The confidential relations and communications between a psychologist or psychiatrist and his client shall be on the same basis as those provided or prescribed by law between an attorney and client.” 42 Pa.C.S. §5944.

The term “information” as used in this statute has been narrowly defined and is restricted to communications made or information divulged by the patient to the psychotherapist. Phillips’ Estate, 295 Pa. 349, 145 A. 437 (1929) (distinguishing between information conveyed by communications made from the patient to a physician and that learned through physical examination or observation, and holding that the doctor-patient privilege, now found at 42 Pa.C.S. §5929, applies only to patient’s communications); Grimminger v. Maitra, 887 A.2d 276, 279 (Pa. Super. 2005) (acknowledging that “our case law has drawn a distinction between information learned by a physician through communication to him by a patient and information acquired through examination and observation”).

Further underlying the exercise of the privilege is the requirement that a psychotherapist-patient relationship exists. “In the context of a psychotherapist, the client must be seeking treatment, counseling or advice for a mental or emotional problem.” M. v. State Board of Medicine, 725 A.2d 1266, 1268 (Pa. Commw. 1999) (“A court-ordered examination does not invoke this privilege because treatment is not contemplated in conducting the examination.”); Matter of Adoption of Embick, 351 Pa. Super. 491, 506 A.2d 455 (1986), appeal denied, 513 Pa. 634, 520 A.2d 1385 (1987) (holding that a parent’s voluntary submission to examination at the request of a county children and youth agency for purposes of assessing the potential for family reunification and the best interests of a minor child did not constitute treatment, counseling or advice for any mental or emotional problems, nor create a doctor-patient or other privileged relationship contemplated by the statute and, therefore, did not bar relevant testimony by the psychologist at an involuntary termination proceeding); see also, Commonwealth v. G.P, 765 A.2d 363, 365 (Pa. Super. 2000) (emphasizing that different standards apply in proceedings in criminal court and those in a civil proceeding when it relates to a court-directed examination and the results obtained therefrom).

Although worded as a testimonial privilege, this statute, as interpreted by our appellate courts, shields from disclosure all confidential communications made and information given by a patient to a psychiatrist or licensed psychologist, or their agent, for purposes of obtaining or facilitating treatment. Commonwealth v. Simmons, 719 A.2d 336, 341 (Pa. Super. 1998) (finding confidential communications by alleged child victim to any member of a treatment team organized to treat the mentally ill and supervised by a licensed psychiatrist protected from disclosure to a criminal defendant).

Significantly, for purposes of this case, the privilege includes the psychotherapist’s client files which might reveal confidential communications of the client. Simmons, 719 A.2d at 341. The privilege, however, does not include the psychotherapist’s observations, diagnoses, opinions, evaluations or treatment plans. Id.; see also, Commonwealth v. Carter, 821 A.2d 601, 608 (Pa. Super. 2003) (“[T]he [psychiatrist-patient] privilege is not designed to specifically protect the psychotherapist’s own opinion, observations, [or] diagnosis....”).

Critical to the exercise of the privilege is an understanding of its rationale: “to encourage people to seek professional help for their mental or emotional problems, and that purpose is best accomplished when people in need of psychotherapeutic treatment know that what they tell their therapist during treatment will not be disclosed to anyone.” Embick, 351 Pa. Super. at 499-500, 506 A.2d at 460. “By preventing the [therapist] from making public any information which would result in humiliation, embarrassment or disgrace to the client, the privilege is designed to promote effective treatment and to insulate the client’s private thoughts from public disclosure.” Commonwealth v. Kyle, 367 Pa. Super. 484, 500, 533 A.2d 120, 128 (1987), appeal denied, 518 Pa. 617, 541 A.2d 744(1988).

Where the privilege applies, the privileged material may not be subjected to even in camera review by the trial court. Simmons, 719 A.2d at 341; Kyle, 367 Pa. Super. at 505, 533 A.2d at 131 (refusing to compromise what it determined was an absolute privilege from disclosure of confidential communications made between a licensed psychologist and his client where, as the court found applies to this privilege, a compelling public interest supports the privilege; finding the public interests supporting the privilege outweigh the accused’s rights guaranteed by the Confrontation Clause of the Sixth Amendment of the United States Constitution and the Due Process Clause of the Fourteenth Amendment to review arguably useful information protected by the privilege); see also, Commonwealth v. Counterman, 553 Pa. 370, 392, 719 A.2d 284, 295 (1998) (finding that the psychiatrist/psychologist-patient privilege outweighed a defendant’s Sixth Amendment right to cross-examination, as well as his right to due process), cert. denied sub nom., Counterman v. Pennsylvania, 528 U.S. 836, 120 S.Ct. 97, 145 L.Ed. 2d 82 (1999).

In asking us to override the privilege, Father argues that the interests at stake in these proceedings — the best interest and proper placement of the parties’ daughter— are paramount to any benefit Mother may derive from nondisclosure of her medical records and that, as part of our obligation to conduct a full and comprehensive hearing, we should not be deprived of material testimony concerning the mental or emotional condition of either parent necessary to a proper determination of the issues before the court. In reality, what Father is asking is that we balance the importance of producing evidence relevant to assessing the best interest of a child against the value of a legislatively created privilege in favor of confidentiality, and find that the scales tip in favor of disclosure. To do what Father requests, to balance the merits of a statutory privilege against a party’s claimed need for disclosure, presupposes that the court may unilaterally substitute its judgment for the presumptively valid judgment of the legislature and that to do so, on an ad hoc basis, is preferable to a rule of uniform application.

The flaw in this position is Father’s belief that when important, personal rights are at stake, the privilege must yield in favor of potentially significant, reliable evidence. Conceptually, this belief is contrary to the legal premise on which a privilege is based: that some compelling interest, extrinsic to the truth-finding process, is of greater value.

“ ‘ [Ejxceptions to the demand for every man’s evidence are not lightly created nor expansively construed, for they are in derogation of the search for truth.’ Hutchison v. Luddy, 414 Pa. Super. 138, 146, 606 A.2d 905, 908 (1992) (quoting Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979)). Thus, courts should accept testimonial privileges ‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.’ In re Grand Jury Investigation, 918 F.2d 374, 383 (3d Cir. 1990) (quoting Trammel v. United States, 445 U.S. 40, 46, 100 S.Ct. 906, 910, 63 L.Ed.2d 186 (1980)).” In re Subpoena No. 22, 709 A.2d 385, 388 (Pa. Super. 1998) (quoting Commonwealth v. Stewart, 547 Pa. 277, 282, 690 A.2d 195, 197 (1997)); see also, In re Estate of Wagner, 584 Pa. 49, 57-58, 880 A.2d 620, 625 (2005) (finding that notwithstanding the important individual interests in vindicating the death of a 14-month-old child from alleged abuse while in foster care, by requiring child death reviews to be kept confidential, the legislature had as its objective the fostering of an unreserved, comprehensive internal investigation and evaluation of actions taken and foregone by C&Y and DPW, which objective would be compromised if open to public scrutiny, thereby placing such reviews beyond the scope of discovery).

The legislature having predetermined the value of the psychotherapist-patient privilege by its enactment, here a codification of existing principles of common law, “[mjaking the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the evidentiary need for disclosure would eviscerate the effectiveness of the privilege----[I]f the purpose of the privilege is to be served, the participants in the confidential conversation ‘must be able to predict with some degree of certainty whether particular discussions will be protected. An uncertain privilege, or one which purports to be certain but results in widely varying applications by the courts, is little better than no privilege at all.’ ” Jaffee v. Redmond, 518 U.S. 1, 17-18, 116 S.Ct. 1923, 1932, 135 L.Ed. 2d 337 (1996) (recognizing the psychotherapist-patient privilege for the first time) (quoting Upjohn Co. v. United States, 449 U.S. 383, 393, 101 S.Ct. 677, 684, 66 L.Ed.2d 584 (1981)).

Consequently, when a privilege is properly invoked, unless the purpose of the privilege would be frustrated by its enforcement or extraordinary circumstances exist, the privilege and the public policy underlying the privilege must not be unpredictably discarded. Even then, when the interests protected by the privilege are relaxed or outweighed, the exceptions engrafted on the privilege are confined to rare and exceptional circumstances, or the disclosure is narrowly limited to the exigencies presented (e.g., a duty to warn) rather than a wholesale disclosure of protected information. See In re Subpoena No. 22, 709 A.2d at 391 (finding a narrow exception qualifying the privilege, after the client’s death, when necessaiy as part of a criminal investigation into the client’s death, enforcement of the privilege in this context being contrary to the client’s interests); Emerich v. Philadelphia Center for Human Development, 554 Pa. 209, 231-32, 720 A.2d 1032, 1043 (1999) (“[W]e find that inPennsylvania, based upon the special relationship between a mental health professional and his patient, when the patient has communicated to the professional a specific and immediate threat of serious bodily injury against a specifically identified or readily identifiable third party, and when the professional determines, or should determine under the standards of the mental health profession, that his patient presents a serious danger of violence to the third party, then the professional bears a duty to exercise reasonable care to protect by warning the third party against such danger”; exception applies equally to both patient-therapist confidentiality and that imposed by MHPA).

In In re Subpoena No. 22, the court further stated:

“When interpreting the psychotherapist-client statutory privilege, we are guided by the same principles that apply to the attorney-client privilege. Kalenevitch v. Finger, 407 Pa. Super. 431, 438, 595 A.2d 1224, 1228 (1991). See also, 42 Pa.C.S. §5944 (confidential communications between psychologist or psychiatrist and client shall be on same basis as between attorney and client). Once the party asserting a privilege shows that the privilege is properly invoked, the burden shifts to the party seeking the disclosure to show that disclosure of the information will not violate the accorded privilege. In re Investigating Grand Jury, 527 Pa. 432, 440, 593 A.2d 402, 406 (1991). (citations omitted) See also, Brennan v. Brennan, 281 Pa. Super. 362, 372, 422 A.2d 510, 515 (1980) (citing Cohen v. Jenkintown Cab Co., 238 Pa. Super. 456, 464, 357 A.2d 689, 693-94 (1976), appeal denied (1976)) (stating where privilege exists for specific purpose; party seeking disclosure has burden of establishing prima facie case that purpose of privilege would be frustrated by exercise of privilege).” 709 A.2d at 388.

Here, as in Simmons, the record does not contain a clear statement of what information is actually contained in Mother’s psychiatrist’s file. For this reason, as was the case in Simmons, we accept the movant’s assertion that all information in the file consists of communications made and information given by Mother, or would reveal the substance of such communications and disclosures. Father has made no showing that Mother’s assertion of the privilege as applied to this information is contrary to the public policy underlying the privilege. In fact, just the contrary is argued by Mother.

Comprehending both the need to promote effective treatment and to insulate the client’s private thoughts from public disclosure, the psychotherapist-client privilege is “based upon a strong public policy that confidential communications made by a client to the psychotherapist should be protected from disclosure, absent consent or waiver.” In re Subpoena No. 22, 709 A.2d at 388. Given the importance of these policies, the privilege “must prevail under most circumstances.” Id. at 389 (listing numerous cases in which a criminal defendant’s constitutional rights to confrontation and compulsory process must yield to the privilege); see also, M. v. State Board of Medicine, 725 A.2d at 1269 n.13 (stating in the context of a civil proceeding that “the type of case in which the psychotherapist-patient privilege is claimed is irrelevant as to whether the privilege does or does not exist”). As illustrated by the cases listed in In re Subpoena No. 22, notwithstanding the relevance and probative value of the information sought in each case, the reasons proffered were found insufficient to overcome the legislatively created privilege.

In this case, Father has failed to show that disclosure of the materials requested would not violate the privilege or would not be inconsistent with its purposes. Nor has Father presented any extenuating circumstances justifying a relaxation or giving way of the privilege.

Therefore, in accordance with the foregoing, to the extent the records requested contain confidential communications made by Mother to her psychiatrist, or make any reference to such communications, they are privileged. Further, accepting that the file contains protected communications, even an in camera review is prohibited. In short, the psychotherapist-patient privilege makes no exception of the type argued by Father for custody proceedings, and we find none.

Mental Health Procedures Act

Section 7111 of the Mental Health Procedures Act provides:

“Section 7111. Confidentiality of records
“(a) All documents concerning persons in treatment shall be kept confidential and, without the person’s written consent, may not be released or their contents disclosed to anyone except:
“(1) those engaged in providing treatment for the person;
“(2) the county administrator, pursuant to section 110 [regarding applications, petitions, statements and certifications required under the provisions of the Mental Health Procedures Act];
“(3) a court in the course of legal proceedings authorized by this act; and
“(4) pursuant to federal rules, statutes and regulations governing disclosure of patient information where treatment is undertaken in a federal agency.
“In no event, however, shall privileged communications, whether written or oral, be disclosed to anyone without such written consent....
“(b) This section shall not restrict judges of the courts of common pleas, mental health review officers and county mental health and mental retardation administrators from disclosing information to the Pennsylvania State Police or the Pennsylvania State Police from disclosing information to any person, in accordance with the provisions of 18 Pa.C.S §61059(c)(4) (relating to persons not to possess, use, manufacture, control, sell or transfer firearms).” 50 P.S. §7111.

The protection provided by this section is broader than that under the psychotherapist-patient privilege: it applies “to all documents regarding one’s treatment, not just medical records,” and its confidentiality directive is mandatory, not discretionary — “it is a requirement.” Zone v. Friends Hospital, 575 Pa. 236, 247, 836 A.2d 25, 32 (2003). (emphasis in original)

Of the enumerated exceptions, only the third exception, that pertaining to disclosure to a court in the course of legal proceedings authorized by the MHPA, arguably applies. When viewed closer, however, this exception does not assist Father. Under the precise language of section 7111 (a)(3), “a patient’s inpatient mental health treatment records may be used by a court only when the legal proceedings being conducted are within the framework of the MHPA, that is, involuntary and voluntary mental health commitment proceedings.” Commonwealth v. Moyer, 407 Pa. Super. 336, 341, 595 A.2d 1177, 1179 (1991) (emphasis in original), appeal denied, 529 Pa. 656, 604 A.2d 248 (1992) (barring the Commonwealth’s obtaining and use at trial of a criminal defendant’s admission contained in hospital records regarding the defendant’s psychiatric treatment; a criminal prosecution is not a legal proceeding authorized by the MHPA). In accordance with section 7103, the MHPA establishes the rights and procedures for all involuntary treatment of mentally ill persons, whether inpatient or outpatient, and for all voluntary inpatient treatment of mentally ill persons. See e.g., 50 P.S. §7303 (involuntary emergency treatment); 50 P.S. §7304 and 7305 (court-ordered involuntary treatment); 50 P.S. §7306 (transfer of persons in involuntary treatment) and 50 P.S. §7204 and §7206 (voluntary mental health commitment determinations). The confidentiality protection of the Act does not apply to any voluntary outpatient treatment.

Section 7111 has as its clear objective that all documentation covering persons in treatment be kept confidential, the confidentiality of mental health records being the sine qua non of effective treatment. Zane, 575 Pa. at 250, 836 A.2d at 33.

“The importance of confidentiality cannot be overemphasized. To require the Hospital to disclose mental health records during discovery would not only violate [the patient’s] statutory guarantee of confidentiality, but would have a chilling effect on mental health treatment in general. The purpose of the Mental Health Procedures Act of seeking ‘to assure the availability of adequate treatment to persons who are mentally ill,’ 50 P.S. §7102, would be severely crippled if a patient’s records could be the subject of discovery in a panoply of possible legal proceedings. Moreover, to release such documents for review during discovery, only to have an appellate court reverse such decision on appeal, would result in the confidential nature of the records being forever lost.” Id. at 250-51, 836 A.2d at 34 (holding that section 7111 sets forth a bright line bar to the disclosure of mental health records, even to the court, thereby depriving the alleged victim of a brutal physical and sexual assault by a mental health patient from potentially relevant information in her personal injury claim against her assailant and the hospital where he was an inpatient).

Just as the MHPA forbids disclosure in a negligence action (e.g., Zane) and in a criminal proceeding (e.g., Moyer) of information made confidential by its provisions, it similarly broaches no exception for custody proceedings.

Constitutional Guarantee to Privacy

Having concluded that the psychotherapist-patient privilege and the MHPA bar, respectively, the psychiatric treatment and hospital records Father seeks, whether this information is further barred from disclosure by the patient’s constitutional right to privacy found in Article I, Section 1, of the Pennsylvania Constitution, is an issue for which extended discussion is unnecessary and would be unwise. See Wertz v. Chapman Township, 559 Pa. 630, 633, 741 A.2d 1272, 1274 (1999) (“It is axiomatic that if an issue can be resolved on a non-constitutional basis, that is the more jurisprudentially sound path to follow.”).

We feel it appropriate, however, to note that this basis, while having in common with the statutory protections the principle of confidentiality, has a constitutional foundation whose protections are far greater than those which reside in any specific statute. And while the sources and limits of the right to privacy under the Pennsylvania and United States Constitutions may be disputed — see In re “B”, 482 Pa. 471, 486, 394 A.2d 419, 425 (1978) (plurality) — two different kinds of privacy interests have been identified: the individual interest in avoiding disclosure of personal matters and the interest in independence in making certain kinds of important decisions. Whalen v. Roe, 429 U.S. 589, 599-600, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1976) (as to the federal constitution); Stenger v. Lehigh Valley Hospital Center, 530 Pa. 426, 434, 609 A.2d 796, 800 (1992) (as to the state constitution). Nor is the right absolute. Id. at 437, 609 A.2d at 802.

It is the first of these interests, the interest in avoiding disclosure of personal matters, which is implicated in this case. Within this interest, at its center, is the right to have one’s thoughts and mental processes intrinsic to individuality excluded from others. The production of an entire psychiatric history, as requested by Father and in contrast to a more focused court-ordered examination, infringes upon the patient’s “most intimate emotions, fears, and fantasies.” In re “B ”, 482 Pa. at 486, 394 A.2d at 425-26 (holding that the mother’s right of privacy precluded the release of psychiatric records ordered by the trial court to assist in the placement of a child in the context of a disposition hearing in a juvenile delinquency proceeding in which the court explicitly recognized that even though its “holding may, in some cases, make it more difficult for the court to obtain all the information it might desire regarding members of the juvenile’s family, or about the juvenile’s friends, neighbors, and associates, [t]he individual’s right of privacy . . . must prevail ....”); Commonwealth ex rel. Gorto v. Gorto, 298 Pa. Super. 509, 516, 444 A.2d 1299, 1302 (1982) (acknowledging the relevance of In re “B” to a custody proceeding and stating that “delving into the private records of a custodial parent’s psychiatric history is an impermissible invasion of privacy”); see also, In the matter of T.R., 557 Pa. 99, 731 A.2d 1276 (1999) (concluding that a mother’s state constitutional right to privacy precluded the trial court from compelling her to participate in a psychological evaluation intended to provide information important to a determination of the children’s future well-being and familial reunification) (per three justices with one justice concurring in the result); In the matter of K.D., 744 A.2d 760 (Pa. Super. 1999) (reviewing the propriety of order compelling parent to undergo psychiatric evaluation in proceedings under the Juvenile Act, 42 Pa.C.S. §6301 et seq., and concluding order violated parent’s constitutional privacy rights).

We further note that, unlike the limited exceptions to the statutory privileges at issue in these proceedings, the hallmark of constitutional analysis is to balance competing interests, and that there may well be two separate constitutional interests at stake in these proceedings, each supporting a different human privacy concern and each at different ends of the issue whether the privilege should be upheld or set aside: the Mother’s individual right of privacy and the Father’s right to secure, foster and maintain a familial relationship with his daughter, as well the state interest in protecting the well-being of Child. Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (noting that the liberty interest under the Fourteenth Amendment’s Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody and control of their children). This contrasts with those cases where the court, when faced with the abridgement of a fundamental constitutional right, must determine whether a countervailing compelling state interest exists, and whether the burden imposed on the exercise of the right at stake has been implemented in a least restrictive fashion, narrowly tailored to the government’s interest. Commonwealth ex rel. Platt v. Platt, 266 Pa. Super. 276, 292, 404 A.2d 410, 426 (1979) (Spaeth, J., dissenting).

As is evident from this brief discussion, the constitutional privacy rights at issue are significant, and complicated, but beyond what we must decide.

CONCLUSION

In accordance with the foregoing, we find that the psychiatric and mental health records Father seeks to obtain are both subject to, and protected by, the psychotherapist-patient privilege and the MHPA, respectively; that Mother, by participating in these proceedings, has not waived the protections provided by these statutes; and that the records are not subject to disclosure. On the basis of these conclusions, Father’s motion for special relief will be denied.

      . Without question, psychiatric considerations are important in deciding upon a child’s best interest, however, they are not determinative of the many factors the court must take into account. In re Donna W., 325 Pa. Super. 39, 58, 472 A.2d 635, 644 (1984).

      . Because of this deficiency in the record, we have considered permitting further discovery of the remainder of the psychiatrist’s file or a limited in camera review of any non-privileged, but confidential, material contained in the file. We find, however, that Father has made no distinction between privileged and non-privileged materials which may be contained in the psychiatrist’s file, has filed to identify any potentially non-privileged materials and, therefore, has waived the issue. Kraus v. Taylor, 710 A.2d 1142, 1146-47 (Pa. Super. 1998).

      . Both the psychotherapist-patient privilege and the statutory privilege set forth in section 7111 of the MHPA are subject to implicit waiver when a party placed the confidential information at issue in a civil lawsuit. Rost v. State Board of Psychology, 659 A.2d 626, 629 (Pa. Commw. 1995) (discussing the psy chiatrist/psy chologist-patient privilege), appeal denied, 543 Pa. 699, 670 A.2d 145 (1995); Nicholaides v. Weber, 133 Pitts. Leg. J. 260, 261 (1985) (discussing section 7111 of the Mental Health Procedures Act). The rationale of the decisions finding implicit waiver is that our legislature could not have intended the miscarriage of justice that would otherwise result to civil defendants. Kraus, 710 A.2d at 1145.
      In this case, Father claims Mother has waived the privilege merely by participating in the proceedings. We are not persuaded by this argument. First, it was Father, not Mother, who commenced the instant proceedings with his filing of a petition to modify custody on August 3,2005. Second, and more importantly, it is not Mother who has placed her mental condition directly at issue, but the law which requires, in custody proceedings, that all factors concerning the best interest of a child be examined.

      . In a concurring opinion, Justice Nigro noted that while no parent can be forced to submit to a psychological evaluation, a parent’s refusal to submit to one permits the court to draw a “negative inference ... when determining the appropriate placement of the child.” In the matter of T.R., 557 Pa. 99, 110, 731 A.2d 1276, 1282 (1999) (Nigro, J., concurring).


source: Caselaw Access Project

author: Black, J.,

license: Public Domain

text:
    Olexa v. DeSales University

      C.P. of Lehigh County,
    no. 2004-C-2341.

      Leo V DeVito Jr., for plaintiff.

      Joseph S. D’Amico Jr., for defendant.
    December 12, 2005
   Black, J.,

The plaintiff, Stephanie Olexa, is the owner of a 7.7019-acre tract of land located in Upper Saucon Township, Lehigh County, Pennsylvania. The defendant, DeSales University, owns the surrounding land on which it has developed various buildings and facilities as part of its campus. In her complaint, Olexa seeks relief from the University in four counts for interference with her property.

In Count I labeled “Trespass,” Olexa alleges that the University has constructed a stone driveway and an underground storm water pipe that encroach on the southern portion of her property. She seeks removal of the encroachments, an injunction against future trespasses on her property; and compensatory and punitive damages.

In Count II labeled “Storm Water Trespass,” Olexa alleges that the University has unlawfully diverted surface water onto her property. She contends that the increased flow of surface water onto her property is a continuing trespass as well as a violation of the Pennsylvania Storm Water Management Act, 32P.S. §680.13, and the Upper Saucon Township Subdivision and Land Development Ordinance, sections 262.2 and 262.3. She requests an order compelling the University to cease and remediate damage from the storm water trespasses, an injunction against future trespasses; and compensatory and punitive damages.

In Count III labeled “Negligence,” Olexa alleges that the University was negligent in causing the physical encroachments and storm water trespasses referred to in Counts I and II. She seeks the same relief as in these counts.

In Count IV labeled “Ejectment,” Olexa seeks the removal of the physical encroachments, the cessation of the storm water trespasses and a judgment granting her sole and exclusive possession of her property.

After a two-day trial without jury and oral argument, we make the following findings of fact and conclusions of law:

FINDINGS OF FACT

(1) The plaintiff, Stephanie Olexa, is the owner of a 7.7019-acre tract of land located north and west of the intersection of Landis Mill Road and Clamshell Drive, in Upper Saucon Township, Lehigh County, Pennsylvania. The property is described in a certain deed dated July 11, 1980, recorded in the Office of the Recorder of Deeds of Lehigh County, Pennsylvania, in Deed Book 1282 page 275.

(2) Olexa purchased the property jointly with her former husband on July 11, 1980. She acquired sole ownership on May 17, 2002, when her former husband deeded his interest in the property to her as part of the equitable distribution of marital property in their divorce.

(3) The defendant, DeSales University, is a private educational institution with its principal office located at 2755 Station Avenue, Center Valley, Upper Saucon Township, Lehigh County, Pennsylvania.

(4) The University’s campus has experienced significant growth since 1980. Among other improvements, the University has added a baseball field, batting cages, a softball field, a University center, residences, a sports and fitness center, and a science center, as well as roadways and parking areas.

(5) The Olexa property is a heavily wooded, unimproved tract. A streambed runs from east to west across the southern portion of the property. The property is zoned R-3, which permits single-family homes and cluster development.

(6) The Olexa property is bordered on the east by Landis Mill Road, a public street, and on the south by Clamshell Drive, a private road owned by the University. Landis Mill Road and Clamshell Drive intersect at the southeast comer of the Olexa property.

(7) Clamshell Drive is an unpaved, stone road.

(8) Surveys of the Olexa property were conducted by Earl P. Geissler P.L.S., on behalf of Olexa, and by Kerry L. Good P.E., on behalf of the University. The results of the two surveys were similar, but placed the boundaries of the Olexa property at slightly different locations.

(9) The survey of Kerry Good is the more accurate one since Mr. Good was able to locate more monuments than Mr. Geissler as references for determining the boundaries of the property.

(10) Both surveys concur that (a) the stone road known as Clamshell Drive currently extends partially onto the Olexa property and (b) a turning radius at the intersection of Landis Mill Road and Clamshell Drive encroaches on the southeast comer of the Olexa property.

(11) In 1980, when the plaintiff and her former husband acquired the Olexa property, the width of Clamshell Drive was approximately equal to the width of one automobile.

(12) In or around 1987 or 1988, the University expanded the width of Clamshell Drive to allow two lanes of traffic. Currently, it is approximately 20 feet wide.

(13) The expanded Clamshell Drive encroaches by two to three feet over part of the southern portion of the Olexa property, as indicated on the survey of Kerry Good, RE.

(14) The turning radius over the southeast comer of the Olexa property came into existence at some point in time after 1980 to accommodate southbound traffic on Landis Mill Road desiring to turn onto Clamshell Drive. It is unclear exactly when or how this turning radius first came into use.

(15) The Pennsylvania Department of Transportation has paved this turning radius. The date that PennDOT did so is unknown.

(16) This turning radius is also a continuing encroachment on the Olexa property, as indicated on defendant’s exhibit 7.

(17) In August 1997, the University constructed an underground storm water drainage pipe under Clamshell Drive to redirect water from its property to the streambed on the Olexa property.

(18) This pipe encroaches approximately 30 feet onto the Olexa property.

(19) Before the pipe was constructed, significant rain events caused water to sheet-flow over Clamshell Drive onto the Olexa property. The pipe redirects this water from its natural course on the University’s land under Clamshell Drive onto the Olexa property, where it is discharged at a single location at the streambed on the Olexa property.

(20) Most of this pipe is located underground, but the end of the pipe at the streambed on the Olexa property is visible.

(21) The pipe under Clamshell Drive was built without the approval of either Olexa or Upper Saucon Township.

(22) The University has conducted studies and plans in preparation for removal of the pipe under Clamshell Drive, but despite demand, has failed to remove it.

(23) A 42-inch storm water drainage pipe exists under Landis Mill Road, extending from the University property to the eastern boundary of the Olexa property. This pipe carries storm water from the University’s land on the east to the streambed on the Olexa property.

(24) The pipe under Landis Mill Road existed before Olexa and her former husband purchased the Olexa property in 1980. The size and direction of this pipe have remained unchanged since then.

(25) A culvert exists on the University’s property at a point near the southwest comer of the Olexa property. Three or four watersheds comprising approximately 580 acres of land drain in the direction of this culvert. The University owns 352 acres of this land. The culvert represents the topographical low point for neighboring properties.

(26) A stainless steel underground pipe is located in the culvert to carry storm water in a generally northerly direction along the University property adjacent to the western boundary of the Olexa property.

(27) The University maintenance building is also located near the southwest comer of the Olexa property. The maintenance building was originally a sewage package plant. It was converted to a maintenance building in 1988.

(28) The University built a baseball field in 1991 and batting cages in 1994 or 1995 on its land to the south of the Olexa property.

(29) The batting cages were built over a swale that had functioned to move surface water on the University’s land to the culvert near the southwest comer of the Olexa property.

(30) In order to build the batting cages, the University re-graded the swale to flatten it in the area where the batting cages have since been constructed. This action has obstructed the natural flow of surface water on the University’s land, causing water to be diverted onto the Olexa property.

(31) The topography of the area is such that the University’s land north, east and south of the Olexa property slopes toward the Olexa property.

(32) The University has built seven water retention basins during the course of developing its campus.

(33) The storm water management system that has been installed by the University was reviewed and approved by the Upper Saucon Township Engineer and the Lehigh Valley Planning Commission.

(34) The streambed through the Olexa property is located at approximately the same location as when Olexa and her husband acquired the property in 1980. However, although the streambed was usually dry, it is now often filled with water, resulting in significant erosion along the banks of the streambed and the exposure of some tree roots.

(35) Construction of the University’s baseball field on land to the south of the Olexa property did not adversely affect the flow of water onto the Olexa property.

(36) Aside from the construction of the batting cages and the installation of the storm water pipe under Clam-shell Drive, the University’s development of its campus has not unreasonably or unnecessarily changed the quantity or quality of surface water flowing onto the Olexa property.

(37) Olexa has not suffered any monetary damage as a result of any actions of the University as aforesaid.

(38) The aforesaid actions of the University were not outrageous.

DISCUSSION AND CONCLUSIONS OF LAW

I. Physical Encroachments

In Count I, the plaintiff seeks relief from physical encroachments at three locations along the southern portion of her property. These encroachments are (1) the several feet of Clamshell Drive that extend over the southern boundary of her property, (2) the turning radius at the southeast corner of the property and (3) the storm water pipe under Clamshell Drive that extends across the southern boundary of her property into the streambed.

A trespass to land occurs when one person wrongfully enters another’s real property. The wrongful entry may be committed by the continued presence on another’s property of a structure, roadway, pipe or other physical object that the defendant has caused to be placed there without permission of the property owner. A trespass to land is a tort, for which the property owner may be entitled to equitable relief, monetary damages or both.

A. Clamshell Drive and the Turning Radius

In this case, the University does not dispute that Clam-shell Drive physically encroaches on the Olexa property to some extent, though there is some disagreement as to the precise location of the southern boundary of the property. Each party presented expert testimony from a surveyor to establish the precise location of this boundary. We have concluded that the survey presented by Kerry L. Good P.E. is the more accurate because Mr. Good was able to locate and base his survey on more monuments than Earl R Geissler RL.S. was able to locate. From Mr. Good’s survey, we have concluded that Clamshell Drive encroaches by two to three feet over part of the southern boundary of the Olexa property, as indicated in Mr. Good’s survey plan and testimony.

Likewise, the University does not dispute that the turning radius at the intersection of Landis Mill Road and Clamshell Drive encroaches on the southeastern comer of the Olexa property. Again, we find that the survey of Kerry Good P.E. accurately shows the precise location of this encroachment.

The University defends these encroachments by arguing that it has acquired the land over which they lie by adverse possession, or alternatively that it has acquired the right to use this land by prescriptive easement. To acquire title to land by adverse possession, the University “must prove actual, continuous, exclusive, visible, notorious, distinct and hostile possession of the land for 21 years [or more].” Baylor v. Soska, 540 Pa. 435, 438, 658 A.2d 743, 745 (1995). Similarly, to acquire an easement by prescription, the University must prove that its use of the Olexa property was adverse, open, continuous, notorious and uninterrupted for a period of 21 years or longer. Boyd v. Teeple, 460 Pa. 91, 331 A.2d 433 (1975). The University has the burden of proof on these issues.

From the evidence submitted, it is clear that the University has not met its burden of proof with respect to the stone road known as Clamshell Drive. Although this road has existed in some form for more than 21 years, the road was initially the width of a single car. It was not until the University moved its maintenance shop to its present location southwest of the Olexa property that Clamshell Drive was expanded to its present width. This occurred in 1987 or 1988, according to the testimony of John M. Miller, a University employee. Thus, the widening of Clamshell Drive occurred less than 21 years prior to August 24,2004, the date this lawsuit was filed. There is no persuasive evidence that the portion of Clamshell Drive extending onto the Olexa property was actually used by the University before the road was expanded in 1987 or 1988. Consequently, the encroachment of Clamshell Drive along the southern boundary of the Olexa property cannot be justified by the University’s claim of adverse possession or prescriptive easement.

With respect to the turning radius, no evidence was presented as to when the University began using this radius or when PennDOT paved it. Hence, the University has failed to prove the requisite 21 years of possession or continuous use to support either a claim of adverse possession or prescriptive easement.

For these reasons, the University is not entitled to use any portion of Clamshell Drive or the turning radius to the extent that they encroach on the Olexa property. The University’s use of these portions of the Olexa tract constitutes a continuing trespass for which Olexa is without an adequate remedy at law. Accordingly, Olexa is entitled to an injunction to prohibit the University, its agents and employees from using this portion of the Olexa property. In addition, Olexa is entitled to a mandatory injunction requiring the University to remove the portion of Clamshell Drive that extends onto the southern portion of the Olexa property, except for the paved portion of the turning radius. Since the turning radius was paved by PennDOT and not the University, we cannot require the University to remove the paving. If Olexa wishes the paved area to be removed, appropriate action must be taken against PennDOT.

Olexa has not proved any monetary damages resulting from the encroachments, nor has she established that the encroachments were outrageous. Therefore, her claim for compensatory and punitive damages is denied.

B. The Pipe Under Clamshell Drive

The University acknowledges that the pipe constructed under Clamshell Drive in August 1997 extends onto the Olexa property. It further acknowledges that the pipe was constructed without permission of Olexa or Upper Saucon Township. In response to Olexa’s claim that this pipe constitutes a trespass, the University’s sole defense is that Olexa’s claim is barred by the statute of limitations.

Under the Judicial Code, 42 Pa.C.S. §5524(4), an action for trespass on real property must be commenced within two years after the trespass occurs. In this case the trespass occurred initially in August 1997, more than two years prior to the commencement of this action. However, the University’s reliance on the statute of limitations as a complete defense is misplaced. The statute of limitations bars any claim for monetary damages, but it does not apply to a request for equitable relief. A claim for equitable relief is governed by the doctrine of laches, which requires not only (1) the passage of an unreasonable length of time between the injury and the filing of suit, but also (2) that the defendant has suffered prejudice as a result of the delay. Wilson v. King of Prussia Enterprises Inc., 422 Pa. 128, 221 A.2d 123 (1966); Miller v. C.P. Centers Inc., 334 Pa. Super. 623, 483 A.2d 912 (1984).

In determining what is an unreasonable delay in filing suit, the courts traditionally look to the same period as provided in the statute of limitations, in this case two years. However, there has been no evidence in this case of prejudice to the University by Olexa’s delay in filing suit. Therefore, the doctrine of laches does not bar her from obtaining equitable relief.

Since the pipe under Clamshell Drive clearly extends onto the Olexa property and was installed without Olexa’s permission, Olexa is entitled to a mandatory injunction requiring the University to remove this pipe. However, she is not entitled to compensatory or punitive damages for this encroachment; no damages have been proved, and in any event any, claim for monetary damages is barred by the two-year statute of limitations.

II. Storm Water Trespass

In Count II of the complaint, Olexa contends that the University, in the course of developing its property and making improvements from 1964 through the present, has intentionally caused a significant increase in the volume and rate of storm water flowing from the University’s property onto the Olexa property. Olexa contends that these actions constitute a continuing trespass and have caused significant damage to her property, rendering the University liable at common law; under the Pennsylvania Storm Water Management Act, 32 P.S. §680.13; and under the Upper Saucon Township Subdivision and Land Development Ordinance (SALDO) at §§262.2 and 262.3.

A. Common-Law Liability

In determining the liability of neighboring property owners for surface waters, the Pennsylvania courts have applied a version of the so-called common enemy rule. Under this rule, surface waters are deemed to be a common enemy that eveiy landowner must dispose of as best he can.

“The owner of upper land has the right to have surface waters flowing on or over his land discharged through a natural water course onto the land of another .... He may make proper and profitable use of his land even though such use may result in some change in quality or quantity of the water flowing to the lower land ... Chamberlin v. Ciaffoni, 373 Pa. 430, 436, 96 A.2d 140, 142-43 (1953), citing Lucas v. Ford, 363 Pa. 153, 155, 69 A.2d 114, 116 (1949).

Generally, damage to the lower landowner’s property from surface water as a result of the upper landowner’s use of his property is not actionable. The principle of damnum absque injuria applies.

There are two exceptions to this general rule. The first is “where the water is diverted from its natural channel ..the second is “where it is unreasonably or unnecessarily changed in quantity or quality ....” Id.; see also, Shamnoski v. P.G. Energy, 579 Pa. 652, 858 A.2d 589 (2004).

Obviously, the expansion of the University in recent years with the construction of additional buildings, parking areas and roadways has created many more impervious surfaces on its property. Olexa contends that this development has caused a substantial increase in the volume of surface water flowing onto her property from the University’s property, which is at a higher elevation. However, the University’s development plan has been reviewed and approved by the Upper Saucon Township Engineer and by the Upper Saucon Township Planning Commission. As part of this plan, seven storm water detention basins have been installed on the University’s property. We are not persuaded that the development of the University’s property has diverted surface water from its natural channel or has caused an unreasonable or unnecessary increase in the volume of surface water flowing onto the Olexa property, except for two projects of the University discussed below.

These two projects are (1) the construction of batting cages in the swale to the south of the Olexa property in 1994 or 1995 and (2) the installation of a storm water pipe under Clamshell Drive in 1997. In both of these projects, the University diverted surface water from its natural channel onto the Olexa property. The common enemy rule does not protect an upper landowner from liability under such circumstances.

Before these projects were undertaken, water from the University’s land south of the Olexa property, if left to its natural course, would sheet-flow in the direction of the Olexa property. Some of this water would then enter the swale running from east to west just south of Clamshell Drive. From the swale, this water would flow to the culvert at the southwest comer of the Olexa property.

On entering the culvert, this water would then travel in a northerly direction west of the Olexa property in a storm water pipe installed by the University. This water would avoid the Olexa property.

The constmction of the batting cages diverted water from this natural course. The University chose to build the batting cages, of all places, in the swale that moved water from east to west, south of Clamshell Drive. To accommodate the batting cages, the swale was re-graded so that the ground was flat at the point where the cages were constructed. The result is that the swale no longer functions as before. The batting cages and the ground beneath them now obstruct the natural flow of water in the swale from east to west. Water can no longer move in its natural course along the swale to the culvert at the southwest comer of the Olexa property. The immediate result was that, in heavy rain events, water that would previously have traveled along the swale to this culvert would sheet-flow over Clamshell Drive onto the Olexa property. This water constituted a storm water trespass. The University was not insulated from liability for this trespass by the common enemy mle.

Then in 1997, to protect Clamshell Drive from erosion, the University constmcted a storm water pipe under Clamshell Drive and extended this pipe a considerable distance on the Olexa property to the streambed. As a result, water that would have drained east to west in the swale before construction of the batting cages is now diverted through this pipe under Clamshell Drive to the streambed on the Olexa property. By installing the storm water pipe under Clamshell Drive as it did, the University again changed the natural flow of the water on its property. The collection and diversion of this water to a single location on the Olexa property constitutes a continuing storm water trespass that is not protected by the common enemy rule.

Aside from the diversion of water from the construction of the batting cages and the pipe under Clamshell Drive, we do not find any basis at common law for imposing liability on the University for storm water trespasses. The 42-inch storm water pipe carrying water from the University’s property under Landis Mill Road to the Olexa property existed before Olexa and her former husband purchased the property in 1980. The size and direction of this pipe have remained unchanged since then. The evidence produced by Olexa is insufficient to establish that the University has unreasonably or unnecessarily changed the quantity or quality of water flowing through this pipe. Hence, the water running through this pipe falls within the common enemy rule and is not a basis for imposing liability on the University.

Nor is the construction of the baseball field a basis for liability under the common enemy rule. The University constructed the baseball field on land to the south of the Olexa property in 1991. There is no evidence that this project adversely affected the drainage of surface water onto the Olexa property. Prior to the construction of the baseball field, the land on which it was built sloped towards Clamshell Drive on the north and to the west. Thus, even before the construction began, surface water from this part of the University’s property flowed toward the Olexa property and toward the culvert at the southwest comer of this property. As part of the project, the land was re-graded to make the field level. No evidence was presented that this change altered the flow of surface water onto the Olexa property.

We did observe in our inspection of the Olexa property that there is evidence of significant erosion in the streambed that traverses the property. Most of this erosion was at the point where the pipe under Clamshell Drive empties into the streambed. It is not clear whether the other erosion observed was the result of natural conditions or whether it was caused by an increase in the volume or rate of flow of water from the University’s property. We note, however, that even if caused by such an increase, the increase may well have originated from other properties in the general area. There are three or four watersheds that drain in the direction of the Olexa property. These watersheds contain approximately 580 acres, of which the University owns about 60 percent. Thus, if there has been an increase in the volume or rate of flow of water onto the Olexa property, this could have been caused by activities of other property owners on their land within one of these watersheds. Accordingly, except for the water that has been entering the Olexa property because of the batting cages and the pipe under Clamshell Drive, we find that Olexa has not established a basis at common law for recovery for storm water trespasses.

Olexa has requested that we order the University to arrange for a University-wide storm water study to understand fully the flow of water onto her land and to suggest the best method of abating it. However, Olexa has not met her burden of establishing a basis for common-law liability against the University, except for the construction of the batting cages and the pipe under Clam-shell Drive. Therefore, the remedy to which she is entitled must be limited to the correction of these violations. In the absence of an adequate remedy at law, she is entitled to equitable relief in the form of a mandatory injunction requiring the University to correct the conditions that have led to the diversion of surface water from the swale to her property, as well as an injunction against future storm water trespasses.

Olexa has not proved any monetary damages as a result of these violations. She does not dispute that her property, which was purchased in 1980 for $37,500, is now worth in excess of $500,000. It appears that the surrounding development that has taken place on the University’s land and on other land in the nearby watersheds may have led to a substantial increase in the value of Olexa’s property, rather than a reduction in value. Therefore, Olexa’s claim for compensatory damages resulting from the storm water trespasses must be denied. Since we do not find the University’s conduct in committing these trespasses to be outrageous, the claim for punitive damages is also denied.

B. The Pennsylvania Storm Water Management Act

Section 680.13 of the Pennsylvania Storm Water Management Act provides as follows:

“Any landowner and any person engaged in the alteration or development of land which may affect storm water runoff characteristics shall implement such measures consistent with the provisions of the applicable watershed storm water plan as are reasonably necessary to prevent injury to health, safety or other property. Such measures shall include such actions as are required:
“(1) to assure that the maximum rate of storm water runoff is no greater after development than prior to development activities; or
“(2) to manage the quantity, velocity and direction of resulting storm water runoff in a manner which otherwise adequately protects health and property from possible injury.” 32P.S. §680.13.

The evidence is insufficient to establish that the University has violated the provisions of this Act, except for the two actions noted above in our discussion of the common enemy rule. These actions are the construction of the batting cages and the installation of the storm water pipe under Clamshell Drive. By constructing the batting cages as it did, the University altered its land in a way that affected storm water runoff characteristics. Then, instead of managing this runoff in a way that protected the Olexa property, the University increased the harm to the Olexa property by diverting the excess runoff through a pipe under Clamshell Drive to a single location on the Olexa property. These two actions by the University violated section 680.13 and entitle Olexa to appropriate relief under section 680.15. This relief includes a mandatory injunction requiring the University to abate the violation and an injunction prohibiting further violations in the future.

C. The Upper Saucon Township Subdivision and Land Development Ordinance

Sections 262.2 and 262.3 of SALDO state the following:

“The existing points of natural drainage discharge onto adjacent property shall not be altered without the written approval of all affected landowners.” (Section 262.2.)
“No storm water runoff or natural drainage water shall be so diverted as to overload existing drainage systems, or create flooding. No storm water runoff or natural drainage water shall be so diverted as to create the need for additional drainage structures on other private properties or public lands, without approved provisions being made by the developer for properly handling such conditions.” (Section 262.3.)

The University’s construction of the batting cages, which necessitated the re-grading of the swale south of Clamshell Drive, changed the natural flow of water. In addition, the storm water pipe installed under Clamshell Drive moved this water directly onto the Olexa property at a single location in the streambed. The University did not make adequate provisions for handling these changes. The result has been erosion of the streambed, including the exposure of tree roots. The University’s actions in constructing the batting cages and the storm water pipe under Clamshell Drive appear to be a clear violation of sections 262.2 and 262.3 of SALDO.

However, a private cause of action does not exist to enforce ordinances enacted under the Municipalities Planning Code, such as SALDO, unless a copy of the complaint is first served on the governing body of the municipality at least 30 days prior to the filing of the complaint. There is no evidence that Olexa did so in this case. Therefore, we are unable to grant her relief for violations of SALDO.

III. Negligence

The actions of the University in trespassing on the Olexa property were intentional. Therefore, Olexa’s negligence claim in Count III must be dismissed.

IV. Ejectment

An action in ejectment will lie to establish one’s right to possession of real estate. Soffer v. Beech, 487 Pa. 255, 409 A.2d 337 (1979). In this case Olexa is entitled to sole and exclusive possession of the subject property, as identified in Lehigh County Deed Book 1282 page 275, and as shown on the survey plan of Kerry Good P.E., defendant’s exhibit 7. Accordingly, judgment in ejectment will be entered in her favor.

ORDER

Now, December 12,2005, after trial without jury, based on the decision annexed hereto, it is ordered and decreed as follows:

Count I — Trespass

(1) Defendant, its agents and employees, are hereby enjoined (a) from utilizing the portion of Clamshell Drive that extends onto plaintiff’s property, as identified on the survey plan of Kerry Good P.E., defendant’s exhibit 7; (b) from utilizing the turning radius at the southeast comer of plaintiff’s property to the extent that the turning radius extends over plaintiff’s property, as indicated in the aforesaid survey plan; and (c) from maintaining the storm water pipe under Clamshell Drive to the extent that it extends onto the southern portion of plaintiff’s aforesaid property.

(2) A mandatory injunction is hereby issued directing defendant (a) to remove the portion of Clamshell Drive and the portion of the storm water pipe that extend onto the southern part of plaintiff’s aforesaid property and (b) to restore the areas from which these encroachments are removed to their pre-encroachment condition. The removal and restoration as aforesaid shall be completed by April 1, 2006.

(3) Plaintiff’s request for compensatory and punitive damages is denied.

Count II — Storm Water Trespass

(1) Defendant, its agents and employees, are hereby enjoined (a) from discharging storm water onto the plaintiff’s property through the pipe that extends under Clam-shell Drive and (b) from maintaining batting cages and other obstructions that interfere with the natural flow of water in a westerly direction along the swale to the south of Clamshell Drive.

(2) A mandatory injunction is hereby issued directing defendant (a) to remove the storm water pipe that extends under Clamshell Drive onto plaintiff’s property; (b) to relocate the batting cages from the swale south of Clamshell Drive to a location where they do not interfere with the natural flow of surface water entering the swale; (c) to restore the areas from which the storm water pipe and batting cages are to be removed to their preinstallation condition; and (d) to re-grade the swale to its condition prior to the construction of the batting cages. The removal and restoration as aforesaid shall be completed by April 1, 2006.

(3) Plaintiff’s claim for compensatory and punitive damages is denied.

Count III — Negligence

Judgment is hereby entered for defendant on Count III.

Count IV — Ejectment

Judgment is hereby entered for plaintiff against defendant in ejectment for sole and exclusive possession of plaintiff’s property, as identified in Lehigh County Deed Book 1282 page 275 and in the survey plan of Kerry Good P.E., defendant’s exhibit 7.

      . Plaintiff’s exhibit 5.

      . Plaintiff’s exhibit 6; N.T. 8/15/05, 47.

      . N.T. 8/15/05, 94-98.

      . Plaintiff’s exhibit 2; defendant’s exhibit 7.

      . N.T. 8/15/05, 61.

      . N.T. 8/15/05, 61; N.T. 8/16/05, 141-42.

      . Defendant’s exhibit 7.

      . N.T. 8/16/05, 123.

      . N.T. 8/16/05, 123.

      . N.T. 8/15/05, 101; N.T. 8/16/05, 22, 154.

      . N.T. 8/15/05,42, 103.

      . N.T. 8/15/05, 104; N.T. 8/16/05, 175.

      . N.T. 8/16/05, 126.

      . N.T. 8/15/05, 105, 106.

      . N.T. 8/15/05,247.

      . N.T. 8/16/05, 227.

      . N.T. 8/16/05, 227.

      . N.T. 8/16/05, 90, 208.

      . N.T. 8/16/05, 40, 208.

      . N.T. 8/16/05, 12.

      . N.T. 8/15/05, 93.

      . N.T. 8/15/05, 104.

      . N.T. 8/15/05, 104, 134.

      . N.T. 8/16/05,22, 80-81.

      . N.T. 8/16/05, 185-86.

      . N.T. 8/16/05, 216.

      . Black’s Law Dictionary, 7th ed. definition no. 1.

      . Restatement (Second) of Torts, §161.

      . 32 P.S. §680.15.

      . 53 P.S. 19617.


author: KISTLER, J,

text:
    Croyle v. Smith
    C.P. of Centre County,
    no. 2003-2690.

      Mark A. Givler, for plaintiffs.

      Douglas Marcello, for defendants.
    December 2, 2005
   KISTLER, J,

Presently before this court is Crete Carrier Corporation and Shaffer Trucking Inc.’s (defendants) motion in opposition to Billie J. Croyle’s (plaintiff) objections to subpoenas, as well as defendants’ motions in limine. These actions arise out of a 2002 automobile accident involving plaintiff’s motorcycle and defendant Ray F. Smith’s tractor-trailer. This court will address each issue separately.

DEFENDANTS’ REQUEST FOR SUBPOENAS

Defendants argue they should be permitted to serve subpoenas on PMA Insurance Group and PNC Bank NA. Specifically, defendants are seeking to obtain information contained in plaintiff’s workers’ compensation records and bank records. First, defendants believe the contents of the workers’ compensation records will show the nature and extent of pre-existing injuries, plaintiff’s ability for future employment, and how plaintiff’s current condition may impact his other activities. In short, defendants believe the workers’ compensation records will prove or disprove plaintiff’s allegations of serious bodily injury and financial loss due to the accident.

Second, defendants believe these records will address plaintiff’s financial injury claims. Defendants maintain that plaintiff’s bank records will show plaintiff’s physical activity after the accident. For example, these records may show loans for the purchases of sporting equipment, a new motorcycle, hunting equipment and license, or other activities contrary to plaintiff’s clams of disability. In addition, defendants argue the bank records will refute plaintiff’s claims of suffering financial hardship since the 2002 accident. Defendants believe obtaining these bank records will reveal plaintiff’s financial situation prior to the accident in comparison to his financial situation after the accident. As a result, defendants maintain they will be able to determine if plaintiff has suffered actual financial hardship as a result of the accident.

Defendants contend these subpoenas will reveal relevant and discoverable information pursuant to Pennsylvania Rule of Civil Procedure 4003.1(b). Section 4003.1(b) states “[i]t is not grounds for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Defendants also cite Pennsylvania Rule of Evidence 401, noting that relevant evidence is evidence having the tendency to make the existence of a fact more probable or less probable than it would be without the evidence. As such, defendants believe the information they seek goes to the heart of plaintiffs’ allegations of injury and financial loss.

Plaintiff, on the other hand, believes both his workers’ compensation records and bank records are irrelevant to the current action.

This court finds defendants believe only the workers’ compensation records may reveal relevant discoverable information. The workers’ compensation records could reveal any prior injury sustained by plaintiff. This court does not find any prejudice or undue harm in permitting defendants to view these records, as there is the possibility these records could reveal any pre-existing injuries for which plaintiff is already being compensated. Also, these records could show that injuries currently claimed by plaintiff were present prior to the accident. As such, defendants should be permitted to review these records.

This court is not persuaded by defendants’ argument as to plaintiff’s bank records. These records have minimal, if any, relevance to the case at hand. Requiring plaintiff to produce his bank records would be an undue invasion of his privacy, in addition to an excessive intrusion into plaintiff’s personal life. As such, this court believes defendants should be barred from reviewing these records.

DEFENDANTS’ MOTIONS IN LIMINE

With respect to defendants’ proposed motions in limine, defendants first argue the admission of defendant Smith’s fatigue should be inadmissible. Defendants note this court previously ruled that “Plaintiff’s allegation that Smith was fatigued is not supported by any evidence.” (Opinion and order of August 10, 2005, p. 4.) Since this court already ruled on this issue, defendants believe any evidence of defendant Smith’s fatigue should be excluded.

Second, defendants argue that evidence of corporate liability should be excluded because it is irrelevant and prejudicial. Defendants believe plaintiff has failed to address the exclusion of evidence of a corporate claim based upon Pennsylvania Rules of Evidence 401, 402 and 403. Defendants argue that the issue is whether defendant Smith is liable for the accident, not whether the corporate entity is liable for negligently hiring or retaining defendant Smith. Defendants contend corporate liability automatically arises from vicarious liability, and should not be presented as a separate issue.

Third, defendants argue that the admission of the Hazard Perception Test would be erroneous. Defendants note that in its August 10, 2005 opinion, this court ruled the test was unreliable without an expert’s opinion as to the causal relationship between the test’s results and the accident. Plaintiff had argued the test results showed defendant Smith had a propensity to drive fast rather than safely. Defendants maintain that plaintiff has failed to prove the accident was a foreseeable consequence of defendant Smith’s poor score on the test, or that the test was ever used by defendants as a gauge in determining employee driving habits or talents.

Finally, defendants argue that evidence of their compensation system based on miles driven is irrelevant and prejudicial. Defendants argue there is no evidence suggesting this system encouraged defendant Smith to drive fast rather than safely. Likewise, defendants argue there is no causal relationship between the system and the accident. As such, defendants believe the compensation system should be inadmissible.

Plaintiffs, on the other hand, believe the results of the test and defendant Smith’s alleged fatigue should be permissible evidence because they show corporate liability. First, plaintiffs argue the test results and defendant Smith’s alleged fatigue demonstrates corporate liability because defendants should have been aware of defendant Smith’s poor score on the test and his fatigue, yet continued to employ him. Plaintiffs suggest these actions demonstrate negligent policies regarding training, supervision and employee retention. Plaintiffs believe defendants’ negligent policies show they condone unsafe behavior.

Plaintiffs contend that “an employer may be found liable for his own direct acts of negligence, as where he hires an employee who he knows to have dangerous propensities, or where the employer is negligent in supervising the conduct of the employee.” Pennsylvania Trial Guide (2nd revised edition), §19.10, pp. 12-13. Plaintiffs also cite the Restatement (Second) of Agency §213, which states:

“A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless:...
“(b) In the employment of improper persons or instrumentalities in work involving risk of harm to others; or
“(c) The supervision of the activity; or
“(d) In permitting, or failing to prevent, negligent or other tortious conduct by persons, whether or not his servants or agents, upon premises or with instrumentalities under his control.”

Next, plaintiffs maintain they are not required to produce an expert to show the correlation between defendant Smith’s poor score on the test and the 2002 accident. Plaintiffs contend the juiy needs no special testimony to understand the test and its correlation with defendant Smith’s actions.

Having reviewed the facts and the relevant legal standards, this court determines defendants’ motions in limine suggest valid concerns regarding prejudicial effects and relevancy of the disputed evidence. With respect to the issue of defendants’ corporate liability, this court believes there is insufficient evidence to show defendants were negligent in their hiring or retention of defendant Smith. The only evidence plaintiff has produced to suggest defendants knew defendant Smith was an alleged dangerous driver was his results on the test. The manufacturer of the test states that the test was never intended to be a tool in determining the safety habits of a driver; rather, the test was intended to be a training device. There is no evidence of defendant Smith being at fault for prior accidents, nor is there evidence of complaints about defendant Smith for dangerous or reckless driving. Without more evidence of defendant Smith’s propensity to rush rather than drive safely, plaintiff cannot prove defendants knew or should have known defendant Smith was a risk to other motorists. As such, defendants should not be held corporately liable for retaining or hiring an employee whom they did not know was a poor driver.

With respect to defendant Smith’s alleged fatigue at the time of the accident, this court believes such evidence is suggestive and prejudicial to the defense. Plaintiff attempts to make a causal connection between the number of nights defendant Smith spent at home prior to the accident and the number of nights he stayed away from home prior to the accident. However, plaintiff has not produced any evidence showing defendant Smith was indeed too fatigued to operate his tractor-trailer at the time of the accident. This court does not believe a jury should be expected to infer that spending nights away from home makes a driver more fatigued than a driver who spends a majority of nights sleeping at home.

With respect to the issue of whether defendant Smith drove unsafely due to the per miles driven compensation plan, this court believes this evidence is also irrelevant and prejudicial to the defense. Plaintiff has not presented any convincing evidence to show a causal connection between the accident and the compensation plan. Plaintiff has also failed to show other instances where defendants’ other employees drove fast in order to collect on the compensation plan. There also is no evidence that this mode of compensation is out of the ordinary, or other than the industry standard. As such, any attempt to show a connection between the accident and the compensation plan would be mere speculation.

With respect to the issue of admitting the test, this court believes its reasoning in its August 10 opinion sufficiently detailed why it should not be admissible. If plaintiffs determine that the test and its results are necessary to their case, they need to produce an expert who can show a correlation between the test’s results and the accident. Barring any expert testimony, this court believes the test’s results speculate as to what knowledge defendants had about defendant Smith’s driving habits. Aside from the test’s results, plaintiff has yet to show any supplemental evidence of prior incidences where defendant Smith chose the fastest alternative over the safest alternative. Moreover, defendants have never alleged the test was intended as a tool to demonstrate which drivers were safe. As such, without the findings of an expert, the test’s results are prejudicial and irrelevant.

ORDER

And now, December 2,2005, it is hereby ordered that plaintiff produce to defendants his workers’ compensation records within 15 days from the date of this order.

It is further ordered that all defendants’ motions in limine are hereby granted.

      . This court has viewed the videotape test, and finds that several questions involve scenarios such as backing to unload, opening cargo doors, and dealing with approaching tornados. In short, unrelated to “fast vs. safe” options.


author: LYNN, J,

text:
    Pearson v. Ly

      John C. Coste, for plaintiffs.

      Patrick J. Gibbons, for defendant.
    November 29, 2005—
   LYNN, J,

I. FACTS AND PROCEDURAL HISTORY

On January 6,2005, the above matter was tried before the undersigned, sitting with a jury. Plaintiffs, Janet Pearson and Ernestine Powell, filed a civil action against defendant, Coong Min Ly, and additional defendant, Duvalar Stockton, for personal injuries sustained from an automobile accident on October 21, 2001. Plaintiffs were passengers in a car driven by additional defendant, which was stopped at a red light at the intersection of Wyoming Avenue and 5th Street, Philadelphia, when it was struck in the rear by a car driven by defendant.

At trial, the parties stipulated that defendant Ly was negligent; that plaintiffs could enter medical evidence by way of reports, and damages would be limited to $15,000 pursuant to Pa.R.C.P. 1311.1; the amount of economic and medical damages; and that Mr. Stockton would testify that he was driving a 1997 Lincoln which sustained minor rear-end damage to the bumper in the accident. Both plaintiffs testified and the jury was permitted to review the medical records of both plaintiffs.

The jury returned a verdict finding that defendant Ly’s actions were a substantial factor in causing the injury each of the plaintiffs suffered; however, they awarded zero dollars. Thereafter, plaintiff filed post-trial motions for judgment notwithstanding the verdict and/or a new trial.

Plaintiff’s post-trial motions were denied by this court on July 7, 2005. Plaintiff filed a timely notice of appeal to the Superior Court. This court ordered plaintiff, the moving party, to file a concise statement of matters complained of on appeal pursuant to Rule 1925(b) of the Rules of Appellate Procedure within 14 days. Plaintiff filed a response on September 27, 2005.

The evidence at trial established that on October 21, 2001, plaintiffs were passengers in the car driven by Duvalar Stockton when the car was rear-ended by defendant Ly’s automobile at the intersection of Wyoming Avenue and 5th Street. (N.T., 1/6/05, pp. 24,31,50,65.) Both plaintiffs testified that Mr. Stockton had picked them up from Bingo and were on their way home when they were stopped at the red traffic light at the intersection of Wyoming Avenue and 5th Street. (N.T., 1/6/05, pp. 24, 49-50.)

Plaintiff Ernestine Powell stated that when the car was hit, she was thrown forward, hit her head on the headrest and thrown backwards. She testified that while she did not have pain at first, before leaving the scene of the accident, she asked Mr. Stockton to take her to Parkview Hospital. According the plaintiff Powell, she had a headache in the back of her neck and her upper shoulders were hurting. She did not have any bruising, bleeding or cuts. Plaintiff Powell then testified that her primary doctor did not handle accident cases so when she called her attorney, he recommended chiropractic care. She received five injections for pain and treated with the chiropractor until May 2002 (N.T., 1/6/05, pp. 24-28,31, 33-42,46.) On cross-examination, plaintiff Powell stated that she had been in a previous accident and in 1996, she had injured her back lifting a patient. (N.T., 1/6/05, pp. 43-44.) She also testified that she felt pretty good on the day of trial. (N.T., 1/6/05, pp. 30, 45.)

Plaintiff Pearson next testified that she experienced pain in her neck, back and shoulders after the accident and began seeing a chiropractor off and on for about one year, but only went when she “felt like going.” She received the same treatment as her mother, plaintiff Powell. She stated that she was still experiencing pain in her neck and back. Plaintiff Pearson testified that she got a job as a certified nursing assistant after the accident and has trouble lifting and pulling. (N.T., 1/6/05, pp. 51-53, 59, 62.) On cross-examination, plaintiff Pearson testified that she was sitting in the front seat at the time of the accident and was wearing a seatbelt at the time of impact. She also stated that she did not sustain any bruising or bleeding as a result of the accident, but she and her mother had Mr. Stockton take them to the hospital. Mr. Stockton did not need treatment. (N.T., 1/6/05, pp. 53-58.) Plaintiff Pearson further testified that when she started her new job, she did not tell her employer that she was treating for a bad back even though she was having some trouble at work. Plaintiff Pearson stated that she bought a back brace on her own volition and wears it to work and has not sought any treatment since October 2002. (N.T., 1/6/05, pp. 61-63.)

The medical records of both plaintiffs were provided to the jury and counsel stipulated that Mr. Stockton would have testified that he was driving the vehicle involved in the accident and suffered minor rear-end damage to the bumper. (N.T., 1/6/05, pp. 64-65.)

There is no dispute that defendant Ly’s car struck Duvalar Stockton’s car. The controversy encompasses whether or not the plaintiffs were injured in the accident, thereby enabling them to recover damages.

II. ISSUES

Plaintiffs raise the following issues on appeal:

(1) The verdict was contraiy to the weight of the evidence, in that the uncontroverted evidence showed that plaintiffs suffered injuries.

(2) The verdict was contrary to the weight of the evidence, in that it was agreed that plaintiffs had sustained economic damages.

(3) The jury’s award of zero damages bears no reasonable relation to the uncontroverted evidence presented, and is therefore manifestly insufficient.

III. DISCUSSION

It is well established that the trial court has wide discretion on whether or not to grant a new trial. Coker v. S.M. Flickinger Co. Inc., 533 Pa. 441, 625 A.2d 1181 (1993). “A trial court may only grant a new trial when the juiy’s verdict is so contrary to the evidence that it shocks one’s sense of justice.” Neison v. Hines, 539 Pa. 516, 520, 653 A.2d 634, 636 (1995). Anew trial should not be granted on a mere conflict in testimony, Baldino v. Castagna, 505 Pa. 239, 478 A.2d 807 (1984), or because a trial judge on the same facts would have arrived at a different conclusion. Nudelman v. Gilbride, 436 Pa. Super. 44, 647 A.2d 233 (1994).

Plaintiffs argue that the verdict was contrary to the weight of the evidence, in that the uncontroverted evidence showed that plaintiffs suffered injuries and had sustained economic damages, therefore the jury’s award of zero damages bore no reasonable relation and is, therefore, manifestly insufficient.

The appellate court’s standard of review for evaluating a weight of the evidence claim is well established; the scope of review for such a claim is very narrow. “The determination of whether to grant a new trial because the verdict is against the weight of the evidence rests within the discretion of the trial court, and [the appellate court] will not disturb that decision absent an abuse of discretion.” Commonwealth v. Young, 692 A.2d 1112, 1114 (Pa. Super. 1997); Commonwealth v. Pronkoskie, 498 Pa. 245, 445 A.2d 1203 (1982); Commonwealth v. Hunter, 381 Pa. Super. 606, 617, 554 A.2d 550, 555 (1989). Where issues of credibility and weight of the evidence are concerned, it is not the function of the appellate court to substitute its judgment based on a cold record for that of the trial court. Young, supra, Commonwealth v. Paquette, 451 Pa. 250, 257, 301 A.2d 837, 841 (1973). The weight to be accorded conflicting evidence is exclusively for the fact-finder, whose findings will not be disturbed on appeal if they are supported by the record. Commonwealth v. Zapata, 447 Pa. 322, 290 A.2d 114 (1972). A claim that the evidence presented at trial was contradictory and unable to support the verdict requires the grant of a new trial only when the verdict is so contrary to the evidence as to shock one’s sense of justice. Id.; Commonwealth v. Saksek, 361 Pa. Super. 173, 522 A.2d 70 (1987). See also, Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989) citing Commonwealth v. Nelson, 514 Pa. 262, 271 n.3, 523 A.2d 728, 733 n.3 (1987), cert. denied, 484 U.S. 928, 108 S.Ct. 293, 98 L.Ed.2d 253 (1987) (under ordinary circumstances, an appellate tribunal should not entertain a challenge to the weight of the evidence since their examination is confined to the “cold record”). See also, Commonwealth v. Jenkins, 396 Pa. Super. 395, 578 A.2d 960 (1990) and Commonwealth v. McLean, 396 Pa. Super. 23, 578 A.2d 4 (1990) (explaining that a challenge to the weight of the evidence is reviewable by the Superior Court).

In this case, both plaintiffs testified, and it was for the jury to determine whether or not to accept the testimony presented by those witnesses. The jury was at liberty to reject, or accept and give appropriate weight to the testimony. It was therefore the duty of the jury to determine who was credible. In this case, the jury could reasonably infer that neither plaintiff was seriously injured in the accident nor were there any damages sustained by either plaintiff, despite the medical bills the jury was told were out-of-pocket expenses for each plaintiff. Here, the jury simply did not believe that the plaintiffs sustained injuries justifying an award for pain and suffering. The testimony given by plaintiff Powell established that she had a pre-existing medical condition for which she made a workers’ compensation claim for in 1996 and was feeling good the day of trial. (N.T., 1/6/05, pp. 24-28, 31, 33-42,46.) The testimony of plaintiff Pearson established that she treated intermediately for about one year, she never informed her new employer of any limitations she had because of an injury, nor did she sustain any loss from work as a result of the accident. (N.T., 1/6/05, pp. 51-59,61-63.)

Lastly, the duty to assess damages is squarely within the province of the jury, who as the finders of fact weigh the veracity and credibility of the witnesses and their testimony. Dranzo v. Winterhalter, 395 Pa. Super. 578, 577 A.2d 1349 (1990); Cree v. Horn, 372 Pa. Super. 296, 539 A.2d 446 (1988), appeal denied, 519 Pa. 660, 546 A.2d 621 (1988). The Superior Court has stated that the standard upon reviewing a trial court’s decision that damages were adequate and that it should thus refuse to grant a new trial is extremely narrow:

“It is well established law in the Commonwealth that a decision to grant a new trial because of any impropriety in the verdict is well within the discretion of the trial court and in the absence of a clear abuse of its considerable discretion will not be disturbed on appellate review. Reitz v. Donise Enterprise, 319 Pa. Super. 76, 465 A.2d 1060 (1983). Our court has set forth the following criteria to determine when a verdict can be set aside as inadequate:

“A verdict is set aside as inadequate when it is so inadequate as to indicate passion, prejudice, partiality, or corruption, or where it clearly appears from uncontradicted evidence that the amount of the verdict bears no reasonable relation to the loss suffered by the plaintiff. If the verdict bears a reasonable resemblance to the damages proved, the appellate court will not disturb the verdiet merely because the damages are less than the reviewing court might have awarded, (citations omitted) Slaseman v. Myers, 309 Pa. Super. 537, 541, 455 A.2d 1213, 1215 (1983Smith v. Barker, 368 Pa. Super. 472, 475-76, 534 A.2d 533, 535 (1987), appeal denied, 520 Pa. 577, 549 A.2d 137 (1988).

To support the grant of a new trial for inadequacy of the damage award, the injustice of the verdict “should stand forth like a beacon.” Dranzo, supra at 585, 577 A.2d at 1352; Cooley v. Jefferson Bank, 355 Pa. Super. 1, 4, 512 A.2d 713, 714 (1986) (citing numerous cases). In Dranzo, the court found that Mrs. Dranzo suffered severe injuries in the accident, primarily a fracture to her left hip and her left heel. She still had pain, she had a permanent limp and that her earning capacity had been permanently diminished. The parties stipulated to the amount of medical expenses and wage loss, amounting to a total of $23,416.01. The jury had returned a total verdict of $ 118,736.01 for Mrs. Dranzo, damages in the amount of $27,000 for her daughter, and damages in the amount of $5,000 for her husband’s loss sustained as her husband and in the amount of $13,070.90 for loss sustained as his daughter’s father. On appeal, the trial court wrote:

“No doubt the injuries suffered by Mrs. Dranzo may well have supported a considerably higher verdict, but the fact remains that all of this evidence was presented to the jury, and this court cannot say that the amount of the verdict shocks the conscience of the court. Generally, the consortium claim of her husband, John Dranzo, rests on the oral testimony of these plaintiffs, and essentially, the amount awarded must be determined by the good sense of the jury upon consideration of all the evidence.” Opinion, 7-21-89 at 17.

The Superior Court agreed with the trial court and found that no injustice had been done in the case.

In the instant case, as in Dranzo, the allegation that the jury’s award of zero damages is manifestly insufficient must fail. As stated above, it is the jury’s province to determine amount of damages. This court has determined that the award of zero damages was acceptable based on the evidence presented by plaintiff. Here, the verdict and the amount awarded thereof does not stand forth like a beacon. While the evidence submitted may have supported greater verdict amounts, this court will not invade the province of the jury to substitute its standards over those of the jury after careful deliberations. See Botik v. Mine Safety Appliance Corp., 531 Pa. 160, 611 A.2d 1174 (1992). Even if the jury thought the plaintiff may have some unpaid medical bills, there is no evidence that the verdict resulted from passion, prejudice, partiality or corruption and, therefore, no additur will be awarded or a new trial granted.

IV. CONCLUSION

In summary, this court has carefully reviewed the entire record and finds no harmful, prejudicial or reversible error.

      . The matter was initially filed as an arbitration matter. Defendant Ly filed a joinder complaint naming Stockton as an additional defendant. An arbitration hearing was held and there was a finding in favor of each plaintiff and additional defendant Stockton. The panel found against defendant Ly. Additional defendant Stockton was subsequently dismissed from the matter and defendant Ly filed an appeal of the arbitration award.