author: WARMAN, J.,

text:
    Rugg v. Green Acres Contracting Co. Inc.

      C.P. of Fayette County,
    no. 1283 of 2001 G.D.

      Mark Rowan for plaintiff.

      Jane Lewis Volk and David Reiss, for defendant.
    November 28, 2001
   WARMAN, J.,

Presently before this court for disposition are preliminary objections filed on behalf of defendants Green Acres Contracting Co. Inc., Paul Humberston, and Thomas Pisula to plaintiff’s amended complaint.

Defendants raise several objections for our consideration. Defendants first object pursuant to Pa.R.C.P. 1028(a)(1) and claim that this court lacks subject matter jurisdiction as to defendants Paul Humberston and Thomas Pisula because no charge was filed against them with the Pennsylvania Human Relations Commission. Defendants next object pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer and argue that because defendants Paul Humberston and Thomas Pisula were not employers as defined by the Pennsylvania Human Relations Act that plaintiff’s amended complaint fails to state a cause of action against them. Defendants also object in the nature of a demurrer and claim that plaintiff’s amended complaint does not state a cause of action for disability discrimination under the Pennsylvania Human Relations Act because plaintiff does not allege a handicap or disability as defined therein. Defendants’ final objection is to plaintiff’s claim for punitive damages. Defendants claim that punitive damages are not available under the Pennsylvania Human Relations Act. They, therefore, request this court to strike plaintiff’s request for the same.

After consideration of the record, applicable law, briefs and submissions of counsel, and for reasons more fully discussed herein, defendants’ preliminary objections are sustained in part and overruled in part. Before addressing the merits of defendants’ preliminary objections, we shall recount the facts and history of the present cause of action.

BACKGROUND

Defendant, Green Acres Contracting Company Inc., is a Pennsylvania corporation with a principal place of business located on Pennsylvania Avenue, Scottdale, Westmoreland County, Pennsylvania. Green Acres is a construction company that engaged primarily in seasonal highway right-of-way maintenance and construction including, but not limited to, installing guiderails, pavement markers, seeding, and mulching. Sometime in September of 1980, Green Acres employed plaintiff as a laborer and truck driver.

On or about September 21, 1984, plaintiff alleges that he suffered a work-related low back injury that caused him to miss approximately six months of work. Plaintiff further alleges that on or about December 11, 1987, he suffered a recurrence of his back injury and received workers’ compensation for approximately five months. Plaintiff further alleges that the recurring back injuries substantially limited one or more of his major life activities, including walking, lifting, and working. Plaintiff further alleges that his recurring back injuries prevented him from performing any job which required repetitive bending, lifting, stooping, crawling, or squatting.

Plaintiff additionally alleges that sometime in May of 1994, he sustained a work-related injury to both knees that required surgery. Plaintiff, however, returned to regular full duty work sometime in the spring of 1996. Plaintiff alleges that his recurring knee injury also substantially limited one or more of his major life activities, including walking, standing, lifting and working.

Plaintiff received a normal seasonal layoff during the winter of 1996. In the spring of 1997, plaintiff alleges that he repeatedly asked defendant Thomas Pisula to return to work, and informed him that he was ready, willing and able to perform the necessary functions of the job. Plaintiff further alleges that defendant Pisula informed plaintiff that he was not being called back to work because he had bad knees and a bad back. Plaintiff also alleges that defendant Paul Humberston indicated that plaintiff was not being called back due to his work injuries. Plaintiff further avers that defendant Green Acres thereafter hired younger, less experienced, healthy individuals without a history of work-related injuries.

Plaintiff further avers that based on his back and knee injuries that he has a record of, or history of, a handicap or disability and that Green Acres regarded him as having such disability despite his ability to perform the essential functions of his previous job. He, therefore, alleges that defendants discriminated against him in violation of the Pennsylvania Human Relations Act.

On or about August 5, 1997, plaintiff filed a complaint with the Pennsylvania Human Relations Commission. Green Acres was the only respondent named in the complaint. By letter dated March 12, 2001, the Pennsylvania Human Relations Commission notified plaintiff that following an investigation of his complaint, his charge of discrimination was being dismissed because the facts of the case failed to establish that probable cause existed to credit the allegations of unlawful discrimination. Enclosed therewith was a notice of rights of complainants after dismissal of complaint that informed plaintiff of his right to file a complaint in the court of common pleas of the county in which the alleged unlawful discriminatory practice took place.

Thereafter, on or about June 8, 2001, a three-count complaint was filed on behalf of plaintiff in the Court of Common Pleas of Fayette County. Preliminary objections were filed on behalf of defendants thereto, and on or about August 3, 2001, an amended complaint was filed on behalf of plaintiff. Thereafter, on or about August 22, 2001, preliminary objections were filed on behalf of defendants to plaintiff’s amended complaint, and on October 3, 2001, we heard oral argument thereon.

DISCUSSION

It is well settled that in ruling on preliminary objections, the court must accept as true all well-pleaded facts and all inferences reasonably deducible therefrom; however, the court need not accept as true conclusions of law, unwarranted inferences from facts, argumentative allegations, or expressions of opinion. Dorfman v. Pennsylvania Social Services Union—Local 668 of the Service Employees International Union, 752 A.2d 933 (Pa. Commw. 2000); Turner v. Pennsylvania Board of Probation and Parole, 749 A.2d 1018 (Pa. Commw. 2000).

Preliminary objections may be filed on the ground of legal insufficiency of a pleading; such an objection is commonly referred to as a demurrer. Preliminary objections in the nature of a demurrer require this court to resolve issues solely on the basis of the pleading with no other evidence being considered. Mellon Bank v. Fabinyi, 437 Pa. Super. 559, 650 A.2d 895 (1994). In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and the law will not permit recovery. Chichester School District v. Chichester Education Association, 750 A.2d 400 (Pa. Commw. 2000), allocatur denied, 2000 Pa. Lexis 2684. If there is any doubt, it should be resolved by overruling the demurrer. Id.

A preliminary objection in the nature of a demurrer should be sustained only in cases that clearly and without doubt fail to state a claim upon which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). If any theory will support the pleading challenged by the preliminary objection, the objection will be denied. Cianfrani v. Commonwealth State Employees’ Retirement Board, 505 Pa. 294, 479 A.2d 468 (1984). The only issue to be resolved by a preliminary objection on the ground of legal insufficiency in the nature of a demurrer is whether the facts as alleged in the pleading are sufficient to entitle the claimant to relief. Gillespie v. St. Joseph’s University, 355 Pa. Super. 362, 513 A.2d 471 (1986). With the above mentioned rules in mind, this court now turns to the case at bar.

We will first consider defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer wherein they claim that plaintiff’s amended complaint fails to state a cause of action for disability discrimination as to all defendants because it fails to allege that plaintiff suffers from an impairment that substantially limits one or more of his major life activities or that he has a record of such an impairment or that he was regarded as having such an impairment.

We initially note that an employer is free to discharge an employee as long as the employer’s reason is not one precluded by federal or state law. The Pennsylvania Human Relations Act at section 955 describes what actions constitute unlawful discriminatory employment practices. It prohibits employers and others from discriminating against various classes of individuals.

43 P.S. §955(b)(5) provides in pertinent part:

“It shall be unlawful discriminatory practice ...
“(b) For any employer, employment agency or labor organization... to
“(5) Deny employment because of a prior handicap or disability.” 43 P.S. §955(b)(5).

43 P.S. §954 (p. 1) defines the terms handicap or disability as:

“(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities;
“(2) a record of having such an impairment; or
“(3) being regarded as having such an impairment ...” 43 P.S. §954 (p. 1).

In order to set forth a cause of action under the Pennsylvania Human Relations Act, the employee must show that he or she was a member of a protected class, suffered an adverse employment action, and that others not in the class were treated differently. Butler v. Elwyn Institute, 765 F. Supp. 243 (E.D. Pa. 1991).

Defendants argue that plaintiff has failed to state a cause of action because in order to be covered by the disability portion of the Pennsylvania Human Relations Act, an individual must suffer or have a record of suffering or be regarded as suffering from an impairment which substantially limits one or more of such person’s major life activities, and that here, plaintiff has alleged no such disability. Defendants further argue that plaintiff has only alleged a record of temporary medical conditions which are not afforded protection under the Pennsylvania Human Relations Act.

A review of plaintiff’s amended complaint reveals that plaintiff is alleging a disability pursuant to 43 P.S. §954 (p. 1)(3) which defines a disability as being regarded as having an impairment which substantially limits one or more of such person’s major life activities. To recover under the “regarded as” theory, a plaintiff must demonstrate that the employer regarded him as being disabled, i.e., as having an impairment that substantially limited one or more of plaintiff’s major life activities. See Imler v. Hollidaysburg American Legion Ambulance Service, 731 A.2d 169 (Pa. Super. 1999), allocatur denied, 560 Pa. 706, 743 A.2d 920 (1999). The employer’s mere awareness of an employee’s impairment does not prove that the employer perceived the impairment as disabling for purposes of the Pennsylvania Human Relations Act. Id.

Plaintiff alleges in his amended complaint that because of his prior injuries and based on the statements of defendants Paul Humberston and Thomas Pisula that Green Acres regarded him as having such an impairment. He further alleges that as a result thereof, he suffered an adverse employment action by not being called back to work. Plaintiff additionally alleges that younger, less experienced, healthy individuals without a history of work-related injuries were thereafter hired by Green Acres.

After a careful review of the allegations contained in plaintiff’s amended complaint, and after accepting as true all of the well-pled facts and inferences reasonably deducible therefrom, we must overrule defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer wherein they claim that plaintiff has failed to state a cause of action under the Pennsylvania Human Relations Act due to his failure to allege a disability thereunder.

Again, a demurrer should only be sustained in cases that clearly and without doubt fail to state a claim upon which relief may be granted. County of Allegheny v. Commonwealth, 507 Pa. 360, 490 A.2d 402 (1985). Here, we believe that based on the statute, and the allegations as contained in plaintiff’s amended complaint that plaintiff has sufficiently alleged a cause of action. We note that whether or not plaintiff can prove that Green Acres regarded him as having an impairment which substantially limited one or more of his major life activities and failed to call him back to work based thereon is not the issue now before this court. Instead, the issue at this time is whether plaintiff has sufficiently alleged that Green Acres regarded him as having such an impairment and based thereon failed to call him back to work. We conclude that the allegations contained in plaintiff’s amended complaint sufficiently allege such conduct.

We will next consider defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(1) wherein they claim that this court lacks subject matter jurisdiction under the Pennsylvania Human Relations Act as to defendants Paul Humberston and Thomas Pisula because plaintiff failed to file charges against them with the Pennsylvania Human Relations Commission.

The Pennsylvania Human Relations Act pre-empts a party from bringing common-law claims based on discrimination. See Brennan v. National Telephone Directory Corp., 850 F. Supp. 331 (E.D. Pa. 1994). Under Pennsylvania law, a plaintiff must exhaust all remedies and comply with all procedural requirements under the Pennsylvania Human Relations Act prior to seeking redress in court. Clark v. Hess Trucking Company, 879 F. Supp. 524 (W.D. Pa. 1995). Underlying this procedure, which postpones a complainant’s right to seek action in the courts, is the legislative intent to use the greater expertise of administrative agencies in the area of unlawful discrimination, to promote voluntary compliance without litigation, and to give notice to the charged party. Lukus v. Westinghouse Electric Corp., 276 Pa. Super. 232, 419 A.2d 431 (1980). See also, Bailey v. Storlazzi, 729 A.2d 1206 (Pa. Super. 1999).

The failure to exhaust one’s remedies under the Pennsylvania Human Relations Act precludes the court from exercising jurisdiction over a party’s claim under the Act in subsequent litigation. Parsons v. City of Philadelphia Coordinating Office of Drug and Alcohol Abuse Programs, 833 F. Supp. 1108 (E.D. Pa. 1993).

In exhausting administrative remedies, a plaintiff is required to name all persons alleged to have committed acts of discrimination. See 43 P.S. §959. The purpose behind this rule is to alert concerned parties of the opportunity for voluntary conciliation without the animosity, expense, and publicity of litigation. Kinnally v. Bell of Pennsylvania, 748 F. Supp. 1136 (E.D. Pa. 1990). See also, Davies v. Polyscience Inc., 126 F. Supp.2d 391 (E.D. Pa. 2001). There are circumstances, however, under which a plaintiff may be permitted to sue a party not specifically named in an administrative complaint. The Third Circuit has recognized an “identity of interest” exception to the exhaustion requirement “when the unnamed party received notice and when there is a shared commonality of interest with the named party.” Schafer v. Board of Public Education, 903 F.2d 243 (3d Cir. 1990).

In Glus v. G.C. Murphy Co., 629 F.2d 248 (3d Cir. 1980), vacated on other grounds, 451 U.S. 935, 101 S.Ct. 2013, 68 L.Ed.2d 321 (1981), the court enumerated four factors that should be considered by the court in determining whether jurisdiction exists when the plaintiff has failed to exhaust his or her administrative remedies. The factors are: (1) whether the role of the unnamed party could through reasonable effort by the complainant be asserted at the time of the filing of the complaint; (2) whether, under the circumstances, the interests of a named party are so similar to the unnamed party that for purposes of obtaining voluntary conciliation and compliance, it would be unnecessary to include the unnamed party in the proceeding; (3) whether the unnamed party’s absence from the proceeding resulted in actual prejudice to the interests of the unnamed party; and (4) whether the unnamed party has in some way represented to the complainant that its relationship with the complainant is to be through the named party.

In Goodman v. Lukens Steel Co., 777 F.2d 113 (3d Cir. 1985), certiorari granted, 479 U.S. 982, 107 S.Ct. 568, 93 L.Ed.2d 573 (1986), affirmed, 482 U.S. 656, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), the Third Circuit affirmed the exception recognized in Glus. The court expláined, however, that the exception does not apply when there is no shared commonality of interest between the unnamed party and the named party and no notice to the unnamed party that they may be sued in court. See also, Schafer v. Board of Public Education, 903 F.2d 243 (3d Cir. 1990). Thus, before a court applies the exception, it must first determine if there is a shared commonality of interest and notice to the unnamed party.

Plaintiff argues that here, his failure to exhaust administrative remedies is a procedural issue and not jurisdictional. Plaintiff argues in the alternative that the exception discussed above applies because there is both a commonality of interest between the named and unnamed parties and notice to the defendants. In support of his argument that the exception applies, plaintiff, at the time of argument, claimed that Green Acres was solely owned by defendants Paul Humberston and Thomas Pisula, and that given their ownership interests, they cannot deny that they had notice that they could later be sued in court on an individual basis. Plaintiff further alleged at the time of argument that the corporation is the alter-ego of these two defendants and that their interests are identical to the interests of the corporation. The pleadings in this case, however, fail to support any of these allegations.

Based on the record and applicable law, we believe that plaintiff’s failure to exhaust administrative remedies against defendants Paul Humberston and Thomas Pisula deprives this court of jurisdiction to consider the discrimination claims contained in his amended complaint. We further believe that the exception to the rule discussed above does not apply in this case. There is nothing contained in the pleadings of this case to indicate a commonality of interest between Green Acres and defendants Paul Humberston and Thomas Pisula. Further, the pleadings are void of any indication of notice to these defendants that they could later be sued in court on an individual basis. We, therefore, find that the exception does not apply.

Based on the above reasoning, we conclude as a matter of law that this court lacks subject matter jurisdiction over the plaintiff’s discrimination claim against defendants Paul Humberston and Thomas Pisula. We, therefore, sustain defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(1) and dismiss the claims contained in plaintiff’s amended complaint against said defendants.

In sum, this court: (1) overrules defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer wherein they claim that plaintiff has failed to state a cause of action under the Pennsylvania Human Relations Act; (2) sustains defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(1) and dismisses plaintiff’s claims against defendants Paul Humberston and Thomas Pisula; and (3) sustains defendants’ preliminary objection to plaintiff’s request for punitive damages and orders the same stricken from plaintiff’s amended complaint.

ORDER

And now, November 28, 2001, upon consideration of the preliminary objections filed on behalf of defendants Green Acres Contracting Company Inc., Paul Humber-ston, and Thomas Pisula, to plaintiff’s amended complaint, and upon further consideration of applicable law, briefs and arguments of counsel, it is hereby ordered and decreed that: (1) defendants’ preliminary objection made pursuant to Pa.R.C.P. 1028(a)(4) in the nature of a demurrer wherein they claim that plaintiff has failed to state a cause of action under the Pennsylvania Human Relations Act is overruled; (2) defendants Paul Humberston and Thomas Pisula’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(1) is sustained and plaintiff’s claims against said defendants are dismissed; and (3) defendants’ preliminary objection to plaintiff’s request for punitive damages is sustained and the same is ordered stricken from plaintiff’s amended complaint.

      . At the time of argument, plaintiff’s counsel agreed that the claim for punitive damages should be stricken from the amended complaint. Because punitive damages are not available under the Pennsylvania Human Relations Act, see Hoy v. Angelone, 554 Pa. 134, 720 A.2d 745 (1998), we accordingly sustain defendants’ objection to the same and order the claim for punitive damages stricken from plaintiff’s amended complaint.

      . Because we have sustained defendants Humberston and Pisula’s preliminary objection made pursuant to Pa.R.C.P. 1028(a)(1), and have dismissed plaintiff’s discrimination claims against said defendants, we need not consider their remaining preliminary objection herein.


source: Caselaw Access Project

author: FORNELLI, P.J.,

license: Public Domain

text:
    PennDOT v. Harton

      C.P. of Mercer County,
    no. 1998-3053.

      Chester J. Karas Jr., for plaintiff.

      Jack W. Cline, for defendant.
    September 24, 2001
   FORNELLI, P.J.,

The matter for disposition is an appeal of the decision of the Department of Transportation, Bureau of Driver Licensing, to suspend the motor vehicle operating privileges, pursuant to the Driver’s License Compact, of Edward T. Hartón for a period of one year based on an alleged driving under the influence conviction from another state. The issue for appeal is whether the department may suspend operating privileges under 75 Pa.C.S. § 1532(b)(3) and 75 Pa.C.S. §1581 where the Commonwealth does not present a certification from the licensing authority of North Carolina; the documents certified by the department are insufficient; but the conviction is properly proven at the appeal hearing before this court by the defendant’s admission and not by a certified record of driver’s conviction that is reported to the department under article III of section 1581.

By notice dated June 29, 1998, the department informed Hartón:

“Section 1581 of the Vehicle Code requires the department to treat certain out-of-state convictions as though they had occurred in Pennsylvania. Therefore, as a result of the department receiving notification from North Carolina of your conviction on March 27, 1998, which is equivalent to a violation of section 3731 of the Pa. Vehicle Code, Driving Under Influence, your driving privilege is being Suspended for a period of one Year(s), as mandated by section 1532B of the Vehicle Code. The effective date of suspension is August 3, 1998, 12:01 a.m.”

Section 1581 of the Vehicle Code, 75 Pa.C.S. §1581, is the interstate legislative agreement known as the Driver’s License Compact. Article III of the compact provides the following:

“The licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee. Such report shall clearly identify the person convicted, describe the violation specifying the section of the statute, code or ordinance violated, identify the court in which action was taken, indicate whether a plea of guilty or not guilty was entered or the conviction was a result of the forfeiture of bail, bond or other security and shall include any special findings made in connection therewith.” 75 Pa.C.S. §1581.

Article IV of the compact provides that “the licensing authority in the home state, for the purposes of suspension, revocation or limitation of the license to operate a motor vehicle, shall give the same effect to the conduct reported, pursuant to article III of this compact, as if such conduct had occurred in the home state in the case of convictions for driving a motor vehicle under the influence of intoxicating liquor or a narcotic drug or under the influence of any other drug to a degree which renders the driver incapable of safely driving a motor vehicle.” 75 Pa.C.S. §1581.

Hartón made a timely appeal to this court for review of the suspension order of the department. By order dated July 22, 1998, a hearing de novo was granted to determine whether the action of the department in suspending the motor vehicle operating privileges of the petitioner should be set aside. At the hearing, the department introduced into evidence documents that contained no certification from the licensing authority of North Carolina. Furthermore, the certification of the Pennsylvania Bureau of Motor Vehicles, Department of Transportation, was a certification to a citation, which citation is not part of that exhibit. A form which did not reflect the form or nature of the determination of guilt or the disposition thereof was part of the exhibit and was uncertified to by either the Bureau of Motor Vehicles or the licensing authority of North Carolina.

This court, at the hearing, indicated that the department’s documents offered to establish Harton’s North Carolina conviction were insufficient because they were uncertified by the licensing authority of North Carolina and did not reflect the disposition of Harton’s driving while impaired violation. The department, with leave of court, then supplemented the record by calling Harton on cross-examination. Harton testified he was in fact convicted of a violation of a North Carolina statute on May 11, 1998 by reason of a plea of guilty to driving while impaired.

Harton argues the suspension of his operating privileges is improper in that the documentation of the alleged conviction relied upon by the department is deficient because the North Carolina documentation is not from the Bureau of Motor Vehicles or the licensing authority of North Carolina. Harton contends that the language of 75 Pa.C.S. §1581, article III, is mandatory and requires that the “licensing authority of a party state shall report each conviction of a person from another party state occurring within its jurisdiction to the licensing authority of the home state of the licensee,” citing Tripson v. PennDOT, 773 A.2d 195, 197 (Pa. Commw. 2001). (emphasis in original)

The department argues that article III does not impose an obligation on the department when it is the home state, and does not prohibit the department, as the licensing authority in the home state, from relying on the information contained in the report even if the report lacks certain information specified in article III, citing PennDOT v. McCafferty, 563 Pa. 146, 758 A.2d 1155 (2000). The department contends that the North Carolina report, taken together with Harton’s own testimony, sufficiently establishes that Hartón was in fact convicted of a violation of driving while impaired in North Carolina. The department based its action in this matter upon a report it received from the State of North Carolina. The North Carolina report is an abstract produced by the District Court Division of Halifax County for citation 8416607. The document indicates that Hartón was charged with an offense of “Driving While Impaired” and indicates that Hartón committed the violation on March 27, 1998. The department contends that the record contains information that indicates Hartón entered a plea of guilty to the charge and a verdict of guilty was entered against him. The document contains the date “051198” on two places, which the department contends indicates that Hartón was convicted of the offense on May 11, 1998. Consequently, it is the department’s suggestion that the focus should be on whether the department acted in accordance with applicable law in imposing the suspension, and not on whether Hartón was in fact convicted of the alleged offense in North Carolina.

In Trip son, the court held that “[d] espite arguments to the contrary, reports of convictions submitted to the department pursuant to the compact must be received from the proper licensing authority of the [convicting] state. The department may not certify that the documents are reports of convictions from other jurisdictions’ licensing authorities if the documents themselves contain no such certification from the reporting jurisdiction.” Tripson v. PennDOT, 773 A.2d 195, 197 (Pa. Commw. 2001). The court pointed out that “In two recent opinions the Pennsylvania Supreme Court has held that the requirements of article III of the compact are mandatory for a party state reporting a conviction within its jurisdiction, but they do not prohibit the home state’s licensing authority from relying upon information contained in the report even if the report lacks certain information required under article III.

“The issue in the case sub judice is different,, however, and is not whether the technical reporting requirements were met under article III or whether the documents ... themselves may be relied upon as the basis for the reciprocal suspension. Tripson argue[d] that this is more than a mere technical requirement, and the court agree[d]. The compact requires that the documents upon which the department relies to impose a reciprocal suspension come from the proper licensing authority.” Tripson v. PennDOT, 773 A.2d 195, 198 (Pa. Commw. 2001).

In McCafferty, the court held “the information that was not included in New Jersey’s report would not have provided any additional information regarding the actual conduct underlying the conviction. The report provided by New Jersey merely failed to identify the court in which action was taken and to indicate appellee’s plea and whether the conviction was the result of forfeiture of bail, bond or other security.... None of this information would have shed any light on the conduct underlying appellee’s conviction; it is the conduct underlying the conviction that triggers PennDOT’s duties under the compact.” PennDOT v. McCafferty, 563 Pa. 146, 163, 758 A.2d 1155, 1164 (2000). (emphasis in original) The court also stated, “Article III is clearly mandatory for a party state reporting a conviction within its jurisdiction. Article III therefore imposes an obligation on PennDOT only when it is the state reporting the conduct, not when it is the home state. It does not prohibit PennDOT, as the licensing authority in the home state, from relying on the information contained in the report even if the report lacks certain information specified in article III.” PennDOT v. McCafferty, 563 Pa. 146, 163, 758 A.2d 1155, 1164-65 (2000). (footnote omitted) (emphasis in original)

The decisions in the aforementioned cases confirm that article III encompasses two distinct requirements: that which pertains to the origin of out-of-state conviction reports, and that which pertains to the content of such reports. Tripson addressed the former, McCafferty the latter. Pursuant to these holdings, the appropriate origin of the conviction report is an indispensable statutory requirement, the content, however, is not. The only significant aspect in a license suspension under the compact is procedure. It is imperative that the trial court have a certified record of conviction from the licensing authority of North Carolina so that it may analyze the out-of-state conviction carefully to determine whether or not such offense is substantially similar to the Pennsylvania offense that triggers suspension of operating privileges.

The burden on the department to comply with the certification requirement of article III and section 1532 is minimal. In the case at hand, not only did the form submitted by the department fail to reflect the form and nature of the determination of guilt, or. disposition thereof, it failed to reference a statute or code section violated, and failed to indicate whether the conviction was a result of the forfeiture of bail, bond or other security. But most significantly, the form submitted was not certified by the licensing authority of North Carolina. It was not even received from the licensing authority of North Carolina. Absent such, under the holding in Tripson, the department has no legal basis upon which to sustain the suspension of Harton’s driving privileges in Pennsylvania.

It is the contention of the department that this appeal is distinguishable from Tripson because without the document that was ruled inadmissible by the Tripson court, the Department of Transportation was unable to meet its prima facie burden of establishing that the motorist was convicted of a DUI offense in another state. In the present appeal, the department established this through Harton’s testimony on cross-examination. Furthermore, the department contends it should have no duty or burden to prove it actually received an out-of-state conviction report from the licensing authority of the convicting state. The focus, it argues, is upon the conduct of the motorist and whether that conduct would lead to a reciprocal license suspension in Pennsylvania. A careful review of the document creates the presumption that Harton was convicted of driving while intoxicated after entering a plea of guilty to the charge. Consequently, the department argues, a motorist cannot hide behind the cloak of a technicality where he does not dispute that he was convicted of the prohibited conduct and where the department can reasonably establish that it received a report of conviction from the state in which the violation occurred.

This argument is unpersuasive. Although McCafferty held that the content requirements of article III may be disposed of, it does not mention nor hold that the reporting and certification requirement are similarly dispensable. The department asks this court to ignore the language of article III and section 1532 by permitting the department to base its case in chief on documentation that does not abide with statutory requirements. Had the department introduced a certified report of conviction from the licensing authority of North Carolina, the remaining defects in the content of the report may not have been fatal to the department’s case under the McCafferty decision. The content of the report is beyond the direct control of the department and much more difficult to ensure absolute compliance. As such, the lack of relevant information should not prohibit the department, as the home or licensing state, from acting upon the remaining relevant information in the certified report of conviction. Nonetheless, a prerequisite to the commencement of reciprocal license suspension proceedings is the receipt of properly certified documentation from the proper out-of-state authority. Absent such, the department is without legal basis to proceed.

This certification requirement is not derived solely from article III. The language of section 1532 of the Vehicle Code requires certification, and the language of article III requires that the report originate from the licensing authority of the convicting state. Even if it was accepted that the article III requirement regarding certification was deemed to be dispensable under McCafferty, the language of section 1532 still requires a “certified record of conviction of section 3731 or a substantially similar offense reported to the department under article III of section 1581.”

The department has failed to comply with the statutory requirements of the Vehicle Code and the Driver’s License Compact and has thus failed to sustain its burden of proof.

Hence, this order.

ORDER

And now, September 24, 2001, it is hereby ordered that the appeal of Edward T. Hartón is sustained and the suspension voided.

      . 75 Pa.C.S. §1532(b)(3): “The department shall suspend the operating privilege of any driver for 12 months upon receiving a certified record of the driver’s conviction of section 3731 (relating to driving under the influence of alcohol or controlled substance) , or substantially similar offenses reported to the department under article III of section 1581 (relating to Driver’s License Compact)....”

      . The case was then continued generally pending the outcome of two cases before the Pennsylvania Supreme Court: Mazurek v. PennDOT, 717 A.2d 23 (Pa. Commw. 1998); Hook v. PennDOT, 718 A.2d 381 (Pa. Commw. 1998). A subsequent hearing on this matter was held before the court on June 1, 2001.

      . The court has stated that the two offenses appear to be substantially similar. Hartón does not admit the same.

      . Driving While Impaired is a violation of North Carolina General Statute 20-137.8, and involves operating a vehicle while under the influence of an impairing substance.

      . Tripson v. PennDOT, 773 A.2d 195, 198 n.4 (Pa. Commw. 2001), citing Harrington v. PennDOT, 563 Pa. 565, 763 A.2d 386 (2000); PennDOT v. McCafferty, 563 Pa. 146, 748 A.2d 1155 (2000).

      . The form submitted by the department failed to reflect the form and nature of the determination of guilt, or disposition thereof; failed to reference a statute or code section violated; and failed to indicate whether the conviction was a result of forfeiture of bail, bond or other security.

      . 75 Pa.C.S. §1584 which was amended subsequent to these proceedings now states in relevant part: “The Department of Transportation of the Commonwealth shall furnish to the appropriate authorities of any other party state any information or documents reasonably necessary to facilitate the administration of articles III, IV and V of the compact. The omission from any report received by the department from a party state of any information required by article III of the compact shall not excuse or prevent the department from complying with its duties under articles IV and V of the compact.”

      . 75 Pa.C.S. §1532(b)(3).

      . 75 Pa.C.S. §1532.

      . 75 Pa.C.S. §1581.


author: KUHN, J.,

text:
    Collins v. Gettysburg Hospital

      C.P. of Adams County,
    no. 95-S-507.

      Joseph L. Messa Jr., for plaintiff.

      Evan Black, for defendant Gettysburg Hospital.

      Michael M. Badowski, for defendant Shah.
    August 27, 2001
   KUHN, J.,

Before this court is a motion for summary judgment filed by Gettysburg Hospital. Based upon the following analysis, the court grants the motion.

This litigation followed the untimely death of Johanna Collins on July 22, 1993, of complications from hepatitis B. The action commenced June 5, 1995. Eventually, an amended complaint was filed on October 30, 1996, which set forth a claim for wrongful death (Count I) and a survival action (Count II) against all defendants, a claim for vicarious liability/agency (Count III) and corporate liability (Count IV) against Gettysburg Hospital, and a claim of negligence (Count V) against Satish A. Shah M.D.

Our Superior Court has recently set forth the standard for summary judgment as follows:

“Initially, we note that our standard for reviewing a grant of summary judgment is well settled.
“[Sjummary judgment is properly entered where the pleadings, depositions, answers to interrogatories, and admissions, together with affidavits demonstrate that no genuine, triable issue of fact exists and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035(b);.... The court must examine the record in the light most favorable to the non-moving party and resolve all doubts against the moving party. . . . Moreover, the burden is on the moving party to prove that no genuine issue of material fact exists. Accu-Weather v. Prospect Communications, supra (citing Overly v. Kass, 382 Pa. Super. 108, 111, 554 A.2d 970, 972 (1989))....” Long v. Yingling, 700 A.2d 508, 512 (Pa. Super. 1997), alloc. denied, 555 Pa. 731, 725 A.2d 182 (1998). (citations omitted)

Viewing the record in a light most favorable to plaintiff, the following background is relevant. Decedent Johanna Collins was bom March 14, 1955. On June 4, 1992, at age 37, she had a mammogram, which revealed a mass on her left breast not seen in a 1987 study. There was a family history of breast cancer. A biopsy performed by Dr. Frederick Lorenzo on December 22, 1992, indicated intraductal carcinoma. Lab tests done on decedent six days prior to the biopsy revealed no indication of the presence of hepatitis B. On three occasions in early 1993 (January 25, February 2, February 7) decedent donated blood for use during surgery for a radical left mastectomy to be performed at Georgetown University Hospital by Dr. Marie Pennanen on February 22, 1993. Each unit tested negative for hepatitis B. Two units of that blood were ultimately used during the surgery.

On or about March 26, 1993, decedent referred herself to Dr. Shah and came under his care for chemotherapy treatment. He recommended Cytoxan, Adriamycin, and 5FU (CAF) chemotherapy. On April 3, 1993, decedent had normal liver function studies done which indicated the absence of hepatitis. On April 7, 1993, Dr. Henry Maxwell inserted a Groshong port into decedent at the Gettysburg Hospital. The port was to be used for administering chemotherapy. In preparation for this procedure, there was some preoperative blood work done which revealed that decedent’s liver enzymes were normal. Chemotherapy treatments were administered at Dr. Shah’s office on April 12, May 3, May 24 and June 14.

On April 19, 1993, decedent complained to Dr. Shah of nausea, mild fever and chills. She was advised that she could be suffering from the flu or reacting to the chemotherapy. On June 14, decedent complained to Dr. Shah of achiness, tiredness, cough, and dry mucus membranes. A liver profile was performed and the results were received by Dr. Shah two days later. The profile revealed elevated liver functions, specifically elevated levels of aminotransferases to greater than 10 times the normal values. Nevertheless, on June 18, Dr. Shah wrote to Dr. Lorenzo that “Overall, the patient is doing very well....” He failed to mention decedent’s symptoms or the abnormal liver blood tests. On June 22, Dr. Shah gave decedent Neupogen. On June 23, decedent was complaining to Dr. Shah of lethargy, congestion, sneezing and tightness in her chest and throat. The following day, she returned to Dr. Shah with the same complaints.

On June 24, 1993, Dr. Shah admitted decedent to the Gettysburg Hospital. A CT scan revealed no evidence of metastatic disease to her liver. Dr. Shah requested Dr. Rajesh Bajaj to see decedent as a gastroenterology and hepatology consultant. Dr. Bajaj first saw decedent on June 25, and the following day he diagnosed her with acute hepatitis B. She remained in the hospital until June 28, when she was discharged by either Dr. Shah, Dr. Bajaj, or both of them.

On June 30, 1993, decedent appeared at the Gettysburg Hospital emergency room confused, disoriented, incoherent and jaundiced. The following day she was transferred to Georgetown University Hospital where she was diagnosed with fulmite hepatic failure and gastrointestinal bleeding secondary to acute hepatitis B. It was determined that she needed a liver transplant.

On July 6, 1993, decedent was transferred to University of Pittsburgh Presbyterian Hospital in critical condition because of hepatic failure and hepatic coma. A liver biopsy revealed submassive necrosis of the liver. She died 17 days later before a transplant could be accomplished. The cause of death was massive hepatic necrosis complicated by acute hemorrhagic pancreatitis, renal failure and sepsis from acute hepatitis B.

Plaintiff has produced the report of several experts. Briefly, these reports are as follows:

(1) Dr. Donna Glover issued a seven-page report dated August 3, 1998. She indicated that hepatitis B virus (HBV) is usually observed 29-43 days after parenteral exposure and 67-82 days after oral exposure. She also noted that “immunosuppressive therapy may increase the risk of hepatitis, enhance the development of the carrier state, and reactivate HBV infections in asymptomatic chronic carriers.” She opines that by June 14, 1993, when decedent was taking longer to recover and with abnormal liver function studies that Dr. Shah should have realized decedent was experiencing severe toxicity from chemotherapy and that she would require Neupogen. Dr. Glover contends that Dr. Shah’s delay in providing decedent with Neupogen until June 22 “was a deviation in standard medical practice” and caused decedent “to have severe immunosuppression and neutropenia which allowed her hepatitis progress [sic] to liver failure.”

Dr. Glover also reported that on June 25, 1993, Dr. Shah gave decedent Tylenol for liver pain. This, according to Dr. Glover, “was a deviation in standard medical practice” because Tylenol is toxic to the liver. Furthermore, because of decedent’s worsening liver functions, Dr. Glover believes that she should not have been discharged from Gettysburg Hospital on June 28, 1993.

(2) Dr. Santiago J. Munoz, head of the division of hepatology and medical director of the liver transplant program at the Albert Einstein Medical Center in Philadelphia, Pennsylvania, issued a three-page report dated September 29, 1998, and supplemented February 6, 2001. He initially stated that “Exposure to this hepatitis virus (HBV) must have occurred within three months preceding the beginning of Mrs. Collins’ symptoms. Exposure to HBV prior to April of 1993 would be considered very unlikely to result in acute hepatitis B in June of 1993, since the incubation period of hepatitis B rarely exceeds three months. Furthermore, Mrs. Collins tested negative for the hepatitis B surface antigen in January of 1993.” Subsequently, he clarified the incubation period to be between 30 and 180 days with the “vast majority” being in the 30 to 90 day range. Because decedent was being treated with immunosuppressant drugs, it was “likely” that the incubation period for her was shorter. He opined that because decedent had no other risk factors for the acquisition of HBV other than the intravenous chemotherapy injections in Dr. Shah’s office and the insertion of the port at the Gettysburg Hospital during the incubation period that these “constitute the most likely sources” of decedent’s hepatitis infection.

In addition, Dr. Munoz opined that the delay in diagnosis of decedent’s hepatitis by Dr. Shah, especially in consideration of the elevated liver blood tests in a patient undergoing chemotherapy was not “consistent with standard medical practice.” He also concluded that discharging decedent from the hospital on June 28 in light of her condition was “very inappropriate.” He concluded that, “the delay in diagnosis and the lack of awareness of the potentially fatal prognosis of acute hepatitis B in the setting of chemotherapy contributed to diminish the chances of survival of this patient.”

(3) Dr. Bonnie Ashby, a clinical assistant professor of medicine at Thomas Jefferson University and infectious disease specialist, issued general opinions on September 30,1998, in response to interrogatories and supplemented those opinions with a more detailed report dated April 27, 2000.

Dr. Ashby’s initial report simply stated as follows:

“The following medical opinions are held to a reasonable degree of medical certainty.
“Johanna Collins was not a chronic carrier of hepatitis B.
“Johanna Collins’ hepatitis B infection was acute.
“Johanna Collins’ chemo-therapeutic treatments predisposed her to the onset of fulminant liver failure.
“Johanna Collins’ hepatitis infection was acquired through the placement of the mediport catheter or the administration of the chemotherapy.
“There was a delay in the diagnosis and treatment of Johanna Collins’ hepatitis.
“The delay in the diagnosis and treatment of Johanna Collins’ hepatitis lessened her chances for survival.”

In her April 2000 report she opined that decedent’s death “due to hepatitis B was the direct result of deviations in the standard of medical care in the medical care given to her at some time between her breast biopsy in late 1992 and the spring of 1993, both at Gettysburg Hospital and the office of Dr. Shah.” She noted that hepatitis B can be transmitted through a very small amount of contaminated fluid, a minor contamination of a needle, a medication, or a surgical instrument, and that possible sources include multidose medical vials, injections, and contact by technicians and medical personnel. She further stated that “this type of infection due to medical treatment does not occur in the absence of deviation from the standard care.”

As noted above, Count III of the amended complaint alleges that Gettysburg Hospital is vicariously liable for the negligence of its “agents (actual, apparent, ostensible) including but limited to, its physicians, residents, interns, nurses, and other allied support medical services personnel .. . The only agent expressly identified was Dr. Shah. Specifically, paragraph 42 avers that the hospital’s agents were negligent for:

(a) Failing to use sterile procedures, thereby exposing Johanna Collins to the hepatitis B infection;

(b) Failing to properly train and supervise personnel under its control in the proper procedure for sterilization and control of infectious disease;

(c) Failing to implement and/or enforce hospital protocols, policies, and standard procedures regarding the prevention of transmission of infectious disease and proper methods of sterilization;

(d) Failing to properly and timely diagnose and treat plaintiff’s decedent, Johanna Collins;

(e) Failing to timely take diagnostic tests of Johanna Collins, which were indicated due to the signs and symptoms with which she presented to the hospital;

(f) Improperly discharging Johanna Collins on June 28, 1993, when defendant knew or should have known of the infectious process, which ultimately led to her death;

(g) Disregarding hospital protocols, policies, and standard procedures regarding proper methods and practices to be utilized in the care of a patient diagnosed with hepatitis B.

The main thrust of the motion for summary judgment as it relates to Count III is the hospital’s contention that plaintiff has not established that any of the hospital’s agents are hable for the harm caused decedent. Gettysburg Hospital acknowledges that general agency principles apply to hospitals and physicians. Simmons v. St. Clair

Memorial Hospital, 332 Pa. Super. 444, 450, 481 A.2d 870, 873 (1984), but also points out that plaintiff has the burden of proving the existence of an agency relationship between the hospital and an agent. Scott v. Purcell, 490 Pa. 109, 117 n.8, 415 A.2d 56, 60 n.8 (1980). In order to establish actual agency between a physician and a hospital, it must be shown that the hospital controlled or had the right to control the physical conduct of the physician in the performance of his work. Simmons v. St. Clair Memorial Hospital, supra, 332 Pa. Super. at 452, 481 A.2d at 874. There is no evidence in the record of any actual agency between the hospital and anyone directly related to decedent’s care at the hospital during the relevant time period. The only persons specifically identified in the record before the court as having medical involvement with decedent while at Gettysburg Hospital are Dr. Lorenzo in December 1992, Dr. Maxwell in April 1993, and Drs. Shah and Bajaj in June 1993. Based upon plaintiff’s position that the hepatitis incubation period would not exceed three months, it does not appear that plaintiff is even remotely suggesting that acts of Dr. Lorenzo in any manner bind the hospital in this case. There is nothing in the record presently that indicates that the other identified physicians were anything except independent physicians with hospital privileges. Indeed, plaintiff appears to be relying upon the concept of an ostensible agency. The theory of ostensible agency was first adopted in Pennsylvania in Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1980). Normally, an employer is not liable for the torts committed by an independent contractor in his employ. Ostensible agency is based upon section 429 of the Restatement (Second) of Torts, which provides:

“One who employs an independent contractor to perform services for another which are accepted in the reasonable belief that the services are being rendered by the employer or by his servants, is subject to liability for physical harm caused by the negligence of the contractor in supplying such services, to the same extent as though the employer were supplying them himself or by his servants.”

Thus, a physician who holds independent contractor status with a hospital may, nevertheless, be considered an agent of the hospital with respect to a patient. Simmons, supra, 332 Pa. Super. at 452, 481 A.2d at 873. Two factors relevant to a finding of ostensible agency in a particular case are (1) whether the patient looks to the institution rather than the individual physician for care, and (2) whether the hospital “holds out” the physician as its employee. The second factor is met when the hospital acts or omits to act in some way which leads the patient to a reasonable belief he is being treated by the hospital or one of its employees. Capan, supra, 287 Pa. Super. at 368, 430 A.2d at 649.

In Capan the decedent appeared at the hospital’s emergency room because of a severe nosebleed. After being admitted, he developed delirium tremens and became violent. Several days later, when decedent again became violent in his room, the nursing staff summoned Dr. Pollice who was on call to cover emergencies. The doctor administered medication to calm the decedent who later that evening experienced cardiac arrest and died. An issue in the case was whether Dr. Pollice was an employee of the hospital when he treated the decedent. The Superior Court stated that a jury could have reasonably determined both factors to be present; specifically that Dr. Pollice was treating the decedent as “house physician” rather than as his personal physician and that the hospital held Dr. Pollice out as its employee.

Here, Gettysburg Hospital argues that decedent commenced her involvement with Dr. Shah at his office and as her personal physician. While that certainly may be true, our examination of the hospital’s liability is not limited to whether Dr. Shah is an agent of the hospital. Instead, based upon the allegations of negligence set forth in paragraph 42, we must also determine whether Dr. Maxwell was an employee or agent of the hospital when the Groshong port was inserted into decedent and whether Dr. Bajaj was an employee or agent of the hospital when examining and discharging decedent from the hospital. We have been presented with no information other than the bare allegations mentioned in this opinion about the involvement of Drs. Maxwell and Bajaj.

When responding to a motion for summary judgment Pa.R.C.P. 1035.3 provides, in pertinent part, that

“(a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response ... identifying
“(1) one or more issues of fact arising from evidence in the record controverting evidence cited in support of the motion ..., or
“(2) evidence in the record establishing the facts essential to the cause of action ... which the motion cites as not having been produced.”

We have carefully examined plaintiff’s responses to the motion for summary judgment and frankly can find no evidence or factual issue supporting plaintiff’s position that Drs. Shah, Maxwell or Bajaj were agents of the hospital.

Plaintiff argues that the expert reports clearly identify the insertion of the Groshong port at Gettysburg Hospital as one of two most likely sources for decedent’s hepatitis and that hepatitis is not contracted in a medical setting in the absence of negligence. Plaintiff also argues that Drs. Shah and Bajaj provided services to decedent while she was in the hospital. These arguments, however, miss the mark. The issue before the court respecting Count III is not whether there is sufficient evidence of negligence but whether there is evidence of agency. We do not believe that Capan was intended to be read as supporting the proposition that if a physician sees a patient in a hospital setting that no further evidence is necessary to establish ostensible agency. We believe more is required but that the record available to the court does not provide more.

Accordingly, we are compelled to grant the hospital’s motion for summary judgment as to Count ni.

Count IV of the amended complaint alleges corporate liability on the part of Gettysburg Hospital. Specifically, plaintiff avers that the hospital breached its nondelegable duty to decedent to render reasonable, competent, proper, adequate and appropriate medical and diagnostic care, advice, services and treatment (para. 47); to use reasonable care in the maintenance of safe and adequate facilities (para. 48); to select and retain only competent physicians (para. 49); to oversee all persons practicing medicine in the hospital (para. 50); and to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients (para. 51).

A cause of action for corporate liability with respect to hospitals was first adopted in Pennsylvania in Thomp son v. Nason Hospital, 527 Pa. 330, 591 A.2d 703 (1991). Therein, the court stated,

“Corporate negligence is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital. This theory of liability creates a nondelegable duty which the hospital owes directly to a patient. Therefore, an injured party does not have to rely on and establish the negligence of a third party.
“The hospital’s duties have been classified into four general areas: (1) a duty to use reasonable care in the maintenance of safe and adequate facilities and equipment ...; (2) a duty to select and retain only competent physicians . . . ; (3) a duty to oversee all persons who practice medicine within its walls as to patient care ...; and (4) a duty to formulate, adopt and enforce adequate rules and policies to ensure quality care for patients ....” 527 Pa. at 339-40, 591 A.2d at 707. (citations omitted)

In addition, the Supreme Court made it clear that for a hospital to be liable under a theory of corporate negligence it must be shown that “the hospital had actual or constructive knowledge of the defect or procedures which created the harm” and that “the hospital’s negligence must have been a substantial factor in bringing about the harm to the injured party.” 527 Pa. at 341, 591 A.2d at 708.

Gettysburg Hospital’s motion for summary judgment contends that plaintiff has failed to establish, through expert evidence, that the hospital violated any of the four nondelegable duties. Based upon the record, we are compelled to agree.

Before discussing the record, we consider it worthwhile to examine several principles which have developed in the case law since Thompson. In Edwards v. Brandywine Hospital, 438 Pa. Super. 673, 652 A.2d 1382 (1995) the Superior Court noted that hospital corporate liability does not impose strict liability and is not triggered every time some harm comes to a patient in a hospital setting. Also, more must be shown than the negligent act of a person for whom the hospital is responsible. It is the breach of the corporate duty that is at issue and not whether its agent or employee erred. Instead, the hospital’s negligence is “measured against what a reasonable hospital under similar circumstances should have done.” 438 Pa. Super. at 683, 652 A.2d at 1386.

In Edwards a heparin lock was installed into the patient’s hand as a point to introduce multiple intravenous fluids. The lock remained unchanged for three to four days. After being discharged, the patient complained of a red spot where the lock had been inserted. An emergency room doctor took a specimen from the area and reported the lab results of a staph infection in the patient’s chart. Later, the patient complained of leg pains. A second test also revealed the staph infection. Treatment continued for over two years. The patient raised numerous claims of corporate negligence. The claims that the ER doctor should have put him on intravenous antibiotics immediately, that a physician failed to notice the results of the lab test in his chart, and that he was discharged prematurely were rejected because, at most, they alleged individual physician negligence, without evidence that the hospital knew of the alleged mistakes or that a reasonable hospital would have intercepted and corrected them. The claim that the hospital’s policy requiring catheters to be removed within 72 hours did address an issue of corporate negligence because it focused on the hospital’s duty to adopt proper policies. The Superior Court illustrated the difference between individual and corporate negligence by stating,

“If Mr. Edwards’ nurse should have known to change the heparin lock site after 48 hours but failed to, then Mr. Edwards could sue the hospital for this individual’s negligent act under respondeat superior. If the hospital itself (through its official committee on infection control) adopts a substandard rule for changing intravenous catheter sites, then it may be liable in its corporate capacity. A nurse following hospital rules cannot be faulted, but the hospital can if it knew or should have known that [the] catheter rule was inadequate.” 438 Pa. Super. at 685-86, 652 A.2d at 1387.

Likewise, in Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997) our Supreme Court wrote that,

“ ‘Because the duty to uphold the proper standard of care runs directly from the hospital to the patient, an injured party need not rely on the negligence of a third-party, such as a doctor or nurse, to establish a cause of action in corporate negligence.’... Instead, corporate negligence is based on the negligent acts of the institution. ... A cause of action for corporate negligence arises from the policies, actions or inaction of the institution itself rather than the specific acts of individual hospital employees.” 548 Pa. at 513, 698 A.2d at 585. (citations omitted)

Where the hospital’s negligence is not obvious the plaintiff must present expert testimony that the hospital’s conduct deviated from the accepted standard of care and that the deviation was a substantial factor in causing the harm. In Welsh, Bobbi Jo Welsh was under the prenatal care of Dr. Bulger who had obstetrical, but not surgical, privileges at Nason Hospital. While undergoing premature delivery, complications arose with the child. Dr. Bulger vaginally delivered the child. Expert reports suggested that patterns on the fetal monitoring readout indicated that the umbilical cord had become compressed and the fetus was not receiving sufficient blood flow. Immediate surgical delivery should have been performed. Several claims of corporate negligence were considered viable. First, the expert opinion that the nurses should have known there was a problem with the delivery and notified the hospital of the need for surgery was sufficient to support a prima facie claim of corporate negligence for the hospital’s failure to oversee all persons (i.e. Dr. Bulger) who practice medicine within its walls. Second, the expert opinion that the hospital breached the standard of care by not having a qualified surgeon available during Dr. Bulger’s deliveries was also sufficient to support a prima facie claim of corporate negligence for breaching its duty to select and retain only competent physicians and its duty to formulate policies to ensure quality care.

A cause of action for hospital corporate negligence must be supported by expert testimony that the hospital deviated from the accepted standard of care and that the deviation was a substantial factor in causing the plaintiff’s injuries, unless there is an obvious causal connection between the alleged negligent act and the injury. Welsh v. Bulger, supra, 548 Pa. at 513-14, 698 A.2d at 585; Matthews v. Clarion Hospital, 742 A2d 1111, 1112 (Pa. Super. 1999). In the matter sub judice, we believe that expert testimony is required in order to establish a hospital’s duty with regard to protecting patients from contracting hepatitis and with regard to when and under what circumstances a patient should be discharged. The manner in which hepatitis can be contracted, the steps necessary to prevent the infection, and considerations associated with the discharge of a hospital patient are not matters of common knowledge. Whether plaintiff’s decedent’s infection and death resulted from a deviation in the standard of care is not obvious. Plaintiff has submitted the reports of three medical experts to support his claim of corporate negligence.

A close reading of Dr. Munoz’ report indicates that, based upon a three-month incubation period, it is “very unlikely” for decedent to have contracted hepatitis before April 1993 and that thereafter the “most likely sources” of the contamination included the insertion of the port and the chemotherapy injections. He further opined that the delay in performing “relevant serologic and biochemical investigations” after the June 14 liver profile was so elevated that it “cannot be considered consistent with standard medical practice.” Finally, he criticized Drs. Shah and Bajaj for discharging decedent on June 28 based upon her condition at that time.

When examining Dr. Munoz’ report in light of the Thompson criteria, we find that he, in no manner, implicated the hospital in respect to its corporate duties. Specifically, he offers no opinion on how the hospital failed to maintain safe facilities, that it selected or retained incompetent physicians, that it failed to oversee persons who practiced within its walls or, that it failed to adopt and enforce proper policies. He failed to opine what a reasonable hospital would have done that Gettysburg Hospital failed to do. The mere assertion that an infection was acquired is not sufficient because there could be numerous sources from which the patient could contract hepatitis in the hospital beyond the scope of the corporate duties to the patient. Errors in diagnosis and post-diagnosis without demonstrating corporate involvement or corporate indifference is likewise insufficient. At most, Dr. Munoz points to the individual negligence of Drs. Maxwell, Shah and Bajaj rather than to a breach of the corporate duties to decedent. This type of evidence misses the mark for corporate negligence.

The report of Dr. Glover is likewise insufficient to establish a prima facie case for corporate negligence. She opined that there was a deviation in standard medical practice (1) when Dr. Shah delayed in giving decedent Neupogen several days prior to her hospital admission; (2) when Dr. Shah gave decedent Tylenol while she was in the hospital; and (3) when decedent was discharged from the hospital on June 28 with worsening liver functions. The first and second deviations clearly are addressed to Dr. Shah’s individual conduct and Dr. Glover makes no mention that the hospital acted negligently regarding those issues. Regarding the third deviation, although Dr. Glover does not expressly state who was responsible for the discharge, we know from other sources in the record that Drs. Shah and Bajaj were responsible for that decision. Significantly, Dr. Glover does not mention that the hospital failed to properly oversee the discharge, that it had inadequate discharge procedures, or that procedures were not knowingly followed.

Finally, the reports of Dr. Ashby are no more enlightening. The only hints of Gettysburg Hospital in her reports are the following references: (1) decedent’s hepatitis “was acquired through the placement of the mediport catheter or the administration of chemotherapy;” (2) “This type of infection due to medical treatment does not occur in the absence of deviation from the standard of care. It is therefore my opinion, to a reasonable der gree of medical certainty, that [decedent’s hepatitis] was the result of deviations in her care and treatment by the medical care she received in and around treatment for her breast cancer, both at Gettysburg Hospital and/or Dr. Shah’s office and/or their employees;” (3) during the hepatitis incubation period “the only thing that occurred which that [sic] could have caused her hepatitis B infection where [sic] insertion of the Groshong port at Gettysburg Hospital and chemotherapy treatments with Dr. Shah;” and (4) “It is further my opinion that the hospital personnel and Dr. Shah and his office deviated from accepted standards of medical care in failing to take appropriate steps to prevent this infection.” As with the other reports, Dr. Ashby did not indicate what corporate duty the hospital breached nor can we decipher one from her reports. She did not indicate the standard of care applicable to a hospital, that any policies were inappropriate, nor that Gettysburg Hospital had actual or constructive knowledge that any of its policies were being violated.

Before concluding this discussion, we feel compelled to discuss whether the doctrine of res ipsa loquitur keeps the door to trial open for plaintiff on Count IV as it relates to whether Gettysburg Hospital is liable to plaintiff because its negligence resulted in decedent contracting the hepatitis infection.

The doctrine of res ipsa loquitur was first adopted in Pennsylvania in Gil1bert v. Korvette’s Inc., 457 Pa. 602, 327 A.2d 94 (1974) and applied to medical malpractice cases in Jones v. Harrisburg Polyclinic Hospital, 496 Pa. 465, 437 A.2d 1134 (1981). The doctrine is defined in section 328(D) of the Restatement (Second) of Torts and states that,

“(1) It may be inferred that the harm suffered by the plaintiff is caused by the negligence of the defendant when
“(a) the event is of a kind which ordinarily does not occur in the absence of negligence;
“(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and
“(c) the indicated negligence is within the scope of the defendant’s duty to the plaintiff.
“(2) It is the function of the court to determine whether the inference may reasonably be drawn by the jury, or whether it must necessarily be drawn.
“(3) It is the function of the jury to determine whether the inference is to be drawn in any case where different conclusions may reasonably be reached.”

One must be cautious, however, in applying the doctrine for it “is neither a rule of procedure nor one of substantive tort law. ... it [is] only a shorthand expression for circumstantial proof of negligence — a rule of evidence.” Jones, 496 Pa. at 471, 437 A.2d at 1136. In a medical malpractice case, expert testimony will be required to establish the three criteria set forth in section 328(D), except in those limited circumstances where the information is obvious even to non-medically trained persons. Hightower-Warren v. Silk, 548 Pa. 459, 698 A.2d 52 (1997); Brophy v. Brizuela, 358 Pa. Super. 400, 517 A.2d 1293 (1986). Again, we refer to the reports of Drs. Munoz, Glover and Ashby. As to the first criteria, only Dr. Ashby (in her April 27, 2000 report) states that “This type of infection due to medical treatment does not occur in the absence of deviation from the standard of care.” Thus, if the virus was transmitted in a medical setting, it had to have been as the result of negligence. For the sake of this discussion, we are satisfied from a careful reading of all of plaintiff’s expert reports that the second and third elements can be satisfied.

The problem one faces in applying res ipsa loquitur in this case is, as noted above, that Dr. Ashby fails to indicate who is negligent in that hospital setting (i.e. agents or employees of the hospital or an independent physician) or whether that negligence implicates any of the nondelegable duties owed by a hospital to its patients. Without that connection it would be improper to allow this case to proceed just because plaintiff’s expert states one does not contract hepatitis in a hospital setting absent negligence. It is quite possible for hepatitis to be transmitted by persons whose activities do not fall within the reach of corporate liability.

Plaintiff contends he can overcome this problem pursuant to the “alternate liability theory” founded upon section 433(B)(3) of the Restatement (Second) of Torts and adopted in Pennsylvania by Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970) and Sommers v. Hessler, 227 Pa. Super. 41, 323 A.2d 17 (1974). Section 433B provides, in pertinent part,

“Burden of proof
“(1) Except as stated in subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. ...
“(3) Where the conduct of two or more actors is tor-tious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each actor to prove that he had not caused the harm.”

As a matter of law, we do not believe this theory is applicable to the matter sub judice. As observed in Mellon v. Barre-National Drug Co., 431 Pa. Super. 175, 182, 636 A.2d 187, 190 (1993):

“This theory of liability was adopted in Pennsylvania by Snoparsky v. Baer, 439 Pa. 140, 266 A.2d 707 (1970), and Sommers v. Hessler, 227 Pa. Super. 41, 323 A.2d 17 (1974). Each of these cases and others where this theory has been applied, have determined that it can only be a basis for liability where there is a showing that there was group negligence on the part of several defendants but where it could not be established which of those defendants was personally responsible for the injuries incurred.

Thus, the key element is group negligence. We refer to comment g to section 433(B) which states that subsection (3)

“[H]as no application to cases of alternative liability, where there is no proof that the conduct of more than one actor has been tortious at all. In such a case the plaintiff has the burden of proof as to the tortious conduct and as to the causal relationship.” Pennfield Corp. v. Meadow Valley Electric Inc., 413 Pa. Super. 187, 194-95, 604 A.2d 1082, 1086 (1992). (emphasis omitted)

Several cases are illustrative of the threshold that must be established for a case to proceed under the alternate liability theory and for the causation burden to shift to the defendants. In the leading case of Summers v. Tice, 33 Cal. 2d 80, 199 P.2d 1 (1948), the theory was applicable where two hunters simultaneously shot at a quail and the plaintiff was struck in the eye by a single pellet from one of the guns. The plaintiff was allowed to amend the complaint to avoid dismissal in Snoparsky v. Baer, supra, where the minor plaintiff was struck in the eye by a stone at a time when seven or eight boys were throwing stones in her direction. In Sommers v. Hessler, supra, plaintiff was injured in the eye by a “spit-ball” thrown by one of several minor passengers on a bus. The court stated,

“Furthermore, it is undisputed that the minor plaintiff suffered injury as a result of being struck by one of the ‘spit balls.’ While the [plaintiff] could not pinpoint which of the boys caused the actual injury, this does not absolve the student additional defendants of liability. It was foreseeable that from their combined acts someone might get injured. The burden of identifying the boy who caused the injury should not be on the bus company but should be ‘upon each actor to prove that he has not caused the harm.’ ... If the defendants are unable to identify the one causing the harm, they are all liable as joint tort-feasors. Restatement (Second) of Torts §433B.” 227 Pa. Super. at 46, 323 A.2d at 19. (citation omitted)

The more recent cases of Pennfield Corp. v. Meadow Valley Electric Inc., supra, and Mellon v. Barre-National Drug Co., supra, illustrate situations where the threshold for the alternate theory was not satisfied. In Pennfield, swine owned by Pennfield were suffocated when an electrically operated ventilation system failed. Pennfield sued Meadow Valley, which repaired and maintained the electrical system. Meadow Valley joined Tri-State Electric and YESCO, one of whom supplied defective electrical cable. Tri-State filed preliminary objections in the nature of a demurrer, which were sustained. The Superior Court stated,

“[Meadow Valley] would have us believe that under subsection (3), because it cannot prove that either YESCO or Tri-State harmed it, the burden is on YESCO or Tri-State to prove that they were not the tort-feasor. This is a mischaracterization of the law. The predicate for applying subsection (3) is that ‘the conduct of two or more actors is tortious.’ Restatement (Second) of Torts §433(B)(3), supra. Subsection (3) is based on the rationale that ‘injustice [lies in] permitting proved wrongdoers, who among them have inflected an injury upon the entirely innocent plaintiff, to escape liability merely because the nature of their conduct and the resulting harm has made it difficult or impossible to prove which of them has caused the harm.’ Restatement (Second) of Torts, §433B(3), comment f. Here, [Meadow Valley] has not alleged that the conduct of two or more actors is tor-tious. Rather, [Meadow Valley] asserts one actor may be tortious while admitting the other actor may not be tor-tious. It is quite obvious from the rule and the rationale that the burden of proof remains on [Meadow Valley] and subsection (3), supra, does not apply.” 413 Pa. Super. at 194, 604 A.2d at 1085. (footnote omitted)

Finally, in Mellon, supra, the plaintiff sued several defendants which the plaintiff claimed included all known manufacturers of syrup of ipecac, which contains erne-tine, a toxin that allegedly caused the death of the minor-decedent. Plaintiff could not identify which defendant manufactured the ipecac actually digested by the decedent. The Superior Court held that a theory of liability based upon section 433B(3) does not apply in this situation.

In the matter sub judice, we are not faced with group negligence all directed toward decedent. Plaintiff’s expert, Dr. Ashby, opined that the “hepatitis infection was acquired through the placement of the mediport catheter or the administration of the chemotherapy.” (emphasis added) The plaintiff must prove that the conduct of each defendant is tortious for the theory to apply. As stated above, plaintiff has not established a record which supports the corporate negligence of the Gettysburg Hospital independent of section 433(B). Without such a showing the burden cannot be shifted to the hospital to show that it was not the source of the infection.

There is no question that the death of Johanna Collins was tragic and untimely. In granting the hospital’s motions, we do so cautiously and with much hesitation. If, indeed, liability exists on the part of the hospital and it is permitted to escape its responsibility to decedent, the tragedy is compounded. However, it would likewise be tragic to expose the hospital to the expense of trial and potential liability where sufficient proof has not been established. Judges are frequently stressed when attempting to balance justice and law, knowing that the wrong decision could have dire consequences. While it would be easy to deny the hospital’s motion on the basis of sympathy, our duty requires otherwise.

Accordingly, we enter the attached order.

ORDER

And now, August 27, 2001, the motion for summary judgment filed by Gettysburg Hospital is granted and Counts III and IV of the amended complaint are dismissed.


author: FIELD, J.,

text:
    Adena Inc. v. Cohn

      Lloyd G. Parry, for plaintiff.

      Clifford B. Cohn, for defendant.
    May 31, 2001
   FIELD, J.,

Plaintiff, Adena Inc., brought this action seeking a permanent injunction staying the arbitration of claims by the Fee Dispute Committee of the Philadelphia Bar Association (FDC). Plaintiff argues that they are beyond the scope of the arbitration agreement between it and its former attorney, Clifford B. Cohn, the defendant. An underlying action for fees brought by Cohn was withdrawn upon the execution of said arbitration agreement. Adena argues that the arbitrators’ authority extends only to the issue of the original fees sought. Mr. Cohn maintains that the costs incurred in collecting these fees are also within the arbitrators’ purview. After oral argument on a stipulated record, this court held that the agreement as executed allowed the arbitrators to consider all of Mr. Cohn’s claims. Thus, by order of March 22, 2001, Adena’s request for a permanent injunction was denied. On April 5, 2001, Adena timely filed its appeal. For the following reasons, the injunction was properly denied, and this matter should be remanded to arbitration by the FDC.

Certain facts are undisputed. The parties agree that Mr. Cohn’s services were retained by Philippe Malecki, president of Adena Inc., in September 1997. The retainer letter provided that in the event that the attorney had to bring a collection action, the client would be liable for any costs incurred. In late 1998, in conjunction with a divorce action between Mr. Malecki and Carolyn Long, Ms. Long and her parents acquired Mr. Malecki’s ownership interest in Adena Inc. Mr. Cohn participated in the negotiation and drafting of the agreement transferring Mr. Malecki’s ownership interest to the Longs. Subsequently, Mr. Cohn sent bills for his professional services. The Longs, as current owners of Adena Inc., disputed their liability for services which were originally sought by Mr. Malecki. In June 1999, Mr. Cohn commenced suit against Adena Inc. and the Longs alleging, inter alia, breach of contract. The suit was withdrawn after counsel for the parties entered into a written agreement to submit their dispute over legal fees to common-law arbitration before the FDC. Exhibit “A” hereto is a true and correct copy of the agreement.

A second dispute arose as to the jurisdiction of the FDC. Adena maintains that the FDC can only consider the amount in Mr. Cohn’s original bill, i.e., before he commenced the first action. Mr. Cohn seeks to recover the costs he has incurred seeking to recover these amounts, as well as the original amount. Adena brought the instant action seeking a permanent injunction to bar the FDC from considering any amounts other than the original bill. An arbitration hearing scheduled for May 24, 2000, was postponed by the FDC pending the outcome of this matter.

When a party to an arbitration agreement asks the court to enjoin arbitration, judicial inquiry is limited to determining if a valid agreement to arbitrate exists between the parties, and if so, whether the dispute involved is within the scope of the arbitration agreement. Smith v. Cumberland Group Ltd., 455 Pa. Super. 276, 687 A.2d 1167 (1997). An order enjoining arbitration of a particular grievance should not be granted unless it can be said with positive assurance that the agreement involved is not susceptible of an interpretation that covers the specific dispute. Wolf v. Baltimore, 250 Pa. Super. 230, 378 A.2d 911 (1977).

Here, neither party disputes the existence of a valid agreement; the issue is as to its scope. The agreement reads:

“Whereas, a dispute has arisen between Attorney and Client on the amount of legal fees the Attorney is entitled to receive from the Client with respect to services rendered in:

(Type of case handled by the attorney, not the year.)” Exhibit A.

On the agreement, the line above was left blank. Adena’s argument is focused on the word “rendered,” as follows: “render” means given to or on behalf of. Collection of fees does not benefit the client, but only the attorney. Therefore, the costs of collection are not arbi-trable. While there is some cursory appeal to this argument this court declines to adopt such a narrow interpretation, especially in light of the fact that the plaintiff did not even avail itself of limits which could have been provided by filling in the blank line of the form agreement. It cannot be said that the agreement is not capable of the broader interpretation than that which defendant seeks.

Whether defendant is ultimately entitled to his collection costs is a matter for the FDC. Once a court has determined that a valid arbitration agreement exists and that the matter in dispute falls within it, the court is constrained from examining the controversy on its merits. Messa v. State Farm Insurance Co., 433 Pa. Super. 594, 641 A.2d 1167 (1994). The matter must then be referred to the arbitrators who have jurisdiction.

For all of the foregoing reasons, plaintiff’s request for a permanent injunction was properly denied. This court’s order of March 22, 2001, finding in favor of the defendant and remanding this matter to the Fee Dispute Committee of the Philadelphia Bar Association, should be affirmed.

EXHIBIT “A”

PHILADELPHIA BAR ASSOCIATION FEE DISPUTES COMMITTEE AGREEMENT TO SUBMIT TO COMMON-LAW ARBITRATION

This agreement to submit to common law arbitration is entered into by and between Clifford B. Cohn, Esquire referred to herein as Attorney and Adena c/o Hermes referred to herein as Client.

Whereas, a dispute has arising between Attorney and Client on the amount of legal fees the Attorney is entitled to receive from the Client with respect to services rendered in:

(Type of case handled by attorney, not the year)

Now therefore, the parties hereto expressly agree to submit the dispute to common-law arbitration by submitting to the procedures of the Fee Disputes Committee of the Philadelphia Bar Association on the following conditions:

(a) That the final word of the committee shall be final and binding on the parties hereto and shall have the force and effect of a verdict by jury;

(b) That judgment may be entered on the award on application of a party made more than 30 days after an award is made by the committee under 42 Pa.C.S. §7341 (relating to common law arbitration).

(c) On such application on the award in any court of competent jurisdiction, the court shall enter an order confirming the award and shall enter a judgment or decree in conformity with the order under 42 Pa.C.S. §7342(b) (relating to confirmation and judgment).

The parties intend to be legally bound by this agreement.

/s/(illegible) 5/15/99 /s/(illegible) 1/19/00

Attorney Date Attorney Date

Client (your signature) Date Client (your signature) Date