author: CLARK, S.J.,

text:
    PennDOT v. Cheeseman
    C.P. of Bucks County,
    no. 2000-06641-17-6.

      Lee Silverman, for plaintiff.

      Thomas A. Blackburn, for defendant.
    February 20, 2001
   CLARK, S.J.,

PROCEDURAL HISTORY

Licensee was arrested on July 29,1995 for D.U.I. The local police deemed the matter a chemical refusal and so notified PennDOT. PennDOT sent a suspension notice on September 8, 1995 and licensee filed a pro se appeal on October 2, 1995, obtaining a stay of suspension. No hearing was ever held. On September 18,2000, PennDOT sent a suspension notice to licensee, and licensee, represented by counsel, filed this timely appeal on October 18,2000. The undersigned conducted a hearing on January 5, 2001.

FINDINGS OF FACT

(1) The facts set forth in the procedural history above are incorporated into this paragraph and made a part hereof.

(2) As a result of the July 29, 1995 arrest, licensee received a six-month suspension of his driving privileges for possession of a small amount of marijuana.

(3) PennDOT renewed his driver’s license on July 6, 1998.

(4) At the time of the July 29, 1995 arrest, licensee was employed locally.

(5) After his license was restored on July 6, 1998, licensee obtained different employment with a company known as Meritt Power.

(6) This new position requires licensee to commute in a company truck to work sites within a two and a half-hour radius.

(7) Should he lose his license he would be fired.

(8) Subsequent to October 2, 1995, despite notice of said appeal, PennDOT never filed a Bucks County praecipe to have the matter listed for a hearing.

(9) Licensee’s first appeal lay dormant for approximately five years, until PennDOT’s suspension notice of September 18, 2000, in reference to his new license.

(10) On January 15, 1998, the Bucks County Court Administrator’s Office properly advertised a termination notice of the October 2, 1995 appeal due to inactivity pursuant to Bucks County Rule of Civil Procedure 900, and thereafter marked the case “terminated” on February 25, 1998.

DISCUSSION

The Pennsylvania Supreme Court in the recent case of Terraciano v. PennDOT, 562 Pa. 60, 753 A.2d 233 (2000) stated on page 236:

“In order to sustain an appeal of a license suspension based on delay, the licensee must prove that: (1) an unreasonable delay chargeable to PennDOT led the licensee to believe that her operating privileges would not be impaired; and (2) prejudice would result by having the operating privileges suspended after such delay.”

In a footnote, also on page 236, the court noted that delays of eight months, nineteen months, three and one-half years and four years were unreasonable delays.

The court also stated on page 236:

“Administrative delay may be held against PennDOT for purposes of determining whether there was an unreasonable delay.... Therefore, it is PennDOT’s burden to prove that the delay was caused by some factor other than mere administrative inaction. . . . When PennDOT fails to take responsibility for moving a case forward under circumstances where it is reasonable for it to be expected do so, the delay is attributable to PennDOT.”

In finding against PennDOT by reversing the Commonwealth Court of Pennsylvania, the Supreme Court pointed out that all PennDOT had to do to place the case back before the trial court was file a praecipe.

In so holding, the Supreme Court stated in a footnote on page 237, that the judicial delay rule was not applicable as the delay resulted from “laxity” of PennDOT, an active party in the appeal proceedings.

In discussing the prejudice aspect of the case, the court also said on page 237:

“Prejudice is established when a licensee shows that she, believing her privileges were no longer impaired, changed her circumstances to her detriment.”

In so stating, the court also said “loss of employment requiring a driver’s license constitutes prejudice,” pointing out that in the case, that licensee obtained a commercial driver’s license during the delay as a school bus driver, which license was issued by PennDOT, “which would certainly lead her to believe that her driving privileges were no longer impaired.”

This case is practically on “all fours” with our case. Licensee carried his burden of proof of establishing that the unreasonable delay (five years) was chargeable to PennDOT, and led him to believe that his operating privileges would not be impaired, and further, that prejudice would result by having his operating privileges suspended after such delay, i.e., the loss of employment.

We further conclude that PennDOT failed to sustain its burden of proof that five years delay was caused by some factor other than mere administrative inaction.

Therefore, we enter the following:

ORDER

And now, February 20, 2001, after hearing, review of the record and memorandum, the appeal of Robert Cheeseman is sustained and his driving privileges will not be suspended.


source: Caselaw Access Project

author: BAYLEY, J.,

license: Public Domain

text:
    Commonwealth v. Mockaitis

      C.P. of Cumberland County,
    no. 00-1692.

      M.L. Ebert Jr., district attorney, for Commonwealth.

      Timothy L. Clawges, for defendant.
    February 12, 2001
    BEFORE: BAYLEY, OLER AND GUIDO, JJ

   BAYLEY, J.,

On October 10, 2000, defendant, David Matthew Mockaitis, entered a plea of guilty to a count of driving under the influence in violation of the Vehicle Code at 75 Pa.C.S. §3731(a) (l)(4)(ii). It was defendant’s second offense. On November 13, 2000, defendant was sentenced to pay the costs of prosecution, a fine of $300, and undergo imprisonment in the Cumberland County Prison for a term of not less than 30 days nor more than 23 months. As required by Act 63 of 2000, the sentencing order contained the following provision: “[a]n approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of the defendant’s operating privileges by the Department of Transportation.”

On November 16, 2000, pursuant to Pa.R.Crim.P. 1410(B)(l)(a)(v), defendant filed a timely optional post-sentence motion to modify his sentence by deleting this provision. He maintains that Act 63 of 2000 is unconstitutional. The issues have been briefed and argued and are ready for decision.

Act 63 of 2000 was enacted on June 27,2000. The Act is titled, “An Act amending title 42 (Judiciary and Judicial Procedure) of the Pennsylvania Consolidated Statutes, providing for the use of ignition interlock systems and for restitution or identity theft.” The Act establishes chapter 70 of the Judicial Code titled “Ignition interlock devices,” and provides in pertinent part:

“Section 7002. Ignition interlock systems for driving under the influence. . . .
“(b) Second or subsequent offense — In addition to any other requirements imposed by the court, where a person has been convicted of a second or subsequent violation of 75 Pa.C.S. §3731, the court shall order the installation of an approved ignition interlock device on each motor vehicle owned by the person to be effective upon the restoration of operating privileges by the department. A record shall be submitted to the department when the court has ordered the installation of an approved interlock ignition device. Before the department may restore such person’s operating privilege, the department must receive a certification from the court that the ignition interlock system has been installed. . . .
“Section 7003. Additional driver’s license restoration requirements.
“In addition to any other requirements established for the restoration of a person’s operating privileges under 75 Pa.C.S. §1548 (relating to requirements for driving under influence offenders):
“(1) Where a person’s operating privileges are suspended for a second or subsequent violation of 75 Pa. C.S. §3731 (relating to driving under influence of alcohol or controlled substance), or a similar out-of-state offense, and the person seeks a restoration of operating privileges, the court shall certify to the department that each motor vehicle owned by the person has been equipped with an approved ignition interlock system.
“(2) A person seeking restoration of operating privileges shall apply to the department for an ignition interlock restricted license under 75 Pa.C.S. §1951(d) (relating to driver’s license and learner’s permit) which will be clearly marked to restrict the person to operating only motor vehicle equipped with an approved interlock ignition system.
“(3) During the year immediately following restoration of the person’s operating privilege and thereafter until the person obtains an unrestricted license, the person shall not operate any motor vehicle on a highway within this Commonwealth unless the motor vehicle is equipped with an approved ignition interlock system.
“(4) One year from the date of issuance of an ignition interlock restricted license under this section, if otherwise eligible, a person may apply for an additional replacement license under 75 Pa.C.S. § 1951 (d) that does not contain the ignition interlock system restriction.
“(5) A person whose operating privilege is suspended for a second or subsequent violation of 75 Pa. C.S. §3731 or a similar out-of-state offense who does not apply for an ignition interlock restricted license shall not be eligible to apply for the restoration of operating privileges for an additional year after otherwise being eligible for restoration under paragraph (1).
“Section 3. The provisions of 42 Pa.C.S. ch. 70 shall apply to all persons convicted of a second or subsequent violation of 75 Pa.C.S. §3731 on or after the effective date of this section... 7’ (emphasis added)

Section 4 of the Act provides that these provisions take effect on September 30, 2000.

Initially, the Commonwealth maintains that defendant lacks standing to challenge the constitutionality of Act 63 of 2000. A statute may not be challenged in the abstract. Commonwealth v. Bell, 512 Pa. 334, 516 A.2d 1172 (1986). The Commonwealth suggests that it is speculative as to what prejudice defendant will suffer, if any, from an application of Act 63. We disagree. The restriction imposed by the sentencing order prohibits defendant from having his operating privilege restored for two years unless, after completing a first year of suspension, he obtains a restrictive license for a second year. There is nothing abstract about the prohibition contained in the sentencing order. Defendant has standing to challenge the statute.

Defendant maintains that Act 63 violates the equal protection clause of the Fourteenth Amendment to the United States Constitution, and Article 1, Section 26 of the Pennsylvania Constitution. Equal protection claims under the United States and Pennsylvania constitutions are analyzed using the same standards. Commonwealth v. Albert, 563 Pa. 133, 758 A.2d 1149 (2000). Legislation must be examined according to one of three tests: strict scrutiny, intermediate scrutiny, or, the most deferential, rational basis. Smith v. Coyne, 555 Pa. 21, 722 A.2d 1022 (1999). In Smith, the Supreme Court of Pennsylvania stated:

“Strict scrutiny is applied to classifications affecting a suspect class or fundamental right. Intermediate scrutiny is applied to important rights and ‘sensitive’ classifications. In all other cases, the challenged legislation will be upheld unless there is no rational basis for its enactment.”

The privilege to operate a motor vehicle is not a fundamental right. Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979). Nor is it an important right that triggers the application of the heightened intermediate scrutiny test. Commonwealth v. McMullen, 756 A.2d 58 (Pa. Super. 2000). Statutes dealing with the suspension or prohibition of operating privileges are analyzed under the rational basis standard. Frantz v. PennDOT, 168 Pa. Commw. 35, 649 A.2d 148 (1994). Act 63 creates a classification based upon ownership of a motor vehicle. We are satisfied that this is neither a suspect nor sensitive classification requiring heightened scrutiny. Therefore, we will examine the statute using the rational basis standard.

In Curtis v. Kline, 542 Pa. 249, 257, 666 A.2d 265, 269 (1995) the Pennsylvania Supreme Court stated:

“In applying the rational basis test, we have adopted a two-step analysis.... First, we must determine whether the challenged statute seeks to promote any legitimate state interest or public value. If so, we must next determine whether the classification adopted in the legislation is reasonably related to accomplishing that articulated state interest or interests.” (citations omitted)

The first prong of the analysis is clearly met. Suspending the licenses of persons convicted of driving under the influence is a legitimate state interest. A classification which treats persons differently based upon their ownership of motor vehicles is another matter. The Supreme Court of Pennsylvania stated in Curtis v. Kline, supra at 254-56, 666 A.2d at 267-68:

“The essence of the constitutional principle of equal protection under the law is that like persons in like circumstances will be treated similarly.... However, it does not require that all persons under all circumstances enjoy identical protection under the law. . . . The right to equal protection under the law does not absolutely prohibit the Commonwealth from classifying individuals for the purpose of receiving different treatment,... and does not require equal treatment of people having different needs____The prohibition against treating people differently under the law does not preclude the Commonwealth from restoring to legislative classifications,... provided that those classifications are reasonable rather than arbitrary and bear a reasonable relationship to the object of the legislation. ... In other words, a classification must rest upon some ground of difference which justifies the classification and has a fair and substantial relationship to the object of the legislation. . . .
“Judicial review must determine whether any classification is founded on a real and genuine distinction rather than an artificial one. ... A classification, though discriminatory, is not arbitrary or in violation of the equal protection clause if any state of facts reasonably can be conceived to sustain that classification.... In undertaking its analysis, the reviewing court is free to hypothesize reasons the legislature might have had for the classification. ... If the court determines that the classifications are genuine, it cannot declare the classification void even if it might question the soundness or wisdom of the distinction.. . .” (citations omitted) (emphasis added)

Applying the above analysis to Act 63, we are satisfied that to treat offenders differently based upon the number of vehicles owned by each creates an arbitrary classification which does not bear a fair and substantial relationship to the object of the legislation. Legislation that prohibits a multiple DUI offender from operating a vehicle that is not equipped with an ignition interlock device would be reasonable. Legislation that prohibits the offender from operating a vehicle equipped with the ignition interlock device unless every vehicle the offender owns is also equipped with such a device is neither reasonable nor does it bear a rational relationship to the ultimate goal of limiting the driving privilege of the offender. Likewise, to require the offender to actually own a vehicle that is equipped with the device in order to secure a restricted license bears no reasonable relationship to the object of the legislation.

It does not take long to come up with numerous examples of just how arbitrary and unreasonable the classification in Act 63 is when applied to owners of multiple vehicles. It makes no sense, nor does it serve any legitimate purpose, to require an offender’s spouse, or other person the offender owns a vehicle with, to operate that vehicle equipped with an ignition interlock device so that offender can operate a similarly equipped separate automobile. Nor is it rational to have the offender’s child, attending college, equip a vehicle being used at school with such a device, simply because it is titled in the parent’s name. Perhaps the most absurd result occurs in situations where the offender owns several vehicles which are operated solely by employees. A plumber with multiple service vehicles comes to mind. It serves no rational purpose to have all of those vehicles equipped with an ignition interlock device.

The classification is no less arbitrary or unreasonable when applied to non-owners. An offender who is a member of a household in which all of the vehicles are leased, rather than owned, is prohibited from obtaining a restricted license. An offender who drives a vehicle titled in the name of a spouse, the student who drives a vehicle titled in his parent’s name, and the employee using a company-owned vehicle, are all prohibited from obtaining a restricted license, even if the owner of the vehicle is willing to allow it to be equipped with an ignition interlock device. Again, it serves no rational purpose to require that the vehicle actually equipped with the device be owned by the offender.

In summary, limiting multiple DUI offenders following a one-year license suspension to a restricted license during a second year that prohibits them from operating a motor vehicle unless it is equipped with an ignition interlock device would be sufficient to accomplish the goal of the legislation. Adding the requirement that the offender actually own a vehicle, and that every vehicle owned by the offender be equipped with the device, is arbitrary, unreasonable, and therefore, unconstitutional.

Defendant further maintains that Act 63 violates the due process clause of the United States Constitution. Defendant’s conviction for driving under the influence will result in a one-year suspension of his operating privilege under the Vehicle Code at 75 Pa.C.S. §1532(b)(3). Act 63 adds a second year to the suspension unless the Department of Transportation receives a certification from the sentencing court that an ignition interlock system has been installed on each motor vehicle owned by a defendant. In Commonwealth v. Duffey, 536 Pa. 436, 639 A.2d 1174 (1994), the Supreme Court of Pennsylvania stated that a license suspension is a collateral civil consequence and not a criminal penalty even when the suspension is triggered by a criminal conviction. See also, PennDOT v. McCafferty, 563 Pa. 145, 758 A.2d 1155 (2000). By amending the Judicial Code, the legislature in Act 63 has turned the courts of common pleas into an agent for the Department of Transportation in determining eligibility for the reinstatement of an operating privilege. The court is not merely notifying the department of a defendant’s conviction as it does to trigger a one-year suspension under 75 Pa.C.S. §1542 (b)(3). Rather, the court determines eligibility for a restricted license, which the department must issue if the court determines that defendant is eligible, but cannot issue absent that determination.

In Sweeney v. Tucker, 473 Pa. 493, 507-508, 375 A.2d 698, 705 (1977), the Supreme Court of Pennsylvania stated:

“[The] basic precept of our form of government is that the executive, the legislature and the judiciary are independent, co-equal branches of government. . . . The dividing lines among the three branches ‘are sometimes indistinct and are probably incapable of any precise definition.’ ... Under the principle of separation of the powers of government, however, no branch should exercise the functions exclusively committed [to the] other branch. ” (citations omitted) (emphasis added)

Unlike the preparation of a presentence report when court personnel compile information for the court to use in exercising sentencing authority, and which is subject to challenge for accuracy by the defendant and the Commonwealth in the framework of an adversarial criminal case, Act 63 requires that the court exercise an executive function in furtherance of the collateral civil consequence to defendant of a license suspension for a conviction for driving under the influence. There is no mechanism for a defendant to seek a certification from the court that an ignition interlock system has been installed on each motor vehicle owned. Nor is there a mechanism for a defendant to challenge entitlement to a certification. If, as the agent for the Department of Transportation, the court makes an improper certification, the department is without recourse.

The function of the judicial branch is to apply and interpret the law in an adversarial framework. In PennDOT v. McCafferty, supra, the Supreme Court of Pennsylvania stated that the suspension of an operating privilege, even though driving is a privilege and not a right, requires adherence to procedural due process under the Fourteenth Amendment to the United States Constitution. Thus, defendant’s interest in the operation of a motor vehicle is a protected one. That requires procedures that constitute due process of law. Ingraham v. Wright, 430 U.S. 651 (1977). The executive function engrafted upon the court by Act 63 of 2000 does not provide procedures that satisfy due process of law.

For the foregoing reasons, we conclude that Act 63 of 2000 does not meet constitutional requirements. Accordingly, the following order is entered.

ORDER

And now, February 12, 2001, it is ordered:

(1) The motion of defendant for partial post-sentence relief, is granted.

(2) The provision in the sentence of November 13, 2000, providing that “[a]n approved ignition interlock device shall be installed on each motor vehicle owned by defendant prior to restoration of defendant’s operating privileges by the Department of Transportation, is vacated.

(3) All other provisions in the sentence of November 13, 2000, shall remain in full force and effect.

      . The minimum term of 30 days imprisonment was mandated by the Vehicle Code at 75 Pa. C.S. §3731(e)(1)(h).

        . Defendant does not challenge the other provisions in the sentencing order.

      . Under Rule 1410(B)(3)(a), the motion must be decided within 120 days of the date of filing unless an extension of 30 days is granted under subparagraph (3)(b).

      . An offender convicted of a second or subsequent driving under the influence offense may obtain a restricted license after a one-year suspension if he or she owns a motor vehicle and it is equipped with an ignition interlock device. If the offender does not own a motor vehicle, or leases a motor vehicle, he or she must wait two years before driving privileges are restored. If the offender owns two or more vehicles, he or she must have an ignition interlock installed on all of the vehicles.

      . Suspect classes are limited to race, national origin, and for purposes of state, as opposed to federal law, alienage. Small v. Horn, 554 Pa. 600, 615, 722 A.2d 664, 672 (1998). Sensitive classes are limited to gender and legitimacy. Id.

      . We are not aware if it is even possible for an ignition interlock device to be programmed to operate using the breath samples of more than one person.

      . We have considered the possibility that an offender might be more likely to drive his or her unequipped vehicle in violation of a restricted license. However, this does not provide a rational basis for the classification. Ownership of the vehicles will not make the offender more or less likely to violate the law. If the offender cannot obtain a restricted license because of the inability to afford an ignition interlock device on all of his or her vehicles, is that person any less likely to violate the law by driving without a license?

      . This resolution makes it unnecessary to address defendant’s further claim that Act 63 of 2000 violates Article III, Section 3 of the Pennsylvania Constitution by containing more than one subject.


author: BERNSTEIN, J.,

text:
    Branch v. Ledesma

      Robert E. Slota Jr., for plaintiff.

      Robert B. Mulhern Jr., for defendants.
    June 15, 2001
   BERNSTEIN, J.,

This appeal arises from a medical malpractice case tried before the Honorable Mark I. Bernstein from August 7, 2000 to August 11,2000. At the conclusion of the evidence, the jury found defendants, Dr. Ledesma and Oncology Associates Ltd., liable to plaintiff, Sheryle Branch, and awarded damages in the amount of $4.48 million. Defendants seek a new trial on the grounds that the verdict was against the weight of the evidence and that the court committed error in permitting medical expert testimony. In the alternative, defendants request remittitur alleging the verdict was excessive and further that the verdict be reduced by any amounts paid to Ms. Branch by her health insuranee. Defendants’ post verdict motion was denied on December 22, 2000.

On December 2, 1996, Ms. Branch, age 46, went to see her family doctor, Dr. Sultz, after detecting a lump in her left breast. Dr. Sultz felt a “pea-sized lump,” ordered a mammogram, and referred Ms. Branch to see an oncologist, Dr. Ledesma. When Dr. Ledesma saw Ms. Branch a few days later, he examined the breast and palpated the lump. He read the mammogram report, which said that breast cancer could not be ruled out since Ms. Branch had dense breast tissue.

No additional tests were performed. Dr. Ledesma told Ms. Branch that she had fibrocystic breasts, and that she “was going to be fine” and that the lump would go away. Ms. Branch was told to return to her family doctor in one year.

Seven months later, on June 6, 1997, Ms. Branch returned to Dr. Sultz because the lump in her breast had gotten bigger. Dr. Sultz felt that lump and noted that it felt much larger. Dr. Sultz called Dr. Ledesma and requested that Ms. Branch be seen that day. Ms. Branch went to Dr. Ledesma’s office and was seen by his partner, Dr. Lerner. The mass in Ms. Branch’s breast was aspirated, malignant cells were detected and a biopsy was ordered. Ms. Branch was diagnosed with breast cancer. In addition, enlarged lymph nodes under her armpit were discovered. These enlarged lymph nodes signaled that the cancer had spread beyond the primary breast tumor. Upon the diagnosis of cancer, Ms. Branch was subjected to aggressive treatments, including a mastectomy, chemotherapy, radiation and a bone marrow transplant.

Plaintiff presented the expert testimony of Dr. Glover, who said that Dr. Ledesma’s failure to diagnose Ms. Branch’s breast cancer in December of 1996 altered her course of treatment and chances of survival. Ms. Branch’s chances of surviving breast cancer went from more than 80 percent, if she had been diagnosed in December, to less than 20 percent at present. Had the cancer been detected in December, Ms. Branch would not have required a mastectomy or chemotherapy or a bone marrow transplant. Due to the delay in diagnosis and treatment, Ms. Branch was forced to undergo more radical treatment, which has caused debilitating side effects. She was disabled by painful swelling and weakness in her left arm, from her medical care. She has been unable to work and lost her job as a nurse’s aid. She has also lost the health insurance that went with her job, and has been forced to go on medical assistance to get medical care. Ms. Branch suffered pain, nausea, weakness, hair loss, skin burns and other health effects from her advanced cancer and treatment. Due to the illness and disfigurement, Ms. Branch’s long-term romantic relationship ended. At a critical time in her life she lost the loving support of a long-term friend. She has endured a diminished self-image, diminished independence and a general loss of enjoyment of life. She fears an unnecessarily premature demise.

The first issue on appeal is whether the verdict was supported by the evidence. Dr. Ledesma alleges the verdict was against the weight of the evidence and therefore he is entitled to a new trial. The jury was properly instmcted that Ms. Branch had the burden of proof. Ms. Branch presented evidence on negligence and damages. While Dr. Ledesma presented evidence that contradicted Ms. Branch’s evidence, such contradiction does not render the verdict against the weight of the evidence. The jury was free to accept or reject any evidence presented, and it was within their province to weigh the evidence presented by both sides. The evidence clearly demonstrated grounds for both liability and damages.

Significant evidence was presented on the issue of liability. As Ms. Branch’s doctor, Dr. Ledesma clearly had a duty to treat her within an appropriate standard of care. Dr. Glover, an expert in the field of oncology, testified that Dr. Ledesma breached the standard of care in several respects. Specifically, Dr. Ledesma failed to obtain a complete and correct history, failed to have the patient in a supine position when he examined the breast, failed to order further tests available at the time such as an ultrasound or biopsy, and failed to have her return in a week or two to recheck the area where the patient reported the lump. Further, Dr. Ledesma improperly advised Ms. Branch that the condition was benign and would go away. As a result of Dr. Ledesma’s failure to diagnose Ms. Branch’s breast cancer, she developed late-stage breast cancer, was forced to undergo a mastectomy and other more aggressive treatment, and her life expectancy was reduced from over 80 percent chance of survival, to less than 20 percent. Thus, the verdict was clearly supported by the evidence.

Second, Dr. Ledesma objects to the portion of Dr. Glover’s testimony in which she mentioned an MRI as a tool that could be used to evaluate a breast lump. The statement Dr. Ledesma finds objectionable occurred as follows during direct examination:

“[Mr. Slota] Q: Did Dr. Ledesma do any tests on the lump that Sheryle Branch felt?
“[Dr. Glover] A: No, he did not. He did not order a biopsy.
“Q: Did he order an ultrasound of the breast?
“A: He did not order an ultrasound. He did not order any x-rays or mammogram with a marker overlying the area, or extra special views that could be done of the area. He did not order any other diagnostic studies which some places now have available, such as MRI scans or anything.
“Mr. Pitt: Objection, Your Honor, as to what is available now.
“The Court: Overruled.”

This statement about the MRI was not made in response to a question about whether Dr. Ledesma breached the standard of care. Rather, it was made in response to an inquiry as to what further tests Dr. Ledesma ordered. There is no basis for defendants argument that Dr. Glover’s opinion as to Dr. Ledesma’s negligence is based on an assertion that Dr. Ledesma should have used technology that was unavailable. Dr. Glover’s opinion as to the standard of care was in no way dependent on the assertion that Dr. Ledesma could have used MRI technology. Dr. Glover’s testimony as to the standard of care, was clear:

“[Mr. Slota] Q: Do you have an opinion, Doctor, to a reasonable degree of medical certainty, as to whether Dr. Ledesma’s actions at that December 13,1996 office visit were in accordance with acceptable medical practice?
“[Dr. Glover] A: Yes, I do.
“Q: What is your opinion?
“A: My opinion is, they were not in accord with acceptable medical practice for evaluating a breast lump as described.
“Q: And could you explain why that is?
“A: Several reasons. A complete history was not obtained. There was no recording in the record that the patient had ever had breast problems. In particular, the patient told him, and Dr. Sultz, the family doctor who referred her to Dr. Ledesma to evaluate a pea-sized lump, at the time that she saw him, approximately a month had already passed since the first noticing or on physical exam by the patient of this lump. He failed to get that history and record that history, and he failed to diagram or describe in his note the actual location of that pea-sized area.
“He did not exam [sic] in the sitting position, rather than the supine position, although he states in the deposition that he doesn’t clearly remember the office visit; only what’s written in his record, that, generally, he does sitting and supine examinations. He felt the area where the breast lump was. In particular, the patient said, T put his hands right on top of [sic] area to show him what I was feeling, and he said that he felt fibrocystic disease; no need to worry; this was not cancer.’ This was something that was probably just going to go away, or benign, and there’s nothing that she needed to be concerned with. That she should just come back to the family doctor for a yearly physical examination, including the breasts, and a yearly mammogram.
“And he did not order any other tests or studies. In particular, he did not order an ultrasound to see if there was a discreet or different area of density that could be a cyst or solid mass. But even if nothing was seen on the ultrasound, if there was a mass that she felt, and her family doctor felt, that was pea-sized, and she put his hand on top of that, it was a deviation not to order an ultrasound or do a needle aspirate to prove if it was cystic or solid.
“It already had lasted for months. And her period had occurred during that time period. If it persisted after that menstrual period, four weeks having passed since the initial palpation of the lump by the patient, then he should have said, ‘We cannot rule out a lump if a lump is so solid is cancer versus benign without the biopsy.’ Other tests might help us, sway us in this direction or that. But an excisional piece of normal tissue; i.e., breast tissue around it, would then be able to allow us to take this pea-sized lump, have the pathologist cut it up into pieces, put it on a glass slide, and the pathologist would look under the microscope of the entire specimen and be able to see if there was any cancer in the lump.
“He also did not tell her to see another doctor, to have Dr. Lemer see her. If he was unable to feel precisely what she was saying, she could come back in a week or two, or have another person’s opinion. But she said, at that time when she saw him, there was no dominant mass, but he didn’t say there was no mass.”

Next, Dr. Ledesma alleges that he is entitled to a remittitur. Dr. Ledesma’s allegation that the amount of the verdict was not supported by the evidence is without merit. It is the duty of the jury to assess and award damages. It is well established that remittitur will only be ordered, when “a verdict that is supported by the evidence suggests that the jury was guided by partiality, prejudice, mistake or corruption.” There is no indicátion that the jury was guided by partiality, prejudice, mistake or corruption.

In Kemp v. Philadelphia Transportation Corp., infra, the Superior Court set out the standard for determining whether or not a verdict was excessive. The following factors ought to be considered: (1) the severity of the injury, (2) whether plaintiff’s injury is manifested by objective physical evidence or whether it is only revealed by the subjective testimony of plaintiff, (3) whether the injury will affect plaintiff permanently, (4) whether plaintiff can continue with his or her employment, (5) the size of out-of-pocket expenses and (6) the amount the plaintiff demanded in the original complaint.

Based on these factors, there is no basis for this court to grant a remittitur, as Ms. Branch presented detailed evidence about the severity of damages she suffered. The damages she complains of include not only subjective damages, such as lower sense of self esteem, depression, embarrassment and humiliation, and fear of losing her life, but also objective damages, such as having to undergo a mastectomy, having to undergo chemotherapy, radiation and a bone marrow transplant and all of the side effects accompanied by these treatments. These injures are permanent; they will affect her the rest of her life. They have decreased her chances of survival from over 80 percent to less than 20 percent. In addition to physical damages, Ms. Branch has suffered financially. She lost her job and her health benefits, and she continues to be unemployed. David Bunn, an expert actuarial economist, testified that these special damages alone include over $81,000 in past lost wages and benefits, and up to $530,000 in future lost earnings and benefits. In addition, both parties stipulated that the medical expenses totaled over $160,000. Ms. Branch suffered special damages amounting to over $770,000. Based on this analysis, the verdict awarded Ms. Branch cannot be deemed excessive.

Finally, defendants allege that they are entitled to a reduction of the verdict pursuant to the Pennsylvania Property and Casualty Insurance Guaranty Association Act. The Act’s purposes include “[t]o provide a means for the payment of covered claims under certain property and casualty insurance policies, to avoid excessive delay in the payment of such claims and to avoid financial loss to claimants or policyholders as a result of the insolvency of an insurer.” The Act contains a “non-duplication of recovery” provision which provides:

“(a) Any person having a claim under an insurance policy shall be required to exhaust first his right under such policy. For purposes of this section, a claim under an insurance policy shall include a claim under any kind of insurance whether it is a first-party, or third-party claim, and shall include, without limitation, accident and health insurance, workers’ compensation, Blue Cross and Blue Shield and all other coverage except for policies of an insolvent insurer. Any amount payable on a covered claim under this Act shall be reduced by the amount of any recovery under other insurance.

“(b) Any person having a claim which may be recovered under more than one insurance guaranty association or its equivalent shall exhaust first his right of recovery from the association of the place of residence of the insured. Any amount payable on a covered claim under this Act shall be reduced by the amount of recovery from any other insurance guaranty association or its equivalent.”

Thus, this statute prohibits recovering twice for the same loss, but it does not prohibit recovering from different insurers who cover different risks. Plaintiff cites McCarthy v. Bainbridge for the proposition that the Act does not provide for an offset because it does not prohibit recovering from different insurers covering different risks. In McCarthy, the question presented was whether the non-duplication provision permits the association to offset amounts received by a claimant under a life insurance policy against the amount the association would otherwise owe the claimant as a result of a settlement or a verdict. In McCarthy, plaintiff filed a medical malpractice suit on behalf of decedent’s estate. Defendant’s liability insurer, PIC Insurance Group Inc. was responsible for $200,000 of the negotiated settlement. PIC became insolvent, and did not pay its portion of the settlement. The association became responsible for all unpaid claims against PIC, and plaintiff’s claim against PIC became a claim against the association. The association refused to make any payment pursuant to the settlement because the decedent had a life insurance policy providing a benefit of $584,216.84. The association argued that the “non-duplication of recovery provision” provided that the $200,000 claim against the association was entirely offset by the life insurance proceeds plaintiff received. The trial court held that the association was entitled to the offset. On appeal, the Superior Court overruled this finding and held the “non-duplication” provision did not entitle the association to an offset for life insurance benefit payments paid to plaintiff in the underlying medical malpractice action. The Superior Court held in order to determine what money from other insurance is offset:

“[T]here must be some relationship between the claim against [the association] and the claim under other insurance that must be offset. The only reasonable reading of the offset provision is to require that the claim to be offset must be for the same loss as the claim asserted against PIC. In other words, the claim must be under insurance that sought to protect the insured against the same risk as was covered by the now insolvent insurer for whom [the association] is providing coverage.”

The court went on to distinguish between life insurance, which “provides a defined benefit payable up to death, whether accidental or from natural causes, to designated beneficiaries” and medical malpractice liability casualty insurance, which “provides coverage for amounts the insured is held legally liable to pay others because of the doctor’s own negligence and the harm it caused.”

McCarthy clearly establishes that not all payments to insured can be used for an offset. However, it does not deal with the issue of whether a medical malpractice claim, which includes a claim for reasonable and customary value for reasonably necessary medical care as a result of medical malpractice, can be offset under the non-duplication provision by health insurance payments made to plaintiff.

This issue was recently decided by the Superior Court in Partea v. Isdaner. In Panea, the Superior Court affirmed a trial court’s holding that defendant was entitled to offset payments plaintiff received from workers’ compensation. In Panea, the Superior Court reviewed three trial court decisions that dealt with the non-duplication provision. It is the review of the third case, Baker v. Myers, which is relevant to this case. In Baker, the defendant, Dr. Myers was found liable to plaintiff, Mr. Baker, for $65,665.91 in damages as a result of the negligent performance of spinal fusion surgery. Dr. Myers’ insurer, PIC, became insolvent, and the defense was assumed by the Pennsylvania Property and Casualty Insurance Guaranty Association. After verdict, Dr. Myers filed a post verdict motion, claiming he was entitled to an offset for other insurance benefits Mr. Baker received, including workers’ compensation. The trial court offset the verdict, thereby reducing it to zero. On appeal, Mr. Baker questioned whether PPCIGA was entitled to an offset for payments of “other insurance for damages resulting from the culpable conduct giving rise to liability on the part of the insured.”

On appeal, the Panea court concurred with the holding in McCarthy, “[t]o the extent it stands for the proposition that the loss must be attributable to culpable conduct of a third party and the ‘other insurance’ is paying the loss in its capacity of a secondary obligor.” Panea discussed the distinctions between primary and secondary liability. The court explained the distinction using subrogation law as an example. A tort-feasor is primarily liable, an insurer who pays a claim under a policy is secondarily liable. Under the right of subrogation, “[o]nce the insurer has paid a claim to the insured, it may then stand in the shoes of the insured and assert the insured’s rights against the tort-feasor.”

Life insurance, proceeds “represent the life insurance company’s primary obligation under the contract.” For this reason, a life insurance carrier does not have the right to subrogate. A third parties’ negligence did not cause the life insurance carrier to make a payment, rather “it was solely obligated to pay due to the happening of an event (death), regardless of fault.” Thus, “it cannot be said that the failure to offset where the payment consists of life insurance proceeds results in a duplicative recovery.” The court distinguished between life insurance and workers’ compensation insurance. Life insurance pays a benefit which represent the life insurance companies’ “primary obligation under [its] contract.” In contrast, “when an employer seeks subrogation under the Workers’ Compensation Act, or for that matter a health insurance carrier, recovery is dependant upon establishing that it was caused to make its payments due to the negligence of a third party.”

Citing the trial judge’s opinion, the court noted, “it is without dispute that [Mr. Baker] received insurance benefits both under [workers’] compensation and for certain surgeries which far exceeded the amount of judgement entered in this case . . . .” Further, Mr. Baker’s injuries were the result of “defendant’s tortious conduct.” Thus, “the trial court did not err in molding the verdict to zero in light of the fact the other insurance payments were made for medical expenses incurred as a result of defendants’ culpable conduct.”

Likewise herein, the defendant would be entitled to an offset for any amounts actually paid on behalf of Ms. Branch by her health insurance. Ms. Branch concedes that she received some benefits for medical treatment made necessary by Dr. Ledesma’s negligence Likewise the amount of Ms. Branch’s verdict, included an amount attributable to her medical expenses. It is clear however, that some medical care would have been needed to treat the underlying medical condition even if Dr. Ledesma had properly cared for his patient. Thus, Dr. Ledesma is entitled to an offset from his liability for any medical expenses paid by Ms. Branch’s health insurance which would not otherwise been needed.

There is, however, no evidence upon which to base this offset. Defendants’ motion for post-trial relief requests an offset $68,237.63. However, this figure is not supported by any evidence that plaintiff received $68,237.63 in insurance benefits or that this was due to negligence. Without evidence of the amount of insurance benefits received, defendants’ liability cannot be offset. Defendants’ request for remittitur was properly denied.

For the forgoing reasons, this court properly denied defendants’ post verdict motion.

      . N.T. 8/7/00, at 74-75; 8/9/00, at 445.

      . N.T 8/7/00, at 82-84; 91-93; 8/8/00, at 280; 8/9/00, at 442-44.

      . N.T. 8/8/00, at 280.

      . N.T. 8/8/00, at 280-82.

      . N.T. 8/8/00, at 280-83.

      . N.T. 8/7/00, at 16-17.

      . N.T. 8/8/00, at 288-90.

      . N.T. 8/8/00, at 290-93.

      . N.T. 8/7/00, at 113.

      . N.T. 8/8/00, at 297-311.

      . N.T. 8/7/00, at 119-23.

      . N.T. 8/7/00, 133-34.

      . N.T. 8/8/00, at 313-21.

      . N.T. 8/8/00, at 297-313; 324-27; 339-43; 8/9/00, at 385-99.

      . N.T. 8/7/00, at 148-49.

      . N.T 8/7/00, at 85-86.

      . N.T. 8/7/00, at 85-86.

      . N.T. 8/7/00, at 93-96.

      . Krysmalski v. Tarasovich, 424 Pa. Super. 121, 147, 622 A.2d 298, 312 (1993).

      . Kemp v. Philadelphia Transportation Corp., 239 Pa. Super. 379, 361 A.2d 362 (1976).

      . N.T. 8/9/00, at 373-76.

      . N.T. 8/10/00, at 582.

      . 40 P.S. §991.1801(1).

      . 40 P.S. §991.1817.

      . 40 P.S. §991.1817.

      . McCarthy v. Bainbridge, 739 A.2d 200 (Pa. Super. 1999).

      . The association is the guarantor of monies owed a claimant by a medical malpractice insurer who is insolvent.

      . McCarthy at 203.

      . Id. at 203.

      . Panea v. Isdaner, 2001 WL 347831 (Pa. Super. 2001).

      . Baker v. Myers, 642 EDA 1999 (2001).

      . Panea at 9.

      . Id. at 9.

      . Id. at 10, citing Daley-Sand v. West American Insurance Co., 387 Pa. Super. 630, 564 A.2d 925 (1989).

      . Id. at 10.

      . Id. at 10.

      . Id. at 10.

      . Id. at 10.

      . Id. at 10.

      . Id. at 10.

      . Plaintiff’s brief in opposition to defendants’ motion for post-trial relief, at footnote 1.

      . Defendant’s motion for post-trial relief.


author: O’BRIEN, S.J.,

text:
    White v. Foley

      C.P. of Butler County,
    E.Q. no. 00-50027.

      James L. Weinberg, for plaintiffs.

      Frank G. Salpietro, for defendants.
    August 14, 2001
   O’BRIEN, S.J.,

Plaintiffs and defendants are adjacent landowners. Plaintiffs are the record owners of lot no. 13 in the Abbey Woods plan of lots. Plaintiffs purchased said lot in May of 1999. Defendants are the record owners of lot no. 11 in the Abbey Woods plan of lots. Defendants purchased said lot in July of 1997.

On August 14, 2000, plaintiffs filed a complaint in equity against the defendants. In that complaint, plaintiffs alleged that the defendants were committing a continuing trespass on a portion of plaintiffs’ property. Specifically, the plaintiffs allege that the defendants are committing a continuing trespass in that they (1) installed children’s play equipment and a drainage pipe on plaintiffs’ property; and (2) have repeatedly allowed and encouraged their children and other children to play on plaintiffs’ property.

Subsequent to the filing of their complaint, plaintiffs filed a motion for a preliminary injunction. In that motion, plaintiffs requested the court enjoin defendants from entering on plaintiffs’ property and to order defendants to remove the play equipment from plaintiffs’ property. At the preliminary injunction hearing, the court received testimony from both plaintiffs and from defendant Ann Claire Foley. Based on the evidence presented at that hearing, the court entered an order on June 4,2001 granting plaintiffs’ requested relief.

Defendants have filed a notice of appeal of the court’s June 4 order. In accordance with Pa.R.A.P. 1925(b), defendants then filed a concise statement of matters complained of on appeal. Pursuant to Pa.R.A.P. 1925(a), the court files this memorandum opinion addressing the issues raised in defendants’ concise statement of matters complained of on appeal.

On appeal, defendants raise the following issues:

“(1) Whether an injunction prohibiting the use of real property by the party who had last peaceable, uncontested possession and use of that property is improper where there is a legitimate dispute over right of easement or title to the property.
“(2) Whether an injunction prohibiting the use of real property by the party who had last peaceable, uncontested possession of that property is improper when sought more than two years after the alleged use of the disputed property began, and where there has been no showing of immediate, irreparable harm to justify the extraordinary remedy of injunctive relief.”

Under Pennsylvania law, a party is entitled to a preliminary injunction where (1) the petitioner makes a strong showing that he is likely to succeed on the merits; (2) the petitioner has shown that without the requested relief, he will suffer irreparable injury; (3) the injunction will not substantially harm the other parties; and (4) the injunction will not adversely affect the public interest. Maritrans GP Inc. v. Pepper, Hamilton & Scheetz, 529 Pa. 241, 602 A.2d 1277 (1992). The court will address each of these elements individually.

LIKELIHOOD OF SUCCESS ON THE MERITS

The underlying cause of action in this matter is one for trespass. Liability for trespass arises from the intentional entry upon the land of another without privilege. Kopka v. Bell Telephone Co. of Pennsylvania, 371 Pa. 444, 91 A.2d 232 (1952). At the hearing on the preliminary injunction, plaintiffs presented ample evidence that they have a high likelihood of success on the merits in an action for trespass.

The law of this Commonwealth is clear that a party seeking to enjoin an invasion of his or her right to real property must first demonstrate a clear right to the property in question. Sprankle v. Burns, 450 Pa. Super. 319, 675 A.2d 1287 (1996). Further, the petitioner must rely on and prove the strength of his or her own title and right as opposed to the weakness of the respondent’s assertion of title. Williams v. Bridy, 391 Pa. 1, 136 A.2d 832 (1957).

At the hearing, plaintiffs produced evidence which tends to show that they are the rightful owners of the disputed property. Such evidence included a copy of the plaintiffs’ deed to their property in connection with a survey of their property and a survey of defendants’ property. Additionally, plaintiffs introduced one of defendants’ pleadings from a pending lawsuit between defendants and the builder of their home. In that pleading, defendants allege such things as “a significant portion of the property which the Foleys had improved and believed they owned was apparently owned by the Whites” and “the property did not belong to the Foleys.”

As for the other element for a successful trespass action, plaintiffs introduced evidence that defendants have intentionally placed play equipment on the disputed property and that their children continually use the disputed property. Further, defendants have not shown that they are privileged to enter the disputed property.

Therefore, based on the evidence presented, the court concluded that plaintiffs have a high likelihood of success on the merits in an action for trespass.

IRREPARABLE HARM — NO ADEQUATE REMEDY AT LAW

At the hearing, plaintiffs argued that the continued use of the “disputed property” exposes them to significant liability for potential injuries, thereby causing them irreparable harm. This court agreed. It is widely known, that children are often injured in and around playgrounds and on playground equipment. To subject those who claim title to property with those hazards present to liability exposure for injuries to alleged trespassers creates the potential for irreparable harm.

Further, it has been held that “if damages may be substituted for the land, it will amount to an open invitation to those so inclined to follow a similar course and thus secure valuable property rights.” Dodson v. Brown, 70 Pa. Super. 359 (1918).

SUBSTANTIALLY HARM THE OTHER PARTIES

Pennsylvania law directs that, on a preliminary injunction motion, the court must determine if a greater harm will result by denying injunctive relief. Maritrans, supra. In this case, the balance of the equities strongly favored the grant of the injunction. As already mentioned, the nature of the alleged trespass subjects plaintiffs to significant liability for injuries that may occur on the property to which they claim title. On the other hand, enjoining the defendants will cause them little to no harm. Testimony at the hearing revealed that the injunction would in no way impede access to defendants’ property. Further, the photographs received into evidence show that defendants have ample yard space to which the play equipment can easily be moved.

LACHES DEFENSE

The defendants argue that plaintiffs’ delay in bringing the within motion prevents them from seeking a preliminary injunction. However, the court finds that the delay was due to ongoing negotiations between the parties in an attempt to resolve the controversy short of a legal battle. Immediately upon learning of the defendants use of a portion of their property, plaintiffs promptly contacted the defendants in an attempt to discuss the situation. When negotiations failed, the plaintiffs filed the complaint almost immediately.

Further, plaintiffs did not delay in filing the motion for preliminary injunction. Defendants claim that since nine months passed between the filing of the complaint and the filing of the motion for preliminary injunction, plaintiffs should be estopped from claiming a need for immediate relief. The explanation given by the plaintiffs for the lapse of time between the filing of the complaint and the filing of the motion for preliminary injunction was that it was during the winter months when use of the property by the defendants’ children was greatly minimized. Therefore, plaintiffs argue, the need to seek immediate protection was greatly minimized. The court found this explanation reasonable as well as credible.

CONCLUSION

Based on the evidence presented at the hearing on the motion for preliminary injunction, the court concluded that the plaintiffs met their burden of proof and that the defendants failed to show the court why granting the injunction would not be appropriate.