author: OTT, J.,

text:
    Longwood Gardens Inc. v. Chester County Board of Assessment Appeals

      C.P. of Chester County,
    no. 01-00146.

      Thomas A. Riley, Denise R. Yarnoff and Jane Richardson, for appellant.

      Jeffrey R. Sommer, for appellee.
    November 8, 2001
   OTT, J.,

Before the court is the January 4,2001 appeal by Longwood Gardens Inc. from the December 5, 2000 decision of the Chester County Board of Assessment Appeals, as amended on December 20, 2000, denying Longwood Gardens a real estate tax exemption for its visitors’ dining facility, The Terrace Restaurant. Longwood Gardens is a purely public charity within the meaning of the Institutions of Purely Public Charity Act, 10 PS. §371 et seq., as determined by the Pennsylvania Supreme Court in Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 552 Pa. 212, 714 A.2d 397 (1998) and the majority of its real estate is already tax-exempt pursuant to 72 P.S. §5020-204(a).

Longwood Gardens owns the restaurant, but contracts with Restaurant Associates, a New York-based for-profit corporation, to manage the restaurant’s daily operations. The management agreement provides that Restaurant Associates shall receive, in exchange for services rendered, a “management fee” equal to a percentage of “total sales” and a possible incentive bonus based on a percentage of “actual profits” as those terms are defined in the management agreement.

Longwood Gardens filed an application for a real estate tax exemption with respect to the visitors’ dining facility on August 29, 2000, which the Chester County Board of Assessment Appeals denied on December 5, 2000. Longwood Gardens then filed this appeal on January 4, 2001.

The issue before the court is whether the 10 percent profit-sharing incentive plan strips the restaurant of its charitable tax shield as violative of the “private inurement” prohibitions in section 375 of the Institutions of Purely Public Charity Act, 10 P.S. §371 et seq. We held an evidentiary hearing on this matter on July 23, 2001, at which time the parties filed a “submission in lieu of testimony” to establish a factual record. We reopened the proceedings on October 9, 2001, for clarification of issues and further argument.

As referenced above, the Pennsylvania Supreme Court has already determined that Longwood Gardens is a purely public charity within the meaning of the Institutions of Purely Public Charity Act, 10 P.S. §371 et seq., despite the existence of a gift shop and restaurant on the premises. Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 552 Pa. 212, 714 A.2d 397 (1998). In a passage which I consider of greater import than mere dicta, the court found that the restaurant and gift shop advanced the charitable purposes of the institution. Id. I am bound by the court’s determination of this mixed question of law and fact. See Mars Area School Dist. v. United Presbyterian Women’s Ass’n of North America, 693 A.2d 1002 (Pa. Commw. 1997), aff’d, 554 Pa. 324, 721 A.2d 360 (1998) (whether an entity qualifies as a purely public charity for tax exemption purposes is a mixed question of law and fact). However, as evidenced in the antecedent opinion of the Commonwealth Court, the question of the restaurant’s eligibility for a tax exemption was not pending before the court. Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, 692 A.2d 1136, 1143 n.15 (Pa. Commw. 1997), aff’d, 552 Pa. 212, 714 A.2d 397 (1998).

Authority for taxing the restaurant independently of the gardens can be found in the following provisions. Subsection 375(h) of the Institutions of Purely Public Charity Act, 10 P.S. §371 et seq., preserves the taxing authority’s responsibility or prerogative “to make a determination whether a parcel of property or a portion of a parcel of property is being used to advance the charitable purpose of an institution of purely public charity or to assess the parcel or part of the parcel as taxable based on the use of the parcel or part of the parcel for purposes other than the charitable purpose of that institution.” 10 P.S. §375(h).

In addition, subsection (b) of the tax exemption statute, 72 P.S. §5020-204, states that “[e]xcept as otherwise provided in clauses (11) and (13) of this section [relating to libraries and fire/rescue stations], all property real or personal, other than that which is actually and regularly used and occupied for the purposes specified in this section, and all such property from which any income or revenue is derived, other than from recipients of the bounty of the institution or charity shall be subject to taxation, except where exempted by law for state purposes, and nothing herein contained shall exempt same therefrom.” 72 P.S. §5020-204(b).

Finally, Article 8, Section 5 of the Pennsylvania Constitution provides that “[a]ll laws exempting property from taxation, other than the property above enumerated (referring to Article 8, Section 2) shall be void.” Pa. Const. Article 8, Section 5. Reading these provisions together, it is evident that parcels of property, or portions thereof, which do not meet the constitutional and/or statutory criteria for exemption are subject to tax.

The burden of proving entitlement to a tax exemption is on the party seeking the exemption and it is a heavy one, as tax exemption statutes must be strictly construed. Community General Osteopathic Hospital v. Dauphin County Board of Assessment Appeals, 706 A.2d 383 (Pa. Commw. 1998), aff’d, 562 Pa. 229, 754 A.2d 679 (2000).

Subsection 375(c) of the Institutions of Purely Public Charity Act, 10 P.S. §371 et seq., discusses the four criteria which must be satisfied for an institution to operate “entirely free from private profit motive.” First, “[n]either the institution’s net earnings nor donations which it receives inures to the benefit of private shareholders or other individuals.” Second, the institution must apply or reserve “all revenue, including contributions, in excess of expenses in furtherance of its charitable purpose or to funding of other institutions which meet the provisions of [section 375(b) and (c)].” The third admonition, that “[cjompensation, including benefits, of any director, officer or employee is not based primarily upon the financial performance of the institution,” is not implicated here, as Restaurant Associates is neither a director, officer nor employee of Longwood Gardens. Lastly, the fourth requirement holds that the governing body of the institution must have “adopted as part of its articles of incorporation or, if unincorporated, other governing legal documents a provision that expressly prohibits the use of any surplus funds for private inurement to any person in the event of a sale or dissolution of the institution of purely public charity.” Longwood Gardens’ restated certificate of incorporation satisfies this mandate. (See Unionville-Chadds Ford School District v. Chester County Board of Assessment Appeals, no. 94-02590 (Chester Cty. 1994), exhibit A-6, pp. 3,4, 6). Therefore, we will confine our discussion to the issues raised by the first two standards.

The management agreement between Longwood Gardens and Restaurant Associates stipulates that Longwood Gardens shall pay Restaurant Associates a “ ‘management fee’ equal to five percent of ‘total sales’ generated in connection with activities undertaken by [Restaurant Associates] at The Terrace Restaurant and elsewhere in the food service areas.” “Total sales” are defined as “all receipts from the sales of food and beverages in connection with the food service provided by manager . . . , exclusive of all sales taxes attributable to any of the foregoing sales.” (Submission in lieu of testimony, exhibit A, ¶6.3). In addition, paragraph 6.5 of the agreement bestows upon Restaurant Associates an incentive bonus “equal to 10 percent of the amount of the actual profit of the food service, before deduction of capital expenses, based upon the actual figures disclosed on the monthly operating statement submitted with respect to the last month of the preceding initial term or renewal term, as approved by Longwood.”

I find nothing objectionable about Longwood Gardens’ agreement to pay Restaurant Associates five percent of the restaurant’s total sales as compensation for its management services. Five percent is an entirely reasonable emolument for the services rendered. I see no material distinction between five percent of total sales and a payment of a fixed amount as compensation for Restaurant Associates’ management services.

It is the 10 percent profit-sharing incentive plan I find troubling. Chief among the requirements for purely public charity status is that the institution must operate entirely free of the private profit motive. “Neither the institution’s net earnings nor donations which it receives [may inure] to the benefit of private shareholders or other individuals, as the private inurement standard is interpreted under section 501(c)(3) of the Internal Revenue Code of 1986.” 10 RS. §375(c)(l). Under the Internal Revenue Code, private inurement is construed to preclude a charity from “siphon[ing] its earnings to its founder, or the members of its board, or their families, or anyone else fairly to be described as an insider, that is, as the equivalent of an owner or manager. The test is functional. It looks to the reality of control rather than to the insider’s place in a formal table of organization.” United Cancer Council Inc. v. C.I.R., 165 F.3d 1173 (7th Cir. 1999).

Although the statutory language contemplates prohibition of all private inurement, “an incidental amount of private benefit is permissible since all 501(c)(3) organizations may be said to benefit individuals through their activities.” Simpson, Steven D., 869 Tax Mgmt., Tax Exempt Organizations: Organizational and Operational Requirements, XVA.2, p. A-159 (BNA 2000). “The nature and quantum of the private benefit in comparison with the primary exempt purpose served and the manner in which it is served are the key inquiries.” Id.

However, the proscription against private inurement “is generally concerned with payments to insiders or other persons other than as reasonable compensation for services actually rendered.” Id. Upon consideration of these principles and review of the relevant decisional law, I am satisfied that Longwood Gardens’ 10 percent profit-sharing incentive plan does not deprive the property in which the restaurant operates of its tax-exempt status.

First, Restaurant Associates is not an insider in the Longwood Gardens corporate structure. Restaurant Associates simply does not exercise the requisite degree of control over the restaurant’s operations. Restaurant Associates does not have the ability to influence the restaurant’s profitability, other than through the efficiency of its own operations. Generally, the restaurant is not accessible to the public unless they have paid the fee for admission to the gardens. Therefore, it is highly unlikely that people will patronize the restaurant independently of a visit to the gardens or that the restaurant engages in any real competition with area eating establishments. Owing in large part to this factor, there is nothing in the record to indicate that the independent efforts of Restaurant Associates would make a difference in the volume of the restaurant’s clientele. The record does not suggest that anything Restaurant Associates does affects sales at the restaurant. Restaurant Associates does not schedule events or otherwise control or manipulate the use of the restaurant. Restaurant Associates does not control the contents of the menus, the price of the food, or the quality of the inventory. In short, Restaurant Associates has little power to affect the restaurant’s revenues one way or the other.

Secondly, the profit-sharing incentive bonus of 10 percent is reasonable under the circumstances. It is acceptable for a charitable organization to remunerate an independent contractor through a contingent compensation plan. For example, in Broadway Theatre League of Lynchburg, Virginia Inc. v. United States, 293 F. Supp. 346 (W.D. Va. 1968), the court held that a charitable foundation organized to bring professional theatre to the city was entitled to a tax exemption despite the fact that it contracted with a booking agent to book acts in exchange for 15 percent of the membership dues. Bearing on the issue before this court, the Broadway Theatre League court explained, words clearly and without question refer to the corporation contemplated in the first sentence of the statute. They do not refer to a corporation that might be employed to print pamphlets, booklets and literature and to market the same, even though a profit might be involved to Associates ----It is not possible to read such into the intention of Congress in passing section 501. If such were the law, it would not be possible to have an exempt organization under the law. Certainly, such was not the intention of Congress, and it is equally clear from the record in this case that no profit accrued to the taxpayer, or to any private shareholder or individual connected with taxpayer.” Broadway Theatre League of Lynchburg, Virginia Inc. v. United States, 293 F. Supp. 346, 354-55 (W.D. Va. 1968) (quoting Science and Research Foundation Inc. v. United States, 181 F. Supp. 526, 529 (S.D. Ill. 1960)).

“It must be kept in mind that the law and the regulations refer to the taxpayer itself. The law and the regulations do not refer to a disassociated corporation who might, for instance, print the advertising for a community chest or the literature explaining the same. These things must be paid for, and the statute does not prohibit or forbid such activities. The evidence in this record shows that taxpayer is not a subterfuge to subsidize associates. There is no connection whatsoever between taxpayer and associates. The statute says ‘... no part of the net earnings of which inures to the benefit of any private shareholder or individual . . . .’ I.R.C. §501(c). These

The court also gave its approval as to the reasonableness of the 15 percent fee. Broadway Theatre League of Lynchburg, Virginia Inc., 293 F. Supp. at 355.

In National Foundation Inc. v. United States, 13 Cl. Ct. 486 (Cl. Ct. 1987), the claims court upheld a commission of six percent paid by a charitable foundation to independent fundraisers. In its opinion, the court admonished that “there is nothing insidious or evil about a commission-based compensation system. Indeed, ‘such arrangements are a part of business life . . . .’ People of God Community v. Commissioner, 75 T.C. 127, 133 (U.S. Tax Ct. 1980).... [T]he existence of a contingent compensation arrangement does not preclude tax-exempt status if the arrangement is reasonable.” National Foundation Inc. v. United States, 13 Cl. Ct. 486 (Cl. Ct. 1987).

I find Longwood Gardens’ contingent compensation incentive plan reasonable, under the circumstances. Ten percent is not excessive, particularly in light of the substantial services Restaurant Associates provides. The restaurant itself has operated at a loss for years. In fact, Longwood Gardens as a whole runs at a deficit. The amount of money paid to Restaurant Associates has not been shown to make a difference in the organization’s overall profitability. For all of these reasons, I find that the parties’ 10 percent profit-sharing incentive plan does not offend the private inurement policy as construed under I.R.C. §501(c)(3) and embodied in section 375(c) of the Institutions of Purely Public Charity Act, 10 P.S. §371 et seq. Therefore, I conclude that Longwood Gardens’ Terrace Restaurant is tax-exempt.

ORDER

And now, November 8, 2001, upon consideration of the January 4, 2001 appeal of Longwood Gardens Inc. from the Chester County Board of Assessment Appeals’ December 5, 2000 decision denying tax-exempt status to Longwood Gardens’ Terrace Restaurant, as modified on December 20,2000, the board’s response thereto, oral arguments and the parties’ submission in lieu of testimony, as well as the briefs and memoranda of law submitted in support and opposition thereof, it is hereby ordered and decreed that said appeal is granted. Longwood Gardens’ Terrace Restaurant is exempt from real estate taxes effective tax year 2001.

      . On December 20, 2000, the board modified its decision, changing the valuation of the restaurant as it was listed on the December 5, 2000 notice.


source: Caselaw Access Project

author: NANOYIC, J.,

license: Public Domain

text:
    DeAngelo Brothers Inc. v. Carbon County

      C.P. of Carbon County,
    no. 01-1207.

      Joseph G. Ferguson, for plaintiff.

      Steven R. Serfass, for defendants.
    November 28, 2001
   NANOYIC, J.,

At issue in this matter is whether Carbon County’s chemical spraying ordinance, Ordinance no. 2001-01, is pre-empted by Pennsylvania’s Pesticide Control Act of 1973, 3 P.S. §111.21 et seq., and, therefore, invalid in restricting the use of pesticides in the county by DeAngelo Brothers Inc.

DeAngelo Brothers is a licensed commercial pesticide applicator with contracts for the chemical control of vegetation along railroad rights-of-way within the county. DeAngelo Brothers is licensed to perform these applications by the Pennsylvania Department of Agriculture pursuant to the Act. The pesticides which DeAngelo Brothers uses to control the growth of vegetation are approved for use by the Pennsylvania Department of Agriculture.

On April 26, 2001, the county enacted Ordinance no. 2001-01. This ordinance, in substance, prohibits any entity from chemical spraying within the boundaries of Carbon County. Specifically, section 4 of the ordinance provides:

“No entity shall apply, spray or utilize chemicals in any manner within the boundaries of Carbon County for the purpose of creating or maintaining a right-of-way, private road, path, clearing of brush or weeds, vegetation and the like.”

This ordinance, on its face and in its effect, prohibits DeAngelo Brothers from the use and application of pesticides in Carbon County.

On May 17,2001, DeAngelo Brothers commenced suit in equity seeking to enjoin the enforcement of Ordinance no. 2001-01 against it and to have the ordinance declared invalid as being pre-empted by and inconsistent with the Act. The pleadings are closed and DeAngelo Brothers’ motion for summary judgment is now before the court for consideration.

The Pesticide Control Act of 1973 was initially enacted by the Pennsylvania Legislature on March 1,1974. The avowed purpose of the Act is “to regulate in the public interest, the labeling, distribution, storage, transportation, use, application, and disposal of pesticides.” 3 PS. §111.23. The term “pesticide” is defined in the Act as “any substance or mixture of substances intended for preventing, destroying, repelling, or mitigating any pest, and any substance or mixture of substances intended for use as a plant regulator, defoliant, or desiccant.” 3 P.S. §111.24(31).

The Act sets forth a comprehensive statewide statutory framework to deal with the regulation, registration, sale, transportation, distribution, notification and use of pesticides. The Act provides for the licensing of all businesses engaged in applying or contracting for the application of pesticides. 3 P.S. §111.35(a). The Act further provides for the registration of every pesticide distributed in this Commonwealth. 3 P.S. §111.25a(a).

The issue before the court is primarily one of law: Is the county’s ordinance as applied to DeAngelo Brothers pre-empted by the Act and, hence, invalid and unenforceable? There is no genuine issue of material fact precluding summary judgment at this stage of the proceedings. The parties do not dispute that DeAngelo Brothers is a licensed pesticide applicator which performs such services in Carbon County.

The matter of pre-emption is a judicially created principle based on the proposition that a municipality, as an agent of the state, cannot act contrary to the state. Duff v. Township of Northampton, 110 Pa. Commw. 277, 284, 532 A.2d 500, 503 (1987), aff’d, 520 Pa. 79, 550 A.2d 1319 (1988). Recently, the Pennsylvania Supreme Court, quoting Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 380-81, 77 A.2d 616, 620 (1951), set forth in detail the standard for pre-emption:

“There are statutes which expressly provide that nothing contained therein should be construed as prohibiting municipalities from adopting appropriate ordinances, not inconsistent with the provisions of the act or the rules and regulations adopted thereunder, as might be deemed necessary to promote the purpose of the legislation. On the other hand, there are statutes which expressly provide that municipal legislation in regard to the subject covered by the state Act is forbidden. Then there is a third class of statutes which, regulating some industry or occupation, are silent as to whether municipalities are or are not permitted to enact supplementary legislation or to impinge in any manner upon the field entered upon by the state; in such cases the question whether municipal action is permissible must be determined by an analysis of the provisions of the act itself in order to ascertain the probable intention of the legislature in that regard. It is of course self-evident that a municipal ordinance cannot be sustained to the extent that it is contradictory to, or inconsistent with, a state statute: Bussone v. Blatchford, 164 Pa. Super. 545, 67 A.2d 587 [(1949)]. But, generally speaking ‘it has long been the established general rule, in determining whether a conflict exists between a general and local law, that where the legislature has assumed to regulate a given course of conduct by prohibitory enactments, a municipal corporation with subordinate power to act in the matter may make such additional regulations in aid and furtherance of the purpose of the general law as may seem appropriate to the necessities of the particular locality and which are not in themselves unreasonable.’ Natural Milk Producers Association v. City and County of San Francisco, 20 Cal.2d 101, 109, 124 P.2d 25, 29 [(1942)].” Mars Emergency Medical Services Inc. v. Township of Adams, 559 Pa. 309, 740 A.2d 193, 195 (1999). (footnotes omitted)

Further,

“The state is not presumed to have pre-empted a field merely by legislating in it. The General Assembly must clearly show its intent to pre-empt a field in which it has legislated. Retail Master Bakers Association v. Allegheny County, 400 Pa. 1, 161 A.2d 36 (1960). See also, United Tavern Owners v. Philadelphia School District, 441 Pa. 274, 272 A.2d 868 (1971) (opinion announcing the judgment of the court). The test for pre-emption in this Commonwealth is well established. Either the statute must state on its face that local legislation is forbidden, or ‘indicate [] an intention on the part of the legislature that it should not be supplemented by municipal bodies.’ Western Pennsylvania Restaurant Association v. Pittsburgh, 366 Pa. 374, 381, 77 A.2d 616, 620 (1951). See also, Harris-Walsh Inc. v. Dickson City Borough, 420 Pa. 259, 216 A.2d 329 (1966). If the General Assembly has pre-empted a field, the state has retained all regulatory and legislative power for itself and no local legislation is permitted.” Duff v. Township of Northampton, 110 Pa. Commw. 277, 285-86, 532 A.2d 500, 503 (1987), aff’d, 520 Pa. 79, 550 A.2d 1319 (1988).

Still further,

“Pre-emption analysis calls for the answer initially to whether the field or subject matter in which the ordinance operates, including its effects, is the same as that in which the state has acted. If not, then pre-emption is clearly inapplicable. An affirmative answer calls for a further search for it is not enough that the legislature has legislated upon the subject. The ultimate question is whether, upon a survey of all the interests involved in the subject, it can be said with confidence that the legislature intended to immobilize the municipalities from dealing with local aspects otherwise within their power to act....
“Pertinent questions in determining the pre-emption issues are: (1) Does the ordinance conflict with the state law, either because of conflicting policies or operational effect, that is, does the ordinance forbid what the legislature has permitted? (2) Was the state law intended expressly or impliedly to be exclusive in the field? (3) Does the subject matter reflect a need for uniformity? (4) Is the state scheme so pervasive or comprehensive that it precludes coexistence of municipal regulation? (5) Does the ordinance stand as an obstacle to the accomplishment and execution of the full purposes and objectives of the legislature?” Duff, supra at 287-88, 532 A.2d at 504-505.

The issue of pre-emption is addressed explicitly in the Pesticide Control Act. Section 37(b) of the Act, 3 P.S. §111.57(b), contains the following relevant language:

“(b) This act and its provisions are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, distribution, notification of use, and use of pesticides to the exclusion of all local regulations. Except as otherwise specifically provided in this act, no ordinance or regulation of any political subdivision or home rule municipality may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, handling or use of pesticides, if any of these ordinances, laws or regulations are in conflict with this Act.”

A critical reading of section 37(b) of the Act reveals an ambiguity in the standard of pre-emption to be applied. While the first sentence of this section states a clear legislative intention to pre-empt any local legislation with respect to the subject of pesticides, the second sentence adopts a standard of pre-emption deferential to supplementary local legislation provided such legislation is not inconsistent with the provisions of the Act, or the rules and regulations adopted thereunder. Given this ambiguity and the reluctance of the Pennsylvania Supreme Court to find pre-emption of local legislation by state statutes, the more relaxed version of pre-emption permissive of complementary local legislation should be the test when measuring local legislation against the Pesticide Control Act. 1 Pa. C.S. §1934; Mars Emergency Medical Services Inc. v. Township of Adams, 559 Pa. 309, 740 A.2d 193, 195 (1999). Under either standard, local legislation contradictory to or inconsistent with the Act is invalid.

In the present case, the county’s ordinance seeks far more than to regulate the use of pesticides or the licensing of pesticide applicators. The ordinance imposes a blanket ban on the use of all chemicals within the county for the purpose of creating or maintaining a right-of-way, private road, path, or the clearing of brush, weeds or vegetation. Included within the ambit of this prohibition is the use of pesticides for such purposes. The ordinance makes no exception for the use of pesticides or the services performed by businesses regulated by the Pennsylvania Department of Agriculture pursuant to the Pesticide Control Act.

The breadth of the ban imposed by the county’s ordinance contradicts the very premise of the Pesticide Control Act — that pesticides are valuable to the protection of man and the environment if safely and intelligently regulated — and defeats its purpose. 3 P.S. §111.23. For all intents and purposes, the county’s ordinance prohibits any use of pesticides regardless of by whom used for the purpose of creating or maintaining rights-of-way, private roads, paths, or the clearing of brush, weeds or vegetation. Finding this conflict to exist, this court has no choice but to declare the ordinance as applied to DeAngelo Brothers invalid and unenforceable.

In making this decision, the court does not question the good faith or sincerity of the county’s, and its public officials’, intentions underlying the enactment of its ordinance. The ordinance explicitly includes among its declared purposes the protection of watersheds and bodies of water in the county from chemical pollution and the maintenance of the aesthetic beauty of the county.

This court is not unaware of the hidden dangers that may result from chemical use and which surface only years later. The protection of water tables and water reservoirs in a county many of whose residents are dependent upon private on-site wells for the supply of water for human consumption is an understandable concern of local public officials. Nor is the court unaware of the unsightly blight which results from the irresponsible and indiscriminate use of pesticides along roads and rights-of-way within the county and which scars the natural beauty of mountain laurel and other native vegetation within the county. Considerations of this type vary from county to county and may well argue in favor of the desirability of allowing counties to implement regulations complementary to those of the Pesticide Control Act or, at a minimum, highlight the need for the Pesticide Control Act and its supporting rules and regulations to differentiate between the rural and metropolitan counties of this Commonwealth.

The argument for permitting local legislation to accommodate local differences and matters of local concern must be balanced against those subjects inherently in need of uniform treatment and those matters of general public interest which necessarily require an exclusive state policy. This balancing, however, is a matter of legislative prerogative and discretion and not within the power of this court to invade. Instead, the county’s efforts are more appropriately directed at the state legislature to amend the Pesticide Control Act to permit greater local authority of counties in the regulation of the use of pesticides within their boundaries.

For the foregoing reasons, we enter the attached order:

ORDER

And now, November 29, 2001, upon consideration of plaintiff’s motion for summary judgment, defendants’ answer thereto, and the briefs of counsel, and after oral argument thereon, it is hereby ordered and decreed as follows:

(1) Plaintiff’s motion for summary judgment is hereby granted.

(2) Carbon County’s chemical spraying ordinance, Ordinance no. 2001-01, is hereby declared to be in conflict with Pennsylvania’s Pesticide Control Act of 1973,3 P.S. §111.21 et seq. and is therefore invalid and unenforceable to the extent it purports to regulate plaintiff’s use of pesticides within Carbon County.

(3) The County of Carbon and its officers, agents and employees are hereby enjoined from enforcing or attempting to enforce any of the provisions of Ordinance no. 2001-01 against plaintiff’s application of pesticides within Carbon County.

(4) The prothonotary is directed to refund to plaintiff the security previously posted by plaintiff in the amount of $500.

      . Violation of the ordinance is a summary offense punishable by a fine of up to $1,000 for each day the violation continues.

      . Accordingly, DeAngelo Brothers has legal standing to invoke this court’s equitable powers to enjoin enforcement of the Carbon County chemical spraying ordinance, Ordinance no. 2001-01. See City of Erie v. Northwestern Pennsylvania Food Council, 14 Pa. Commw. 355, 363, 322 A.2d 407, 412 (1974). Further, section 7533 of the Declaratory Judgment Act, 42 Pa.C.S. §7533, authorizes a party “whose rights, status, or other legal relations are affected by a statute [or] municipal ordinance . . .” to commence an action in order to “have determined any question of construction or validity” of that ordinance and to “obtain a declaration of rights, status or other legal relations thereunder.” 42 Pa.C.S. §7533. The court, moreover, may grant relief under the Declaratory Judgment Act “whenever necessary or proper. . ..” 42 Pa.C.S. §7538(a).

      . In Borough of McAdoo v. Lawn Specialties, 120 Pa. Commw. 120, 547 A.2d 1297 (1988), the only appellate case discussing the preemptive effects of the Pesticide Control Act on local legislation, the Commonwealth Court appears to have concluded that the legislature’s intention in the Pesticide Control Act was to exclusively occupy the entire field of legislation on this topic and, therefore, to prohibit even complementary local legislation not inconsistent with the Act. 120 Pa. Commw. at 124, 547 A.2d at 1299. In Borough of McAdoo, the Commonwealth Court held that a borough ordinance which required a professional lawn care service to obtain a local license before applying herbicides, pesticides and insecticides to lawns of its residential and commercial customers was pre-empted by the licensing provisions of the Act.


author: WALLITSCH, J.,

text:
    Wawa Inc. v. Alexander J. Litwornia & Associates

      C.P. of Lehigh County,
    no. 2001-C-0387.

      David L. Grove, for plaintiff.

      Nicholas Noel III, for defendants Alexander J. Litwornia & Associates.

      Leo V. DeVito Jr., for defendant Taylor.
    December 24, 2001
   WALLITSCH, J.,

Plaintiff Wawa Inc. initiated this action by writ of summons on February 9, 2001. A complaint was subsequently filed and, after preliminary objections were filed to that complaint, plaintiff filed the first amended complaint on May 18,2001. In the first amended complaint, Wawa asserts causes of action against defendants Alexander J. Litwomia & Associates and Alexander J. Litwomia individually, as well as against Chester L. Taylor, on the theories of commercial disparagement (Count I), intentional interference with actual and perspective contractual relationships (Count II), and civil conspiracy (Count III).

Wawa alleges that defendants have conspired to injure Wawa by waging a campaign of misinformation designed to “scare the public into believing that Wawa convenience food markets that dispense gasoline cause severe traffic congestion, safety hazards and fatalities.” (Pp. 2-3 of Wawa’s memorandum of law in opposition to preliminary objections.) Wawa, which is in the business of operating convenience food markets, currently has pending land development plans where applications for zoning approval before municipal governing bodies seeking to open convenience food markets in three locations in the Lehigh Valley. Taylor owns and operates convenience food markets and/or gasoline stations that are in close proximity to the proposed Wawa facilities. Wawa alleges that Taylor devised a scheme to incite community opposition to its proposed food markets and, in doing so, enlisted the aid of Litwomia as expert traffic engineers. Wawa asserts that Litwomia was retained by a group known as the North Bethlehem Neighbors Group to provide information to governmental bodies and officials which could delay or reject Wawa’s development plans and proposal at the three locations. Wawa also complains that Taylor and the Litwomia defendants have prepared a videotape and sent it unsolicited to the relevant governmental bodies in order to encourage them to reject Wawa’s plans. Wawa contends that these videotapes contain false information about the volume of traffic and safety hazards.

The defendants first argue that Wawa’s first amended complaint must be dismissed in its entirety since the conduct alleged by Wawa is protected by the First Amendment to the Constitution of the United States of America and/or Article I Section 20 of the Pennsylvania Constitution. Since we agree with defendants, and grant their demurrer to the first amended complaint, we need not address the other issues that were raised.

In ruling on these preliminary objections which are in the nature of demurrers, we will accept as true all well-pleaded material facts set forth by Wawa as well as all reasonable inferences that may be drawn from those facts. In doing so, we are convinced that Wawa’s complaint is nothing more than a SLAPP (Strategic Lawsuit Against Public Participation) suit. A SLAPP suit is a lawsuit filed by one party against another party in retaliation for the other party speaking out against the first party’s agenda. See e.g., Willcox v. Superior Court, 33 Cal.Rptr.2d 446; Gordon v. Marrone, 590 N.Y.S.2d 649, aff’d, 616 N.Y.S.2d 98 (1994). However, our analysis of whether Wawa’s first amended complaint may stand is based initially on the First Amendment to the Constitution of the United States which reads as follows:

“Congress shall make no law respecting an establishment in religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the government for the redress of grievances.'” (emphasis added)

A recent case decided by the Third Circuit Court of Appeals in Barnes Foundation v. The Township of Lower Merion, 242 F.3d 151 (3d Cir. 2001), analyzed what has come to be known as the “Noerr-Pennington doctrine,” that an individual is immune from liability for exercising his or her First Amendment right to petition the government. In Barnes, a foundation that operated an art museum brought suit against township officials and local homeowners who had opposed the museum’s expansion of operations, which was the subject of zoning applications. The alleged activities of the individual homeowners included picketing and participation at a meeting of the township board of commissioners to oppose the proposed expansion on the basis of expected traffic and parking problems. The foundation alleged that the defendants conspired to deprive it of its rights under the Due Process and Equal Protection Clauses of the United States Constitution by treating it differently from its institutional neighbors as a result of a “racially motivated conspiracy between the township and the neighbors.” The Third Circuit found that the dismissal of these claims was appropriate and reversed the district court’s refusal to grant counsel fees to all but one of the individual defendants. The Third Circuit pointed out, after a thorough evaluation of the Noerr-Pennington doctrine as a defense to a federal civil rights claim, that:

“Before we close our discussion of the Noerr-Pennington doctrine we hasten to add that persons contemplating bringing suits to stifle First Amendment activities should draw no comfort from this opinion because the uncertainty of the availability of a First Amendment defense when a plaintiff brings a civil rights case now has been dispelled. This point is of particular importance in land-use cases in which a developer seeks to eliminate community opposition to its plans as this opinion should make it clear that it will do so at its own peril.”

There is an exception to the Noerr-Pennington doctrine known as the “sham exception” which was discussed in Chantilly Farms Inc. v. West Pileland Twp., 2001 WL 290645 (E.D. Pa. 2001). In that case, the developer sued the township and groups of individual citizens who opposed the plaintiff’s proposed subdivision of land. The plaintiff alleged that the private defendants petitioned members of the board of supervisors of the planning commission, and made representations to these members in both public and private meetings, which led to the denial of plaintiff’s proposal. The district court granted the individual defendants’ motion to dismiss the claims against them on the basis of First Amendment immunity. The court recognized that, under the NoerrPennington doctrine, a defendant’s motive for his or her conduct is irrelevant. The sole exception to the NoerrPennington doctrine is the “sham exception” under which a defendant will not be protected if he or she is simply using the petition process as a means of harassment. However, because the individual defendants in Chantilly Farms petitioned their local government in order to influence policy and obtain favorable government action, the sham exception did not apply.

In the plaintiff’s first amended complaint, Wawa has not alleged that defendants’ sole intent is to harass Wawa. Instead, Wawa asserts that defendants have a “common interest in working to defeat the Wawa land development plans or applications for zoning approval. (See plaintiff’s first amended complaint at paragraph 19.) Wawa, therefore, is asserting that defendants are seeking to effectuate certain government action and, based on their own claims, the sham exception to the Noerr- Pennington doctrine does not apply. Moreover, there is no “conspiracy” exception to the Noerr-Pennington doctrine. City of Columbia v. Omni Outdoor Advertising Inc., 499 U.S. 565, 111 S.Ct. 1433, 113 L.Ed.2d 382 (1991).

Of course, the actions here are not civil rights actions under the federal laws, but state actions created by the common law. However, the rationale for the immunity under the First Amendment applies equally. Wawa seeks to recover damages against these defendants for actions they have taken to influence the public bodies of the alleged dangers of the Wawa development plans. Instead of competing with Taylor in the marketplace, Wawa has brought this lawsuit to stifle this and other action, both of Taylor and his expert engineer. Wawa gives little credit to the municipal bodies who will rule upon the development plans to be able to separate the wheat from the chaff and decide what is true or false concerning traffic congestion and other issues raised in the hearings. Moreover, should Wawa believe that the municipal bodies have inappropriately acted against Wawa’s interests, it has the recourse under law to appeal that decision to the court of common pleas. Apparently, Wawa also has little confidence in the courts to properly review the actions of the municipal bodies.

Article I Section 20 of the Constitution of Pennsylvania reads as follows:

“The citizens have a right in a peaceable manner to assemble together for their common good, and to apply to those invested with the powers of government for redress of grievances and other proper purposes, by petition, address, or remonstrance.”

We believe that this section of the Pennsylvania Constitution is similarly repugnant to actions such as Wawa has taken here. The ability to petition governmental entities, even for a selfish motive, must be protected if our democracy is to survive. Lawsuits that would stifle this ability must be dismissed upon their filing or the offending plaintiff will have succeeded in reducing the address of grievances in the next case, and the next, and the next.

We also believe, as far as it relates to the Litwornia defendants, that Wawa’s claims against them are barred by the witness immunity doctrine which has been accepted in Pennsylvania. In Clodgo v. Bowman, 411 Pa. Super. 267, 601 A.2d 342 (1992), the court applied the witness immunity doctrine to an expert in a medical malpractice action. As alleged in Wawa’s complaint, all of the activities of Litwornia were made in the context of its expert services rendered through its retention by the North Bethlehem Neighbors Group. See also, Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983).

Wawa argues that this case should be controlled by the United States Supreme Court decision in McDonald v. Smith, 472 U.S. 479 (1984). However, the facts of the McDonald case relate to libel and the Supreme Court’s rationale is entirely different than what we have in the present situation. Wawa also cites to a United States District Court case, Midnight Sessions Ltd. v. City of Philadelphia, 1990 WL 107347 (E.D. Pa.), and alleges that it supports its position. We disagree with Wawa’s interpretation of that case. In fact, the district court in Midnight Sessions found that the individual defendant’s actions fell under the petitioning privileges of the constitution. As the court stated:

“To permit maintenance of this type of civil rights lawsuit against a private individual would under the circumstances and uncontested facts shown in this case, have an unfortunate and unjust chilling effect upon the exercise by members of the public of their First Amendment right to complain about a public nuisance.” Id. at *4.

We believe the same would be true if we permitted Wawa’s lawsuit to proceed any further.

ORDER

And now, December 24, 2001, upon consideration of the preliminary objections of defendants Alexander J. Litwornia & Associates, Alexander J. Litwornia and Chester L. Taylor, after argument thereon, and for the reasons set forth in the accompanying opinion, said preliminary objections are sustained and plaintiff’s amended complaint is dismissed.


author: SHEPPARD, J.,

text:
    Stein v. Crown American Realty Trust

      Mark C. Rijkin, for plaintiffs.

      Robert A. Nicholas and Joseph M. Profy, for defendants.
    October 3, 2001
   SHEPPARD, J.,

This opinion is submitted in support of this court’s contemporaneous order sustaining preliminary objections on the basis of improper venue.

BACKGROUND

This action was brought by plaintiffs, David S. Stein, John B. Warden III, and Robert Parsons, who purchased shares from defendant, Crown American Realty Trust, either at the time of an initial public offering (IPO), or shortly thereafter. Plaintiffs claim that Crown and Mark E. Pasquerilla, individually and on behalf of the estate of Frank J. Pasquerilla, were unjustly enriched as a result of the purchases. They allege that the August 1993 prospectus of Crown guaranteed that Crown would have sufficient earnings to maintain the same value dividend as that offered at the IPO. Instead, the plaintiffs contend that the dividend was later reduced because of alleged financial difficulties of the defendants which were not disclosed to the plaintiffs during the IPO.

On January 9, 2001, plaintiffs filed their complaint alleging common-law fraud, negligent misrepresentation, and unjust enrichment. Plaintiffs subsequently filed an amended complaint asserting only the claim of unjust enrichment. Defendants timely filed preliminary objections to plaintiffs’ amended complaint asserting, inter aha, improper venue.

DISCUSSION

“[A] plaintiff’s choice of forum is given great weight . . . .” Masel v. Glassman, 456 Pa. Super. 41, 45, 689 A.2d 314, 316 (1997). Although a “defendant has the burden in asserting a challenge to . . . venue,” Masel at 45, 689 A.2d at 316, the trial court has discretion in deciding whether or not to transfer venue. Gale v. Mercy Catholic Medical Center, 698 A.2d 647, 650 (Pa. Super. 1997), appeal denied, 552 Pa. 696, 716 A.2d 1249 (1998).

Pa.R.C.P. 2179(3) and (4), provide, in pertinent part:

“a personal action against a corporation or similar entity may be brought in and only in ...
“(3) the county where the cause of action arose; or
“(4) a county where a transaction or occurrence took place out of which the cause of action arose.” (emphasis added)

Here, plaintiffs assert that their cause of action for unjust enrichment arose in Philadelphia County where a “transaction or occurrence” took place, namely the sale of stock.

In Pennsylvania, in order to state a cause of action for unjust enrichment, a plaintiff must show “benefits conferred on defendant by plaintiff, appreciation of such benefits by defendant, and acceptance and retention of such benefits under such circumstances that it would be inequitable for defendant to retain the benefit without payment of value.” Wolf v. Wolf, 356 Pa. Super. 365, 374, 514 A.2d 901, 905-906 (1986); see also, Burgettstown-Smith v. Langeloth, 403 Pa. Super. 84, 588 A.2d 43 (1991). In their claim of unjust enrichment, plaintiffs argue that the focus of the court’s inquiry should be the sale of stock. “Because the claim concerns the defendants’ unjust enrichment from the sale of stock,” and since the sale of stock allegedly took place in Philadelphia County, the plaintiffs contend that venue is proper in Philadelphia County. PI. reply mem. of law at 7.

In order to determine, for venue purposes, where the cause of action arose or where a “transaction or occurrence” took place out of which the cause of action arose, Pennsylvania courts look for guidance to the specific elements of the cause of action pleaded. In Craig v. W.J. Thiele & Sons Inc, 395 Pa. 129, 134, 149 A.2d 35, 37 (1959), the Pennsylvania Supreme Court was confronted with the issue whether the place where an order was made was sufficient to constitute a “transaction or occurrence” upon which venue could be based. There, the plaintiff-truck dealer in Luzerne County placed an order with defendant, a company in Cambria County. Following an alleged breach of contract, the plaintiff filed suit in Luzerne County, the county from which plaintiff placed the order. The court held that placing an order, one step in a series of several steps taken in the formation of a contract, constituted a mere “part of a transaction.” Id. Since a “part of a transaction” is not synonymous with “transaction or occurrence,” the court held that venue based on the placing of an order was improper. Id. To prevent future forum shopping, the court further held that a lawsuit could not proceed “in any county” where any facet of a complex transaction occurred. Id.

Recently, the principles espoused in Craig were applied by our Superior Court when it was faced with a cause of action of civil conspiracy. See Estate of Werner v. Werner, 781 A.2d 188 (Pa. Super. 2001). In Werner, the testator’s estate brought an action against the family trust and its beneficiaries for civil conspiracy. There, the plaintiffs argued that “ ‘any overt act undertaken by any conspirator in furtherance of the common design’ ” was “sufficient to establish venue wherever that overt act occurred.” Id. at 190. However, the court held that certain preliminary meetings held in Allegheny County, which later led to alleged acts of civil conspiracy in Mercer County, were too tenuous to constitute a “transaction or occurrence” for venue to be proper in Allegheny County. Id. The court transferred the action to Mercer County, where the family business was located. Id. at 192. Although Craig involved a contract action, and Werner a civil conspiracy cause of action, both courts examined the “transaction(s) or occurrence(s)” alleged to determine whether they related to the actual causes of action such that venue could properly be had. Therefore, the principles set forth in both Craig and Werner regarding venue guide this court.

Plaintiffs first argue that pursuant to Pa.R.C.P. 2179(3) their unjust enrichment action arose in Philadelphia County because this is the situs of the sale of stock. However, the sale of stock alone is insufficient to lay proper venue in Philadelphia County. To begin with, none of the plaintiffs reside in Philadelphia County. In fact, plaintiff Parsons resides in Cambria County, plaintiff Stein in Montgomery County, and plaintiff Warden in Dauphin County. PI. resp. to defs. P.O.’s ¶30 (“admitted”). Moreover, defendant Mark Pasquerilla resides in Cambria County and the estate of Frank Pasquerilla is being probated in Cambria County. Def. P.O’s. to PI. first amend, compl. at 7. More importantly, defendant Crown is a company incorporated in Maryland and has its principal place of business in Cambria County. Id. Since none of the parties reside or have businesses in Philadelphia County, plaintiffs’ unjust enrichment cause of action did not arise as a result of the sale of stock in Philadelphia County.

Plaintiffs also argue that, pursuant to Pa.R.C.P. 2179(4), the sale of stock constitutes a “transaction or occurrence” forming the basis for the unjust enrichment cause of action such that venue would properly lie in Philadelphia County. This court disagrees. Looking specifically to the elements of the cause of action, as did the Craig and Werner courts, this court is convinced that the defendants, if they were unjustly enriched, would have been so in Cambria County. Specifically, since defendants’ principal place of business is in Cambria County, any alleged monetary benefit conferred on the defendants by the plaintiffs would have occurred in Cambria County. Also, it is likely that any appreciation of such alleged benefits from the sale of stock would have been seen by Crown and the Pasquerillas in Cambria County. Finally, any alleged benefit accepted and retained by the sale of stock would undoubtedly occur in Cambria County, and not where the sale took place. Similar to the order placed in Craig, and the preliminary meetings in Werner, here, the actual sale of stock in Philadelphia County is merely a “part of the transaction” of the unjust enrichment action, and therefore is insufficient, to properly lay venue here in Philadelphia County. However, venue is proper in Cambria County, Pennsylvania.

CONCLUSION

For the above reasons, defendants’ preliminary objection to plaintiffs’ amended complaint asserting improper venue is sustained. Further, pursuant to Pa.R.C.P. 1006(e), this action shall be transferred to Cambria County.

ORDER

And now, October 3, 2001, upon consideration of the preliminary objections of defendants, Crown American Realty Trust and Mark E. Pasquerilla, individually and on behalf of the estate of Frank J. Pasquerilla to the amended complaint of David S. Stein, John B. Warden III, and Robert Parsons, and in accord with the opinion being filed contemporaneously with this order, it is hereby ordered that the preliminary objection asserting improper venue is sustained. This action is transferred to Cambria County, with costs to be borne by plaintiffs.

      . Plaintiffs allege only that venue is proper in Philadelphia County because their cause of action for unjust enrichment arose in this county or because a transaction or occurrence in this county gave rise to their cause of action. PI. reply mem. of law at 7. Thus, the court need not address Pa.R.C.P. 2179(1) stating that venue is proper in “the county where its registered office or principal place of business is located” or (2) stating that venue is proper in “a county where it regularly conducts business.”

      . Plaintiffs direct this court to Kubik v. Route 252 Inc., 762 A.2d 1119 (Pa. Super. 2000) and Battuello v. Camelback Ski Corp., 409 Pa. Super. 642, 598 A.2d 1027 (1991). However, both these cases involved an analysis of Pa.R.C.P. 2179 (2), turning on a determination of where the corporation “regularly conducts business.” Since the plaintiff specifically argues that venue is proper only because of Pa.R.C.P. 2179(3) or (4) and not (2), these cases are not controlling.


author: LEWIS, J.,

text:
    Glover v. Prudencio

      C.P. of Dauphin County,
    no. 5080 S 1998.

      April L. Strang-Kutay, for plaintiff.

      Evan Black, for defendant.
    September 27, 2001
   LEWIS, J.,

Before this court is a motion for post-trial relief arising from a medical malpractice action for damages instituted against defendant Jose N. Prudencio M.D. in connection with the medical treatment provided to plaintiff Cindy S. Glover-Peters. The parties filed briefs in connection with the motion and oral argument was heard on July 23, 2001. For the foregoing reasons, the defendant’s motion is denied.

The plaintiff, together with her husband, Leonard Peters, commenced this action in September of 1999. Prior to trial, on January 16,2001, defendant filed a motion to preclude testimony of plaintiff’s expert, Dr. Joseph Harryhill, which this court denied. On January 18,2001, plaintiffs filed a motion to preclude the expert testimony of defense witness, Dr. Paul Douglass, which this court granted. A jury trial began on January 22,2001 and concluded on January 25, 2001. At the conclusion of the trial, the jury found that Dr. Prudencio was negligent and entered a verdict in favor of Mrs. Glover-Peters for $250,000.

FACTUAL HISTORY

On November 15, 1996, plaintiff Cindy Glover-Peters, was admitted to the Polyclinic Medical Center and underwent a laproscopic hysterectomy performed by Dr. Ayodeji Bakare, a gynecologic surgeon. Following the operation, Mrs. Glover-Peters complained of abdominal pain and an unusual amount of blood was found in her urine. Twenty-four hours later, these conditions continued, which prompted Dr. Bakare to order a consultation with urologist, Dr. Prudencio.

On November 16,1996, Dr. Prudencio ordered an intravenous pyelogram (IVP) which revealed an obstructed left ureter preventing urine flow from Mrs. Glover-Peter’s left kidney to her bladder. Dr. Prudencio performed a cystoscopy to help determine the location of the blockage but then found it necessary to perform an exploratory laparotomy and made an incision into plaintiff’s abdomen to free the obstruction. During the procedure, Dr. Prudencio discovered a stitch very close to the left ureter and a pre-existing surgical tear in the wall of the bladder. Dr. Prudencio placed a double J stent through plaintiff’s ureters to assist with freeing the obstruction and salvaging the kidney. Following placement of the stents, Dr. Prudencio carried out closure of the bladder using a single layer of suture.

On November 20, 1996, Mrs. Glover-Peters was discharged from the hospital and utilized a catheter during her recuperation. She reported having urinary incontinence directly after the procedure and initially thought it was normal. On November 25, 1996, at a follow-up appointment with Dr. Prudencio, Mrs. Glover-Peters reported that she was experiencing severe pain from the catheter and urinary leakage around the catheter tubing. Dr. Prudencio advised that she was experiencing a bladder spasm, which is a common condition following the surgeries she had just undergone. Mrs. Glover-Peters continued to experience the pain and the incontinence in subsequent weeks. She contacted Dr. Prudencio with her complaints and he prescribed Levsinex to control the bladder spasm and ordered a cystogram to determine if it was safe to remove the catheter. During the procedure, it was determined that the plaintiff’s surgical wounds and bladder were well healed allowing for her catheter to be removed.

Dr. Prudencio continued to follow the patient for her urinary incontinence until the spring of 1998. In September 1998, Mrs. Glover-Peters went to the Pennsylvania Hospital in Philadelphia where she sought a second opinion from Dr. Joseph Harryhill about the source of her incontinence. Dr. Harryhill examined Mrs. Glover-Peters performing a physical examination, cystoscopy and cystometric evaluation. In the course of his examination, Dr. Harryhill observed a pinpoint opening in the region of the bladder trigone consistent with a vesico-vaginal fistula as well as pooling of urine in the vagina after the bladder had been filled with irrigant. Dr. Harryhill observed that Mrs. Glover-Peters did not leak urine through her urethra with measures commonly related to stress incontinence, such as coughing.

Mrs. Glover-Peters next visited Dr. R. Scott Owens on March 30,1999. Dr. Owens was aware of Dr. Harry-hill’s previous impression of a fistula and he performed a cystoscopy upon Mrs. Glover-Peters and noted a small vesico-vaginal fistula in the mid-trigone region of her bladder. Dr. Owens suggested surgery designed to cure the vesico-vaginal fistula, however, Mrs. Glover-Peters was diagnosed with the hepatitis C virus in the fall of 1998 and continues to undergo a regimen of immune-suppressing chemotherapy rendering her unable to have the surgery until completion of this treatment.

On September 1, 1999, plaintiffs filed a complaint against Dr. Prudencio seeking damages in connection with his treatment of Mrs. Glover-Peters. Plaintiffs alleged at trial that Dr. Prudencio was negligent in failing to inspect the bladder adequately during the November 1996 operation and failing to perform an appropriate closure of the bladder. Further, the suit alleged that these departures from the standard of care increased the risk that Mrs. Glover-Peters would develop the condition of vesico-vaginal fistula.

At trial, plaintiffs claimed that Mrs. Glover-Peters suffered from a vesico-vaginal fistula and besides pain and suffering was required to undergo additional medical procedures to treat her urinary incontinence. In addition, plaintiffs claimed past and future loss of earnings, and earning capacity, as well as humiliation and embarrassment. Plaintiffs further claimed special damages associated with urologist, Dr. Owens’ care, as well as care rendered by Dr. Joseph Harryhill. Additionally, Dr. Harryhill testified concerning the nature of the surgical procedure Mrs. Glover-Peters would require in an effort to attempt a surgical correction of her vesico- vaginal fistula with approximate costs for the future surgery in the realm of $20,000 to $30,000.

Defendant has raised numerous issues in his motion for post-trial relief. First, defendant requests that this court grant a judgment n.o.v. because the verdict was against the weight of the evidence that the plaintiffs presented to prove medical negligence. In the alternative, the defendant contends that a new trial is warranted because of plaintiffs’ counsel’s remarks during summation, an improper verdict slip, denial of his pretrial motion, and the granting of plaintiffs’ pretrial motion. Furthermore, the defendant contends that a new trial should be granted because of certain evidentiary errors made by this court when it precluded plaintiffs’ admissions from a prior action, admitted evidence as rebuttal testimony, admitted certain hearsay statements, and permitted plaintiffs’ expert to testify about unrelated medical treatment. Lastly, defendant requests a new trial because this court failed to instruct the jury of a charge proposed by the defendant, the jury’s verdict was excessive, and in the alternative, the defendant requests that a remittitur be granted.

JUDGMENT N.O.V.

In reviewing a motion for judgment n.o.v. the evidence and all reasonable inferences must be considered in the light most favorable to the verdict winner, and any conflict in the evidence must be resolved in her favor. Gunn v. Grossman, 748 A.2d 1235, 1238 (Pa. Super. 2000). Further, a judge’s assessment of the evidence should not be based on how he would have voted if he were a jury member, but on the facts as they come through the course of the jury’s deliberations. Id. Specifically, the Superior Court has set forth the standards as stated below:

“There are two bases upon which a judgment n.o.v. can be entered: (1) the movant is entitled to judgment as a matter of law... and/or (2) the evidence is such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant, . . . With the first, a court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas, with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.” Moure v. Raeuchle, 529 Pa. 394, 402-403, 604 A.2d 1003, 1007 (1992); accord Nogowski v. Alemo-Hammad, 456 Pa. Super. 750, 760, 691 A.2d 950, 955-57 (1997) (en banc), appeal denied, 550 Pa. 675, 704 A.2d 638 (1997).

Additionally, judgment n.o.v. should not be entered in a case where the evidence is conflicting upon a material fact. Gunn, 748 A.2d at 1239. Moreover, when the evidence involves the credibility of a witness, it is within the province of the jury to assess the worth of the testimony. Id.

Defendant argues that he should be granted a judgment n.o.v because the plaintiffs failed to present sufficient evidence at trial, expert or otherwise, to establish the elements required to succeed on their claims of medical negligence. In order to establish a cause of action for medical negligence, a plaintiff must prove that the defendant owed the plaintiff a duty, that the duty was breached, that the breach was the cause of the injury and that damages resulted from the harm caused. Checchio v. Frankford Hospital-Torresdale Division, 717 A.2d 1058, 1060 (Pa. Super. 1998). A plaintiff is also required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Id., see also, Welsh v. Bulger, 548 Pa. 504, 698 A.2d 581 (1997); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978).

Defendant suggests that the plaintiffs’ evidence was insufficient because they only offered one expert witness to show that Dr. Prudencio breached the standard of care. This court finds that Dr. Joseph Harryhill, plaintiffs’ expert, was qualified to address all of the salient issues in this case. He is a board-certified urologic surgeon who is affiliated with Pennsylvania Hospital and performs surgery two full days per week. Dr. Harryhill personally examined the plaintiff and made the diagnosis of a vesico-vaginal fistula for which he can perform corrective surgery when the plaintiff has completed her regimen of chemotherapy for hepatitis C.

As an expert, he testified that Dr. Prudencio was negligent in his surgical technique because he failed to surgically open and explore Mrs. Glover-Peter’s bladder upon discovering the pre-existing tear, performed an inadequate closure of the bladder and failed to diagnose a vesico-vaginal fistula, the cause of her incontinence. (N.T. at 185.) Dr. Pmdencio testified that the bladder tear, which he repaired, was nowhere near the trigone area, such testimony is not consistent with his operative report, nor is it consistent with the observations made by Drs. Harryhill and Owens. (N.T. at 182-83.) It is clear that the jury was faced with conflicting evidence related to a material fact and a credibility issue concerning Dr. Prudencio’s recollections and Dr. Harryhill’s findings. The jury based its decision on the evidence that was presented at trial and had the opportunity to accept or reject that evidence. As such, defendant’s motion for judgment n.o.v. is denied because this court will not invade the province of the jury to assess the worth of the evidence.

MOTION FOR A NEW TRIAL

Defendant next argues that if this court denies the judgment n.o.v, then, in the alternative, a new trial should be granted based on certain evidentiary errors. The decision to grant a new trial is within the discretion of the trial court. Mitchell v. Gravely International Inc., 698 A.2d 618 (Pa. Super. 1997). Absent an abuse of discretion or error of law, a trial court’s decision regarding the grant or refusal of a new trial will not be reversed on appeal. Commonwealth v. English, 548 Pa. 528, 699 A.2d 710 (1997). In making the determination to grant a new trial, the court must assess whether the verdict is manifestly against the weight of the evidence or contrary to the evidence. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998). A new trial may also be granted where the verdict entered is excessive. Sprague v. Walter, 441 Pa. Super 1, 656 A.2d 890 (1995).

Remarks Made by Plaintiffs’ Counsel During Summation

First, the defendant contends that remarks made by plaintiffs’ counsel during her closing argument were prejudicial. The remarks were in reference to the lack of evidence from the other surgeons present in the operating room regarding the location of the laceration in the bladder. A trial judge is in the best position to observe the atmosphere in which a trial is being conducted and to determine whether a statement in the heat of a trial by counsel has had a prejudicial effect on the jury. Clark v. Hoerner, 362 Pa.Super. 588, 525 A.2d 377 (1987). Specifically, in Wagner v. Anzon Inc., 453 Pa. Super. 619, 635, 684 A.2d 570, 578 (1996), the Superior Court wrote, “any prejudicial remarks made by counsel during argument can be handled ‘within the broad powers and discretion of the trial judge and his actions will not be disturbed on appeal unless there is an obvious abuse of discretion. ’ ” Furthermore, the Superior Court has found curative instructions to be sufficient to correct any improper statements made during summations. See generally, Wilf v. Philadelphia Modeling and Charm School Inc., 205 Pa. Super. 196, 208 A.2d 294 (1965).

The defendant cites Bennett v. Sakel, 555 Pa. 560, 725 A.2d 1195 (1999), where the trial court was reversed because it denied a mistrial and a curative instruction. In Bennett, the trial court allowed an attorney, during closing argument, to encourage the jury to draw an adverse inference concerning witnesses not called. Id. at 562, 725 A.2d at 1196. Further, the Supreme Court in Bennett said it was error for the court to instruct the jury to draw whatever inferences it may from the attorney’s remarks. Id.

The instant case is distinguishable because this court did provide a curative instruction advising the jury that they may not make any inferences as to why the witnesses were not present or what their testimony might have been. This court addressed the remarks in question with a curative instruction: “consider only the evidence that was presented here in the courtroom.” (N.T. at 497.) Moreover, this court advised jurors that they could not infer anything from the failure of witnesses to appear, stating that “you can’t guess or infer what those witnesses might have said had they been here.” Id. Therefore, a new trial is not warranted because this court finds that the remarks were not prejudicial to the defendant.

Verdict Slip Questions

The defendant’s second contention is that he should be granted a new trial based on a verdict slip that confused the jury because the slip combined the questions of substantial factor and increased risk. The following interrogatories were contained in the verdict slip sent out with the jury:

“(1) Do you find that Dr. Prudencio was negligent?
“If your answer to question no. 1 is yes, go to question 2. If your answer is no, please return to the courtroom.
“(2) Do you find that Dr. Prudencio’s negligence was a substantial factor that increased the risk that plaintiff would suffer harm?
“If your answer to question no. 2 is yes, go to question 3. If your answer is no, please return to the courtroom.
“(3) If you answered yes to question nos. 1 and 2, what damages do you award

To support his argument, the defendant cites to Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978), where the defendants had failed to promptly diagnose and treat a patient’s heart attack, and the patient later died. The Supreme Court concluded that a causal connection between the defendants’ delay in diagnosing and treating the patient and his resulting death was not easily determined to a reasonable degree of medical certainty. Id. at 267, 392 A.2d at 1286. Alternatively, the Supreme Court decided expert witnesses could provide that, to a reasonable degree of medical certainty, the defendants’ negligence had increased the risk of harm. Id. The Supreme Court adopted this relaxed standard of certainty in such cases to provide a premise upon which a jury may find causation. Id. Specifically, the Supreme Court stated,

“Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, section 323(a) [of the Restatement (Second) of Torts] tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof.” Id. at 271, 392 A.2d at 1287-88. (footnote omitted)

Furthermore, the Supreme Court in Jones v. Montefiore Hospital, 494 Pa. 410, 417, 431 A.2d 920, 924 (1981), stated that where plaintiff’s expert demonstrates that the defendant’s failure to diagnose and treat an existing condition has increased the risk of harm, the question of whether that conduct caused the plaintiff’s ultimate injury requires a jury determination. The jury, not the medical expert, has the task of balancing the probabilities and deciding whether the defendant’s negligence was a substantial factor in bringing about the harm. See Hamil, supra at 269, 392 A.2d at 1286; Gradel v. Inouye, 491 Pa. 534, 544, 421 A.2d 674, 678 (1980).

Through the testimony of Dr. Joseph Harryhill, plaintiffs demonstrated that the defendant’s negligent acts or omissions increased the risk of harm to Mrs. Glover-Peters. That evidence provided a basis for the jury to further determine whether such increased risk was a substantial factor in bringing about the harm and the interrogatories posed in the verdict slip provided the jury with the task of examining the question of causation. Dr. Harryhill, the expert physician, testified that the defendant’s departure from the standard of care could have caused the harm and thus, it became a function of the jury to decide if it actually did.

Although the verdict slip combined two questions of law in a single question, this court thoroughly and completely instructed the jury on the law with regard to what the plaintiffs needed to prove in order to prevail in this action. In fact, although the issue of causation need only be addressed once by the presiding judge in order to constitute effective instruction, this court was particularly comprehensive, and stressed caution on at least four separate occasions throughout the jury instructions. (N.T. 526-32.)

An error in a jury instruction is sufficient grounds for a new trial, if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Boutte v. Seitchik, 719 A.2d 319, 324 (Pa. Super. 1998). Not all errors in a charge require a new trial, however. “A charge will be found adequate unless the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission which amounts to fundamental error.” Id. at 324-25.

This court’s jury instruction thoroughly discussed the need for the plaintiffs to prove causation, with such requirement being mentioned numerous times throughout the jury instructions. Specifically, this court instructed the jury that: “in a medical malpractice action, the plaintiff has the burden of proving, by expert testimony, the prevailing standard of medical care accepted by the medical profession, that the care provided by the defendant deviated from the prevailing standards of medical care, and the conduct of the physician caused injury to the plaintiff.” (N.T. at 526.)

Additionally, this court reviewed the element of causation with the jury and used the standard instruction highlighting that the jury must determine from the evidence whether there was a causal connection between the negligent conduct of the defendant and the plaintiff’s injuries. (N.T. at 530.) The jury was instructed to review the evidence to determine if the defendant’s failure to provide reasonable care increased the risk of those injuries. Id. Further, since the law recognizes that this connection is rarely demonstrated with absolute certainty, this court emphasized that the jury must look at whether the defendant’s conduct was a substantial factor in bringing about the injuries in question. Id.

In summary, on the element of causation required to be proved by the plaintiffs, this court elaborated as follows:

“But you need to decide, number 1, is the defendant or was the defendant negligent? Yes or no. If you decide that the defendant was negligent, then and only then do you discuss the issue of well, was his negligence a substantial factor in bringing about the harm. If you decide that the defendant’s negligence was a substantial factor in bringing about the harm, then and only then do you get to the next thing we are going to talk about and that is damages.
“So you must find negligence, you must find substantial factor, and if you find both of those, you go to damages. If you do not find both of those, if you find neither of those or only one or the other, you don’t get to damages and the case is over. You must find both negligence plus substantial factor to go to damages. If you do find negligence and substantial factor, then we are in the damages category.” (N.T. at 532.)

These instructions were thorough and there is nothing to suggest that the jury deliberations were conducted in a confused manner. During the three hours the jury deliberated, no questions were posed by the jury. There is no indication that the jury was unaware of its obligation to find that Dr. Prudencio’s conduct had to bear a reasonable relationship, i.e., substantial factor, to the injuries sustained by the plaintiff. Therefore, this court finds no merit to the defendant’s argument that the verdict slip was improper because the questions posed gave the jury the task of determining whether there was causation based on the evidence, the court’s instructions to the jury were comprehensive, and there was no indication of jury bewilderment.

Admissibility of Expert Witnesses

Turning to the defendant’s third and fourth contentions, the defendant argues that the court improperly precluded the expert testimony of Dr. Paul H. Douglass and erred in permitting plaintiff’s expert, Dr. Joseph Harry-hill to testify because he was untimely identified. A trial judge has broad powers concerning the conduct of a trial, particularly with regard to the admission or exclusion of evidence. Santarlis v. Leaseway Motorcar Transport Co., 456 Pa. Super. 34, 40, 689 A.2d 311, 313 (1997). The admissibility of evidence, including expert testimony, is a matter entrusted to the sound discretion of the trial court, and such ruling will not be disturbed on appeal unless an abuse of discretion is shown. Chicchi v. SEPTA, 727 A.2d 604, 607 (Pa. Commw. 1999).

This court granted plaintiffs’ motion to preclude the testimony of Dr. Douglass based both on his late identification as well as the cumulative nature of his intended testimony when coupled with that expected to be offered by the other defense expert, Dr. David Raezer. This court denied defendant’s motion to preclude the testimony of Dr. Harryhill because there was no surprise or prejudice to defendant. Initially, Dr. Malcolm Schwartz, urologist, was scheduled to offer expert testimony at trial but he was scheduled to be out of the country during the week of trial. Dr. Harryhill assumed the role to provide expert testimony about plaintiff’s condition. Defendant was aware that Dr. Harryhill was plaintiff’s treating urologist, and expert reports had been furnished to the defendant in December 1999. This court rejects the argument that Dr. Harryhill was untimely identified because the defendant was well aware Dr. Harryhill was plaintiff’s current treating physician, having received the expert reports, and defendant had ample time to research any necessary information.

Admissions Made by Plaintiff in a Previous Action

Defendant next argues that he is entitled to a new trial because this court precluded reference to averments made by plaintiff in connection with her action against Dr. Bakare, the gynecologist, who caused the surgical tear in her bladder. According to Dr. Prudencio, these averments should have been admissible as judicial or evidentiary admissions. A judicial admission is admissible as a hearsay exception and functions as an express waiver made in court or prior to trial by a party or party’s attorney, conceding the truth of the admission for the purposes of trial. Linefsky v. Redevelopment Authority, 698 A.2d 128, 133 (Pa. Commw. 1997). “A party may not offer evidence to contradict judicially admitted facts.” Id. “[Hjowever, facts judicially admitted in one proceeding are not conclusive in another, though they still may be admitted as evidential admissions.” Id.

It is well settled that questions concerning the admission or exclusion of evidence are within the sole discretion of the trial court, and decisions in this regard will not be disturbed absent an abuse of discretion. Valentine v. Acme Markets Inc., 455 Pa. Super. 256, 261, 687 A.2d 1157, 1160 (1997). Generally, atrial judge should admit all relevant evidence, unless a specific rule bars its admission. Id., see also, Pa.R.E. 402. Evidence is relevant if it has a tendency to make the existence of a fact more or less probable than it would without the evidence. Pa.R.E. 401. Relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. Pa.R.E. 403.

Defendant was permitted to discuss gynecologist Dr. Bakare’s surgery, the resulting complications, and the defense expert’s suggestion that the incontinence was caused by Dr. Bakare’s surgery. However, no fact at issue in the instant case would be made more or less probable because Cindy Glover-Peters brought suit against Dr. Bakare, alleging negligent conduct. The plaintiff’s observations and beliefs do not make more or less probable the issue of Dr. Prudencio’s negligence, or the injuries caused by the negligence. If her observations were probative, she could have presented her case without expert testimony. Even if this court had found that admissions from the prior proceeding were relevant, this court would have precluded such evidence because the probative value would be outweighed by the danger of unfair prejudice that may have confused the jury. Unfair prejudice means a tendency to suggest a decision on an improper basis or to divert the jury’s attention away from its duty of weighing the evidence impartially. Whistler Sportswear Inc. v. Rullo, 289 Pa. Super. 230, 243, 433 A.2d 40, 45 (1981). Today, with the abundance of media attention focused on the prevalence of frivolous lawsuits, the plaintiffs may well have been prejudiced in the eyes of the jury for bringing an action not only against, Dr. Prudencio, but also against another health care provider, Dr. Bakare. Moreover, the jury may have speculated that the plaintiffs were attempting to recover damages from both defendants, which would be cumulative in nature.

As for the confusion, if the jury were permitted to know that plaintiffs had instituted a suit against Dr. Bakare, they would then be inclined to speculate on how Dr. Bakare’s conduct fit into the equation they were asked to solve. In other words, the jury may speculate as to what became of the suit: was it settled (suggesting that the plaintiffs have already recovered economically for their injuries), or, was it dismissed (suggesting that plaintiffs having filed one meritless lawsuit are pursuing another). Further, if the other suit was still pending, the jury may wonder how that fact should affect their deliberations in the instant matter. Accordingly, this court’s decision to preclude the admissions was well within its discretion.

Admission of Rebuttal Evidence

The defendant next argues that this court improperly ruled when it permitted plaintiffs to present rebuttal testimony from Dr. R. Scott Owens. Rebuttal evidence is a matter within the sound discretion of the trial court. Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 708 (Pa. Super. 2000). Some rebuttal evidence may be offered as a matter of right, while other rebuttal evidence, even that evidence which should have been given in a case in chief, can be admitted within the discretion of the trial court provided the action of the court is not arbitrary or capricious. Mitchell v. Gravely International Inc., 698 A.2d 618, 621 (Pa. Super. 1997); Potochnikv. Pittsburgh Railways Co., 379 Pa. 154, 108 A.2d 733 (1954).

In the instant matter, this court allowed the testimony because it directly contradicted a statement made by the defendant’s witness. This court was well within its discretion to admit the testimony and this action by the court was in no way arbitrary or capricious.

Hearsay Statements

Dr. Prudencio next argues that the trial court erred in permitting plaintiff to testify that her treating physicians, Drs. Owens and Harryhill, diagnosed a vesico-vaginal fistula. Defendant argues that these statements are hearsay and do not fall within any exception to the hearsay rule. “Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Pa.R.E. 801(c). Statements that are not being offered to prove the truth of the matter asserted are not hearsay, and therefore, are admissible. Not all hearsay admissions are harmful to the opposing party. The Superior Court in Shahan v. Tomchik, 429 Pa. Super. 91, 101, 631 A.2d 1298, 1304 (1993) stated that if a party has a full and fair opportunity to cross-examine the person to whom a hearsay statement is attributed, admission of that statement is harmless.

Dr. Harryhill testified at length during the trial, and thus was fully available to the defendant for cross-examination, therefore, plaintiff’s testimony was harmless. Any alleged admission of hearsay by Dr. Owens was also harmless. The statements attributable to Dr. Owens were cumulative of statements made by both experts in the case. Further, plaintiffs state in their brief that these statements were not hearsay because they were not offered to prove the truth of the matter asserted but were offered to show their effect on the listener, Mrs. Glover-Peters. (Plaintiffs’ brief, p. 28.) This court finds no harm was suffered by the admission of plaintiff’s testimony regarding these statements, defendant suffered no prejudice and is not entitled to a new trial on this issue.

Expert’s Testimony for Purposes of Illustration

The defendant next argues that this court erred in allowing plaintiffs’ medical expert, Dr. Harryhill, to testify for purposes of illustration, about treatment he provided to one of his patients. Under Rule 703 of the Pennsylvania Rules of Evidence, an expert may base his opinion upon facts or data of a type reasonably relied upon by experts in the particular field. Pa.R.E. 703. This court agrees with the plaintiffs that the doctor’s personal experience treating patients can be relied upon in forming an opinion, particularly when the explanation is used to aid the jury’s understanding. This court finds no merit to defendant’s argument.

Jury Instructions

Next, the defendant claims that the trial court erred in failing to charge the jury with certain jury instructions. A trial court has wide latitude in formulating its charge so long as it clearly and adequately covers the law pertaining to the issues raised by the evidence. Havasy v. Resnick, 415 Pa. Super. 480, 487, 609 A.2d 1326, 1329 (1992). A primary duty of the trial judge is to clarify the issues and apprise the jury of the legal principles needed to decide the case. Id.

In the instant matter, defendant contends that the jury instructions should have contained more specific charges concerning negligence and due care. Specifically, a charge that a physician may not be found liable where symptoms are obscure or such that a skilled practitioner, even after using his or her best judgment, might be mistaken, is simply a more specific way of stating the law concerning the duty of care of the physician. Numerous appellate cases address and reject the requirement of a specific charge, instead allowing a general instruction. See generally, Smith v. Brooks, 394 Pa. Super. 327, 575 A.2d 926 (1990); Butler v. Kiwi S.A., 412 Pa. Super 591, 604 A.2d 270 (1992); Harkins v. Calumet Realty Co., 418 Pa. Super. 405, 614 A.2d 699 (1992).

Additionally, defendant argued that the trial court erred in failing to charge the jury that the law recognizes that physicians must be permitted to exercise their medical judgment. This court did address this with the jury as follows:

“Ladies and gentleman, if a patient should sustain an injury or harm while undergoing medical care and that injury or harm results from the physician’s lack of knowledge or ability or from his failure to exercise reasonable care, then the physician is responsible for the injuries which are the results of his acts. If, on the other hand, the physician has used his best judgment and exercised reasonable care, and has a requisite knowledge or ability even though complications resulted, then the physician is not responsible.” (N.T. at 528.) (emphasis added)

Furthermore, this court instructed the jury,

“The law does not require perfection, prophetic insight and infallible judgment. The law does not require perfection or near perfection because no human being can possibly meet this standard. The law only requires that a physician possess a reasonable, average ability to carry out professional work and exercise reasonable care, skill and judgment in doing so.” (N.T. at 529.)

Because the substance of the requested instruction was adequately covered in the charge given, the requested instruction was properly refused and a new trial is not warranted.

Excessiveness of the Verdict

Defendant’s final argument is that he is entitled to a new trial, or remittitur, because the jury’s verdict was “excessive.” In order to determine whether a verdict is “excessive,” the Superior Court has identified several guidelines, including the following: (1) the severity of the injury, (2) whether plaintiff’s injuries were manifested by objective physical evidence instead of merely the subjective testimony of the plaintiff, (3) whether the injury will affect the plaintiff permanently, (4) whether the plaintiff can continue with his employment, (5) the size of the plaintiff’s out of pocket expenses, and (6) the amount plaintiff demanded in the original complaint. Kemp v. Philadelphia Transportation Company, 239 Pa. Super. 379, 385-86, 361 A.2d 362, 364 (1976). A remittitur by definition, is “the procedural process by which an excessive verdict of the jury is reduced.” Black’s Law Dictionary, 897 (6th ed. 1983).

This court is not persuaded that defendant has set forth any rational basis that the verdict of $250,000 was inappropriate and denies the motion for a new trial and remittitur. There was sufficient testimony that the plaintiff, due to the negligence of Dr. Prudencio, was forced to undergo numerous diagnostic procedures, which are often painful and embarrassing. There is no dispute that Mrs. Glover-Peters has been rendered incontinent at the age of 36. At trial, Mrs. Glover-Peters described that her incontinence forces her to wear diapers at all times, with diaper changes occurring eight to ten times daily. (N.T. at 70.)

In addition to being diaper dependent, having painful irritation in the vaginal area as a consequence of the constant wetness, expending funds to buy sanitary products, incurring medical expense for numerous diagnostic procedures, plaintiff anticipates corrective surgery which will cost in the neighborhood of $20,000 to $30,000, followed by 4-6 weeks of disability from employment. The court rejects the defendant’s argument that it should consider the severity of her problem is lessened because she has continued to work. Plaintiff testified that she had to work, she has three children to support, and “she had no other choice.” (N.T. at 84.) Plaintiff also testified that her co-workers have had to assist her with her duties because she must take frequent bathroom breaks to change diapers, or clothes, if necessary. (N.T. at 73.)

Further, defendant’s expert, Dr. Raezer told the jury that people who suffer from total urinary incontinence are “crazed maniacs.” Specifically, he elaborated: “When you have total urinary incontinence, whether it be due to intrinsic sphincter deficiency, whether it is due to radical prostatectomy, whether it be due to — men can get crazed too. When you leak all of your urine, all your urine out through a hole in the bucket, so to speak, or a bad valve, it is a terrible situation.” (N.T. at 469.) Undeniably, the evidence established at trial that total urinary incontinence is one of the most distressing and disabling conditions seen by urologists in clinical practice.

Accordingly, the following is entered:

ORDER

And now, September 27, 2001, it is hereby ordered that the defendant’s motion for post-trial relief is denied.