author: SOLOMON, J,

text:
    Atlantic States Insurance Co. v. King

      C.P. of Fayette County,
    no. 919 of 2005, G.D.

      Scott Millhouse, for plaintiff.

      Todd Berkey, for defendants.
    August 30, 2006
   SOLOMON, J,

Before the court is a motion for summary judgment filed by one of the defendants, Bonnijo Fesh. The motion alleges that no genuine issues of material fact exist and that, therefore, the defendant is entitled to judgment as a matter of law. After careful consideration of the record, the motion must be denied.

BACKGROUND

This action arises from an incident that occurred on December 29, 2003, when Jamie Lynn King and Fesh were patrons at a bar in Mt. Pleasant, Pennsylvania. Outside the bar, Fesh approached King and a verbal confrontation ensued. Fesh then physically attacked King and was pulled off of King by another individual. King then proceeded to the automobile she was operating that evening, an automobile owned by her grandparents. King then drove it across the parking lot, striking Fesh. King then backed the car up and drove forward over Fesh’s leg and left the scene.

Fesh instituted a suit in Westmoreland County against King for negligence, seeking damages for the injuries she sustained. At the time of the incident, King was insured through an automobile insurance policy issued by the plaintiff to her biological grandparents and adoptive parents, Shelby and Donald King. That insurance policy includes the following provision excluding intentional injuries:

“Exclusions:

“(A) We do not provide liability coverage for any ‘insured’:

“(1) Who intentionally causes ‘bodily injury’ or ‘property damage.’”

By reason of this provision, the plaintiff instituted this declaratory judgment action, claiming it is not responsible to provide coverage to King since, as the plaintiff alleges, King acted intentionally when she struck Fesh with her grandmother’s car.

DISCUSSION

Motions for summary judgment are governed by Pa.R.C.P. 1035.2, which provides:

“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 purpose of the summary judgment rule is to eliminate cases prior to trial where a party cannot make out a claim or defense after relevant discovery has been completed. Miller v. Sacred Heart Hospital, 753 A.2d 829 (Pa. Super. 2000). It is not the function of the court ruling on a motion for summary judgment to weigh evidence and to determine the truth of the matter. Keenheel v. Commonwealth, 134 Pa. Commw. 494, 579 A.2d 1358 (1990). Further, summary judgment may only be granted when “the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits ... demonstrate that there exists no genuine issue of fact” and that the moving party is entitled to judgment as a matter of law. Janson v. Cozen and O’Connor, 450 Pa. Super. 415, 423, 676 A.2d 242, 246 (1996).

Under Rule 1035.2(2), if a defendant is the moving party, he may make the showing necessary to support the entrance of summary judgment by pointing to materials which indicate that the plaintiff is unable to satisfy an element of his cause of action. Ertel v. Patriot-News Co., 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996). The non-moving party must adduce sufficient evidence on an issue essential to its case, and on which it bears the burden of proof, such that a jury could return a verdict favorable to the non-moving party, and may not rest upon the averments contained in its pleadings. Amabile v. Auto Kleen Car Wash, 249 Pa. Super. 240, 376 A.2d 247 (1977). The non-moving party must also demonstrate that there is a genuine issue for trial. Id.; Pa.R.C.P. 1035.2(2). If the non-moving party fails to satisfy this burden, a genuine issue of material fact does not exist and the moving party is entitled to judgment as a matter of law. Tenos v. State Farm Insurance Co., 716 A.2d 626 (Pa. Super. 1998).

In determining whether summary judgment should be granted, the court must examine the record, viewing all inferences in the light most favorable to the non-moving party, and resolving any doubt against the moving party. Potter v. Herman, 762 A.2d 1116 (Pa. Super. 2000). The court must also be aware that oral testimony alone, either through testimonial affidavits or depositions, of the moving party or the moving party’s witnesses, even if uncontradicted, is generally insufficient to establish the absence of a genuine issue of material fact. Nanty-Glo Boro. v. American Surety Co., 309 Pa. 236, 163 A. 523 (1932); Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989). If the moving party has supported the motion with oral testimony only, the non-moving party may raise the defense that there is a genuine issue of material fact because the cause of action is dependent upon the credibility and demeanor of the witnesses who will testify at trial. Id.

This long-standing rule, and its modem application, are perhaps best summarized by the Superior Court in Dudley v. USX Corp., 414 Pa. Super. 160, 606 A.2d 916 (1990), as follows:

“A review of [the precedents] demonstrates that there is an inherent three-step process involved in determining whether the Nanty-Glo rule applies so as to preclude a grant of summary judgment. Initially, it must be determined whether the plaintiff has alleged facts sufficient to establish a prima facie case. If so, the second step is to determine whether there is any discrepancy as to any facts material to the case. Finally, it must be determined whether, in granting summary judgment, the trial court has usurped improperly the role of the jury by resolving any material issues of fact.

“It is only when the third stage is reached that Nanty-Glo comes into play. Thus, it is true that Nanty-Glo precludes summary judgment where the moving party relies solely upon testimonial affidavits and depositions of his witnesses to resolve material issues of fact. However, if there are no material issues of fact, or if the non-moving party has failed, in the first instance, to allege facts sufficient to make out a prima facie case, then summary judgment may be granted properly, even if the moving party has only set forth the pleadings and depositions of his witnesses in support thereof. . . .” Id. at 168-69, 606 A.2d at 920.

With these principles to guide us, we will now consider the motion of the defendants for summary judgment.

In her motion for summary judgment, the defendant claims that there is no genuine issue of material fact as to King’s state of mind, maintaining that, based upon the record, the only reasonable conclusion that can be made is that King did not act intentionally in striking or hitting Fesh with her vehicle.

Initially, in support of her claims, the defendant directs the court to her motion in limine. In her motion in limine, defendant argues that any opinions rendered by lay witnesses in this case should be excluded based upon Pennsylvania Rules of Evidence 701, 704, and 403. Specifically, the defendant wants the court to exclude the opinions of several witnesses regarding whether King acted intentionally. The defendant contends that these witnesses are not qualified to offer opinions regarding King’s state of mind at the time of the incident, and only King is qualified to offer testimony regarding her state of mind. The suggestion of the defendant is that the court rule on the motion in limine prior to ruling on the motion for summary judgment. We decline to do so at the present time.

However, even if this opinion testimony were to be excluded, there remains discrepancies in the record as to material facts so as to establish a genuine issue of material fact regarding the intent of King at the time of the incident.

Although a jury may not be permitted to reach its verdict merely on the basis of speculation or conjecture, but must have evidence upon which, logically, its conclusion may be based, circumstantial evidence may be adequate to prove a plaintiff’s case. It is not necessary that every fact or circumstance be established unerringly. Deaver v. Miller, 260 Pa. Super. 173, 177-78, 393 A.2d 1209, 1211 (1978). A party need not rely upon direct evidence to establish its case and may establish its entire case on circumstantial evidence. Peugeot Motors of America Inc. v. Stout, 310 Pa. Super. 412, 419, 456 A.2d 1002, 1005 (1983).

Intent is a fact and can be proved by circumstances as well as direct statements of one’s state of mind. Schauffler on behalf of NLRB v. United Association of Journeymen & Apprentices, etc., 230 F.2d 572, 576 (3d Cir. 1956); Commonwealth v. Abney, 195 Pa. Super. 317, 322, 171 A.2d 595, 598 (1961). “Where a specific intent constitutes an essential ingredient of the crime charged it must be established beyond a reasonable doubt to warrant a conviction. That may be done by direct or circumstantial evidence. It may be shown by indirect evidence, as well as direct, and may be gathered from all of the facts and circumstances in the case.” Schauffler on behalf of NLRB v. United Association of Journeymen & Apprentices, etc., supra (quoting 2 Wharton Criminal Evidence §931 at 1625 (11th ed. 1935)).

Pennsylvania appellate courts have continually found that intent can be proven entirely by circumstantial evidence and may be inferred by the defendant’s conduct. Commonwealth v. Miller, 897 A.2d 1281 (Pa. Super. 2006) (finding that specific intent to kill may be proved by wholly circumstantial evidence and may be inferred by the defendant’s use of a weapon on a vital part of the victim’s body); Shared Communications Services v. Bell Atlantic Properties, 692 A.2d 570 (Pa. Super. 1997) (establishing that intent to do an unlawful act by unlawful means and malice may be proven circumstantially in a civil conspiracy claim); Commonwealth v. Simpson, 316 Pa. Super. 115, 123, 462 A.2d 821, 825 (1983) (holding that the specific intent to commit a crime may be inferred from the defendant’s words or conduct or from the circumstances of the case together with all reasonable inferences therefrom); In Interest of J.L., 327 Pa. Super. 175, 475 A.2d 156 (1984) (finding that specific intent to cause bodily injury may be proved by circumstantial evidence).

The defendant’s claim, in her brief in response to plaintiff’s brief in opposition to the motion for summary judgment, that any reliance on criminal cases to support the proposition that criminal evidence can be used to prove intent, is misplaced, and Pennsylvania case law reveals such. There have been many instances where the court has affirmed the use of circumstantial evidence to establish intent in insurance cases where the intent of the actor was a decisive issue. Hilliard Lumber Co. v. Harleysville Mutual Casualty Co., 175 Pa. Super. 94, 103 A.2d 436 (1954) (establishing that in a civil case charging an insurer with liability under a theft policy, circumstantial evidence alone may be sufficient to prove larceny); Germantown Insurance Co. v. Martin, 407 Pa. Super. 326, 333, 595 A.2d 1172, 1175 (1991) (finding that circumstantial evidence such as choice of weapon, carrying of extra ammunition, driving to the right house, and shooting each person repeatedly relevant to whether the defendant expected or intended to cause serious harm to the victims). Our appellate court, in Minnesota Fire and Casualty Co. v. Greenfield, 805 A.2d 622, 625 (Pa. Super. 2002), explicitly declared that the intent of an actor can be inferred from the nature of the act. The court further noted that this concept is often seen in homicide cases, where intent may be properly inferred from the facts and circumstances of the crime. Id. at 625 n. 1. The court recognized that it would be unbalanced to allow such an inference where the defendant may pay with his life, but to refuse such an inference in a civil dispute. Id.

For the purposes of the insurance policy provision at issue, excluding coverage for expected or intended injuries by the insured, “an insured intends an injury if he desired to cause the consequences of his act or if he acted knowing that such consequences were substantially certain to result.” Stidham v. Millvale Sportsmen’s Club, 421 Pa. Super. 548, 563, 618 A.2d 945, 953 (1992). A close examination of the record here reveals conflicting evidence concerning whether King intended to cause injuries to Fesh. The record includes several eyewitness statements describing the incident which occurred on December 29, 2003. These statements reveal that prior to King hitting Fesh with her vehicle, the two parties were involved in a verbal and physical altercation. Fesh verbally confronted King and then physically attacked her. King then struck Fesh with her automobile, backed up, and ran over Fesh a second time. From this evidence, an inference can be made that King’s striking and running over Fesh was done in retaliation for the earlier physical attack by Fesh, and was done intentionally.

Since her actions are more consistent with an intentional act rather than an accidental one, a reasonable inference is that King intended to injure Fesh. Furthermore, witnesses have testified that, after running over Fesh, King did not stop to assist Fesh, but instead fled the scene. The earlier physical attack, the sequence of events in which King hit and ran over Fesh, and King’s actions after she ran over Fesh, are all strong pieces of circumstantial evidence which tend to point to the fact that King intended to strike and injure Fesh.

Conversely, the record also reveals that King has repeatedly declared in statements and testimony that she did not intend to run over Fesh and cause her injury, and that she did not know that she had struck Fesh with her vehicle. This direct evidence of King’s state of mind is consistent with Fesh’s theory that King did not act intentionally. However, since circumstantial evidence may be sufficient to contradict direct testimony, the evidence in the record is sufficient from which a jury could infer that King desired to cause the injury to Fesh. Peugeot Motors of America Inc. v. Stout, supra, 310 Pa. Super. at 420, 456 A.2d at 1006.

The defendant’s contention in her motion for summary judgment that the court only consider King’s statements as to her state of mind presents major difficulties with regard to proof. See Commonwealth of Pennsylvania v. Tyrrell, 405 Pa. 210, 217, 174 A.2d 852, 855 (1961) (“A defendant’s mind and intent cannot be photographed....”). If the court adopted the defendant’s suggestion in cases of this type, an insured would always be entitled to coverage unless she admitted that she intended to cause the injury which occurred. United Services Automobile Association v. Elitzky, 358 Pa. Super. 362, 373, 517 A.2d 982, 988 (1986). That court also expressed doubt that such testimony would be readily forthcoming. Id.

Finally, the defendant maintains in her motion for summary judgment that the only evidence the court should consider competent and credible evidence is the direct evidence consisting of the statements of King regarding intentionality. As explained supra, direct evidence is not the only competent evidence to be considered in this and similar cases. Most importantly, it is not for the court in ruling on a motion for summary judgment to weigh evidence and determine the truth of the matter. It is the role of the fact-finder to judge the credibility of evidence and resolve any material issues of fact, whether it be circumstantial evidence or direct testimony. Peugeot Motors of America Inc. v. Stout, supra, 310 Pa. Super. at 420, 456 A. 2d at 1006; Dudley v. USX Corp., supra.

Wherefore, we will enter the following order.

ORDER

And now, August 30, 2006, upon the record, it is hereby ordered and decreed that the motion of the defendant, Bonnijo Fesh, for summary judgment is denied.


source: Caselaw Access Project

author: McGINLEY, J,

license: Public Domain

text:
    Stout v. Young

      C.P. of Lehigh County,
    no. 2003-C-2235.

      Richard D Gorski, for plaintiffs.

      Maryann E. Higgins, for defendants.
    September 1, 2006
   McGINLEY, J,

Before the court is the plaintiffs’ motion for post-trial relief, requesting a trial on damages only. Plaintiff alleges that the jury failure to award damages for plaintiff Patricia Stout’s pain and suffering is inconsistent with its award of medical expenses and lost wages.

FACTUAL HISTORY

On September 16, 2001, the plaintiff Patricia Stout along with her husband Scott Stout, exited their car, which was parked in the street adjacent to a sidewalk owned by the defendants Gregory and Lisa Young. Patrida Stout went around the front of the vehicle in order to get to the rear passenger-side door and fell in a hole in the sidewalk. The plaintiff was not looking where she was walking, but was instead looking at her husband. Scott Stout only witnessed his wife falling and did not immediately see the cause of her fall.

Expert medical testimony from Dr. David Warner established that the plaintiff suffered an avulsion fracture of her right ankle, wherein the ligaments connected to the plaintiff’s ankle pulled free from the bone, taking with it a small fleck of bone measuring between two to four millimeters.

Trial testimony also established that the plaintiff had suffered numerous problems with her right foot prior to this specific fall. In 1996, Dr. Fritz, a podiatrist, performed surgery on the plaintiff’s right heel in an effort to reduce pain being experienced by the plaintiff. Shortly thereafter, the plaintiff suffered a stress fracture, which required casting. Due to her foot problems in the 1990s, the plaintiff testified that she experienced sensations of pain, burning, stabbing and throbbing in her foot. Dr. Fritz also treated the plaintiff by giving her injections and an ankle immobilizer.

The plaintiff presented herself to Dr. Warner for treatment of a twisted right ankle beginning in December 2000. An examination of the plaintiff revealed a positive Tinsel’s sign in the right foot near an incision from prior plantar fasciotomy surgery.

Doctor Warner testified that by November of 2001, following her September accident and surgery, plaintiff’s ankle was up to at least 75 percent of normal. Shortly thereafter, the plaintiff slipped on a soda can in the parking lot of the Moorestown Pub and once again twisted her right ankle.

PROCEDURAL HISTORY

The plaintiffs filed a complaint in this matter on December 3, 2003. Trial commenced on May 1, 2006. On May 2, 2006, the jury awarded the plaintiff, Patricia Stout, damages totaling $8,214.10. The jury also awarded Scott Stout one dollar for loss of consortium.

The plaintiffs filed a motion for post-trial relief on May 10, 2006. The defendants filed their answer to plaintiffs’ motion for post-trial relief on June 15, 2006. Argument was heard on August 2, 2006.

DISCUSSION

The plaintiffs argue in their post-trial motion that the jury in this matter exhibited prejudicial behavior by disregarding plaintiff Patricia Stout’s pain and suffering, loss of enjoyment of life and other non-liquidated damages and by limiting its award to the plaintiff, Patricia Stout, to the exact amount of her medical bills and loss of wages for the period of September 16, 2001 through December 2001.

When the jury first returned with a verdict, the jury had answered the verdict interrogatories only to the point where comparative liability was assessed between the plaintiff and defendant 50/50. The court then instructed the jury on the need to return a verdict on damages. The interrogatory on damages was a general interrogatoiy, but the court instructed, for the second time, on the elements of damages, i.e. medical expenses, lost wages, and the various components of non-economic damages. The plaintiff did not, and does not contest the instruction, and in fact concedes that the instructions were correct.

Following further deliberation, the jury returned a verdict for the plaintiff in the sum of $8,214.10. Because the damage interrogatory was a general interrogatory, plaintiffs’ counsel’s contention that the award was solely for economic damages is deduced from his own examination of the evidence that was presented in that regard.

While the amount might coincidentally be the same as those amounts, we see nothing that would allow us to say that the jury failed to award pain and suffering. It is presumed that a jury followed the instructions of the court. Commonwealth v. Tilley, 528 Pa. 125, 143, 595 A.2d 575, 583 (1991) citing Commonwealth v. Steele, 522 Pa. 61, 559 A.2d 904 (1989). In the instant case, the court correctly instructed the jury on the various elements of damages to be awarded, and it is presumed that the jury followed the instructions.

The facts in this case are very similar to the facts in Kaufman v. Campos, 827 A.2d 1209, 1211-12 (Pa. Super. 2003). In Kaufman, the jury returned a verdict in the exact amount of medical bills. The Superior Court held: “the mere fact that the jury fixes on the exact number of the medical bills does not necessarily mean that they award nothing for pain and suffering.”

Even if we concluded that the jury verdict was limited to medical bills and lost wages, the plaintiff would not be entitled automatically to a trial on the sole issue of damages. The Supreme Court of Pennsylvania has held “that a jury’s award of medical expenses without compensation for pain and suffering should not be disturbed where the trial court had a reasonable basis to believe that: (1) the jury did not believe the plaintiff suffered any pain and suffering, or (2) that a pre-existing condition or injury was the sole cause of the alleged pain and suffering.” Davis v. Mullen, 565 Pa. 386, 391, 773 A.2d 764, 767 (2001).

In the matter before us, even if we assumed that the jury decided not to award for pain and suffering, we see a reasonable basis for the jury’s decision in that regard.

It was perfectly reasonable for the jury to conclude that the pain and suffering was attributable to the plaintiff’s pre-existing problems with her right foot. Given the fact that the plaintiff was in the treatment of doctors for similar symptoms in the exact same body part for many years prior to her fall on the defendants’ sidewalk, the jury could reasonably conclude that the plaintiff’s pain and suffering reported after the fall were merely a continuation of pre-existing pain and suffering in the plaintiff’s right foot. As such, we will not overturn the finding of the jury, and the plaintiffs’ post-trial motion is denied.

ORDER

And now, September 7, 2006, upon consideration of the plaintiffs’ motion for post-trial relief filed with the clerk of courts — civil division on May 10, 2006, defendants’ answer thereto filed June 15, 2006, supporting briefs and after oral argument on August 2, 2006, it is ordered that the plaintiffs’ motion for post-trial relief is denied.


author: MINORA, J,

text:
    Shambach v. Fike

      C.P. of Lackawanna County,
    no. 2002-CV-3391.

      Daniel W Munley, for plaintiffs.

      Benjamin Raccanova, for defendants.
    October 3, 2006
   MINORA, J,

Currently before the court is the plaintiffs’ appeal of the decision of the special trial master regarding medical discovery in the instant case.

By way of background, this action was brought by plaintiffs to recover for personal injuries plaintiff Terry Shambach allegedly sustained in an industrial accident onApril 4,2001, at aNew Holland plant located inBelleville, Pennsylvania. Plaintiffs have sued defendant New Holland (the owner of the premises) as well as defendants Ryder Systems Inc. and Ryder’s employee, William Fike Jr. (the parties responsible for operating the forklift involved in the accident).

On June 19, 2002, plaintiffs instituted this action against the above defendants for personal injuries that were allegedly sustained when a load being carried by a forklift operated by Ryder employee Fike fell, struck and allegedly injured the plaintiff, Terry Shambach.

Plaintiff Terry Shambach has alleged he suffered various injuries from the incident, including but not limited to reflex sympathetic dystrophy. New Holland and Ryder retained separate attorneys. On November 14, 2002, New Holland filed its answer and new matter essentially denying all liability.

Plaintiffs granted defendant Ryder’s request for an independent medical exam (IME) which took place on November 22,2002. The expert report of that exam was distributed to all parties. Since plaintiff would not submit to a subsequent IME to be conducted on behalf of defendant New Holland, New Holland filed a motion for an order requiring submission to a physical examination.

The special trial master denied New Holland’s request for an IME by his decision dated November 14, 2005. The special trial master permitted Ryder to take the deposition of plaintiffs’ expert witness/treating physician, Robert Knobler M.D. The court here notes that plaintiffs supplied the court with Dr. Knobler’s expert report dated February 14, 2005, and a letter from plaintiffs’ counsel stating his intent to call Dr. Knobler as an expert witness, attached hereto as “exhibit A.”

New Holland appealed the decision of the special trial master on the IME. This court issued an order ruling on the New Holland appeal only. The parties agreed to argue the special trial master’s decision permitting Dr. Knobler’s deposition on brief. This issue is now ripe for determination.

The special trial master concluded that Ryder was permitted to depose Dr. Knobler regarding the plaintiff’s medical condition. The special trial master found that Dr. Knobler provided the plaintiff with medical treatment by prescribing medication to the plaintiff. The action of prescribing medication to the plaintiff classified Dr. Knobler as a treating physician whose deposition could be taken. The special trial master rejected the position of the plaintiffs’ counsel, who argued that Dr. Knobler was acting in the capacity of an expert witness who examined and prepared a report on the plaintiff’s condition in anticipation of litigation. We now address the appeal of the decision of the special trial master to determine whether defendants may depose plaintiff’s treating physician/expert witness.

LEGAL ARGUMENTS

Plaintiffs’ counsel argues that the defendants incorrectly interpret Pennsylvania Rule of Civil Procedure 4003.5 as preventing a plaintiff from ever using his treating physician as an expert witness. Plaintiffs’ brief, p. 3. Plaintiffs’ counsel confirms that Dr. Knobler was indeed the plaintiff’s treating physician. Id. Counsel argues that the report at issue was prepared at the explicit request of plaintiffs’ counsel, and was addressed to counsel and paid for by counsel.

Defendants argue that their motion to compel the deposition of Dr. Knobler should be granted because Dr. Knobler’s medical evaluations of the plaintiff classify him as a treating physician rather than an expert witness. Defendants argue that ample evidence substantiates this argument. Dr. Knobler saw plaintiff at least seven times in a 30-month period, during which time “he performed tests, ordered labs, wrote prescriptions, diagnosed and treated the plaintiff.” Ryder defendants’ brief, p. 3.

Defendants argue that Dr. Knobler received compensation for his services from the plaintiff’s workers’ compensation coverage and not plaintiffs’ counsel. Id. Defendants argue that Dr. Knobler is a treating physician and not an expert witness hired in anticipation of litigation and, as such, this court should grant defendants’ motion to compel Dr. Knobler’s deposition. Actually, we believe Dr. Knobler can be, and is, both an expert witness as well as a treating physician.

LEGAL STANDARD

Applicable Rules of Civil Procedure

Rules 4001 and 4003 of the Pennsylvania Rules of Civil Procedure address discovery generally. Subsection (c) of Rule 4001, Scope, definitions, provides:

“(c) Subject to the provisions of this chapter, any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery, or for preparation of pleadings, or for preparation or trial of a case, or for use at a hearing upon petition, motion or rule, or for any combination of the foregoing purposes.”

Subsection (a) of Rule 4003.1, Scope of discovery generally, opinions and contentions, provides:

“(a) Subject to the provisions of Rules 4003.2 to 4003.5, inclusive and Rule 4011, a party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party ....”

Expert witnesses are governed by Rule 4003.5, Discovery of expert testimony. Trial preparation material:

“(a) Discovery of facts known and opinions held by an expert, otherwise discoverable under the provisions of Rule 4003.1 and acquired or developed in anticipation of litigation or for trial, may be obtained as follows:

“(1) A party may through interrogatories require

“(a) any other party to identify each person whom the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

“(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his or her answer a report of the expert or have the interrogatories answered by the expert. The answer or separate report shall be signed by the expert.

“(2) Upon cause shown, the court may order further discovery by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.

“(3) A party may not discover facts known or opinions held by an expert who has been retained or specially employed by another party in anticipation of litigation or preparation for trial and who is not expected to be called as a witness at trial, except a medical expert as provided in Rule 4010(b) or except on order of court as to any other expert upon a showing of exceptional circumstances under which it is impracticable for the party seeking discovery to obtain facts or opinions on the same subject by other means, subject to such restrictions as to scope and such provisions concerning fees and expenses as the court may deem appropriate.”

Rule 4003.6, Discovery of treating physician, provides:

“Information may be obtained from the treating physician of a party only upon written consent of that party or through a method of discovery authorized by this chapter. The rule shall not prevent an attorney from obtaining information from:

“(1) the attorney’s client

“(2) an employee of the attorney’s client, or

“(3) an ostensible employee of the attorney’s client.”

Applicable Case Law

Preliminarily, we note case law which underscores the applicability of Rule 4003.5. Explaining the applicability of Rule 4003.5 in reference to expert witnesses, the court, in Istnick v. Wyeth, no. 00268, 2004 WL2216185, at *2 (Phila. Cty. Sept. 10, 2004) stated:

“Rule 4003.5 does not apply to discovery of facts known or opinions held by a witness, whether or not an expert, if those facts or opinions were acquired or developed independently of the litigation and not for trial. Experts who know of facts or hold opinions not acquired or developed in anticipation of litigation or for trial are subject to discovery like any other witnesses under the general discovery rules.” Citing Scott v. DeFeo, 46 D.&C.4th 353, 355 (Lehigh Cty. 2000).

In Miller v. The Brass Rail Tavern Inc., 541 Pa. 474, 664 A.2d 525 (1995), our Supreme Court was asked to determine whether a county coroner was permitted to testify as a witness as to an individual’s time of death when not named as an expert to testify on the matter. Plaintiff/appellant, who represented the interest of the decedent in the case, called the county coroner to testify as to the time of death of decedent. Id. at 478, 664 A.2d at 527. Plaintiff called the county coroner as non-expert witness in the trial. Id. Appellee/defense counsel objected, arguing that the coroner’s testimony should be precluded because testimony as to time of death is classified as expert testimony. Id. Appellee/defendant argued that plaintiff/appellant did not identify the coroner as an expert in pretrial interrogatories, and therefore the coroner’s testimony was precluded. Id.

Plaintiff/appellant argued “Rule 4003.5 does not apply to coroner Wetzler because he was not hired in anticipation of litigation.” Id. at 485, 664 A.2d at 530, citing Neal by Neal v. Lu, 365 Pa. Super. 464, 530 A.2d 103 (1987). Further, plaintiff/appellant argued that the coroner was not called to testify in anticipation of litigation, rather, plaintiff called him to testify within his official capacity as coroner.

The Supreme Court agreed with plaintiff/appellant. The court ruled that county coroner was permitted to testify because his opinion as to time of death was not reached in anticipation of litigation, and he was not called upon by the plaintiffs to “determine the facts surrounding [decedent’s] death.” Id. at 487, 664 A.2d at 531. The court concluded, “[t]here is no doubt that the opinions of coroner Wetzler, especially relating to the cause of death and the time of death, constitute expert opinion. Flowever, because coroner Wetzler’s opinions were not acquired or developed with an eye toward litigation, Rule 4003.5 is inapplicable.” Id.

While Miller dealt with the treatment of a coroner as an expert witness, other courts have been presented with the issue concerning a treating physician who is also called as an expert witness. “[A] treating physician, including psychologists and psychiatrists, are [sic] regarded as ordinary witnesses for discovery purposes.” Hepler v. Alvis, 63 D.&C.4th 129, 136 (York Cty. 2003), citing McQuaid v. Platt Music Corporation, 1987 WL 15434 (E.D. Pa.); see also, Scott v. DeFeo, 46 D.&C.4th 353 (Lehigh Cty. 2000). “If and until the plaintiff lists [doctors who had treated plaintiff] as expert witnesses they are subject to the general rules of discovery.” Hepler, at 137.

In Smith v. SEPTA, 719 CD 2006, 2006 WL 1791376, at *3 (Phila. Cty. June 1, 2006), the court of common pleas stated, “the mere fact that a physician administers treatment to a litigation party does not compel the conclusion that thereafter the physician may not be considered an expert within the meaning of Pa.R.C.P. 4003.5,” citing Kurian v. Anisman, 851 A.2d 152, 156 (Pa. Super. 2004).

The court in Smith v. SEPTA continued, “[t]reating physicians, whose testimony would not otherwise be covered by Pa.R.C.P. 4003.5, may still be considered experts and be subject to the discovery requirements regarding expert testimony if the opinion to be expressed during testimony was developed in anticipation of litigation and was not within the normal course of treatment.” Id. at *4.

While there is ample case law supporting the proposition that a treating physician may also be called as an expert witness, we note that there is case law to the contrary. In Barto v. Hellam Township, 32 D.&C.4th 90, 95 (1996), “We do not believe that Rule 4003.5 applies to discovery of facts known and opinions held by experts who are also treating physicians, because a treating physician’s factual knowledge and opinions are, by definition, not acquired or developed in anticipation of litigation or for trial.”

Having examined the relevant Rules of Civil Procedure, applicable case law and considering the arguments of the parties as well as the production of the expert report written by Dr. Knobler for the plaintiff, we conclude that Dr. Knobler may act as both a treating physician and expert witness for purposes of this case. However, because he has acted in the past as a treating physician, only this information not prepared in anticipation of litigation is discoverable by defendants. Therefore, defendants are free to depose Dr. Knobler but only as to Dr. Knobler’s capacity as a treating physician. Conversely, defendants are not authorized to depose Dr. Knobler regarding any professional opinions which have been developed in anticipation of litigation. While there may not be any bright line test to distinguish between these two areas, the date of the formulation of his report can certainly be a helpful guide.

Accordingly, we determine that February 14, 2005, the date provided on Dr. Knobler’s expert report, most certainly commences his capacity as an expert witness. Information in Dr. Knobler’s chart obtained while he functioned as the treating physician only is discoverable by the defendants. Other information that was prepared by Dr. Knobler employed as an expert witness for the plaintiff formulating his expert opinion for use in anticipation of litigation in the instant case is not subject to discovery, but for what is allowed under Pa.R.C.R 4003.5(a), the subject report which has already been exchanged. Therefore, both parties shall be guided accordingly, and an appropriate order follows.

ORDER

And now, on October 3, 2006, defendants’ motion to compel the deposition of Dr. Knobler is granted in part, but the deposition is limited to information obtained in the course of his capacity as a treating physician only, and no discovery is allowed regarding opinions formulated in anticipation of litigation.

      . This court’s order, dated June 16, 2006, denied New Holland’s motion for and order requiring plaintiff’s submission to an overall second independent medical exam.


author: CLARK JR., J.,

text:
    Board of Control of the Harrisburg School District v. Wilson

      C.P. of Dauphin County,
    no. 2006 CV 3443 EQ.

      Brian P Gabriel, for plaintiffs.

      Carl P Beard, for defendants.
    October 9, 2006
   CLARK JR., J.,

In order to properly illuminate the pertinent issues in this case, we must briefly review the facts that led to our previously issued interim opinion dated June 27, 2006 (docket no. 2006 CV 2489), which interim opinion we hereby incorporate by reference into this writing. In that previous writing, we discussed in great detail the history of the Education Empowerment Act (EEA) (Act of May 10,2000, P.L. 44, no. 16, §8.1, as amended, 24 P.S. §§17-1701-B — 17-1716-B) and its ultimate affirmation by the Pennsylvania Supreme Court. We also discussed the academic history of the Harrisburg School District and how it became an acutely distressed empowerment district. We refer the reader to that prior interim opinion for a more detailed discussion of those complex issues.

We will, however, generally discuss the EEA and review the background facts leading up to the case at bar. The EEA mandates that if the academic test scores in a school district consistently remain extremely low, the mayor of the city wherein such a school district is located is obligated by law to appoint a board of control. The control board is then given the authority, powers and prerogatives to completely run the affairs of the school district in place of the elected board of school directors. However, the elected board retains “the power to levy taxes.” We will explain in greater detail exactly what this “power” means, in the total context of the EEA, and several companion provisions of the Public School Code, inter alia, 24 P.S. §§6-693, 694 and 695.

In that previous case, which led to the issuance of the interim opinion and accompanying interim decree, the control board of the school district was having significant disagreements with the elected board concerning the overall management and operation of the district, especially concerning fiscal issues. In particular, the elected board perceived that it was not being given sufficient information before being directed to approve fiscal resolutions submitted to it (elected board) by the control board. The control board became concerned that the elected board would not affirm certain bank loans or pass the 2006-2007 school tax levy to fund the control board’s proposed budget for the school district’s 2006-2007 fiscal school year.

As a result, the control board filed suit in this court to, inter alia, compel the elected board to affirm the bank loans and pass the tax levy, or face removal from office for neglect of duty. The elected board was prescheduled to vote on the tax levy and other critical financial obligations on the evening of June 28, 2006. Therefore, we purposely expedited the scheduling of the necessary court proceedings prior to that date so the elected board members would have the benefit of our legal analysis and rulings prior to casting their votes on such matters.

At those prior proceedings, the elected board argued to the court that since the General Assembly specifically granted it (elected board) the power to levy taxes, the elected board members had discretion whether or not to approve a tax levy and to also approve or disapprove the other financial obligations of the district. Therefore, it was the contention of the members of the elected board that if they (elected board) disagreed with or felt that they (elected board) were not sufficiently informed about the control board’s proposed budget or other financial obligations, they (elected board) did not have to approve the tax levy or ratify those other obligations.

We issued our interim opinion late in the evening of the same day as the hearing (June 27, 2006). In it we dismissed the elected board’s claims and assertions regarding some sort of a perceived inherent right to disregard the directives of the control board pertaining to the ratification of financial obligations which had been already determined by the control board to be in the best interests of the school district. We stated that to permit the control board to set the annual school district budget and determine the other financial obligations of the district, but give the elected board the discretion to not approve the necessary taxes to fund the budget and/or not ratify the other obligations, would create absolute fiscal chaos in the district. We likened it to having two captains on the same ship. Interim opinion, June 27,2006, p. 26.

In our interim opinion, we gave a detailed interpretation of the authority, powers and prerogatives given by the General Assembly to the control board and concomitantly withdrawn from the elected board under the EEA. In order to provide the reader with an adequate basis to assess the holdings of this instant opinion, we will now quote, at some significant length, the salient portions of those prior holdings, as articulated in the interim opinion.

“As mentioned above, the control board in this case was appointed pursuant to the acutely academically distressed provision of the EEA, 24 P.S. §17-1707-B. This statute grants boards of control the following powers:

“ ‘The authority granted to a board of school directors under section 1704-B(a) shall be exercised by the board of control of an education empowerment district certified under this section. The provisions of sections 1705-B(c), (d), (e) and (g), 1706-B and 1708-B(a) shall be applicable to a board of control appointed under subsection (b). The provisions of sections 693,694 and 695 relating to special boards of control shall apply to a board of control under this section. 24 P.S. § 1707-B(c). All statutes are in title 24 and their complete citations are: section 17-1704-B, section 17-1705-B, section 17-1706-B, section 6-693, section 6-694 and section 6-695’....

“The elected board appears to challenge the right of the control board to seek the court’s intervention to force the elected board to pass the tax levy and affirmation of bank loans. However, under section 694, the General Assembly has clearly empowered the control board to require the elected board to pass a tax levy and affirm debts. This section states in relevant part,

“ ‘When the operation of a distressed school district has been assumed by the special board of control, the board of school directors of the district shall, upon recommendation and with the approval of the special board of control, levy an additional tax or taxes sufficient to liquidate the indebtedness of the district. . . .’ 24 P.S. §6-694. (emphasis added)

“This language clearly establishes that the elected board must raise a tax when the control board recommends it. We also note that the rest of section 694 grants the control board authority to petition the court of common pleas to issue a writ of mandamus to force the elected board to pass an additional tax.

“Although there is no tax increase for the 2006/2007 school district fiscal year in the case at bar, we find that if the elected board can be compelled to pass an additional tax, it can certainly be compelled to pass its regular tax levy. This is especially true because the elected board has an independent duty to pass tax levies to fund the school district. 24 P.S. §6-601.

“Aside from section 694, we also note the general provision listed in section 695. We recognize that statutes are sometimes difficult to interpret. Therefore, for the purposes of clarity, we will quote the entire section, but emphasize the critical portions thereof. This section states,

“ ‘ The school directors of a distressed district may not resign their offices, except with the unanimous consent of the special board of control and shall continue in office, unless removed from office for neglect of duty under the provisions of section 318 of this Act by the court of common pleas of the county in which such district or the largest part in area is located, or unless any of such directors are elected to another position not compatible with the position of school director or are appointed to any position for which there is a requirement that said appointee shall hold no elective office, for the remainder of their terms during the time the district is operated by the special board of control and shall perform any duties delegated to them by it. The assumption of control of a distressed school district by the special board of control shall in no way interfere with the regular election or reelection of school directors for the district.’ 24 P.S. §6-695. (emphasis added)

“A careful reading of this statute clearly indicates that interlaced within other language concerning how an elected school director might be allowed to lawfully leave office, is the simple, yet powerful directive, ‘[the elected school directors] shall perform any duties delegated to them [elected school directors] by it [control board].'Id. Thus, the control board’s authority is clear. The members of the elected board must' authorize whatever tax the control board directs them to levy and otherwise satisfy the other fiscal obligations of the school district.

“Finally, as mentioned above, under section 693, as soon as a control board is created, the elected board loses all its authority, powers and prerogatives, save the power to levy taxes. Therefore, as also mentioned earlier, the elected board does not have the authority, power or prerogative to contest the control board’s budget and must fund said budget, notwithstanding any objections they (elected board) may have to its content or amount. Section 693 explicitly states, ‘the special board of control may require the [elected] board ... to increase tax levies in such amounts and at such times as is permitted by the Act to which this is an amendment.’ 24 P.S. §6-693(2)....

“The elected board claims that they are entitled to not pass the tax levy because they have not been given ‘enough information’ by the control board. Unfortunately, there is no provision in the Public School Code that entitles an elected board to any special information that is not available to the regular public. If the elected board wishes to inquire of or even contest the control board’s budget, they are free to attend public meetings and ask questions like any other citizen.” Interim opinion, June 27, 2006, pp. 13, 22-25, 27.

We clearly ruled that the elected board had no discretion, but had to approve whatever tax levy the board of control requested. We worked late into the evening hours on June 27,2006 to ensure that the elected board had the benefit of our ruling prior to its vote. The interim opinion was filed with the prothonotary in the early morning of June 28, 2006, and copies were distributed that day to the parties and their counsels. Our interim opinion apparently had some clarifying effect on these pertinent issues, since the elected board voted unanimously to affirm the bank loans and pass the tax levy on June 28, 2006. As a result of that vote, the necessity for a hearing on the original petition for removal of the members of the elected board was rendered moot.

Upon being informed of the unanimous vote, we were hopeful that “peace had returned to the valley.” Although we could certainly empathize with the elected board upon being informed, via the interim opinion, that they (elected board) were divested of all discretionary authority, powers and prerogatives, and we could likewise understand that the elected board would not likely be too enamored with that situation, we were nevertheless hopeful that they (elected board) would accept the rule of law, and fulfill their sworn duty as that duty had been defined by the General Assembly under the provisions of the EEA. Unfortunately, that was not to be ultimately the case, and the aforementioned “peace” was not to be long lived.

In the spring of 2006, the school district’s financial advisors recommended that the district consider performing certain financial transactions, commonly referred to as SWAPS and TRANS. For purposes of this opinion, it is not important to define the exact nature of these rather complex financial transactions, other than to note that such financial undertakings are specifically authorized by the General Assembly to be fiscal vehicles available to school districts to manage their monies in a more efficient fashion, and those same types of transactions had, in fact, been previously undertaken by the school district.

In early July of 2006, the mayor of the City of Harrisburg, the Honorable Stephen R. Reed, in consultation with certain financial advisors and the superintendent of the school district, determined that it was in the school district’s significant financial interest to perfonn these financial transactions and recommended that the control board take prompt action to accomplish these matters. The control board scheduled a public meeting for July 27,2006 to approve the transactions and also scheduled a public meeting for the elected board for July 31,2006 for a ratification vote by the elected board. It should be noted that the various lending institutions which were involved in underwriting these multi-million dollar financial transactions absolutely required the ratification vote of the elected board members in order to obtain (at least in the lending institution’s opinion) a legally binding pledge of the “full faith and credit” of the taxing power of the school district to guarantee these various financial obligations. Presumably, the lending institutions were relying on the provisions of the Pennsylvania Constitution which limits the right to levy taxes to only elected bodies. However, it is a virtually universal requirement in such large financial undertakings involving governmental entities that the political entity which has taxing power is required to collateralize such matters in that fashion.

In preparation for action by the control board and the elected board in regard to these financial transactions, a rather voluminous packet of background and explanatory materials was assembled. Ms. Julie Anne Mackey, the control board secretary, attempted to distribute these materials to the elected board members for their review, via an email attachment, on or about July 26,2006. When Ms. Mackey attempted to transmit the packet electronically she discovered that it was too large to be disseminated in that fashion. As a result, Ms. Mackey promptly had the materials printed, and sent them via United States mail and by private courier service to the individual elected board members at their declared addresses.

On July 27,2006, the control board passed a resolution approving the SWAPS and TRANS and also specifically directed the elected board to do the same at their pre-scheduled meeting on July 31, 2006. However, on July 31,2006, for reasons that are at best “unclear” (but not otherwise germane to the decision herein), not one of the nine members of the elected board attended that pre-scheduled meeting. We do not intend to make a specific attribution of fault for the reason(s) why not a single elected board member saw fit to attend that meeting. At this juncture, we will simply note that it was just an amazing coincidence that no one could attend.

However, apparently two elected board members were able to be contacted by telephone that evening, and were thus able to telephonically participate in the meeting. But, alas, notwithstanding the concerted efforts of the superintendent to contact the remaining elected board members by telephone, such efforts failed, and there was an insufficient number of elected board members present by telephone or in person to constitute a quorum, so no official business could be conducted. The result of this failed meeting was that the SWAPS and TRANS that had been approved by the control board on July 27, 2006 were not ratified; and therefore those fiscal endeavors could not be implemented because of the lack of action by the elected board.

Shortly thereafter, on August 2, 2006, the control board, and its constituent members, together with the superintendent (plaintiffs/petitioners), filed their initial petition for removal of seven of the nine elected board members from their public office as school directors for neglect of duty pursuant to 24 P.S. §3-318 (removal statute). These filings were initially docketed to the original civil action at docket no. 2006 CV 2489. The two elected board members who were not included as defendants in the initial petition were the two who made themselves available via conference call at the July 31, 2006 elected board meeting.

Due to the fact that the renewed petition for removal was based upon new factual occurrences {i.e., the July 31, 2006 failed meeting of the elected board), which occurrences were not part of the control board’s original lawsuit (docket no. 2006 CV 2489), the court determined that it was procedurally proper for the plaintiffs/petitioners to file a new lawsuit and a new petition for removal, inasmuch as the previously alleged anticipated basis for the original removal action was rendered moot by the unanimous positive vote of the elected board at its meeting on June 28, 2006. The new complaint and petition for removal were filed on August 4, 2006 at the above captioned docket.

Although this instant proceeding is captioned, filed and docketed as an action in equity, we note that this proceeding is more properly characterized as a special type of action at law, inasmuch as the General Assembly has provided for a specific statutory removal proceeding at 24 P.S. §3-318 (removal statute). Therefore, this court, in adjudicating this matter, is primarily proceeding on the basis of a special action at law, and we shall only exercise as much of our equity jurisdiction as may be necessary to fully resolve this matter.

Upon reviewing the complaint and accompanying petition for removal, it became abundantly apparent to us that the previously hoped for and briefly obtained comity between the parties had indeed deteriorated into another unfortunately antagonistic and rather perilous situation between the control board and the elected board. Early on, we became convinced that this was a uniquely acute situation that required an extraordinary attempt to abate the erupting hostility and distrust. Therefore, we determined that the appointment of a combination special master/ombudsman/mediator was in the best interests of the parties, their counsels, the students and ultimately the taxpaying citizens of the school district. Thus, with the consent of the parties, we appointed the Elonorable Judge G. Thomas Miller, Esquire, a distinguished former member of this court, as special master/ombudsman/mediator. Unfortunately, despite the skilled, intensive and valiant efforts of Judge Miller, coupled with the good-faith efforts of the experienced counsels for the parties, an accommodation could not be reached, and the sought-after peace eloped from the valley.

On August 8, 2006, the control board re-scheduled another public meeting to afford the elected board a further opportunity to ratify the resolution approving the SWAPS. (Unfortunately, the TRANS could no longer be approved because the deadlines for those transactions had expired; and, therefore, those financial opportunities were apparently lost to the school district and its constituent taxpayers.) The date of the rescheduled elected board meeting was August, 21,2006. As mentioned above, all of the documents necessary for the elected board to analyze the SWAPS had already been provided to the elected board members prior to the July 31, 2006 failed meeting, except for one additional document which was provided to the elected board members before the August 21,2006 re-scheduled meeting.

Prior to the August 21, 2006 meeting, two members of the elected board, Mr. Ron Burkholder and Ms. Cathy Thomas, resigned their positions for legitimate personal reasons. Those vacant positions were then promptly filled by appointees of the control board, and those appointed members of the elected board were in attendance at the August 21, 2006 meeting.

When the fateful day and time for the re-scheduled meeting arrived, eight members of the elected board eventually appeared and participated in the meeting. The board of control provided three financial consultants to respond to any questions that the elected board members may have had. After almost two hours of questions by the elected board members and responses by the financial consultants and legal counsels, the question was called on the ratifying resolution, and a vote was taken. The vote ended in a 4-4 tie, with the four defendants herein voting in the negative. As a result, the ratifying resolution failed, since it was not approved by a majority of the elected board members.

On August, 28,2006, the control board filed a motion for leave to file an amended complaint and amended petition. This motion was granted on September 8,2006, and an amended complaint and amended petition for removal were filed on September 11,2006.

The amended complaint and amended petition for removal added the occurrences post July 31, 2006, and especially the re-scheduled meeting of August 21,2006, and the resulting failed vote as a further basis for removing the above-named members of the elected board (defendants). The amended complaint and petition for removal was filed solely against the four members of the elected board who voted against the ratifying resolution.

After receiving the amended complaint and amended petition for removal, this court issued a rule to show cause on September 11, 2006. This rule scheduled a hearing on the petition for removal for September 26, 2006, which was not less than 10 days nor more than 20 days from the issuance of the rule, as specifically required by the removal statute.

On September 22, 2006, the defendants filed their answer with new matter. The plaintiffs’ reply to new matter was filed on September 25, 2006.

On September 26 and 27, 2006, this court held hearings on the plaintiffs’ petition for removal. We note that immediately prior to the commencement of the hearing, the plaintiffs agreed to narrow the basis for their contentions for removal and the evidence which they would adduce in support thereof, and to primarily focus on the events that followed the July 31, 2006 failed meeting, and more specifically the events of the August 21,2006 re-scheduled meeting.

On the first day of the hearings (September 26,2006), the control board’s financial consultant witnesses testified that had the SWAPS been passed, that such action would have most probably saved the school district millions of taxpayer dollars over the life of those transactions. The experts’ analysis was based upon the long-term history of the financial markets, and their substantial experience in such matters. Although we note that the experts could not guarantee any specific results since financial markets are in a state of constant flux, their expert opinions concerning such matters were both reasonable and well-considered. We also note that the defendants did not dispute the experts’ conclusions, nor did the defendants offer any type of expert rebuttal testimony concerning these financial matters.

On the second day of the hearings (September 27, 2006), the three defendants who attended the hearing on that day, namely, Ms. Elizabeth N. Wilson, Mr. Karl L. W. Singleton Jr., and Ms. Kia L. Hansard, testified that they did not approve the ratifying resolution because they felt that they did not have enough information to determine whether or not the SWAPS were in the best interest of the school district. They also did not vote in favor of the SWAPS because the results could not be guaranteed by the consultants. In other words, they believed they had the discretion to vote as they chose and not as they were directed by the control board, and in accordance with the previous rulings by this court which were specifically directed to each of them in the detailed holdings of the interim opinion.

These defendants also admitted that they were familiar with the court’s analysis and interpretation of the EEA, and their lack of discretion as explained in the interim opinion. Nevertheless, each of the testifying defendants maintained that despite our prior rulings, they (defendants) still had the discretion to decide whether or not to follow the directives of the control board, and that it was their right to superimpose their individual judgment over the determinations and directives of the control board, the law notwithstanding.

Had the defendants not had the benefit of our detailed analysis of the EEA in our interim opinion, we might be constrained to approach a resolution of this case in a different manner than will be articulated hereafter. However, as acknowledged by the defendants in both the responsive pleadings covering all four defendants and in the testimony of the three defendants at the hearing, it is unmistakably clear that the defendants had actual notice of the court’s holdings and willfully and intentionally chose not to follow those holdings. The defendants’ self-defined judgment was, nevertheless, willful contempt for the rule of law in this matter.

Based upon the defendants’ individual, willful and blatant refusal to approve the SWAPS, we find that they (defendants) each neglected their duty under the law. As we stated in our interim opinion, the EEA, in 24 P.S. §17-1707-B(c), specifically invests in the control board the authority, powers and prerogatives enumerated in 24 P.S. §§6-693, 6-694, and 6-695. Section 693 strips the elected board of all power; section 694 states that the elected board must approve any tax recommended by the control board; and section 695 states that the school directors, “shall perform any duties delegated to them [directors] by it [control board].” Therefore, the elected board had no discretion to disobey a specific resolution enacted by the control board directing them (elected board) to ratify the SWAPS, and such disobedience was a per se neglect of duty, as a matter of law.

We note that the ability of the General Assembly to divest an elected school board of all of its authority, powers and prerogatives is not new to this Commonwealth. There seemed to be some oblique undercurrent in this case that the EEA brought a whole new array of sweeping, even perceived draconian measures onto the educational scene in this Commonwealth. Nothing could be further from the truth. Indeed, the remedial measures listed in sections 693, 694 and 695, were granted to special boards of control over four decades ago. As we explained in our interim opinion,

“The initial instance of legislative limitations upon school districts, and the concomitant modification, conditioning or revocation of the substantial authority, powers, and prerogatives normally granted to a school district and its elected board of school directors, is found in Act no. 675 of December 15, 1959, amending the Act of March 10,1949 (P.L. 30), relating to public education in this Commonwealth, 24 P.S. §6-691 et seq. This statute was originally created to reform and assist school boards that were in a severe state of fiscal crisis, with a resultant situation where the school district became so financially ‘ distressed’ that it created an intolerable burden upon the citizen taxpayers of such district, while at the same time, usually failing to deliver the requisite levels of needed education for the children of the district. This particular statute provided for the revocation of the authority, powers and prerogatives of an elected school board in such a district, and placed those powers, authority and prerogatives in the hands of a specially created body, known as a special board of control.” Interim opinion, pp. 3-4. (emphasis added)

Therefore, the sweeping remedies contained in sections 693,694, and 695, were created in 1959, more than 45 years ago, to allow special boards of control to reform financially distressed school districts. The EEA merely applied those already existing and well-established remedial measures to academically distressed school districts.

Now that we have ruled that the defendants neglected their duty, we also find they can be lawfully removed from office pursuant to 24 P.S. §3-318 (removal statute). Section 318 specifically gives school district taxpayers or a special board of control the authority to initiate a removal proceeding against a board of school directors, or individual members thereof, for, inter alia, refusing or neglecting to perform any duty imposed upon it/them by the Public School Code.

Section 695 specifically mandates that school directors must remain in office unless, inter alia, they are removed by a court of common pleas for neglect of duty pursuant to the provisions of 24 P.S. §3-318 (removal statute). Therefore, the EEA, by adopting section 695, clearly envisions that school directors can be removed from office for neglect of duty in an empowerment district. This is further seen by the adoption in the EEA of section 694 which allows a court to initiate removal of an elected board, subject to the provisions of section 318, if the elected board fails to pass an additional tax levy that was requested by a control board.

Since we have determined that the plaintiffs/petitioners have proven their case, we will now address the defendants’ defenses for why they (defendants) should not be removed from office. The defendants first claim that under the Pennsylvania Constitution, Article VI, Section 7, only the Governor can remove an elected official from office if he (Governor) determines that the office holder “misbehaved”.

This argument has been previously dealt with by the Pennsylvania Supreme Court in Georges Township School Directors, 286 Pa. 129, 133 A. 223 (1926), and more recently affirmed and explained in detail by the Pennsylvania Supreme Court in South Newton Township Electors v. South Newton Township Supervisor, 575 Pa. 670, 838 A.2d 643 (2003). Georges explains that school directors can be removed from office by a court of common pleas even though they are elected officials because removal statutes predated and were not specifically abrogated by Article VI, Section 7. Therefore, pursuant to Georges, as affirmed by South Newton, we find the defendants’ constitutional claim to be meritless.

The defendants also claim that there is no obligation on each individual school director to approve every resolution of the control board so long as the resolution somehow passes by a majority. In the case at bar, the defendants claim that but for technical difficulties, another elected board member (who was absent the evening of August 21,2006) would have called in via telephone, voted in favor of the resolution, and the ratifying resolution would have passed.

We find this argument to be frivolous. We first note that section 695 specifically refers to “school directors” and not to an elected board. Therefore, it is the individual duty of each school director in an empowerment district under the EEA, to personally obey the directives of the board of control. Further, it would be illogical for us to find that a board has a duty that its individual members do not share. We find, as a matter of law, that the provisions of 24 P.S. §5-508 requiring that resolutions by an elected board only need to be passed by a majority vote of the school directors is inapplicable to an elected board in an empowerment district under the EEA. In short, discretion resides in the members of the control board, but not in the members of the elected board, under the mandates of the EEA.

The defendants also claim that the control board has violated numerous statutes by not answering questions at public meetings, not passing the budget in a timely fashion, and ordering the elected board to not meet without prior approval by the control board. We find these issues to be irrelevant to the singular issue of neglect in the case at bar and those assertions have no bearing on whether the individual defendants neglected their legal duty to obey the directives of the control board.

Finally, the defendants raise numerous claims that they (defendants) were merely trying to make prudent decisions and were not given enough information by the control board. As we have previously discussed, these claims present no defense for the elected board members because they had no authority to disregard the specific directives of the control board.

We note that concomitantly with the elected board’s loss of all discretionary power, they (elected board) also have no legal liability for any decisions made and enforced by the control board. Once a control board takes over a school district, that control board assumes all responsibility and liability for their actions and the elected board members have absolute immunity, provided they (elected board) act in strict conformance with the specific directives of the control board. In essence, the elected board members in an empowerment district under the EEA have been temporarily relegated to the function of public office caretakers by the General Assembly. They are maintaining their positions on the elected board until the school district’s test scores rise to the point where the elected board members can once again resume full control over the district and its affairs. In that respect, it certainly is in the interests of the elected board members to support and assist the control board in its remedial endeavors, so as to accelerate the academic improvement of the school district, thereby returning the control of the district to the elected board as soon as possible.

We recognize that it may be quite difficult for the defendants to gracefully accept that they have no independent authority, powers or prerogatives. And we believe that it is no coincidence that the same statute which orders the elected board to obey the control board (section 695), also discusses how elected board members can be removed from office. However, we would like to point out that the school district became an empowerment district on December 19, 2000, long before any of the defendants came into public office. Therefore, the defendants had a responsibility to investigate and discover the severely restricted scope of their public office before they accepted their positions. The defendants cannot change the authority, powers and prerogatives of their public office merely because the current situation may be distasteful to them. Only the General Assembly can define the authority, powers and prerogatives of a school director since it (General Assembly) is granted the exclusive power in our Commonwealth to implement, maintain and support public education under Article III, Section 14, of the Pennsylvania Constitution.

The doctrine of the separation of powers is a fundamental tenant of our Pennsylvanian and American legal and political heritage. If any elected official could self-expand the authority, powers and prerogatives of his/her public office, which public office had been created and defined by the General Assembly, that would be a recipe for the speedy demise of the rule of law and the very antipathy of the bedrock principles of democratic government established by our founding fathers.

Although we can empathize with the defendants’ feelings of discomfort, or even personal angst, we cannot condone the willful, blatant and unlawful conduct that has occurred, and which unlawful conduct appears likely to re-occur in the future. Therefore, we are constrained to take decisive action to remedy these matters under the provisions of the removal statute. Despite the individual defendants’ personal wishes or beliefs, they each had a clear legal duty to follow the directives of the control board. Instead, they willfully decided to ignore that duty. Such action is clearly unlawful under these circumstances, and endangered vital financial transactions that the control board lawfully determined were in the best interests of the school district. Such actions by the individual defendants do not constitute a legally recognizable method of protesting a law that one does not agree with; it is, quite simply, a neglect of legal duty. The proper vehicle for redress of perceived grievances in this case is to take those matters to the origin of these laws, the General Assembly, and request their further review and consideration of the same. Likewise, it is not for the judiciary to re-write the laws of our Commonwealth. Only in those rare instances where a statute is plainly offensive to the Constitution may the judiciary intervene in such affairs. This case is certainly not one of those rare instances. The Constitution of our Commonwealth accords full and complete deference to the General Assembly on matters of public education. In this instant matter, we will do no less.

Wherefore, after a full hearing in the matter of whether or not the individual defendant members of the elected board should be removed from public office on account of a neglect of legal duty, we find that the said defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard, have indeed neglected their legal duty and are therefore subject to removal from public office, pursuant to the statutory removal provisions of the Public School Code, 24 P.S. §3-318 (removal statute). Therefore, we have, by separate order issued of even date herewith, directed the immediate removal from public office as school directors for the Harrisburg School District, said defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard. It is further directed in such order that the said defendants shall not be eligible to again hold public office as school directors for a period of five years from the date of that order, pursuant to the mandatory provisions of the removal statute.

We further note that pursuant to the removal statute, we are specifically required to make an assessment of the costs of proceedings, and impose those costs upon a possible limited array of individuals and/or the school district. Although we are accorded some discretion in making such an assessment, we find that this unfortunate situation was not brought by the actions of the members of the control board, or the superintendent (plaintiffs/ petitioners); and so, no such assessment against any of them would be warranted. We likewise find that the school district and its constituent taxpayers should certainly not bear the additional burden of any such assessment, especially considering the fact that the district has already lost at least some of the significant benefits of the proposed financial undertakings that were willfully and unlawfully not approved by the defendants, and it (school district) has had to shoulder the costs of these proceedings to date.

So, by the process of elimination, we arrive at the final group of individuals, the defendants, who were, in fact, directly responsible for the costs of proceedings incurred by the school district, by and through the necessary expenditures of public funds by the plaintiffs/petitioners acting on behalf of the interests of the district. The court specifically finds that it was the knowing and willful actions of the individual defendants by defying the law and failing to follow their clearly defined legal duties which resulted in the expenditure of substantial sums of taxpayer monies to prosecute this action in court; and said defendants should be responsible to repay every penny of those monies to the shareholders of the school district.

Therefore, the court has also issued a separate order of even date herewith, directing that a judgment, in the full amount of $48,000, shall be immediately entered by the prothonotary against each of the individual defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard, jointly and severally, and in favor of the Harrisburg School District as an award of the costs of proceedings; and the school district shall be at complete liberty to immediately execute upon such judgment, as the board of control and the superintendent deem appropriate to the interests of the district.

The court specifically finds that the award of costs in said amount to the school district, pursuant to the affidavit of costs submitted by the school district during the hearing, constitutes very reasonable attorneys’ fees, together with other necessary legal expenses and costs, filing fees, service fees and miscellaneous expenses, for the period of August 1,2006 through the end of the hearings. We further specifically find that such an award of costs is absolutely warranted, as a matter of law, especially considering the fact that none of this unfortunate litigation, and its consequent loss of public educational assets, would have had to occur if the defendants would have simply obeyed the law and their legal duty pursuant thereto. It should be noted that had we construed the removal statute to also include damages in the calculation of the costs of proceedings, the amount of said award would have likely been many times greater, as a reflection of the economic harm that was visited upon the school district by the knowing, willful and unlawful actions of the removed defendants. However, we also note that the above awarded costs do not include any such assessment of damages in this case.

The removal statute also obliges us to appoint qualified persons to fulfill the remaining terms of office of the said removed defendants. Considering the obvious statutory intent of the General Assembly in enacting the EEA, which directs the mayor to initially appoint the members of the control board, and then empowers the control board to appoint persons to fill regular vacancies that may occur on the elected board from time to time, we find that it would be most appropriate to request that the control board and superintendent (plaintiffs/petitioners), in consultation with the mayor, submit a motion to the court, within five business days of the filing of this opinion and accompanying order, containing the names of four qualified persons to serve in the stead of the four removed school directors (defendants).

Due to the substantial harm that has already been caused to the school district by the defendants’ willful and unlawful actions, they (defendants) are further denied any supersedeas, particularly under Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure, which might otherwise accrue to them. We take this preemptive action to prevent further harm to the school district, in the absence of which preemption the said defendants would be able to automatically stay the effect of the orders we have entered. We would be derelict in our duties to the taxpayers of the school district to do less in these extraordinary circumstances.

We further deny the defendants the right to automatically appeal these rulings pursuant to Pa.R.A.P. 1736(a). However, the defendants shall be permitted to appeal these rulings, provided they post a cash bond in the full amount of $ 100,000, paid into court through the Prothonotary of Dauphin County, which bond shall be liable for debit for the payment of any future costs incurred by the school district, including reasonable attorneys’ fees, costs and expenses associated with any such further litigation in this matter.

Issued at Harrisburg, October 9, 2006.

ORDER OF REMOVAL

Pursuant to the provisions of the Public School Code of this Commonwealth, more particularly, 24 P.S. §3-318 (removal statute), the court, after conducting a full hearing on the petition for removal filed by the above-named plaintiffs/petitioners requesting the court to determine whether or not the individual, above-named defendants, who are members of the elected Board of School Directors of the Harrisburg School District, should be removed from public office on account of a neglect of legal duty, we find that the said defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard, have indeed neglected their legal duty and are therefore subject to removal from public office, as more fully discussed in the formal opinion which we issued of even date herewith.

Wherefore, it is hereby ordered, that effective immediately, the above-named defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard, are removed from public office as School Directors for the Plarrisburg School District.

It is further ordered that the said defendants shall not be eligible to again hold public office as school directors for a period of five years from the date of this order, pursuant to the mandatory provisions of the removal statute.

Due to the substantial harm that has already been caused to the school district by the defendants’ willful actions, they (defendants) are further denied any supersedeas, particularly under Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure, which might otherwise accrue to them. Likewise, we further deny the defendants the right to automatically appeal these rulings pursuant to Pa.R.A.P. 1736(a).

However, the defendants shall be permitted to appeal these rulings, provided they post a cash bond in the full amount of $ 100,000, paid into court through the Prothonotary of Dauphin County, which bond shall be liable for debit for the payment of any future costs incurred by the school district, including reasonable attorneys’ fees, costs and expenses associated with any such further litigation in this matter.

Issued at Harrisburg, October 9, 2006.

ORDER FOR NOMINATION

Pursuant to the provisions of the Public School Code of this Commonwealth, more particularly, 24 P.S. §3-318 (removal statute), the court, after conducting a full hearing on the petition For removal filed by the above-named plaintiffs/petitioners requesting the court to determine whether or not the individual, above-named defendants, who are members of the elected Board of School Directors of the Harrisburg School District, should be removed from public office on account of a neglect of legal duty, we find that the said defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard, have indeed neglected their legal duty and are therefore subject to removal from public office, as more fully discussed in the formal opinion which we issued of even date herewith.

Furthermore, it is incumbent upon this court, and is required by law, that the court appoint qualified persons who are residents of the Harrisburg School District to fulfill the remainder of the unexpired terms of office of the elected board of school directors in the stead of the above-named defendants who have been removed from office pursuant to the removal statute.

Wherefore, the court hereby directs that the plaintiffs/ petitioners, in consultation with the mayor of the City of Harrisburg, the Honorable Stephen R. Reed, submit a nominating motion to this court containing the names of four qualified residents of the district who are willing to serve as school directors for the remainder of the unexpired terms of office of the four removed members of the elected board (defendants). The court requests that such motion be submitted within five business days of the entry of this order. Upon receipt of such motion, the court will promptly consider the same for appointment.

It is further ordered, that due to the substantial harm that has already been caused to the school district by the defendants’ willful actions, they (defendants) are further denied any supersedeas, particularly under Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure, which might otherwise accrue to them. Likewise, we further deny the defendants the right to automatically appeal these rulings pursuant to Pa.R.A.P. 1736(a).

However, the defendants shall be permitted to appeal these rulings, provided they post a cash bond in the full amount of $ 100,000, paid into court through the Prothonotary of Dauphin County, which bond shall be liable for debit for the payment of any future costs incurred by the school district, including reasonable attorneys’ fees, costs and expenses associated with any such further litigation in this matter.

Issued at Harrisburg, October 9, 2006.

ORDER OF COSTS

Pursuant to the provisions of the Public School Code of this Commonwealth, more particularly, 24 P.S. §3-318 (removal statute), the court, after conducting a full hearing on the petition for removal filed by the above-named plaintiffs/petitioners requesting the court to determine whether or not the individual, above-named defendants, who are members of the elected Board of School Directors of the Harrisburg School District, should be removed from public office on account of a neglect of legal duty, we find that the said defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton, Jr., and KiaL. Hansard, have indeed neglected their legal duty and are therefore subject to removal from public office, as more fully discussed in the formal opinion which we issued of even date herewith.

Furthermore, it is incumbent upon this court, and is required by law, that the court make an assessment of the costs of proceedings associated with legal proceedings undertaken by the plaintiffs/petitioners pursuant to the removal statute.

Wherefore, the court hereby enters an award of costs in favor of the Harrisburg School District, in the full amount of $48,000, and against each of the said defendants. The Prothonotary of Dauphin County is hereby ordered to immediately enter onto the official records of his office, a judgment in the full amount of the above awarded costs $48,000 in favor of the Harrisburg School District, and shall index the same, jointly and severally, against each of the individual defendants, to wit, Elizabeth N. Wilson, Shirley Jackson, Karl L. W. Singleton Jr., and Kia L. Hansard. The prothonotary may issue a writ of execution on said judgment to the Harrisburg School District upon the filing of a proper praecipe requesting the same.

It is further ordered, that due to the substantial harm that has already been caused to the school district by the defendants’ willful actions, they (defendants) are further denied any supersedeas, particularly under Rule 1736(b) of the Pennsylvania Rules of Appellate Procedure, which might otherwise accrue to them. Likewise, we further deny the defendants the right to automatically appeal these rulings pursuant to Pa.R.A.P. 1736(a).

However, the defendants shall be permitted to appeal these rulings, provided they post a cash bond in the full amount of $ 100,000, paid into court through the Prothonotary of Dauphin County, which bond shall be liable for debit for the payment of any future costs incurred by the school district, including reasonable attorneys’ fees, costs and expenses associated with any such further litigation in this matter.

Issued at Harrisburg, October 9, 2006.