author: SPRECHER, J,

text:
    Howell v. North Heidelberg Township Zoning Hearing Board

      RichardL. Orwig, for appellants.

      October 12, 2007

      Jon S. Malsnee, for appellee North Heidelberg Township Zoning Hearing Board.

      Christopher J. Hartman, for appellee North Heidelberg Township.
   SPRECHER, J,

Appellants Robert and Karen Howell appeal from this court’s order of May 23,2007 denying their land use appeal and affirming the denial of their application for a special exception and variances by the North Heidelberg Township Zoning Hearing Board (appellee).

FACTS

Appellants purchased a tract of land in North Heidelberg Township, Berks County Pennsylvania on February 6, 2004. (See notes of testimony, zoning hearing, September 7, 2006, at 13-14.) The size of the tract is 10.02 acres. (See N.T., zoning hearing, at 48,69.) Church Road bisects the tract creating one parcel of approximately 0.7 acres (Parcel A) on the north side of Church Road and a second parcel of approximately 9.3 acres (Parcel B) on the south side of Church Road. (See N.T., zoning hearing, at 15-16, 86.) Appellants currently reside in a house on Parcel A. (See N.T., zoning hearing, at 16.) Appellants currently raise horses and lease a portion of Parcel B to a tenant farmer to grow alfalfa and grass for hay. (See N.T., zoning hearing, at 17, 24-25.) Appellants seek to construct a single-family home on Parcel B. (See N.T., zoning hearing, at 10.) Appellants seek to sell Parcel A and the home upon it. (See N.T., zoning hearing at 55.)

Appellants’ tract is located in a district of North Heidelberg Township zoned as Agricultural Preservation (AP). (SeeN.T., zoning hearing, at 35.) In this district, the township’s zoning ordinance provides that the minimum acreage upon which a new single-family home can be constructed is 40 acres. (See reproduced record, exhibit B-4, at 3-25.) Appellants applied for a special exception from this requirement and for variances from the township’s zoning ordinance on June 5,2006. The zoning board, at a public hearing conducted on September 7, 2006 to consider appellants’ application, denied appellants’ application. (See N.T., zoning hearing at 125.)

Appellants filed a land use appeal with the Berks County Court of Common Pleas on November 3, 2006. On November 13, 2006, North Heidelberg Township filed a notice of intervention. After appellants filed a praecipe for argument on its land use appeal, this court heard argument on May 21,2007. On May 23,2007, this court denied appellants’ land use appeal.

Appellants filed the instant appeal of this court’s decision on June 19, 2007. By order filed July 2, 2007, this court directed appellants, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b), to file and serve a concise statement of errors complained of on appeal. Appellants filed their concise statement on July 24, 2007, raising three issues:

“(1) The zoning decision in its proposed findings of fact fails to recognize Parcel A and Parcel B of the subject property as being divided by Church Road, thereby creating a natural subdivision of said property, and thereby creating Parcel B as an independent pre-existing nonconforming lot upon which a single-family residence may be properly constructed per the zoning ordinance.
“(2) The zoning decision failed to determine and designate by special exception under section 308.D. that the subject property is not agriculturally productive land due to its limited size and configuration, thereby rendering it unable to serve any economic and/or agriculturally viable purpose.
“(3) The zoning decision fails to approve the appellants’ request for a variance from lot size requirements for Parcel A and Parcel B due to the pre-existing nonconforming configuration of the property caused by the bisecting state highway.”

DISCUSSION

This court’s standard of review of an appeal of a zoning board decision is whether the zoning board committed an abuse of discretion or error of law. One Meridian Partners LLP v. Zoning Board of Adjustment of City of Philadelphia, 867 A.2d 706, 707-708 (Pa. Commw. 2005). Where, as in the present case, a trial court does not take any additional evidence, the Commonwealth Court’s standard of review is the same. Id. An abuse of discretion is established where the decision is not supported by substantial evidence. Id. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id.

For the reasons stated below, this court found that the zoning board did not commit an abuse of discretion or error of law in denying appellants’ application for a special exception and for variances from the township’s zoning ordinance and asks the Commonwealth Court to deny appellants’ appeal.

Issue 1

Appellants’ first error claimed is that the zoning decision in its proposed findings of fact fails to recognize Parcel A and Parcel B of the subject property as being divided by Church Road, thereby creating a natural subdivision of said property, and thereby creating Parcel B as an independent pre-existing non-conforming lot upon which a single-family residence may be properly constructed per the zoning ordinance.

Despite appellants’ claims, the zoning board’s findings of fact in support of its decision did recognize that Church Road bisected Parcel A and Parcel B. (See R.R., zoning board decision, p. 5, ¶6.) However, the issues before the zoning board were whether or not a special exception and variances should be granted, not the issue of whether a pre-existing subdivision existed. Sections 111.D.3. and 4. of the township’s zoning ordinance provide that the zoning hearing board has the exclusive authority to grant special exceptions and variances. (See R.R., exhibit B-4, at 1-10-11); see also, 53 P.S. §10909.1(a)(5) and (6). Conversely, the township supervisors have the authority to grant subdivision approval. 53 P.S. §10909.1(b)(2). Thus, even if Church Road created a natural subdivision, appellants would still be required to apply for subdivision approval with the township’s supervisors. See Washington Township v. Slate Belt Recycling Center Inc., 58 Pa. Commw. 620, 627, 428 A.2d 753, 757 (1981). Appellants acknowledged this fact at the zoning hearing on September 7, 2006. (See N.T., zoning hearing, at 93-94, 124.) Appellants’ claim that their tract is naturally subdivided was thus not before the zoning hearing board and thus not before this court. As such, appellee’s findings of fact in support of its decision would not and should not address issues regarding the existence of an alleged natural subdivision of appellants’ property. Accordingly, the zoning board did not abuse its discretion or commit an error of law. See One Meridian Partners, 867 A.2d at 707-708. Appellants’ claim must fail on this basis.

Issue 2

Appellants’ next claimed error is that the zoning decision failed to determine and designate by special exception under section 308.D. that the subject property is not agriculturally productive land due to its limited size and configuration, thereby rendering it unable to serve any economic and/or agriculturally viable purpose.

Appellants sought a special exception, pursuant to section 308.D. of the township’s zoning ordinance, from the designation of Parcel B as agriculturally productive land so that they may subdivide it from Parcel A and construct a home upon it. Appellants’ land is located within the AP-zoned district. The minimum lot size upon which a new single-family home may be built in an AP-zoned district is 40 acres. However, if a lot is determined to be “not productive agricultural land,” section 308.E.3. of the zoning ordinance provides that a lot may be subdivided into lots with a minimum lot size of one acre. Appellants argue they were entitled to the special exception due to the small size (9.3 acres) and configuration of Parcel B which renders the land not agriculturally productive.

Section 308.D. 1. of the zoning ordinance provides that all land within the AP district shall be considered agriculturally productive land unless the zoning board deems it otherwise as a special exception. Section 308.D.1 .a(2) of the township’s zoning ordinance provides that the burden of proof to obtain special exception approval is upon the applicant. See also, Vitti v. Zoning Board of Adjustment of City of Pittsburgh, 710 A.2d 653, 659 (Pa. Commw. 1998).

Appellants claim that the size and configuration of the lot render it unable to serve any economically or agriculturally viable purpose. Section 308.A.5. does provide that one of the purposes of the AP district is “to promote agricultural tracts that are sufficient in size to allow efficient profitable operations that can support a family.” However, this is only one of the purposes of the AP district. Section 308.A.3. states that another purpose of the AP district is “[t]o promote uses which support agricultural activity and provide supplemental income to farmers.” Thus, there is no requirement under the zoning ordinance that a lot is of a size that makes it economically viable in order for it to be deemed agriculturally productive land.

Further, appellants’ lot is agriculturally viable. Section 308.D. 1 .a(3) provides that the zoning hearing board will only deem land as not agriculturally productive if an applicant demonstrates “that the lot considered as a whole cannot be used for any agricultural use because of the existing features of the site.” (emphasis added) These existing features include “awkward lot shape.” Section 308.D.l.a(3). A review of the record shows that Parcel B does have an awkward shape. (See R.R., exhibit B-3.) However, this awkward lot shape must make the land unable to serve any agricultural use. Section 308.D. 1 .a(3)(b) defines, in pertinent part, crop farming, pasturing, and raising of livestock as agricultural uses. Appellants currently raise four horses on Parcel B. (N.T., zoning hearing, at 17.) Appellants use the land for the pasturing and grazing of their horses. (N.T., zoning hearing, at 50,52.) Appellants are also renting out four acres to a tenant farmer to raise alfalfa and grass for hay to feed these horses. (N.T., zoning hearing, at 24-25,31-32.) It is clear then that the land does have agricultural uses as appellants are currently enjoying the benefits of these uses. Thus the board did not abuse its discretion or commit error in denying appellants’ application for a special exception.

Additionally, appellants ignore other criteria used to determine whether land should be designated as agriculturally productive. The township performed a Land Evaluation and Site Assessment (LESA) of appellants’ land, as provided for in section 308.F. of the township’s zoning ordinance. Section 308.D.l.a(4) of the zoning ordinance provides that where a lot has a LESA score of 120 or more “the entire existing lot shall be considered productive agricultural land.” The LESA score for appellants’ land was 219.5. (See R.R., exhibit T-l, at 3-30; N.T., zoning hearing, at 96.) The LESA determination thus supports the zoning board’s finding that appellants’ lot was agriculturally productive and thus not eligible for a special exception under section 308.D.

Likewise, section 308.D.l.a(5) provides that “[i]f the majority of the lot is currently farmed or farmed on a regular basis for the majority of the last 20 years, the lot will be considered agriculturally productive land. (See R.R., exhibit B-4 at 3-27.) The zoning board found that the majority of the lot was currently farmed or regularly farmed for the majority of the last 20 years. (See R.R., zoning board decision, p. 5, ¶11.) Appellants have failed to meet their burden under the zoning ordinance to show they were entitled to a special exception as they have presented no evidence disputing this finding.

For these reasons, appellants’ second claimed error should be denied.

Issue 3

Appellants’ final error claimed on appeal is that the zoning decision fails to approve the appellants’ request for a variance from lot-size requirements for Parcel A and Parcel B due to the pre-existing non-conforming configuration of the property caused by the bisecting state highway (Church Road).

Appellants sought the following variances before the zoning hearing board: (1) a variance from the minimum lot size requirement for Parcel A, (2) a variance from the maximum building coverage percentage for Parcel A, (3) a variance from the minimum lot width at building setback requirement for Parcel B, and (4) a variance from the minimum yard size, front-yard setback and rear-yard setback requirements for Parcel A. (See R.R., exhibit B-l, at 3.)

An applicant for a variance seeks permission to violate a zoning ordinance. Boeing Co. v. Zoning Hearing Board of Ridley Township, 822 A.2d 153 (Pa. Commw. 2003). Variances should be granted “sparingly and only under exceptional circumstances.” Laurento v. Zoning Hearing Board of Borough of West Chester, 162 Pa. Commw. 226, 230, 638 A.2d 437, 439 (1994). (citation omitted) A variance should not be granted simply so that an owner may obtain a greater profit from the use of the property. Id. To qualify for a variance, an applicant must establish “(1) an unnecessary hardship stemming from unique physical circumstances or conditions of the property will result if the variance is denied; (2) because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and a variance is necessary to enable the reasonable use of the property; (3) the hardship has not been created by the applicant; (4) granting the variance will not alter the essential character of the neighborhood nor be detrimental to the public welfare; and (5) the variance sought is the minimum variance that will afford relief.” Id.

Section lll.D.3.b.(ii) of the township’s zoning ordinance provides that an applicant for a variance must show unnecessary hardship so that there is “no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance and a variance is, therefore, necessary to enable the reasonable use of the property.”

In this case, appellants currently reside on the premises and use it as a horse farm and crops are grown on the property by a tenant farmer. These uses are reasonable ones that conform to the uses of AP-zoned land. At the zoning hearing, appellants admitted that they sought a variance so that they might subdivide their property and ultimately sell the home on Parcel A and build a home for themselves on Parcel B. Thus appellants simply seek to increase their profit on their lot, a purpose for which a variance should not be granted. Laurento, 162 Pa. Commw. at 230, 638 A.2d at 439. Having their application denied by the zoning board has frustrated these plans. However, a variance is appropriate “only where the property, not the person, is subject to hardship.” One Meridian Partners, 867 A.2d at 710 (quoting Szmigiel v. Kranker, 6 Pa. Commw. 632, 637, 298 A.2d 629, 631 (1972). Appellants have failed to show an unnecessary hardship so as to entitle them to their requested variances. Accordingly, this claim too must fail.

For the foregoing reasons, this court respectfully requests that the appellants’ appeal be denied and this court’s order of May 23, 2007 denying their land use appeal be affirmed.

      . Section 308.F.1. states that a LESA is “system providing] a method of determining the suitability of a lot for agricultural activities.” This system is modeled upon the LESA system developed by the U.S. Department of Agriculture. See section 308.F.2. The system evaluates the soil of the lot for agricultural productivity as well as the features of the lot and of the area surrounding the lot.


source: Caselaw Access Project

author: GRINE, J,

license: Public Domain

text:
    Irvin v. West Penn Power Co.

      November 9, 2007
    James B. Cole, for plaintiff.
    Avrum Levicoff, for defendant.
   GRINE, J,

Presently before the court are preliminary objections in the form of a demurrer brought by the defendant West Penn Power Company t/d/b/a Allegheny Power. Phyllis K. Heverly Heeman Irvin, executrix of the estate of Wendy Tanner and Keith Tanner, plaintiffs, brought a wrongful death and bodily injury suit against defendant. Plaintiffs claim that defendant’s responsibility for their injuries stem from defendant shutting off plaintiffs’ power without proper notice. A hearing was held on November 2, 2007. After reviewing the parties’ briefs and hearing arguments on the matter the court denies defendant’s preliminary objections.

DISCUSSION

Defendant in this case was the power company who supplied electricity to plaintiffs. Plaintiffs did not pay their electric bill. Defendant shut off plaintiffs’ power. Plaintiffs chose to use a gas generator to provide power to their house. The gas generator emitted carbon monoxide and caused the death of Wendy Tanner and caused bodily injury to Keith Tanner.

Defendant claims that the action should be dismissed because there is no actionable legal cause, there is no duty owed to plaintiffs by defendant, and that even if defendant did not follow the regulatory notice requirements, there is no civil cause of action related to that improper notice.

The court may only grant a demurrer where there is no potential for recovery. Small v. Horn, 554 Pa. 600, 722 A.2d 664 (1998). The court is not convinced that there is no possibility of recovery in this case. There are several complex legal arguments which need to be fully developed in this case involving legal cause and duty. While the court is by no means prepared to say that it believes that defendant’s actions were the legal cause of plaintiffs’ injuries or that defendant owed a duty to plaintiffs, it cannot rule out that possibility at this time.

“[When] a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.” Bilt-Rite Contractors Inc. v. The Architectural Studio, 581 Pa. 454, 461, 866 A.2d 270, 274 (2005), quoting MacElree v. Philadelphia Newspaper Inc., 544 Pa. 117, 124, 674 A.2d 1050, 1056 (1996). This court currently believes that plaintiffs may have a cause of action, and therefore, must deny the preliminary objections brought forth by defendant.

ORDER

And now, November 9,2007, after reviewing the parties’ briefs and hearing arguments on the matter the court denies defendant’s preliminary objections.


text:
    In re Estate of McCloskey
    November 20, 2007

      Randy R Brungard, for executrix.

      Brian K. Marshall, for petitioner.
   GRINE, J,

Presently before the court is a petition for award of elective share brought by the petitioner, Ruth Ann McCloskey. Petitioner is asking for her marital elective share of the estate of her husband, Grover McCloskey (deceased). The executrix of the estate of Grover McCloskey is Grover McCloskey’s daughter, Patsy Singer. A hearing on the matter was held and the parties were ordered to file briefs, findings of fact and conclusions of law. Counsel for both parties did so in a timely manner. After hearing testimony on the matter and reviewing the parties’ briefs and findings of fact and conclusions of law the court grants petitioner’s petition for award of elective share.

FINDINGS OF FACT

(1) Decedent and petitioner were married on August 21,1957.

(2) Decedent and petitioner are the parents of one child, Richard Miller, who was bom prior to the marriage of decedent and petitioner.

(3) Decedent had a daughter, Patsy Singer (executrix) from his first marriage to Dorothy McCloskey.

(4) During the marriage, decedent and petitioner lived on a farm in Howard Township, Centre County, Pennsylvania.

(5) The farm was at all relevant times prior to March 27, 1996 titled solely in the name of Grover C. McCloskey.

(6) By deed dated March 27, 1996 and recorded on December 7,2005, decedent conveyed the farm to himself and executrix as joint tenants with the right of survivorship.

. (7) By deed dated January 25, 2006 and recorded on January 26,2006 decedent and executrix as joint tenants with the right of survivorship, conveyed the farm to executrix individually.

(8) Decedent died on August 23, 2006, at the age of 81.

(9) From August 21, 1957 through and including decedent’s date of death, decedent and petitioner remained, at all times, husband and wife.

(10) The marriage between decedent and petitioner was, at times, tumultuous.

(11) In mid-November 2005, petitioner left the farm and moved to Virginia where she lived with relatives for approximately one and one-half months.

(12) On or about December 30, 2005, petitioner returned to the farm and resumed co-habitation with decedent.

(13) On or about January 1,2006 while decedent and petitioner were at the farm, a disagreement arose between the parties.

(14) Following this disagreement, petitioner moved from the farm and moved in with Glen and Lula Singer in Howard, Centre County, Pennsylvania.

(15) After several weeks of living with the Singers, petitioner moved in with her son, Richard Miller, in Bellefonte, Centre County, Pennsylvania.

(16) Petitioner faced several health problems while she lived with the Singers and her son.

(17) In June 2006, petitioner became a resident of Centre Crest Nursing Home in Centre County Pennsylvania.

(18) In August 2006, during the last few days of decedent’s life, petitioner returned to the farm during the day to visit with decedent. Petitioner had to return to Centre Crest Nursing Home to stay overnight per the nursing home’s rules.

(19) The decedent left a will leaving petitioner and his son, Richard Miller, each a sum of $1 and leaving the rest of his estate to executrix.

(20) On or about November 16,2006, petitioner filed a timely election of spouse to take against will and conveyances with the Register of Wills of Centre County, Pennsylvania.

(21) At the time of his death, Grover McCloskey had $121 in cash and a checking account with Sovereign Bank with a balance of $7,056.23.

(22) The farm was appraised by John Curtin, who provided expert testimony at the time of trial claiming that the farm was valued at $3,000 per acre, or $333,000 total for the 111-acre farm.

(23) Executrix relied on the 1994 Centre County assessment for her valuation of the farm. Executrix claims the property is worth $105,130.

(24) Executrix did not have an independent assessment of the property performed, even though she was on notice that the petitioner was having one done.

CONCLUSIONS OF LAW

(1) 20 Pa.C.S. §2203(a) states “Property subject to election. — Except as provided in subsection (c), when a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:

“(1) Property passing from the decedent by will or intestacy.

“(2) Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage to the extent that the decedent at the time of his death had the use of the property or an interest in or power to withdraw the income thereof.

“(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit.

“(4) Property conveyed by the decedent during the marriage to himself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of his death unilaterally to convey absolutely or in fee.

“(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.

“(6) Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance.”

(2) Pennsylvania law does not favor forfeitures, and therefore the person alleging the forfeiture bears the burden of proving that the heir taking by will or through a statute is undeserving. In re Estate of Fonos, 698 A.2d 74, 76 (Pa. Super. 1997).

(3) 20 Pa.C.S. §2106 states: “Forfeiture — (a) Spouse’s share. — A spouse who, for one year or upwards previous to the death of the other spouse, has willfully neglected or refused to perform the duty to support the other spouse, or who for one year or upwards has willfully and maliciously deserted the other spouse, shall have no right or interest under this chapter in the real or personal estate of the other spouse.”

DISCUSSION

Executrix asks this court to find that petitioner willfully neglected decedent for more than a year prior to his death. Executrix bases this allegation on the fact that petitioner did not live with decedent for a period of eight-nine months before decedent’s death. However, not only does this not meet the statute’s requirement of abandonment in excess of one year, this court does not believe that the character of the separation of petitioner and decedent was that of abandonment.

Pennsylvania law does not favor forfeitures, and therefore the person alleging the forfeiture bears the burden of proving that the heir taking by will or through a statute is undeserving. In re Estate of Fonos, 698 A.2d 74, 76 (Pa. Super. 1997). After leaving the marital farm, petitioner lived for a brief time with the Singers and soon afterward went to live with her son. Petitioner had health problems and exhibited signs of dementia. Given these issues the court cannot find that petitioner abandoned her marital duties, especially since she visited decedent during the last days of his life.

Executrix also asks the court to determine that the farm is not among property that petitioner should be able to elect. Executrix cites to Cost v. Kaletri, 483 Pa. 11, 394 A.2d 513 (1978) to make her legal argument. However, Cost was decided two years prior to the governing statute in this case, 20 Pa.C.S. §2203. The statute specifically deals with transfers of property of $3,000 or more which are made within one year of a decedent’s death. That is precisely the situation presented to the court at this time. The property was conveyed in its entirety to executrix sometime in January 2006, which was well within one year prior to decedent’s death. Therefore, petitioner is entitled to one half of the interest decedent transferred to executrix within one year of his death.

The valuation of the property was also at issue in this case. Petitioner had an expert, John Curtin, determine the value of the farm. He concluded that the farm was worth $3,000 per acre, or a total of $333,000. Executrix claims that this valuation was incorrectly reached, and that the actual value of the property was much less than Mr. Curtin determined. However, executrix bases her valuation off of a Centre County assessment which took place in 1994. She had ample notice that the petitioner was going to acquire a current and independent valuation and chose not to have her own appraisal performed. Due to the lack of evidence of any reasonable assessment of the property brought forth by the executrix, the court has only one current assessment to use in determining the value. As such, we defer to the expert, John Curtin’s, valuation of the farm. Therefore the court finds that the value of the decedent’s farm at the time of his death was $333,000.

Given this valuation, the court determines that petitioner is entitled an elective share of the farm in the amount of $54,500. This number is reached by taking the value of the farm divided by two, subtracting the statutory $3,000 and multiplying that amount by one third ($333,000/2=$166,500-$3,000=$163,500/3= $54,500). Additionally, petitioner is entitled to one third of the value of decedent’s cash on hand and checking account at the time of his death, or $2,392.41 ($121+ $7,056.23=$7,177.23/3=$2,392.41). In total, petitioner is entitled to an amount of $56,892.41 from decedent’s estate.

ORDER

And now, November 20,2007, after a trial on the matter and a review of the parties’ briefs, the court grants petitioner’s petition for award of elective share. Petitioner is awarded $56,892.41 from decedent’s estate to be paid to petitioner by Patsy Singer as the executrix of the estate of Grover C. McCloskey.


author: HERMAN, J,

text:
    Commonwealth v. Mills
    October 17, 2007

      Dwight Harvey, for Commonwealth.

      Karl E. Rominger, for defendant.
   HERMAN, J,

BACKGROUND

The defendant was issued a citation for harassment on May 23,2006. She appeared before Magisterial District Judge Carol Johnson on July 24, 2006 and was found guilty. She filed a timely notice of appeal from the conviction on August 21,2006. On June 18,2007, she filed a motion to dismiss the charge pursuant to Pennsylvania Rule of Criminal Procedure 600 because 388 days had passed since the citation was issued and the Commonwealth had not set a hearing on the appeal. The Commonwealth in its answer to the motion admitted 388 days had passed without a hearing but denied Rule 600 applies to de novo summary appeal cases. Counsel filed briefs as directed on the issue of whether that rule applies in such cases.

DISCUSSION

Rule 600(A)(3) requires that “[t]rial in a court case in which a written complaint is filed against the defendant, when the defendant is at liberty on bail, shall commence no later than 365 days from the date on which the complaint is filed.” The defendant contends she is entitled to the benefit of this rule, citing Commonwealth v. Koch, 288 Pa. Super. 290, 431 A.2d 1052 (1981). The general proposition in Koch which the defendant believes is relevant to the instant case is “all general provisions of the criminal rules become applicable to the trial de novo [in a summary case] unless specifically made inapplicable.” Id. at 294, 431 A.2d at 1054. (footnote omitted) The Commonwealth does not dispute this general proposition hut points to the specific language of Rule 600 which indicates the rule applies only to a “court case” in which a written complaint is filed. Here only a citation was filed, not a written complaint. The Commonwealth also correctly notes that “a court case” is defined in Rule 103 as “a case in which one or more of the offenses charged is a misdemeanor, felony, or murder of the first, second, or third degree.” Constantino v. Forest Hills Borough, 128 Pa. Commw. 407, 563 A.2d 953 (1989). (That case involved Rule 600’s forerunner, Rule 1100.) Clearly the defendant’s summary harassment charge does not fall within this definition.

The Commonwealth cites to other authority which supports its position that Rule 600 does not apply to this matter. In Commonwealth v. Kujas, 291 Pa. Super. 411, 435 A.2d 1293 (1981), a summary charge was dismissed under Rule 1100 because it was filed in a complaint in conjunction with a misdemeanor charge, making the summary charge part of a “court case.” The implication in Kujas was that the summary charge would not have been subject to the time constraints of Rule 1100 if the charge had been filed by citation alone. Similarly, in Commonwealth v. Lutes, 793 A.2d 949 (Pa. Super. 2002), the court held Rule 573(B)(2)(a) governing discovery did not apply to summary cases because those are not “court cases” as defined in Rule 103. It has also been held the rule governing omnibus pretrial motions is inapplicable to de novo summary appeals because that rule (formerly 307, now 578) applies only to cases in which an indictment or information is filed, again, not the situation in the case at bar. Commonwealth v. Marcus, 690 A.2d 842 (Pa. Commw. 1997), citing Commonwealth, Department of Environmental Resources v. Blosenki Disposal Service, 110 Pa. Commw. 194, 532 A.2d 497 (1987), aff’d, 523 Pa. 274, 566 A.2d 845 (1989).

The defendant argues Rule 600(G) does not contain language limiting the rule to “court cases,” unlike the rule’s other subsections: “For defendants on bail after the expiration of 365 days, at any time before trial, the defendant or the defendant’s attorney may apply to the court for an order dismissing the charges with prejudice on the ground that this rule has been violated.” Again, however, the time limits in Rule 600 specifically apply only to “court cases” as defined in Rule 103 and that definition does not encompass summary cases. Constantino, supra.

Based on the foregoing, the court will deny the defendant’s motion to dismiss the summary charge. The court will direct the district attorney to list the de novo appeal for a hearing on the merits. An appropriate order is attached.

ORDER

Now, October 17, 2007, the court hereby denies the defendant’s motion to dismiss the charge and directs the Commonwealth to schedule a hearing on the merits of the defendant’s de novo appeal from the summary conviction.

Pursuant to Pa.R.Crim.P. 114, the clerk of courts shall immediately docket this order and record in the docket the date it was made. The clerk shall forthwith furnish a copy of the order, by mail or personal delivery, to each party or attorney and shall record in the docket the time and manner thereof.


author: KWIDIS, J,

text:
    Ritchey v. The Medical Center of Beaver
    November 16, 2007

      MarkJ. Homyak, for plaintiff.

      Mashall J. Tindall, for defendant Medical Center.

      Lynn E. Bell, for defendant Brody.
   KWIDIS, J,

FACTS

This is a medical malpractice case wherein the plaintiff, Joseph E. Ritchey, suffered a permanent brain injury as the result of a cardiopulmonary arrest that occurred at the conclusion of a surgical procedure performed by Dr. David Rafalko on April 13,2000, at The Medical Center of Beaver County.

On April 8, 2002, a complaint was filed by the plaintiff’s sister, Suzanne F. Woodson, as guardian ad litem, against The Medical Center of Beaver, an operating division of Valley Medical Facilities Inc. (Medical Center) and against the attending anesthesiologist, Michael C. Brody M.D., alleging the following facts.

Plaintiff underwent an elective uvulopalatopharyngoplasty (UP3) for treatment of obstructive sleep apnea on April 13, 2000 at the Medical Center, with the general anesthesia being provided and overseen by Brody. After the surgery was completed, the patient was in a period of opioid induced depression as the result of Fentanyl administration, causing Ritchey to be sedated and in respiratory depression. Narcan was given by a certified registered nurse anesthetist (CRNA) in an attempt to reverse the post-operative opioid depression induced by F entanyl. The patient remained in a period of known risk for opioid-induced respiratory depression and sedation, due to his underlying conditions and body structure. A CRNA, Sharon Spratt, attempted to page Brody and when Brody did not respond, caused Ritchey to be prematurely extubated prior to the time it was reasonably safe to do so, causing the patient to suffer a sudden respiratory arrest resulting in cardiac arrest, an anoxic brain injury, permanent injuries and damages. The complaint pleads that the negligent premature extubation occurred as the result of the direct acts of Brody, his medical associates and a CRNA, who was an employee of the Medical Center.

After the premature extubation and administration of drugs, Ritchey suffered a sudden respiratory arrest resulting in cardiac arrest as the direct result of the premature extubation. As the direct result of the cardiopulmonary arrest, Ritchey suffered permanent brain damage in the form of anoxic encephalopathy, resulting in impairment of his ability to think, speak, ambulate, control his bodily functions and/or otherwise live the life he did prior to suffering the injury. Plaintiff’s damages included increased medical, nursing and life care expenses, pain, suffering and inconvenience, loss or limitation of enjoyment of life and permanent surgical scarring.

The Medical Center filed an answer and new matter on April 26, 2002 that did not aver that Brody was an independent contractor, nor did it admit that Brody was an agent of the Medical Center. The Medical Center did not file a cross-claim against Brody. The Medical Center did not admit that the CRNA, Sharon Spratt, was an employee of the Medical Center.

Brody filed an answer on August 28,2002, that generally denied all of the allegations of the plaintiff’s complaint. The answer did not aver any new matter. It is important to note at this point, due to the subsequent argument of counsel for Brody concerning the effect of the joint tort-feasor release (JTR) tendered by the Medical Center, that there was no averment that Brody was an agent of the Medical Center, nor that the attending CRNAs were agents of Brody. There was no cross-claim filed against the co-defendant, Medical Center.

The plaintiff’s testifying expert, an anesthesiologist, Miles Dinner M.D., prepared a report, dated March 2, 2005, outlining his opinions as to the deviations from the standard of care as follows:

“(1) Failure to appreciate the history and severity of the plaintiff’s sleep apnea;
“(2) Failure to understand the nature of the surgical intervention;
“(3) Failure to appreciate the patient’s history of bronchospasm;
“(4) Failing to supervise the CRNA during the critical portions of a procedure;
“(5) Over-narcotization of the patient;
“(6) Administering multiple beta-blockers to the plaintiff with known wheezing problems;
“(7) Failing to note the impending signs of hypoxia;
“(8) Failing to timely intervene to restore oxygenation.”

The thrust of Dr. Dinner’s report was the period of emergence and the immediate phase of recovery after extubation, which is the critical time in the anesthetic management of a patient. This was described as a “takeoff’ and “landing.”

The testifying expert of Brody, Dr. Christopher A. Troianos, whose report of January 24, 2006 responded in item by item form to the report of Dr. Dinner, opined that the care provided by Brody was within the standard of care for an unexpected cardiac event.

At a second pretrial conference conducted on April 11, 2007, Brody, filed a motion in limine that attempted to limit the plaintiff’s expert’s testimony so that Dr. Dinner would not be able to testify about any of the reasons why he determined that the extubation was premature based on the contention that it was beyond the scope of the complaint. This court denied Brody’s motion.

Plaintiff’s counsel verbally moved for leave to amend the complaint at that conference. The motion was granted by the court. Since the court had already denied the motion in limine to preclude such testimony, determining that it merely amplified the complaint’s theory, the court granted the motion for leave to amend. The court also offered defendants a continuance of the trial if they contended they were unable to prepare for trial as the result of the court’s rulings, which they declined. Plaintiff’s counsel also offered, and Brody’s counsel accepted, an agreement that the defendant did not have to file an answer to the amended complaint’s averments, as deemed to be denied. This agreement was approved by the court.

Plaintiff filed an amended complaint on April 24,2007, which contended that the negligently premature extubation was the result of:

“(a) the negligently inadequate preoperative evaluation by Brody’s agent, Loffredo-Mancinelli;
“(b) Brody’s failure to form an anesthetic plan appropriate for the patient’s history;
“(c) Brody’s failure to consider the effects of the surgery upon the patient’s airway;
“(d) Brody’s failure to consider the effects of the patient’s overnarcotization and/or the temporary masking effect of Narcan administration;
“(e) Brody’s failure to consider the impact of the administration of beta blockers on a patient with a history of bronchospasm; and,
“(f) Brody’s failure to require that he be present and/ or his failure to be present during and shortly after the extubation in order to closely monitor, detect and correct the likely complication of respiratory distress that he should have anticipated.”

On May 1,2007, the Medical Center verbally increased its initial offer of $100,000 for a JTR of $250,000, to which plaintiff’s guardian ad litem indicated her verbal acceptance, communicated verbally by plaintiff’s counsel to Medical Center’s counsel the next day. Counsel for the Medical Center drafted the JTR and transmitted it on May 2,2007. Plaintiff’s guardian ad litem executed the same on May 7,2007 with the same being transmitted to Medical Center’s counsel on May 8, 2007.

On May 10,2007, one day before jury selection, Brody filed an amended answer and new matter and cross-claim, pleading the JTR. During pretrial proceedings prior to jury selection on May 11, 2007, the court stated:

“It is a joint tort-feasor release that’s limited to and only applies to The Medical Center of Beaver County, an Operating Division of Valley Medical Facilities, the defendants (sic) in this case. However, the Medical Center of Beaver County and Valley Medical Facility shall be required to sit the trial of this case for purposes of the apportionment of negligence, if any, as between The Medical Center and Dr. Brody. Any objection to that?”

Ms. Kane, as substitute counsel for the Medical Center, responded in the negative for the Medical Center, and Brody’s counsel stated no objection to the court’s ruling and interpretation. The court also granted plaintiff’s request that the amended answer and new matter be deemed denied without the filing of a pleading by plaintiff.

During the course of the trial, counsel for Brody, for the first time (emphasis added), at the conclusion of the plaintiff’s case, presented to the court a written motion for compulsory nonsuit. The basis of the motion was that Brody and the other anesthesiologists in his group were ostensible agents of the Medical Center and that the JTR tendered to the Medical Center also completely released Brody from any direct and/or vicarious liability. This court denied the motion for compulsory nonsuit based on the testimony of the CRNA, Sharon Spratt, and the failure of defense counsel to plead the alleged relationship of Brody and the Medical Center and its employees, the attending CRNAs.

The jury returned a verdict on May 18,2007 in favor of the plaintiff and against both defendants in the amount of $1,500,000, consisting of $70,163.65 in past medical expenses, increased personal care in the amount of $300,000 and noneconomic damages for pain and suffering, disfiguration, embarrassment, inconvenience, humiliation and loss of ability to enjoy the pleasure of life in the amount of $1,129,836.35. The jury determined both defendants to be causally negligent, attributing 70 percent causal negligence to the Medical Center and 30 percent to Brody. Brody’s counsel polled the jury, revealing it to be an 11 to 1 verdict, but no party made any objections to the form of the verdict or the amounts awarded, or requested the court to send the jury back for further deliberations after further instructions.

Plaintiff filed a timely motion to mold the verdict and add delay damages, to which Brody filed a timely response. Plaintiff then filed an amended motion to mold verdict, add delay damages and enter final judgment, to which both defendants filed timely responses. Plaintiff also filed a petition to approve the JTR settlement pursuant to Pa.R.C.P. 2064(a) and Local Rule LR2064, both of which require court approval for the settlement of an incapacitated person’s claim. Defendants filed timely responses.

The issues raised by these motions are:

“(1) did defendants attempt to collude to fraudulently induce plaintiff’s counsel and guardian ad litem to enter into a JTR settlement with Medical Center, and to convince the court to approve the same, when Medical Center and Brody both believed that it would be a complete release as to all parties?;

“(2) whether there was a meeting of the minds between plaintiff’s guardian ad litem and Medical Center on the JTR settlement agreement?;

“(3) whether the JTR settlement would be in the best interests of the incapacitated plaintiff?;

“(4) whether the court should approve plaintiff’s JTR settlement with Medical Center and mold the verdict, entering judgment against Medical Center for the amount called for in the JTR and against Brody for his causally liable portion of the entire verdict, only, based upon the jury’s apportionment, plus a proportionate share of the delay damages?;

“(5) whether plaintiff was responsible for any period of alleged delay such that Brody should obtain relief for some portion of the period during which delay damages would normally be awarded against him under Pa.R.C.P. 238 principles?”

The court order issued a rule to show cause why the JTR should not be invalidated and ordered the parties to take discovery upon the issues raised by those motions concerning the JTR. All counsel were deposed.

On July 12, 2007, the plaintiff filed a motion to invalidate agreement of settlement pursuant to Pa.R.C.P. 229.1(d)(1), as a result of the Medical Center’s position that the admission of the JTR settlement agreement into evidence without objection by plaintiff constituted court approval of the settlement. Plaintiff’s position was that if the agreement were “approved” as the Medical Center contended, it had no excuse for having failed to pay the $250,000 consideration set forth in the agreement within 20 days, as more than 20 days had elapsed since the “approval” event, and the money had not been paid. The Medical Center filed a timely response.

The Medical Center also filed a timely motion for post-trial relief requesting that in the event that the court were to not approve the JTR settlement, that the court not mold the verdict, but rather, order a new trial.

Brody filed a timely motion for post-trial relief raising the following issues:

“(1) The court erred in granting leave to file the amended complaint containing a new cause of action after the statute of limitations ran;

“(2) The testimony of plaintiff’s expert, Dr. Dinner, that Brody was required to be present during extubation was contrary to Pennsylvania law, and should have been stricken;

“(3) The court erred in denying Brody’s motion for a compulsory nonsuit on the basis that Brody was released by the JTR of the Medical Center;

“(4) The court erred in denying Brody’s motions to strike certain jurors for cause;

“(5) The court erred giving particular jury instructions;

“(6) Ms. Woodson’s testimony as to the quality of the Autumn Lane Nursing facility, and her counsel’s statements in closing concerning the conditions at Autumn Lane were against the agreement that plaintiff would not seek future medical/lodging costs beyond those stipulated to, and the jury verdict was inconsistent.”

Plaintiff filed timely responses to both defendants’ post-trial motions.

As a result of Brody’s contention, that the JTR entered into between the plaintiff and the co-defendant, Medical Center, also released Brody, the plaintiff filed a petition for approval of the JTR settlement on May 30, 2007.

On June 1,2007, this court issued a rule to show cause why the release should not be invalidated. Subsequently the depositions of the attorneys were scheduled to determine the intent of the parties concerning the JTR. On August 28, 2007, an evidentiary hearing and argument was conducted on the effect of the JTR.

On October 24,2007, this court issued an order denying the defendants’ post-trial motions, approving the JTR, granting the plaintiff’s motion to mold verdict and add delay damages and entered final judgment on the verdict of May 18,2007.

THE COURT DID NOT ERR IN PERMITTING PLAINTIFF TO FILE AN AMENDED COMPLAINT

Pa.R.C.P. 1033 states that a party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The Pennsylvania Superior Court has further stated that amendments to pleadings are permitted at any time, including before, during and after trial. Although no absolute right to amend exists, the courts of this Commonwealth have liberally construed the principle embodied in this rule. Consequently, courts have allowed amendments of pleadings at any time, as provided by the specific language of Rule 1033. Leave to amend pleadings is to be liberally granted and a party is to be given leave to amend its pleadings when allowing the amendment will not unduly prejudice or surprise the adverse party. Undue prejudice in this analysis has been defined as something more than a detriment to the other party, as any amendment would likely have the effect of harming the adverse party’s interests. The policy underlying this rule of liberal leave to amend is to insure that parties get to have their cases decided on the substantive case presented, and not on legal formalities. However, a new cause of action will not be permitted after the statute of limitations has run. Only if the proposed amendment merely amplifies, as opposed to altering, the cause of action already averred, will it be allowed if the statute of limitations has run.

In Chaney v. Meadville Medical Center, the Superior Court held that the administratrix of the deceased patient’s estate was entitled leave to amend pleadings so as to more specifically define the exact cause of patient’s death in a medical malpractice action, even though the leave to amend was requested after the statute of limitations had ran, where the amendments did not allege a new theory of liability. The court concluded that the trial court did not err “to the extent that the amendments more specifically define the exact cause of [plaintiff’s] death.” The court further stated that the amendments did not allege a new theory of liability. “To the contrary, the underlying averments of malpractice were unchanged. The amendments merely clarified the causal chain that connected the breach(es) of duty to [plaintiff’s] death.”

As described supra, the amendment of the original complaint was precipitated by Brody’s motion in limine regarding the contention that Dr. Dinner’s opinions were outside the scope of the theory pled in the complaint. This court denied the motion stating that Dr. Dinner’s report did not surprise or prejudice Brody in that his expert report, authored by Dr. Troianos, directly addressed the points raised by Dr. Dinner.

Brody’s motion for post-trial relief avers prejudice in that the amended complaint alleges a new cause of action after the statute of limitations had ran. The original complaint alleges that general anesthesia was maintained with intravenous Fentanyl, an opioid, and Isoflurance, an inhalational anesthetic. The surgical procedures began at approximately 11:45 a.m. and ended at approximately 12:55 p.m. At approximately 1:10 p.m. Brody ordered the medications Narcan, Neostigmine, and Glycopyrrolate and/or the same were administered either directly by him or under his direction and control. Shortly thereafter, Brody, either directly or through a person on the anesthesia and/or operative team under his direction and control, negligently prematurely extubated the patient prior to the time it was reasonably safe to do so. The said negligent premature extubation was performed during a period of known risk for opioid-induced respiratory depression and sedation for the patient, who was at increased risk due to his underlying conditions and body structure.

As delineated in the facts provided by the court, the amended complaint alleges that the negligent premature extubation was the result of: (a) the negligent inadequate preoperative evaluation by Brody’s agent Loffredo-Mancinelli; (b) Brody’s negligent failure to form an anesthetic plan appropriate for the patient’s history; (c) Brody’s negligent failure to consider the effects of the surgery upon the patient’s airway; (d) Brody’s negligent failure to consider the effects of the patient’s ovemarcotization and/or temporary masking effect of Narcan administration; (e) Brody’s negligent failure to consider the impact of the administration of beta blockers on a patient with a history of bronchospasm; and, (f) Brody’s failure to require that he be present during and shortly after the extubation in order to closely monitor, detect and correct the likely complication or respiratory distress that he should have anticipated.

Therefore, this court correctly concluded that the amended complaint merely amplified the factual background of the original complaint and did not allege a new cause of action or alter the cause of action against Brody. As in Chaney v. Meadville Medical Center, the amended complaint in the instant case more specifically defined the exact cause of Ritchey’s condition and clarified the causal chain of events that ultimately led to Ritchey’s present health condition. Furthermore, the amendment did not unduly prejudice or harm Brody’s interests. Brody’s expert report responded to plaintiff’s expert report point by point and the court further offered the defendants a continuance if they felt that they needed more time to prepare for trial, which defendants declined. Accordingly, this court did not err in permitting plaintiff to file an amended complaint.

THE TESTIMONY OF PLAINTIFF’S EXPERT, DR. DINNER, DID NOT CONTRADICT PENNSYLVANIA LAW

During trial, Brody attempted to introduce sections of the Pennsylvania Administrative Code, 28 Pa.Code § 123.7, entitled “Dental anesthetist and nurse anesthetist qualifications” and 49 Pa.Code §21.17, entitled “Anesthesia.” The court notes that these Pennsylvania Administrative Code sections had not been mentioned or discussed at any time prior to introducing the Code sections on the day of trial. The court researched and provided copies of the Code sections to plaintiff’s counsel during Dr. Dinner’s cross-examination.

Section 21.17 of the Code states that the administration of anesthesia is a proper function of a registered nurse and is a function regulated by this section; this function may not be performed unless: Subsection (4), at issue at the time of trial, which states:

“Exceptas otherwise provided in 28 Pa.Code §123.7(c) (relating to dental anesthetist and nurse anesthetist qualifications), when the operating/anesthesia team consists entirely of nonphysicians, such as a. dentist and a certified registered nurse anesthetist, the registered nurse anesthetist shall have available to her by physical presence or electronic communication an anesthesiologist or consulting physician of her choice.”
Section 123.7 of the Code, “Dental anesthetist and nurse anesthetists,” states:
“(a) Qualified dentist anesthetists and nurse anesthetists must be able to provide general anesthesia under the overall direction of either:
“(1) The director of anesthesia services or his designee, when a full-time anesthesiologist heads the anesthesia service.
“(2) The surgeon or obstetrician responsible for the care of the patient.
“(b) Qualified dentist anesthetists and nurse anesthetists shall be competent to:
“(1) Induce anesthesia.
“(2) Maintain anesthesia at required levels.
“(3) Support life functions during the period in which anesthesia is being administered, including induction and intubation procedures.
“(4) Recognize and take appropriate corrective action, including the requesting of consultation, when necessary, for abnormal patient responses to the anesthesia or to an adjunctive medication or other form of therapy.
“(5) Provide professional observation and resuscitative care, including the requesting of consultation, when necessary, until the patient has regained control of his vital functions.
“(c) When the operating/anesthesia team consists entirely of nonphysicians, for example, dentist with nurse anesthetist, dentist with dentist anesthetist, podiatrist with dentist or nurse anesthetist, a physician shall be immediately available in case of an emergency, such as cardiac standstill or cardiac arrhythmia. The requirement that the physician be immediately available may mean in the hospital or in the immediate proximity of the operative procedure area or within minutes of the operating suite.”

Brody’s post-trial motion argues that Dr. Dinner’s testimony that Brody was required to be physically present during the extubation is contradictory to Pennsylvania legislation. The Code sections provided by Brody discuss the qualifications of dental anesthetists and nurse anesthetists and what actions they are competent to perform. Section 123.7(b)(3) states that qualified dentist anesthetists and nurse anesthetists shall be competent to induce anesthesia and to support life functions during the period in which anesthesia is being administered, including induction and intubation procedures. Brody argues that under section 123.7(b)(3), a nurse anesthetist is qualified to engage in intubation procedures, which includes extubation. The court does not find where “intubation procedures” is defined to mean “extubation” and Brody does not cite the court to this definition.

At the time of trial, this court held that the Pennsylvania Code sections were not applicable to the standard of care for anesthesiologists and in addition that the sections pertaining to anesthesia teams of “nonphysicians” were not applicable in that the anesthesia provided to Ritchey was under the direction or supervision of a physician. Brody did not cite to any authority that addressed the standard of care for anesthesiologists or whether an anesthesiologist has to be present at the time of extubation.

However, experts for both the plaintiff and the defendant testified that there are crucial times in which the anesthesiologist should be present. Dr. Troianos explained the emergence process and stated that “we do want to be present during that process, and it is desirable to be there at the time of extubation, but we can’t always be there.” Dr. Dinner testified:

“There are criteria that the American Society of Anesthesiologists set up as to the responsibilities of the attending anesthesiologist, and essentially, the anesthesiologist must be present at the critical elements, critical parts of the case. There are two critical parts of the case . . . the take-off and the landing, the take-off being the initiation of the anesthesia, and the landing being the emergence, extubation. The anesthesiologist must be present at the beginning, at the take-off, and at the landing, so those two key parts.”

In accordance with the experts’ testimony, the court instructed the jury as follows:

“One of the things that was brought up in this case was whether Dr. Brody, the defendant, was required to be in the operating room the entire period of time that the surgery was to take place. I could find no law, nor is there a law that requires him to be there 100 percent of the time. However, both experts clearly indicated that that there are crucial times when he should be in there, and they used the analogy, take-off, when they put the tube in, and landing, when they take the tube out, and emergence, in other words, while he is coming out, and while the tube is taken out, and in this case, there is an issue of whether Dr. Brody was present at the time of extubation, in other words, when the tube was removed.”

Dr. Dinner’s testimony that Brody was required to be present during extubation was not contrary to Pennsylvania law in that the Code sections presented by Brody were not applicable to the standard of care for anesthesiologists. Furthermore, both experts agreed that there are critical times in which the presence of an anesthesiologist is desired and this court instructed the jury as such.

DR. BRODY WAS NOT RELEASED BY THE JOINT TORT-FEASOR RELEASE

The JTR provides in pertinent part as follows:

“Know All Men By These Presents that Suzanne F. Woodson (hereinafter referred to as the undersigned), on behalf of Joseph E. Ritchey, an incapacitated person, and their heirs, executors, administrators, successors and assigns, in consideration of the total sum of $250,000, the receipt of which is hereby acknowledged to the undersigned and paid on behalf of The Medical Center Of Beaver, an operating division of Valley Medical Facilities, Inc. and their officers, shareholders, representatives, servants, employees, affiliated entities, predecessors, successors and assigns (the released parties) from any and all liability, claims, causes of action, joinders for sole liability, contribution, indemnity or otherwise, damages, costs, expenses or demands ....

“It is understood and agreed that the undersigned is not releasing any claims or demands which she has or may have against any other person, association or corporation, except the released parties ....”

The law in Pennsylvania regarding releases is well settled, and is set forth as follows. Pursuant to Pennsylvania law, written releases are interpreted in accordance with the rules of contract construction and the effect of a release is determined by the ordinary meaning of its language, unless a different meaning was clearly intended. In construing a release, the foremost consideration is the intent of the parties. The intention of the parties is gathered from the language of the release and the circumstances surrounding its execution. In determining the parties’ intent, a court must first look to the language of the release and the language must be viewed in the context of the entire document. Each part of a release must be given effect. Therefore, terms in one section should not be interpreted to nullify or conflict with other terms. If one clause appears to conflict with another, the clauses should be construed, if possible, as consistent with one another. If a release is unclear on its face, a court must inquire into the circumstances surrounding its execution. The surrounding circumstances act to clarify the intention of the parties and identify “matters which may be fairly said to have been within the contemplation of the parties when the release was given.”

In this case, upon review of the JTR, there are neither terms that are obscure due to indefiniteness nor capable of being interpreted in more than one fashion. This JTR is clear and unambiguous and the court must look at its content to determine its meaning.

Attorney Marshall J. Tindall, the drafter of the JTR, testified in his deposition of July 11, 2007 and at the evidentiary hearing on August 28, 2007, that it was his intention to release the Medical Center only and that there was no intention to also release Brody. This was confirmed by plaintiff’s attorney, Mark J. Homyak’s, deposition concerning acceptance of the JTR. Counsel for Brody, Lynn E. Bell, on May 11, 2007, prior to the selection of the jury, filed an amended answer and new matter that did not raise the issue of the JTR as also releasing Brody as an agent of the Medical Center. It is important to note that this position was not taken until Ms. Bell presented a written motion for compulsory nonsuit at the conclusion of plaintiff’s case.

In this motion for compulsory nonsuit counsel for Brody presented, for the first time, the argument that the CRNAs were employees of the Medical Center and that Brody was responsible for the supervision, then you should assume they (CRNAs) are agents of Brody. Consequently, the release of the agents also released the principal.

This court denied the motion for compulsory nonsuit based on the absence of any pleadings and testimony that the CRNAs were agents of Brody when they were employed by the Medical Center.

THE COURT DID NOT ERR IN DENYING DEFENDANT’S MOTION TO STRIKE JURORS FOR CAUSE

Brody’s motion for post-trial relief alleges that defendant was forced to use preemptory challenges to remove jurors that should have been excluded for cause. Case law reveals two situations in which challenges for cause should be granted: “(1) when the potential juror has such a close relationship, be it familial, financial or situational, with parties, counsel, victims, or witnesses, that the court will presume the likelihood of prejudice; and (2) when the potential juror’s likelihood of prejudice is exhibited by his conduct and answers to questions at voir dire.” The test for determining whether a prospective juror should be disqualified is “whether he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the basis of answers to questions and demeanor.”

The purpose of jury voir dire examination is to secure a fair, competent and impartial jury. To achieve this purpose, general questions should be permitted so that it can be determined whether any veniremen have a direct or even a contingent interest in the outcome of the litigation or the parties involved. The decision as to “whether counsel may propose their own questions of potential jurors during voir dire is a matter left solely within the trial judge’s discretion.” However, voir dire is not intended to provide counsel with a better basis upon which to exercise peremptory challenges; rather, it contemplates the use of probing questions that uncover bias and facilitate the exercise of challenges for cause.

Generally, the trial court is in the best position to assess the credibility of a juror and determine if that juror is able to render a fair and impartial verdict. “Claims of impartiality by prospective jurors are subject to scrutiny for credibility and reliability as is any testimony, and the judgment of the trial court is necessarily accorded great weight.”

In the instant case, the court posed a standard set of questions to the entire jury panel, followed by individual voir dire of each potential juror. The court presided over and participated in the voir dire in its entirety and personally observed the demeanor and conduct of the potential jurors. The court permitted counsel for both parties the opportunity to ask a broad range of follow-up questions as demonstrated in the trial transcript. Furthermore, each time one of the potential jurors expressed that they had negative medical experiences or experiences with medical malpractice cases the court questioned whether it would affect the juror’s ability to sit on this jury, listen to the evidence, and render a verdict that is fair and impartial.

Brody sought to exclude from the jury panel those persons (juror nos. 1, 3, 4, 10, 22, and 31) who had direct or indirect experiences in medical malpractice cases. It should be noted that none of the potential jurors that Brody sought to exclude for cause had the “close relationship” with parties, counsel, victims, or witnesses that is required for the first situation in which a challenge for cause should be granted.

Instead, Brody argues that the prospective jurors had a presumed likelihood of prejudice due to situational affinity given their personal experiences and dissatisfaction with medical treatment, or their experiences with individuals who had filed medical malpractice cases.

While this court acknowledges that the jurors in question all expressed some direct or indirect experiences with the medical field and/or medical malpractice cases, they stated that they could be fair and impartial, and juror no. 3 stated “she thought she could be.” This court was satisfied that, after affording counsel the opportunity to inquire of the jurors, and witnessing the answers, conduct and demeanor of the potential jurors, firsthand, that the jurors in question could listen to the evidence and render a fair and impartial verdict.

THE TRIAL COURT DID NOT ERR GIVING PARTICULAR JURY INSTRUCTIONS

In reviewing whether a trial judge gave a proper instruction, an appellate court will note that the “primary duty of a trial judge in instructing a jury is to clarify the issues so that the jury is able to comprehend the question they are to decide.”

Where the jury instruction fairly and accurately apprises the jury of the relevant law, a new trial is not warranted. A jury instruction, when considered in its entirety, must not only be erroneous but also prejudicial to the complaining party to constitute reversible error.

In this case Brody contends that it was prejudicial when the court referred to two analogies used by plaintiff’s counsel in closing argument as examples of an agency relationship.

A trial court has broad discretion in phrasing jury instructions and the scope of review in examining those instructions is to determine whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. A charge will be found adequate unless “the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to fundamental error.” A new trial should not be granted on the ground of inadequacy of the charge unless there is a prejudicial omission of something basic or fundamental.

In the preliminary instructions to the jury, this court stated that during the course of the trial I might say or do something which might lead some of you to think that this act indicates my personal feelings or opinion about the merits of this case. If any of you should come to such a conclusion, it is incorrect.

In the concluding instructions the court further stated:

“I have invited your attention to various factors which you may consider in evaluating the evidence on behalf of the parties. In doing so, I have to tell you that I have not attempted to indicate my opinion on any matter, on any evidence, the weight of the evidence which you should consider, or any part of it. I do not want you to think that I did. In any event, once again, you are the sole judges of the facts, and you must determine the credibility of the evidence.”

In retrospect, this case was ultimately decided by this jury on the basis of a question that was presented during jury deliberations: “In his testimony, did Dr. Brody get the page when it was time to exhíbate?” In returning the verdict, the jury clearly understood and decided the major issue in this medical malpractice case.

SUZANNE WOODSON’S TESTIMONY AS TO THE QUALITY OF THE AUTUMN LANE NURSING FACILITY AND THE TYPE OF FACILITY SHE WANTED MR. RITCHEY TO RESIDE IN AND HER COUNSEL’S STATEMENTS IN CLOSINMG CONCERNING THE CONDITIONS AT AUTUMN LANE WAS NOT AGAINST THE PARTIES’ AGREEMENT THAT PLAINTIFF WOULD NOT SEEK FUTURE MEDICAL/LODGING COSTS BEYOND THOSE STIPULATED TO, AND THE JURY VERDICT WAS NOT INCONSISTENT

A second pretrial conference, in which a stenographer was present, was held on April 11, 2007 in which the issue of increased personal care versus future medical/ lodging costs was discussed. The transcript of the conference reveals a “loose agreement” between the parties. Counsel for plaintiff stated:

“The only claim I wish to present is through accomodation (sic) of Dr. Dinner’s testimony about the permanency of the conditions where Mr. Ritchey needs ongoing care with going to the bathroom and dressing and that type of thing and needs to be in a secured facility. But that, in combination with the lay testimony of the guardian ad litem, saying the exact same thing as Ms. Bell’s expert, that there has been a 27 percent increase in the cost of the type of facility and that is projected to last for the rest of his life ... .”

Plaintiff’s counsel further stated that he was not going to call any expert to state that Ritchey needs increased medical care.

At this point of the conference, plaintiff’s counsel and counsel for the Medical Center agreed that they would brief the issue.

At the time of trial, Ms. Suzanne Woodson testified concerning the conditions at Autumn Care Lane, the nursing home where Ritchey resided at the time of trial. Ms. Woodson testified that as a result of Ritchey’s injury “he has to pay 27 percent more of his Social Security to live at Autumn Lane, as opposed to what he was paying to live at supportive services, which was a less secure facility.” She further testified that that amount equals “$258.47 monthly,” “$3,101.64 annually” with a total of “$114,760.68” over the projected life span of Mr. Ritchey.

Ms. Woodson was asked by plaintiff’s counsel if she “would like to see Joe in a different kind of facility?” Ms. Woodson’s response was as follows:

“Yes. That would be nice, to see him in a more modem-facility that had more — that could offer him, you know, maybe some more physical therapy and some more speech therapy, some place that would be on one level instead of — Autumn Lane has a couple of levels. He has to — you know, like I believe I had said before, he has to go up and down stairs there because they have the lunchroom and bedrooms on different floors. They don’t have any air conditioning. I would like to, you know, see him in a place where maybe they would have some kind of secure area on the outside where he could go and sit.”

No objection was taken during this line of questioning. Plaintiff’s counsel later asks Ms. Woodson if she had actually looked into a different facility for Joe. Ms. Woodson’s response was:

“There is a more modem facility called Rolling Hills Manor which is closer to where I live, and it’s all one level. It offers physical therapy and speech therapy. They have a — they do have an outside courtyard area that is gated off for residents’ safety, and they have flowers planted around, and it’s more aesthetically pleasing.”

Plaintiff’s counsel then asked if “places like that accept a portion of the resident’s Social Security Disability benefits?” Ms. Woodson started to answer when Brody’s counsel asked to approach whereupon a bench conference occurred.

At side-bar, the court did reference an “agreement,” stating that there was “nothing discussed about another facility or additional costs.” The court further states that “we set up an agreement... permitting] [plaintiff’s counsel] to put in this increased cost, the difference being between the secured and unsecured facility.” This court sustained the objection and only permitted testimony regarding the $258.47 monthly and $114,760.68 total figures. Plaintiff’s counsel resumed questioning and did not again address the “nicer” or different facility with the witness. Plaintiff’s counsel did not provide any numerical figures other than the ones agreed upon by the parties.

In closing, plaintiff’s counsel argued:

“You know that his life is a safe one now. He is not out. In order for him to live in that place where he lives, right down by the highway, with no grass around it, a converted school with no air conditioning, no physical therapy, no speech therapy, with that, it is going to cost him, according to the testimony you have received, $258.47 per month . . . .”

Brody’s counsel did not object to this argument at the time of trial.

Brody’s post-trial motion states that prior to trial, and at plaintiff’s request, defendants stipulated that if plaintiff had a normal life expectancy he would incur additional personal care costs of $114,760.68 to reside at Autumn Lane and that Ms. Woodson’s testimony regarding a “nicer” nursing home and counsel’s closing arguments regarding the conditions at Autumn Lane were prejudicial and contrary to the stipulation.

Even if the testimony offered by Ms. Woodson was contrary to the stipulation, a new trial is not warranted merely because some irregularity occurred during trial or another trial judge would have ruled differently. The moving party must demonstrate prejudice resulting from the mistake.

If a verdict bears a reasonable relationship to damages proved and also comprehends resolution of disputed liability, the court cannot substitute its judgment for that of the jury. The function of determining whether a jury’s verdict is “arbitrary and capricious lies with the trial court, and its decision will not be set aside in the absence of clear error of law or palpable abuse of discretion.” While the appellate court will look at the entire record to determine whether an unjust verdict has been rendered, it is justified in declaring the lower court guilty of such an abuse of discretion only if the appellate court is clearly convinced by the record that the jury was influenced by “partiality or some misconception of the law or the evidence.” Compromise verdicts are allowable, and the compromise may arise out of damages or negligence or balance of evidence concerning both. However, a verdict is not proper compromise when it derives from misunderstanding, passion, prejudice or other improper motive factor.

The testimony of Ms. Woodson and plaintiff’s closing argument in their entirety were not prejudicial in that this court prevented plaintiff from introducing any monetary figures other than the figures agreed upon by the parties. It is clear to this court that the jury simply disregarded the figures presented and reached a compromise verdict with the intention of awarding the plaintiff a total of $1,500,000. As such, this court will not mold the verdict.

      . Complaint, ¶¶6-7.

      . Complaint, ¶13.

      . Complaint, ¶15.

      . Complaint, ¶¶15,16, 17,21.

      . Complaint, ¶¶14, 18, 19, 20.

      . Complaint, ¶16.

      . Complaint, ¶17.

      . Complaint, ¶21.

      . Pretrial conference transcript (dated April 11,2007), pp. 14-16.

      . Pretrial conference transcript (dated April 11, 2007), pp. 21-23.

      . Pretrial conference transcript (dated April 11, 2007), pp. 21-23.

      . Pretrial conference transcript (dated April 11, 2007), pp. 17-19.

      . Pretrial conference transcript (dated April 11, 2007), pp. 22-23.

      . Amended complaint in civil action, ¶14.

      . Trial transcript volume I (dated Friday, May 11, 2007), p. 5.

      . Trial transcript volume I (dated Friday, May 11, 2007), p. 5.

      . Trial transcript volume I (dated Friday, May 11, 2007), pp. 10-11.

      . Trial transcript volume VI (dated Friday, May 18, 2007), pp. 1536-39.

      . Chaney v. Meadville Medical Center, 912 A.2d 300, 303 (Pa. Super. 2006).

      . Chaney, 912 A.2d at 303.

      . Id. at 303.

      . Id. at 303.

      . Id. at 303.

      . Id. at 304.

      . Chaney, 912A.2d300.

      . Id. at 304-305.

      . Id. at 305.

      . Complaint, ¶8.

      . Complaint, ¶9.

      . Complaint, ¶10.

      . Complaint, ¶14.

      . Complaint, ¶15.

      . Amended complaint, ¶14.

      . The court further addresses the amended complaint prior to beginning trial found in trial transcript volume I (dated Friday, May 11,2007) pp. 18-27.

      . Trial transcript volume III (dated Tuesday, May 15, 2007), pp. 710-12, trial transcript volume IV (dated Wednesday, May 16,2007), pp. 825-32.

      . Dr. Dinner did testify on redirect examination that the anesthesiology standards of care are “set by the board that I referred to earlier, called the ASA, the American Society of Anesthesiologists, and they are national standards.” Trial transcript volume III (Tuesday, May 15, 2007), p. 729.

      . Trial transcript volume VI (dated Friday, May 18, 2007), p. 1316.

      . Trial transcript volume III (dated Tuesday, May 15, 2007), p. 660.

      . Trial transcript volume VI (dated Friday, May 18, 2007), pp. 1523-24.

      . A.G. Cullen Construction Inc. v. State System of Higher Education, 898 A.2d 1145, 1167 (Pa. Commw. 2006).

      . A.G. Cullen Construction Inc., 898 A.2d at 1167.

      . Id. at 1168.

      . Id. at 1167 n.2.

      . Mr. Tindall’s deposition transcript, pp. 32, 37,46, 57, 59, 60.

      . Trial transcript volume V (dated Thursday, May 17, 2007), p. 1214.

      . Trial transcript volume V (dated Thursday, May 17,2007), pp. 1218-28.

      . Trial transcript volume V (dated Thursday, May 17, 2007), p. 1230.

      . Commonwealth v. Colon, 223 Pa. Super. 202, 205-206, 299 A.2d 326, 327 (1972). (footnotes omitted)

      . McHugh v. Proctor Gamble Paper Products, 776 A.2d 266, 270 (Pa. Super. 2001).

      . Capoferri v. Children’s Hospital of Philadelphia, 893 A.2d 133, 138 (Pa. Super. 2006).

      . Commonwealth, Department of General Services v. U.S. Mineral Products Co., 927 A.2d 717, 733 (Pa. Commw. 2007). The scope of voir dire examination is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion. Petruse v. Woodhaven Foods, 1991 WL 1011004 (C.C.P. 1991).

      . Commonwealth, Department of General Services, 927 A.2d at 733.

      . McHugh, 776 A.2d at 273.

      . Commonwealth v. Ellison, 588 Pa. 1, 9, 902 A.2d 419, 424 (2006).

      . See trial transcript volume I for jury voir dire.

      . See trial transcript volume I.

      . See trial transcript volume I for jury voir dire. Juror no. 1, pp. 36-46; juror no. 3, pp. 52-57; juror no. 4, pp. 57-66; juror no. 10, pp. 97-103; juror no. 22, pp. 164-72; juror no. 31, pp. 212-20.

      . Trial transcript volume I (dated Friday, May 11, 2007), pp. 52-57.

      . Chicchi v. SEPTA, 727 A.2d 604, 609 (Pa. Commw. 1999), petition for allowance denied, 560 Pa. 750, 747 A.2d 371 (1999).

      . Johnson v. City of Philadelphia, 808 A.2d 978, 980 (Pa. Commw. 2002).

      . Stewart v. Motts, 539 Pa. 596, 606, 654 A.2d 535, 540 (1995).

      . Gaylord ex rel. Gaylord v. Morris Township Fire Department, 853 A.2d 1112, 1116 (Pa. Commw. 2004).

      . Gaylord, 853 A.2d at 1116.

      . Trial transcript volume II (dated Friday, May 11, 2007), p. 270.

      . Trial transcript volume VI (dated Friday, May 18, 2007), pp. 1501-1502.

      . Trial transcript volume VI (dated Friday, May 18, 2007), pp.-1533-34.

      . Pretrial conference transcript (dated April 11,2007), p. 7.

      . Pretrial conference transcript (dated April 11, 2007), p. 10.

      . Pretrial conference transcript (dated April 11,2007), p. 13.

      . Ms. Suzanne Woodson’s testimony is found in volume IV (dated Wednesday, May 16, 2007) beginning atp. 945.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 980.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), pp. 980-81.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 983.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 984.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 984.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 985.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 986. The court, although referencing an agreement, acknowledges that the precise terms of this stipulation or agreement are not found in the pretrial conference transcript.

      . Trial transcript volume IV (dated Wednesday, May 16, 2007), p. 986.

      . Trial transcript volume VI (dated Friday, May 18, 2007), p. 1458.

      . Commonwealth, Department of General Services, 927 A.2d at 723.

      . Alexander v. Knight, 197 Pa. Super. 79, 177 A.2d 142, 146 (1962).

      . Dawson v. Fowler, 384 Pa. Super. 329, 332, 558 A.2d 565, 566 (1989).

      . Dawson, 384 Pa. Super. at 333, 558 A.2d at 566.

      . Alexander, 177 A.2d at 146.


author: WALLACH MILLER, J,

text:
    Mussone v. Deetz

      July 17, 2007

      George W Westervelt Jr., for plaintiff.

      Catherine T. Carey, for defendant Deetz.

      Timothy P. Mnllin, for defendant Able Rent A Car.
   WALLACH MILLER, J,

On January 20, 2005, defendant David Deetz rented a vehicle from defendant Able Rent A Car Inc. in New Jersey. Two days later, on January 22, 2005, Deetz went through a stop sign in Stroud Township, Monroe County striking a vehicle operated by Keith Stuart, pushing Stuart’s vehicle into the front end of plaintiff’s vehicle. Plaintiff’s vehicle was then pushed backwards into the front of another vehicle operated by David Murawski which was stopped behind her. Defendant Deetz filed an answer to plaintiff’s complaint which did not deny the accident but denied any allegations of negligence. Defendant Able Rent A Car filed an answer denying any negligence and raised as new matter the rental contract conditions. In plaintiff’s reply to new matter, plaintiff alleges that Deetz pled guilty to driving under the influence following the accident.

Plaintiff’s complaint against Able Rent A Car Inc. contends that defendant Able Rent A Car should be liable for injuries sustained because they are contractually liable for the acts of those renting its vehicles. Defendant Able Rent A Car Inc. filed a motion for summary judgment contending that there is no issue of material fact because defendant Deetz was not an agent, servant, employee or workman of their company and as such because the only relationship that existed between the two defendants was that of rentor/rentee, all claims against them should be dismissed.

The Rules of Civil Procedure provide that after the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law:

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2.'

The moving party bears the burden of proving the nonexistence of any genuine issue of material fact. Where the non-moving party bears the burden of proof on an issue, he may not merely rely on his pleadings or answers in order to survive summary judgment. The Pennsylvania Supreme Court has stated quite plainly that “[fjailure of a non-moving party to adduce sufficient evidence on an issue essential to its case and on which it bears the burden of proof. . . establishes the entitlement of the moving party to judgment as a matter of law.” Young v. PennDOT, 560 Pa. 373, 376, 744 A.2d 1276, 1277 (2000).

Also, in determining whether to grant summary judgment, a trial court must examine the record in a light most favorable to the non-movant and resolve all doubts against the moving party. IEJ Corp. v. Laserow, 2006 WL 52822 (2006). A motion for summary judgment may be granted where the right is clear and free from doubt. Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 562 A.2d 279 (1989). Only when the facts are so clear that reasonable minds cannot differ, may a trial court properly enter summary judgment. Gutteridge v. A.P. Green Services Inc., 804 A.2d 643 (Pa. Super. 2002). Therefore, in this case, plaintiff must produce facts, which, viewed in the light most favorable to her, would be sufficient to establish a genuine issue of material fact essential to her cause of action against defendant Able Rent A Car Inc.

In Pennsylvania, to impose liability on a person for an injury resulting from the operation of a motor vehicle, “he must, except where liability is otherwise imposed by statute, either be in the actual operation thereof or in the control thereof, or stand in the relation of master or principal to the person whose act occasions the injury.” Jahn v. O’Neill, 327 Pa. Super. 357, 359, 475 A.2d 837, 838 (1984) (emphasis in original); Littles v. Avis Rent-A-Car System, 433 Pa. 72, 248 A.2d 837 (1969). Thus, the lessor of a motor vehicle is generally not liable for the negligence of a lessee while operating the vehicle. Id. A lessor may be held liable, however, for the lessor’s own negligence in leasing the vehicle for use by a person whom the lessor has reason to know is incompetent. Id.

In the case at bar, plaintiff does not contend that defendant Able Rent A Car Inc. should be held vicariously liable for defendant Deetz’ actions nor that defendant Able Rent A Car Inc. was liable under section 390 of the Restatement (Second) of Torts for negligently renting the vehicle to defendant Deetz. Plaintiff’s theory is one of contract law. Plaintiff contends that according to the rental agreement, defendant Able Rent A Car Inc. has a financial responsibility to plaintiff. The section of the rental agreement that plaintiff relies on states:

“Renter warrants that renter has insurance that covers the rental vehicle and agrees that such insurance shall be considered primary insurance and renter shall be liable for any damage occurring as a result of use of the rented vehicle. Any obligation of lessor hereunder shall be secondary. Renter also specifically assigns to lessor all rights under renter’s policy, including, without limitation, personal injury, property damage, comprehensive and collision coverages. Lessor is hereby authorized to negotiate any settlement for and on behalf of renter to the extent of lessor’s liability to any third party as a result of the use of the vehicle by the renter.”

It is true that in reading this paragraph alone, defendant Able Rent A Car Inc. would be secondarily liable for those damages that may occur while defendant Deetz is in possession of the vehicle. On the other hand, in reading this statement with the entire rental agreement, defendant Able Rent A Car would not be liable for injuries to third parties as a result of defendant Deetz’ actions. Also, unfortunately for plaintiff, because defendant Deetz was charged with and pled guilty to driving under the influence in relation to this accident, certain rules under the rental agreement apply. Section four of the rental agreement states:

“(4) The following restrictions/prohibitions are cumulative and each shall apply to every use, operation or driving of the vehicle. Rentor shall be fully liable for and will reimburse lessor for all loss or damage arising from the use and the operation of the rented vehicle for any violation of the prohibited uses set forth below:...

“(d) While either rentor or any person, having consumed and/or under the influence of alcohol, intoxicants, drugs, narcotics, prescription medications, or falling asleep at the wheel....”

Because defendant Deetz in this case was operating the vehicle while intoxicated, any liability that defendant Able Rent A Car may have had is null and void under the rental agreement that defendant Deetz signed. Defendant Deetz is solely liable for the results of his actions. Therefore, because defendant Able Rent A Car is not liable for the injuries to plaintiff, there would be no issue of material fact and therefore, defendant Able Rent A Car’s motion for summary judgment should be granted.

ORDER

AND NOW, July 17, 2007, the motion for summary judgment of defendant Able Rent A Car Inc. is granted.


author: MINORA, J.,

text:
    Moses Taylor Hospital Inc. v. Chamberlin & Reinheimer Insurers Inc.

      September 5, 2007

      Joseph A. Quinn Jr., Timothy G. Lencihan and Michael P. Perry, for plaintiff.

      William J. Schmidt, for defendant Chamberlin and Reinheimer.

      Edward S. Neyhart, for defendant Arthur J. Gallagher & Co. of New Jersey.

      Stephen G. Rhodes, for defendant Lexington Insurance Co.
   MINORA, J.,

Currently before the court is defendant, Lexington Insurance’s motion for protective order and plaintiff’s reply in opposition thereto. The matter has been thoroughly briefed and is ripe for disposition.

This matter arises out of a plaintiff/assignees’ attempts to compel defendant Lexington Insurance to produce various personnel files of its authorized claim representatives. In response, Lexington sought a protective order under Pa.R.C.P. 4011 and 4012 which is the subject of their memorandum.

Specifically, plaintiff/assignees sought from Lexington at request for production of documents no. 13 the “personnel file of any employee, agent or representative involved in the handling, investigation, denial and/or review of Moses Taylor Hospital’s request for coverage relating to claimant Donna Kapacs under the policy.”

In response to plaintiff/assignees’ motion to compel, Lexington objected to the information sought as overly broad and unduly burdensome in that it seeks information not reasonably calculated to lead to the discovery of admissible evidence.

Movant plaintiff/assignees then moved to compel production of documents. Lexington filed a brief in opposition and a motion for protective order to which plaintiff/assignees objected. This memorandum will grant plaintiff/assignees’ motion to compel Lexington, but with some restrictions.

Lexington has cited Pa.R.C.P. 4011 and 4012 in support of their position because, they argue, a heightened standard of relevance applies to the production of personnel files. In support of this, Lexington cites no Pennsylvania cases and two cases of the United States District Court for the Eastern District of Pennsylvania.

Despite this lack of persuasive authority, Lexington seeks to protect the entire file of those employees involved in the Kapacs claim. This request of Lexington we decline. It is easy for this court to imagine how information in these files could lead to discoverable evidence. For example, if the compensation scheme as revealed in these personnel files created an incentive to deny claims, this could lead to relevant and admissible evidence.

Additionally, there are other possible theories that can possibly arise out of information contained in these personnel files that can be later deemed relevant and admissible.

Perhaps most importantly, however, these files are not subject to any special all-encompassing blanket privacy or privilege known to this court. For that reason, a blanket refusal to divulge the entire file as is represented by Lexington’s position in this matter is unreasonable, unsupportable and indefensible.

Having said that, however, we are mindful of select information contained in such a file that does not need to be divulged and in this age of identity theft and health privacy ought to be accorded limited protections by this court.

Accordingly, while we shall grant plaintiff’s motion to compel production of the personnel file related to any and all employees involved in the review of the Kapacs claim, we shall also compel certain redactions and deletions.

First, there is no need for personal information contained in the file to be divulged. By personal information, we mean home addresses, and Social Security numbers. This information shall be deleted and redacted.

Second, any medical history information unrelated to job performance shall be deleted and redacted.

Third, any personal and embarrassing information unrelated to job performance and in the nature of, but not limited to, sexual activity and sexual or martial misconduct shall also be deleted and redacted.

Fourth, any banking and/or direct deposit information shall be deleted. These restrictions are issued under the authority of Pa.R.C.P. 4012 which requires good cause be shown in order to restrict discovery. This court is persuaded and convinced that good cause is present in this case and perhaps in almost every case to delete this above referenced information from discovery. The information deleted and redacted can hardly lead to relevant and admissible evidence. Concerns regarding identity theft and medical privacy and privacy in an individual’s personal and intimate lives mandate such a conclusion. Also, any direct deposit information is likely to contain Social Security numbers and financial institution and account number information totally unrelated to this litigation.

Accordingly and with the above restrictions in mind an appropriate order follows.

ORDER

And now to wit, September 5, 2007 upon review of plaintiff/assignees’ motion to compel production of documents no. 13 involving review of certain personnel files of Lexington personnel involved in the review of the Kapacs claim, it is hereby ordered and decreed that the request is granted with the following restrictions:

(1) All references to employees home addresses and Social Security numbers shall be deleted and/or redacted;

(2) Any medical history information unrelated to job performance shall be deleted and/or redacted;

(3) Any personal or embarrassing information not related to job performance in the nature of, but not limited to, sexual and/or sexual or martial misconduct shall be deleted and/or redacted;

(4) Any banking or direct deposit information shall be deleted and/or redacted.

In all other respects, the complete files shall be divulged by Lexington to plaintiff/assignees within 10 days of the date of this order.