author: SCHMEHL, J.L., J.,

text:
    Bender v. Exeter Township School District

      Richard L. Guida and James E. Gavin, for petitioner.

      Jon S. Malsnee, for respondent.
    July 18, 2003
   SCHMEHL, J.L., J.,

Twelve-year-old Cassandra Bender was in the sixth grade at Lorane Elementary School, which is part of the Exeter Township School District. On April 24, 2003, Cassandra and another female student had a verbal dispute after which Cassandra was overheard by a cafeteria worker uttering a statement involving the use of the word “kill.” Because of this threat the principal of Lorane Elementary School, Deborah Dawson, suspended Cassandra for three days. On April 30, 2003, a meeting was held whereby school officials drafted a “Confidential 1ST recall action plan” which stated in pertinent part, as follows:

“(6) No contact will be made with the student involved in threats. If Cassandra makes any contact, such as speaking to a student, she will receive another suspension.
“(7) Threats of any kind toward the other student, made by her directly or to any other person, will result in expulsion from Lorane Elementary School.”

On May 1, 2003, Cassandra had a chance encounter with the other girl in the school library where Cassandra either said “hello” or told the other girl that she wanted to talk to her. Deborah Dawson learned of this and immediately suspended Cassandra for an additional five days and informed Cassandra’s mother that an informal hearing would take place following her suspension.

On May 9, 2003, Cassandra, her mother, her grandmother, and her attorney arrived at Deborah Dawson’s office for this informal hearing. This hearing consisted only of the principal demanding proof of residence from Cassandra’s mother and then telling her that Cassandra was being transferred to a disruptive student’s unit in an alternative school in Birdsboro, Pennsylvania. When Cassandra’s attorney attempted to speak, the principal cut him off and told him to speak to the school’s solicitor. Deborah Dawson then told all the parties involved that the hearing was over and indicated that they were to leave her office. The principal’s secretary then handed Cassandra a bag which contained her personal effects.

On May 14, 2003, Cassandra, through her mother Caroline Bender, filed a motion for a preliminary injunction, requesting that the court issue an order to restrain the school district from placing Cassandra in the disruptive student placement facility in Birdsboro. On that same date, this court held a hearing where the following people testified: Caroline Bender, Deborah Dawson, Mary Row (Cassandra’s grandmother), and Sharon Althouse (the assistant superintendent of the school district).

On May 16,2003, this court issued an order enjoining the school district from transferring Cassandra to an alternative educational setting or placing her under any other special or disciplinary status for the remainder of the school year unless subsequent conduct warranted such status. The court also specifically ordered that it was up to the school district to determine Cassandra’s placement setting. This appeal followed.

Pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure and an order of this court, the school district filed a concise statement of matters complained of on appeal, asserting the following 10 claims:

(1) The order of May 16, 2003, improperly interferes with the school district’s authority to assign a student to an educational placement.

(2) The order of May 16, 2003, improperly interferes with the school district’s authority to assign a student who threatens to kill another student to a disruptive student program either under article XIX-CX and article XIX-D or otherwise.

(3) The order of May 16, 2003, improperly interferes with the school district’s authority to transfer a student to an alternative education program, designed to meet the needs of non-disabled, disruptive students, without first expelling the student.

(4) The order of May 16, 2003, improperly interferes with the school district’s authority to choose the current educational placement for a child by prohibiting a placement in other than an Exeter Township School District elementary school.

(5) The order of May 16, 2003, improperly interferes with the school district’s authority to place a child in an alternative education setting by enjoining transferring a student to an alternative education program setting.

(6) The order of May 16, 2003, improperly interferes with the school district’s authority to discipline a student by enjoining the school district from placing student under any special or disciplinary status for the remainder of the school year absent additional subsequent conduct.

(7) The order of May 16, 2003, improperly provides injunctive relief which is not in the public interest, but rather undermines the school district’s considerable interest in protecting its students from violence.

(8) The order of May 16, 2003, improperly provides injunctive relief which is improper as student has not established by competent evidence a reasonable probability of success or [sic] on the merits.

(9) The order of May 16, 2003, improperly provides injunctive relief which is improper as student has not shown threat of irreparable harm to student if injunction is not granted.

(10) The order of May 16, 2003, improperly provides injunctive relief as student has not shown a clear abuse of discretion of error of law by school district.

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure and for the following reasons this court asks that the instant appeal be denied.

THE SCHOOL DISTRICT VIOLATED THE TERMS OF THEIR OWN AGREEMENT WITH CASSANDRA

The basic elements necessary for an enforceable contract are offer, acceptance, consideration or mutual meeting of the minds. PennDOT v. First Pennsylvania Bank, 77 Pa. Commw. 551, 553, 466 A.2d 753, 754 (1983). When seeking to enforce a contract, one may look to the conduct of the parties to ascertain an acceptance of the contract. Accu-Weather Inc. v. Thomas Broadcasting Company, 425 Pa. Super. 335, 340, 625 A.2d 75, 78 (1993). The determination as to who are the parties to a contract must be decided upon a consideration of all of the facts of the case. CJ.S. Contracts §346. If the answer is not clear from the face of the contract, the question must be determined from the intent of the parties under the general rules of construction. Id. Parties are bound to an agreement if they have manifested an intent to be bound by the terms of the agreement, the terms are sufficiently definite, and there is consideration. Johnston the Florist Inc. v. Tedco Construction Corp., 441 Pa. Super. 281, 291, 657 A.2d 511, 516 (1995). “Clear contractual terms that are capable of one reasonable interpretation must be given effect without reference to matters outside the contract.” Baney v. Eoute, 784 A.2d 132, 136 (Pa. Super. 2001) (citing Samuel Rapaport Family Partnership v. Meridian Bank, 441 Pa. Super. 194, 203, 657 A.2d 17, 21 (1995)). If any ambiguity exists, then the principle of contra proferentem provides that the ambiguity be construed against the drafter. See Sun Co. Inc. (R&M) v. Pennsylvania Turnpike Commission, 708 A.2d 875 (Pa. Commw. 1998).

The confidential 1ST recall action plan constituted a contract between the school district and Cassandra. As part of this agreement, the school district stated that if Cassandra had any future contact, such as speaking to a student she would receive another suspension. It should first be noted that the contact that the movant allegedly had with the other student was a chance and de minimis contact in the extreme. Assuming, arguendo, that the movant violated the terms of the agreement by speaking while they passed each other in a supervised setting, then the remedy provided for in the agreement was for Cassandra to receive another suspension. Nowhere in this agreement does it state that a violation would result in Cassandra being expelled or placed in a disruptive student’s unit in an alternative school in Birdsboro. Accordingly, the court did not err in enforcing the agreement.

THE SCHOOL DISTRICT LACKED THE STATUTORY AUTHORITY TO TRANSFER CASSANDRA TO AN ALTERNATIVE SCHOOL

Pennsylvania’s School Code contains the following provisions for alternative placement of disruptive students:

“Section 19-1901-C. Definitions
“For purposes of this article, the following terms shall have the following meanings:
“(1) ‘Alternative education program’ or ‘program.’ Any applicant’s program applying for funds under this article, which program is implemented by a school district, an area vocational-technical school, a group of school districts or an intermediate unit, which removes disruptive students from regular school programs in order to provide those students with a sound educational course of study and counseling designed to modify disruptive behavior and return the students to a regular school curriculum. Notwithstanding section 1502, [FN1] alternative education programs may operate outside the normal school day of the applicant district, including Saturdays. School districts and private alternative education institutions operating pursuant to the provisions of article XIX-E [FN2] shall adopt a policy for periodic review of those students placed in their respective alternative education program for disruptive students. This review shall occur, at a minimum, at the end of every semester the student is in the program or more frequently at the district’s or private alternative education institution’s discretion. The purpose of this review is to determine whether or not the student is ready to return to the regular school curriculum. Programs may include services for students returning from placements or who are on probation resulting from being adjudicated delinquent in a proceeding under 42 Pa. C.S. ch. 63 [FN3] (relating to juvenile matters) or who have been judged to have committed a crime under an adult criminal proceeding.
“(2) Applicant. ’ A school district or a combination of school districts which applies for funds under this article.
“(3) ‘Community resources. ’ Those agencies and services for children and youth provided by the juvenile court and the Department of Health and the Department of Public Welfare and other public or private institutions.
“(4) ‘Department. ’ The Department of Education of the Commonwealth.
“(5) ‘Disruptive student. ’ A student who poses a clear threat to the safety and welfare of other students or the school staff, who [FN2] creates an unsafe school environment or whose behavior materially interferes with the learning of other students or disrupts the overall educational process. The disruptive student exhibits to a marked degree any or all of the following conditions:
“(i) Disregard for school authority, including persistent violation of school policy and rules.
“(ii) Display or use of controlled substances on school property or during school-affiliated activities.
“(in) Violent or threatening behavior on school property or during school-affiliated activities.
“(iv) Possession of a weapon on school property, as defined under 18 Pa.C.S. §912 (relating to possession of weapon on school property).
“(v) Commission of a criminal act on school property or during school-affiliated activities.
“(vi) Misconduct that would merit suspension or expulsion under school policy.
“(vii) Habitual truancy.
“No student who is eligible for special education services pursuant to the Individuals with Disabilities Education Act (Public Law 91-230, 20 U.S.C. §1400 et seq.) shall be deemed a disruptive student for the purposes of this act, except as provided for in 22 Pa. Code §14.35 (relating to discipline).
“(6) ‘School. ’ Any school classified by the Department of Education as a middle school, junior high school, senior high school or area vocational-technical school.
“(7) ‘Secretary. ’ The Secretary of Education of the Commonwealth.” 24P.S. §1901-19-C. (emphasis added)

Thus, by the plain, unequivocal language of the School Code, placement of disruptive students into alternative schools is limited to those students who currently attend middle, junior high, or senior high schools — not elementary schools. Accordingly, since Cassandra was an elementary school student, Exeter Township School District lacked the authority to involuntarily place her in the disruptive student’s unit in the alternative school in Birdsboro.

THE SCHOOL DISTRICT FAILED TO FOLLOW THE HEARING REQUIRMIENT OF THE SCHOOL CODE

The School Code specifically requires that a school district hold an informal hearing before placing a student in an alternative education program:

“Section 19-1902-C. Applications
“(2) That the applicants have established policies to identify those students who are eligible for placement in the program and that the placement of such students will comply with the informal hearing procedures set forth in 22 Pa. Code §12.8(c) (relating to hearings). Notice of the hearing should precede placement in the program. Where the student’s presence poses a continuing danger to persons or property or an ongoing threat of disrupting the academic process, the student may be immediately removed from the regular education curriculum with notice and a hearing to follow as soon as practicable.” 24P.S. §1902-19-C. (emphasis added)

The informal hearing provisions set forth above state that a student has the right to question any witnesses present at thé hearing and that a student has the right to speak and produce witnesses on his own behalf. See 22 Pa. Code §12.8.

The evidence of record demonstrates that the “hearing” conducted by the school district consisted only of the principal telling Cassandra’s mother that Cassandra was being transferred to a disruptive student’s unit in an alternative school in Birdsboro, Pennsylvania. Clearly, no “hearing” was to take place since the principal had already packed up Cassandra’s belongings and had them ready to deliver to her. The principal then told all the parties involved that the hearing was over. Clearly, she did not give Cassandra the right to question any witnesses present at the hearing or to speak or produce witnesses on her own behalf. Accordingly, the school district did not follow the hearing requirement of the School Code and the court did not err in revoking the school district’s placement decision.

THE ACTIONS OF THE SCHOOL DISTRICT HAVE BEEN ARBITRARY AND CAPRICIOUS

The Commonwealth Court has held that a school district has broad discretion in determining school disciplinary policies and the courts are not to interfere unless it is apparent that the school’s actions have been arbitrary, capricious and prejudicial to the public interest. Flynn-Scarcella v. Pocono Mountain School District, 745 A.2d 117 (Pa. Commw. 2000). Our Supreme Court has defined “arbitrary” as “conduct... based on random or convenient selection or choice rather than on reason or nature.” Thunberg v. Strause, 545 Pa. 607, 615, 682 A.2d 295, 299 (1996). “Capricious” has been variously defined as “erratic, flighty, or unpredictable.”

This court is always reluctant to interfere with a school’s disciplinary policies. This court is also well aware that schools today are more sensitive to behavior and communications that may be warning signals of violence following events such as the Columbine tragedy and various other school shootings throughout the country. However, taking all of this into consideration, this court still cannot approve of the actions of the Exeter Township School District. This matter came before this court not on Cassandra’s threatening another student, but rather on her conduct following her suspension for that threat and the school district’s response to that subsequent conduct. The court was very troubled by the fact that the plan went so awry in one day based upon an incident that was not major. Involuntarily placing a sixth-grade girl in a disruptive student’s unit in an alternative school five weeks before the end of the school year because she said “hello” to another student or told the student that she wanted to talk to her is, in this court’s opinion, arbitrary and capricious conduct under any definition and is prejudicial to the public interest. It most certainly is extremely harmful to the young girl’s education and future psychological makeup. To place a sixth-grade girl in a school for troubled students, most of whom are there for drug and weapon offenses, should only be done in the most drastic of circumstances. This is certainly not one of those circumstances. Clearly, the school district was abdicating its responsibility and taking the “easy way out.” Accordingly, for all the foregoing reasons, the instant appeal should be denied.

      . There is a factual dispute between the school district and Cassandra as to the exact words uttered. According to Cassandra, she said, “I could just kill [her].” The school district claims that Cassandra said “I’m going to kill Katie.”


source: Caselaw Access Project

author: GILMORE, J.,

license: Public Domain

text:
    Garber v. Ansell/Perry

      Mark F Haak, for plaintiffs.

      Heather S. Heidelbaugh, Jennifer L. McPeak, Henry Janssen, Kenneth Greenfield, Melissa A. Wojylak, Walter H Swayze III, and Kimberly A. Laperworth, for defendants.
    June 25, 2003
   GILMORE, J.,

This matter is before the court on defendants’ joint motion for summary judgment. This matter arises from the plaintiff’s alleged injuries suffered as a result of a latex allergy she developed during the course of her employment as a nurse’s aide from 1979 until 1997. Plaintiff further alleges that the allergy she developed was due to her exposure to latex gloves manufactured by the various defendants.

The defendants have filed various motions for summary judgment, but before this court can address any of those motions, this court must decide whether the plaintiff’s complaint was timely filed or is barred by the two-year statute of limitations for a negligence claim. The plaintiff alleges that the “discovery rule” applies to this case which tolls the statue until June 12,1997. The defendants allege the plaintiff’s claim should be barred because there are sufficient facts under the circumstances to put the plaintiff on notice of a pending claim. Defendants also allege that the plaintiff’s claim for breech of warranty of merchantability, breach of implied warranty of fitness, and breach of expressed warranty shall be barred by the four-year statute of limitations and will be addressed later in this opinion.

In reviewing a motion for summary judgment, the court must consider the record in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Pennsylvania State University v. County of Centre, 532 Pa. 142, 145, 615 A.2d 303, 304 (1992). Summary judgment will be granted only in those cases which are free and clear from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991). At the same time, however, a non-moving party may not successfully avoid summary judgment by simply resting upon the mere allegations or denials contained in the pleadings. Pa.R.C.P. 1035.3(a). In other words, to defeat a motion for summary judgment a non-moving party must present sufficient evidence on an issue essential to her case and on which she bears the burden of proof such that a jury could return a verdict in her favor. Ertel v. Patriot-News Co., 544 Pa. 93, 101-102, 674 A.2d 1038, 1042 (1996). The non-moving party’s inability to advance such evidence establishes that there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Id. With this standard in mind, the court turns to consider the defendant’s contentions.

Pennsylvania law provides a two-year statute of limitation on actions to recover damages for injuries to the person caused by another’s wrongful act, negligence, or fraud. 42 Pa.C.S. §§5524(2), 5534(7). Furthermore, the running of the statutory period in which to file suit begins at the time an injury is sustained. Bohus v. Beloff, 950 F.2d 919 (3d Cir. 1991). A plaintiff need not know the exact medical cause of an injury, nor that the injury is due to another’s negligent conduct, nor that a cause of action exists before the statutory period will begin to run. Id. Rather, “once a plaintiff possesses the salient facts concerning the occurrence of his injury and who or what caused it, he has the ability to investigate and pursue his claim,” thus causing the statutory period to commence. Berardi v. Johns-Manville Corp., 334 Pa. Super. 36, 482 A.2d 1067 (1984).

The Pennsylvania courts have made it clear that lack of knowledge, mistake or misunderstanding will not toll the running of the limitations period, even if the party does not discover the injury until it is too late to pursue a remedy. Pocono International Raceway Inc. v. Pocono Produce Inc., 503 Pa. 80, 468 A.2d 468 (1983). However, the courts have granted plaintiffs some leeway by recognizing the “discovery rule,” which provides, “where the existence of the injury is not known to the complaining party and such knowledge cannot reasonably be ascertained within the prescribed statutory period, the limitations period does not begin to run until the discovery of the injury is reasonably possible.” Hayward v. Medical Center of Beaver County, 530 Pa. 320, 325, 608 A.2d 1040, 1043 (1992).

The plaintiff is relying on the “discovery rule” to toll the statutory period from running. The law pertaining to the discovery rule is well settled. The “discovery rule” is an exception to the two-year statute of limitations for a negligence action, and arises from the inability of the injured, despite the exercise of due diligence, to know of the injury or its cause. Burton-Lister v. Siegel, Sivitz and Lebed Associates, 798 A.2d 231, 237 (Pa. Super. 2002). The court further stated that “the very essence of the discovery rule in Pennsylvania is that it applies only to those situations where the nature of the injury itself is such that no amount of vigilance will enable the plaintiff to detect an injury.” Id. citing Dalrymple v. Brown, 549 Pa. 217, 701 A.2d 164 (1997).

The issue for this court to decide is whether the plaintiff, exercising reasonable diligence, knew or reasonably should have known that she had been injured and that her injuries had been caused by the gloves manufactured by the defendant. Furthermore, did the plaintiff exercise the level of diligence in ascertaining the cause of her injuries as a reasonable person would employ under the facts and circumstances presented in this particular case? The plaintiff alleges her claim should not be barred by the statute of limitations because not only did the plaintiff not know the exact medical cause of her injury, but also she was unaware that she had suffered any injury at all.

The plaintiff’s complaint alleges that she developed a latex allergy during the course of her employment as a nurse’s aide from 1979 until 1997. On or about January 23, 1995, while working as a certified nurses’ aide at Washington Hospital, plaintiff first complained of an injury to her hands which she immediately reported to the Washington Hospital Employee Health Department. The plaintiff completed a form documenting her dry and cracked hands and in that report, plaintiff used the words, “Latex gloves break my hands out.” In the fall of 1996, plaintiff began experiencing additional allergy-type symptoms, including a runny nose and sneezing, which she had reason to know these symptoms could indicate an allergic reaction since she had her son tested for allergies when he contracted similar symptoms. On April 13, 1997, plaintiff experienced an incident of hives while at work and was subsequently taken to the emergency room at Washington Hospital. Plaintiff was treated with Benadryl, an antihistamine, and given discharge instructions indicating immediate follow-up care that should be pursued for an allergic reaction. In May of 1997, plaintiff again went to the emergency room at Washington Hospital with a complaint of a swollen right hand. The plaintiff eventually underwent serum blood testing on June 12, 1997, which showed that she was sensitized to natural rubber latex. On June 17,1997, plaintiff stopped working at the Washington Hospital and has not been employed in any capacity since that date.

The plaintiff filed her action on June 7, 1999, and asserts that her action was timely filed since on June 17, 1997, was the first point in time at which plaintiff associated the connection between her allergy, symptoms of that allergy and latex gloves. Therefore, because this action was tolled until June 12,1997, and the complaint filed on June 17, 1999, plaintiff argues that this action falls within the two-year statue of limitations. However, relying on the standards set forth by the Pennsylvania courts with regards to the “discovery rule,” this court disagrees with the plaintiff’s assertion. Reviewing the record in light most favorable to the non-moving party, the record clearly indicates that plaintiff had numerous opportunities to ascertain the cause of her injuries with reasonable diligence. By her own admission, plaintiff recognized her injuries were caused by an allergic reaction in April of 1997. Furthermore, the courts have been clear that in order for a claim to fall under the province of the “discovery rule,” the plaintiff must use reasonable diligence in discovering its origin. With many visits to the emergency room and other problems associated with her hands, plaintiff should have known that she sustained an injury, and that injury was caused by the negligence of another. It was her responsibility to ascertain the cause of her injuries and one which she did not do. Furthermore, it is the defendants’ contention that the plaintiff disregarded many warnings by her treating physician and further presented evidence of a seminar conducted by the Washington Hospital addressing the problems of allergies associated with wearing rubber latex gloves. The plaintiff decided not to adhere to these warnings which is detrimental to her claim.

Applying Pennsylvania case law to the pending action, it is clear that even though the plaintiff might not have known the exact medical cause of her injury, she did possess the salient facts necessary to investigate and pursue her claim. Furthermore, it is of this court’s opinion that the plaintiff did not exercise the necessary reasonable diligence in ascertaining the cause of her injuries to invoke the “discovery rule” and to the statute of limitations. Therefore, the defendants’ joint motion for summary judgment is granted and the plaintiff’s case should be dismissed for not complying with the two-year statute of limitations necessary to file a negligence claim.

As for plaintiff’s breach of warranty claims set forth in her complaint, the plaintiff alleges breach of the implied warranty of merchantability, breach of the implied warranty of fitness for a particular purpose, and breach of express warranty. The defendant contends that the complaint was not timely filed in accordance with the four-year statute of limitations.

It is well settled under Pennsylvania law that actions for breach of warranty are subject to the four-year statute of limitation prescribed in the Pennsylvania Commercial Code. 13 Pa.C.S. §2725. The code expressly provides that a cause of action for breach of warranty accmes “when the breach occurs, regardless of the aggrieved party’s lack of knowledge of the breach.” 13 Pa.C.S. §2725(b). The code also provides that except where an express warranty explicitly extends to future performance of the goods sold, a breach occurs, if at all, “when tender of delivery is made.” As a result, “the discovery rule applicable to tort actions does not apply in warranty actions” in Pennsylvania. Pitts v. Northern Telecom Inc., 24 F. Supp.2d 437 (E.D. Pa. 1998).

The question this court must decide is the operative date for the four-year breach of warranty limitations period. The plaintiff filed her claim for breach of warranties on June 7,1999. Since the delivery date of the gloves is controlling for warranty claims, any delivery of gloves prior to June 7,1995, are subject to the four-year statute of limitations. Furthermore, any claims based on the warranties of the gloves delivered prior to June 7, 1995, are also subject to the four-year statute of limitations.

The plaintiff also alleges that the defendant breached the express warranty provided by the defendant. This court must ascertain whether the warranty written on the box rises to the level of an express warranty. The defendant claims these warranties are controlled by federal law and the labeling and promotional materials cannot serve as the basis for a breach of an express warranty claim. See Sowers v. Johnson & Johnson Medical Inc., 867 F. Supp. 306 (E.D. Pa. 1994). The Sowers court concludes that an express warranty must be directed at consumers in order to induce purchases of the product. Id. citing Silverman v. Samuel Mallinger Co., 375 Pa. 422, 100 A.2d 715 (1953). Since the labels at issue are controlled by federal law, we can infer that they were not directed at consumers and that inducing purchases was not their purpose, and that they were therefore not a part of the “basis of the bargain” between the defendants and potential buyers. Id.

The plaintiff offers no proof that the defendants made any express warranties other than the ones printed on the box. After a review of the record, this court agrees with the defendants in that labels did not rise to the level of an express warranty and the defendants’ motion for summary judgment on the plaintiff’s warranty claims should be granted.

ORDER

And now, June 25, 2003, after argument and based upon the briefs filed, the defendants’ motion for summary judgment is hereby granted, and the plaintiff’s case for negligence, strict products, fraudulent concealment, loss of consortium and punitive damages is barred by the two-year statute of limitations not falling under the province of the “discovery rule” tolling the statute of limitations. Furthermore, the defendants’ motion for summary judgment with regard to the plaintiff’s warranty claim is hereby granted as the claims were not filed within the prescribed four-year statute of limitations.

      . In addition to the negligence claim, plaintiff has brought additional complaints sounding in strict products liability, fraudulent concealment, loss of consortium and requesting punitive damages against defendants which all must be brought within the two-year statute of limitations.

      . It was not until June 12,1997, that the plaintiff underwent serum blood testing which showed that she was sensitized to natural rubber latex after she went to the emergency room at Washington Hospital with a complaint of a swollen right hand.


author: WETTICK, J.,

text:
    Speicher v. Toshok

      Noah Geary, for plaintiffs.

      S. Manoj Jegasothy and Wilbur McCoy Otto, for defendants.
    May 14, 2003
   WETTICK, J.,

Plaintiffs’ petition for leave to conduct pre-complaint discovery is the subject of this opinion and order of court. The issue raised through this petition is whether recently adopted rules governing professional liability actions (Pa.R.C.P. 1042.1-1042.8) expand the use of pre-complaint discovery in professional liability actions.

This lawsuit was instituted through a praecipe for a writ of summons. The writ names as defendants two individuals (Revathi Toshok D.O./M.D., and Cathy Zamba, CRNA) and five University of Pittsburgh/UPMC Presbyterian corporate defendants.

Plaintiffs’ petition for leave of court to conduct precomplaint discovery contains the following allegations: The cause of action is “negligence/medical malpractice in the administration of anesthesia prior to elbow surgery and possible negligence in the conduction of the elbow surgery ....” (¶2.) Plaintiffs retained an anesthesiologist who has reviewed the pertinent medical records, including the anesthesia record which contains minimal information. Neither this anesthesiologist nor any other anesthesiologist will be able to determine whether there was a deviation from the standard of care unless and until “depositions are taken and testimony elicited from, inter alia, defendants Zamba and Toshok on numerous points, including but not limited to what axillary block technique was employed, what gauge needle was used, whether paresthesias were obtained, whether a nerve stimulator was used, the name of the individual who gave the initial sedating drugs, who decided on the dosages and why, who chose to use chirocaine versus other local anesthetic drugs and why, who arrived at a 1:300K epinephrine concentration and why, etc., etc.” (¶5.)

Prior to the promulgation of Rule 1042.1 et seq., a plaintiff in a medical malpractice action (and in any other action) could seek pre-complaint discovery without leave of court. However, a plaintiff seeking to depose parties or witnesses before filing a complaint is usually faced with a motion for a protective order requesting that such discovery be barred until the filing of the complaint. In most instances, the motion is granted.

In Potts v. Consolidated Rail Corp., 37 D.&C.4th 196, 147 P.L.J. 40 (1998), I addressed pre-complaint discovery. In this opinion, I described the standard that I apply in deciding motions for protective orders staying discovery until the pleadings are closed:

“Upon presentation of these motions, I advise counsel that I ordinarily stay discovery until the pleadings are closed unless the party seeking the discovery can show a compelling reason. There are exceptions to this rule where the discovery request is narrow and the production of the information that is sought will not cause annoyance, embarrassment, oppression, burden or expense to the responding party. Consider, for example, a discovery request in which the plaintiff seeks a copy of the plaintiff’s written employment agreement with the defendant or a plaintiff’s request for his or her medical records to a medical provider.” Id. at 199, 147 P.L.J at 40-41.

In Potts, I stated that interests of justice are usually furthered by a court order barring discovery in the preparation of the case until the plaintiff’s complaint has been filed for several reasons: First, a defendant should have the opportunity to show that a claim raised in the complaint fails to state a cause of action before responding to discovery involving this claim. Second, the discovery rules should be applied in a manner consistent with the pleading rules that are based on the premise that discovery will be narrowed if the contours of the dispute are initially defined through fact pleading. Third, until a complaint has been filed that meets the specificity requirements of the Pennsylvania Rules of Civil Procedure, a defendant and a court may not be in a position to determine whether the discovery that the plaintiff seeks involves matters relevant to the subject matter involved in the pending action. Fourth, since counsel for a defendant — -unlike counsel for the plaintiff — may not have any knowledge of the claim until after the lawsuit is filed, the rules of discovery should be applied to give a defendant’s counsel sufficient time to determine the nature of the dispute before responding to extensive discovery requests.

Recently, in McNeil v. Jordan, 814 A.2d 234 (Pa. Super. 2002), the Superior Court considered pre-complaint discovery. The plaintiff sought discovery to obtain facts essential to his cause of action, namely facts showing that his mother had intended to treat him equally concerning all aspects of her estate and marital trust. The trial court upheld objections to the discovery, stating that pre-complaint discovery may not be used to determine whether a cause of action exists.

The Superior Court affirmed the ruling of the trial court barring the plaintiff’s pre-complaint discovery. Since no appellate decisions had commented upon the limits, if any, to be imposed upon pre-complaint discovery, the Superior Court opinion reviewed seven common pleas court opinions that had addressed pre-complaint discovery. The standards which these common pleas courts applied ranged from (1) permitting pre-complaint discovery to aid in the preparation of the complaint, so long as the plaintiff establishes the relevancy of the questions and that they will aid in the preparation of the pleading, to (2) permitting pre-complaint discovery only upon carefully constructed limitations and a showing that without discovery a complaint cannot be drafted.

The Superior Court was “more persuaded by the case law setting reasonable limits on pre-complaint discovery than the case law permitting a more liberal allowance of discovery.” Id. at 245. Thus, it upheld the trial court’s refusal to permit extensive pre-complaint discovery because the grant of this request would have allowed discovery to search for a reason to sue where none might exist.

If plain tiffs’ pre-complaint discovery is governed by Potts and McNeil, I will not permit plaintiffs to depose the individual defendants prior to the filing of a complaint. Thus, I consider plaintiffs’ contention that Rules 1042.1-1042.8 governing professional liability actions have expanded a plaintiff’s ability to obtain pre-complaint discovery.

Rule 1042.3(a)(1) requires the attorney for the plaintiff to file with the complaint or within 60 days after the filing of the complaint, a certificate of merit signed by the attorney. The attorney’s signature certifies that an appropriate licensed professional has supplied a written statement that there is a basis to conclude that the care, skill, or knowledge exercised or exhibited by the defendant in the treatment, practice, or work that is the subject of the complaint fell outside acceptable professional standards and that such conduct was a cause in bringing about the harm.

Rule 1042.5 addresses discovery:

“Except for the production of documents and things or the entry upon property for inspection and other purposes, a plaintiff who has asserted a professional liability claim may not, without leave of court, seek any discovery with respect to that claim prior to the filing of a certificate of merit.
“Note: Upon motion seeking leave of court, the court shall allow any discovery which is required for a licensed professional to make a determination as to whether a defendant deviated from accepted professional standards.
“This rule does not preclude a defendant from seeking a protective order under Rule 4012 in response to a request for the production of documents and things or the entry upon property for inspection and other purposes.”

Plaintiffs contend that the provision in the note to Rule 1042.5 that “the court shall allow any discovery which is required for a licensed professional to make a determination as to whether a defendant deviated from acceptable professional standards” allows pre-complaint discovery that would not otherwise have been permitted. Plaintiffs also contend the requirement that a certificate of merit be filed with the complaint or within 60 days thereafter envisions a liberal allowance of pre-complaint discovery.

I disagree. In all civil litigation other than professional liability claims, the plaintiff may engage in discovery at any time without leave of court. Rule 1042.5 is intended to restrict the plaintiff’s ability to engage in discovery by barring any discovery without leave of court except for the production of documents and things or the entry upon property for inspection or other purposes. If I accept plaintiffs’ argument, I will have turned a rule intended to restrict discovery into a rule that expands a plaintiff’s ability to engage in discovery.

The note upon which plaintiffs rely does not address the timing of discovery. The reasons set forth in Potts for restricting pre-complaint discovery are applicable to professional liability actions. Consequently, leave of court should not be granted to permit any discovery that Potts would not allow until a complaint has been filed.

This ruling is consistent with the design of the rules governing professional liability actions. Rule 1042.4 provides that a defendant against whom a professional liability claim is asserted is not required to file a responsive pleading until 20 days after service of the certificate of merit, and Rule 1042.5 permits discovery (except for the production of documents and the like) only with leave of court prior to the filing of the certificate of merit. The purpose of these rules is to minimize the costs of defense and the time that a licensed professional must devote to the litigation until the plaintiff has been able to secure a certificate of merit.

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

ORDER

On May 14, 2003, it is hereby ordered that plaintiffs’ petition for leave of court to conduct pre-complaint discovery is denied.

      . Defendants have not objected to six interrogatories which plaintiffs served seeking information permitting plaintiffs to name all appropriate defendants.

      . Under Rule 1042.3(d) the court upon good cause shown shall extend the time for filing a certificate of merit for a period not to exceed 60 days. This rule does not impose any restrictions on the number of orders that the court may enter. A note to this rule states that there is a basis for granting an extension of time “if, despite diligent efforts by counsel, records necessary to review the validity of the claim are not available.”

      .1 continue to apply Potts to pre-complaint discovery because the Potts opinion was extensively discussed in McNeil and if the McNeil opinion criticizes Potts, its criticism is that the Potts standard is not sufficiently restrictive.


author: MAZER MOSS, J.,

text:
    Long v. Ostroff

      Timothy M. Kolman, for plaintiff.

      Richard Geschke, for defendant.
    August 14, 2003
   MAZER MOSS, J.,

FACTS AND PROCEDURAL HISTORY

Plaintiff Walter Long brought suit for professional negligence against defendant Jonathan Ostroff D.O., his family physician, based upon defendant’s adulterous relationship with plaintiff’s wife. While serving as plaintiff’s physician for six years (1992-1998), defendant began a sexual affair with Roseanne Long in September 1998. Plaintiff alleges defendant was negligent because during an office visit on October 27,1998, where he was examined for chest pain, back pain, and anxiety, defendant Long did not disclose his sexual relationship with said wife. We note Mrs. Long had previously expressed her intent to divorce plaintiff. In fact, five days prior to said office visit, Walter and Roseanne Long separated for the final time. They divorced five months later.

Plaintiff filed this medical malpractice suit against defendant on August 9, 2000. Defendant filed a motion to dismiss on May 9, 2003. After oral argument on June 20, 2003, we granted the motion. Plaintiff now appeals, focusing on the novel claim that a physician has a duty to refrain from sexual relationships with patients’ spouses. We find no such duty exists.

DISCUSSION

A Sexual Relationship Between a Physician and Patient Does Not Constitute Medical Malpractice

The majority of jurisdictions have concluded only psychiatrists’ sexual relationships with patients are sufficient to constitute medical malpractice. This conclusion is predicated upon the special relationship and fiduciary duty arising between patient and psychiatrist. However, even case law on this specific issue is split.

The special relationship between patient and psychiatrist is based upon “transference,” used by psychiatrists to treat patients. Transference is described as: “a patient’s emotional reaction to a therapist; generally applied to the projection of feelings, thoughts and wishes onto the analyst, who has come to represent some person from the patient’s past____Transference is crucial to the therapeutic process because the patient unconsciously attributes to the psychiatrist or analyst those feelings which he may have repressed towards his own parents.” Simmons v. United States, 805 F.2d 1363, 1365 (9th Cir.1986). Lacking a therapist-patient relationship with either Walter or Roseanne Long, defendant’s sexual conduct with plaintiff’s estranged wife did not constitute malpractice under Pennsylvania law.

Plaintiff’s Expert Is Not Qualified To Testify Under the MCare Act

To recover under a professional negligence theory, plaintiff must prove defendant owed a duty of care and breach of said duty resulted in cognizable injury. Brown v. Philadelphia College of Osteopathic Medicine, 760 A.2d 863, 868 (Pa. Super. 2000). To prove defendant owed plaintiff a duty, he offered as an expert, David Behar M.D., a certified psychiatrist.

Pursuant to the unambiguous language of the Medical Care Availability and Reduction of Error (MCare) Act, plaintiff’s expert is not qualified to opine in this medical liability action since he does not possess “sufficient education, training, knowledge, [or] experience to provide credible [and] competent testimony.” 40P.S. §1303.512 (a). In pertinent part, the MCare Act states that an expert testifying as to standard of care must:

“(2) Practice in the same subspecialty as the defendant physician or in a subspecialty which has a substantially similar standard of care for the specific care at issue ...

“(3) In the event the defendant physician is certified by an approved board, be board certified by the same or a similar approved board ....” 40 PS. § 1303.512(c).

The only existing general exception is one which permits a court to waive expert requirements if it determines said expert possesses otherwise adequate training, experience, and knowledge on standard of care from active involvement in defendant’s subspecialty. 40 P.S. § 1303.512(e).

Dr. Behar is a board-certified psychiatrist. He does not practice in defendant’s subspecialty, nor does he practice in a substantially similar subspecialty. Furthermore, Dr. Behar is certified by neither the same nor a similar approved board. Accordingly, Dr. Behar lacks the requisite qualifications to render an expert opinion on defendant’s applicable standard of care. Additionally, Dr. Behar does not possess sufficient training, experience, or knowledge of defendant’s subspecialty which might prompt us to waive statutory requirements. Therefore, plaintiff’s action must fail.

Plaintiff Did Not Adequately Plead a Claim Which Would Entitle Him to Relief

Plaintiff has failed to state a valid cause of action. At its core, plaintiff’s allegations seem to stem from a claim of intentional infliction of emotional distress, rather than negligence. However, his complaint fails to raise a claim for same. Rather, plaintiff made only vague assertions of mental damage suffered from defendant’s actions. Accordingly, plaintiff’s general and inadequate mental claims were stricken by the Honorable Nitza Quiñones Alejandro on November 3, 2000. Plaintiff subsequently filed a motion to amend complaint to include intentional infliction of emotional distress on May 13,2002, but same was denied on June 19, 2002, by the Honorable Arthur Kafrissen. Where plaintiff’s only valid cause of action might, have been intentional infliction of emotional distress he should not be allowed to recover under the guise of negligence.

CONCLUSION

Plaintiff’s negligence claim lacks firm precedential support. There is no authority which supports liability for a physician involved personally with a patient’s estranged spouse. Further, plaintiff is unable to prove said claim since his only expert lacks the requisite statutory qualifications to render an informed opinion. Lastly, where plaintiff has failed to raise appropriate claims adequately, his negligence claim should not go forward. Based on the foregoing, this court’s decision, granting defendant’s motion to dismiss, should be affirmed.