author: McLAUGHLIN, Member,

text:
    Office of Disciplinary Counsel v. Forrest

      Disciplinary Board Docket no. 134 D.B. 2003.
    December 30, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

McLAUGHLIN, Member,

— Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

On September 16,2003, a petition for discipline was filed against respondent, Harty Curtis Forrest Jr. The petition charged respondent with violations of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of his alleged unauthorized practice of law. Respondent filed an answer to petition on October 10,2003.

A disciplinary hearing was held on March 15, 2004, before Hearing Committee 2.08 comprised of Chair Patrick J. Broderick, Esquire and Members Lance J. Nelson, Esquire, and Richard L. Cantor, Esquire. Respondent was represented by Samuel C. Stretton, Esquire.

Following the submission of briefs by the parties, the committee filed a report on September 27,2004, finding that respondent violated the rules as charged in the petition for discipline and recommending that respondent be suspended for one year and one day.

Respondent filed a brief on exceptions and request for oral argument on October 14, 2004.

Oral argument was held on November 10, 2004, before a three-member panel of the Disciplinary Board chaired by C. Eugene McLaughlin with Members Louis N. Teti, Esquire, and Robert E. J. Curran, Esquire.

This matter was adjudicated by the Disciplinary Board at the meeting of November 17,2004.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400, 200 North Third Street, Harrisburg PA 17101, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent, Harry Curtis Forrest Jr., was bom in 1966. He is a formerly admitted attorney in the Commonwealth of Pennsylvania, having been admitted to practice in 1996 and having been placed on inactive status effective April 19,2002. His residence address is 207 Beaumont Drive, Wallingford, PA 19086.

(3) Respondent is subject to the jurisdiction of the Disciplinary Board of the Supreme Court of Pennsylvania.

(4) Respondent has no prior history of discipline.

(5) By order dated March 20,2002, effective April 19, 2002, the Supreme Court ordered that respondent be transferred to inactive status pursuant to Rule 111(b), Pa.R.C.L.E.

(6) By certified letter dated March 20, 2002, Elaine M. Bixler, secretary of the Disciplinary Board, provided respondent with a copy of the Supreme Court order, a letter from the CLE Board, Rule 217 Pa.R.D.E. and section 91.91 through section 91.99 of the Disciplinary Board Rules, and Forms DB 23(i) and DB 24(i) (non-litigation and litigation notice of transfer to inactive status) and Form DB 25(i) (statement of compliance).

(7) Respondent received the aforesaid documents on March 25, 2002.

(8) Respondent failed to file Form DB 25 (i), thereby failing to certify his compliance with the order of the Supreme Court and with the Enforcement Rules.

Charge I — Guyer v. Esposto

(9) Guyer v. Esposto is a civil action which was commenced on January 13,2003, before District Justice John Murray in Montgomery County, Pennsylvania.

(10) By letter dated February 27, 2003, respondent, while on inactive status, wrote to Judge Murray and:

(a) confirmed his representation of defendant David Esposto;

(b) confirmed his conversation with a member of the judge’s staff in which respondent noted his representation;

(c) requested a hearing date at least 30 days from the date of the letter; and

(d) requested 30 days to provide notice to a building inspector whom respondent intended to subpoena.

(11) Respondent’s correspondence of February 27, 2003, was on his legal letterhead, thereby inaccurately representing his status as an active member of the bar of the Supreme Court of Pennsylvania.

(12) Respondent failed to advise either Judge Murray or the opposing counsel of his transfer to inactive status and his consequent inability to represent Mr. Esposto.

Charge II — Otter son v. DiChristofaro

(13) While on inactive status, respondent represented Patrick Otterson in litigation in the Court of Common Pleas of Montgomery County.

(14) Respondent initiated the litigation by his filing of a summons on September 23, 2002.

(15) While on inactive status, respondent filed praecipe to reissue the summons on October 23,2002, November 22, 2002, and January 8, 2003.

(16) At the times respondent took the aforesaid actions, he failed to advise the court or the opposing party of his transfer to inactive status and therefore his consequent inability to represent his client.

General Findings

(17) Commencing in January 2000, respondent was a sole practitioner with offices in Media, Pennsylvania.

(18) Respondent primarily had a one-client practice for a shopping center developer.

(19) After receiving the letter from the secretary of the board regarding his transfer to inactive status, respondent signed up for CLE courses but did not attend due to the death of his grandmother. He called the CLE Board for a hardship extension but was denied because the request was too late.

(20) Respondent has not taken any action to comply with the CLE requirements, but for one 2-hour class he took in May 2003.

(21) Respondent did not send letters to clients advising of his inactive status because he believed he had no active cases.

(22) Patrick Otterson was a former client and friend. Before respondent was placed on inactive status, Mr. Otterson asked respondent to represent him in an automobile accident.

(23) Respondent did not notify Mr. Otterson of his inactive status because he did not enter his appearance for Mr. Otterson and respondent intended to have his license reinstated by taking CLE credits.

(24) Respondent realized in the fall of 2002 that the statute of limitations was going to expire on Mr. Otter-son’s cause of action. He intended to have Mr. Otterson file a writ of summons pro se.

(25) Due to unforeseen circumstances, respondent signed and filed a writ of summons in the matter.

(26) When respondent filed the writ of summons for Mr. Otterson, he knew that he was not licensed to practice law.

(27) When he reissued the writ on three occasions, respondent knew that he was unable to practice law.

(28) Respondent hoped that no one in the court system would catch on to the fact that he was inactive.

(29) Respondent did not advise Mr. Otterson of his inactive status until October 2002, when he advised him to get another attorney.

(30) Respondent does not know if his appearance is still entered of record in the Otterson matter.

(31) Mr. Esposto is a friend of respondent. When he came to respondent for legal help, respondent did advise him that he was on inactive status, but he expected to take the CLE classes and be reinstated by the time of the hearing before Judge Murray.

(32) When respondent signed the letter to Judge Murray, he knew he was on inactive status and unable to practice law.

(33) Respondent never received any fees from Mr. Otterson or Mr. Esposto for work he did for them while on inactive status.

(34) David Cherry, Esquire, testified on behalf of respondent. Mr. Cherry has known respondent for 25 years. He testified that, in Media, respondent has a good reputation as a truthful, honest, and law-abiding person.

(35) Harry Forrest Sr., father of respondent, testified that respondent has a very good reputation as a law-abiding, truthful and honest person in the Wallingford community.

(36) Currently, respondent owns his own construction business and earns his living from it.

(37) Respondent expressed remorse for his misconduct.

III. CONCLUSIONS OF LAW

By his actions as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) R.P.C. 5.5(b) — A lawyer shall not practice law in a jurisdiction where to do so would be a violation of regulations of the profession in that jurisdiction.

(2) R.P.C. 7.5(a) — A lawyer shall not use letterhead that violates Rule 7.1, which in turn prohibits false or misleading communication about the lawyer or his services.

(3) R.P.C. 8.4(c) — It is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.

(4) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

(5) Rule 217(b), Pa.R.D.E. — A formerly admitted attorney must properly notify all clients involved in pending litigation of the transfer to inactive status and the consequent inability of the formerly admitted attorney to act as an attorney.

(6) Rule 217(c), Pa.R.D.E. — A formerly admitted attorney must properly notify of the transfer to inactive status, all of the persons with whom the formerly admitted attorney may at any time expect to have professional contacts under circumstances for which there is a reasonable probability that they may infer he or she continues as an attorney in good standing.

(7) Rule 217(d), Pa.R.D.E. — A formerly admitted attorney is prohibited from accepting any new retainer or engaging as an attorney in any legal matter of any nature after the effective date of the transfer to inactive status.

(8) Rule 217(e) Pa.R.D.E. — A formerly admitted attorney is required to file with the Disciplinary Board a verified statement showing that the provision of the order transferring the attorney to inactive status and the enforcement rule having been fully complied with, within 10 days after the effective date of the transfer to inactive status.

(9) Rule 217(j) Pa.R.D.E. — A formerly admitted attorney is prohibited from engaging in any form of law related activities except in accordance with the requirements of 217(j).

IV. DISCUSSION

Respondent has been charged with the unauthorized practice of law and related offenses when he, on behalf of two clients, continued to practice law after he was placed on inactive status for failure to complete his Continuing Legal Education credits. Respondent stipulated to many of the facts, as well as to violations of Rules of Professional Conduct 5.5(b) and 8.4(c), and Rules of Disciplinary Enforcement 217(b)(c)(d)(e) and 0).

At issue is whether respondent violated R.P.C. 7.5(a), R.P.C. 8.4(b), and R.P.C. 8.4(d). R.P.C. 7.5(a) prohibits a lawyer from using letterhead that violates R.P.C. 7.1, which in turn prohibits false or misleading communication about the lawyer or his services. When respondent sent his letter to District Justice Murray, he knew he was on inactive status and unable to practice law. His letter was a misleading communication about his status as a lawyer and his services or his ability to render legal services.

R.P.C. 8.4(b) prohibits the commission of a criminal act that reflects adversely on a lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects. While 42 Pa.C.S. §2524(a) provides for criminal prosecution in cases of unauthorized practice of law, it is doubtful that any district attorney or private party would have sought the prosecution of respondent. His conduct was not harmful to his clients in the long run and he received no monies from these clients. The board concludes that respondent did not violate R.P.C. 8.4(b).

R.P.C. 8.4(d) prohibits a lawyer from engaging in conduct that is prejudicial to the administration of justice. There is no doubt that respondent violated this rule, as he violated the Supreme Court order of March 20,2002 and the Disciplinary Board Rules cited in the board’s letter to respondent of March 20,2002. Respondent continued to practice law when he was not permitted to do so, and he never complied with the board rules concerning notification of clients and the court regarding his inactive status.

The evidence of record is clear that, notwithstanding his transfer to inactive status, respondent continued to practice law in two different legal matters. He was aware of his obligation to fulfill his CLE credits and failed to do so. He entered his appearance on behalf of his client David Esposto and wrote to a district justice on legal letterhead. He never disclosed to the district justice that he was on inactive status by order of the Supreme Court. Respondent explained his actions in that he always intended to complete his CLE credits so that he would be active by the time of the scheduled hearing in front of the district justice. However, respondent had taken no CLE credits for almost two years prior to his letter to the district justice, and he did not take another course until May 2003, almost three months after he wrote his letter to the district justice.

In the Otterson matter, respondent initiated litigation five months after his transfer to inactive status by filing a summons in a civil action on behalf of Mr. Otterson. Respondent compounded this misconduct by filing a praecipe to reissue a writ on three separate occasions. On each occasion, respondent knew he was not allowed to practice law. Respondent explained this misconduct in that he intended to prepare and draft the summons but have Mr. Otterson file it. Due to an unforeseen event, respondent ended up filing the summons for his client, even though he knew he was not permitted to do so. Respondent’s explanations for his actions in these matters are not acceptable and do not excuse his misconduct.

The purpose of the disciplinary system is to protect the public from unfit attorneys and to maintain the integrity of the legal system. Office of Disciplinary Counsel v. Costigan, 526 Pa. 16, 584 A.2d 296 (1990). In determining final discipline, precedent is considered due to the need for consistency in the results reached so that similar misconduct is not punished in radically different ways. Office of Disciplinary Counsel v. Lucarini, 504 Pa. 271, 472 A.2d 186 (1983). There are numerous disciplinary cases concerning attorneys who continue to practice law after being transferred to inactive status for failing to fulfill their CLE credits or pay their annual fee. Generally, these attorneys are suspended from the practice of law. The principal rationale for this discipline is that fulfilling Continuing Legal Education requirements, filing the attorney fee form and paying the annual fee are not mere ministerial acts. Rather, an attorney has an affirmative duty to know the status of his professional license and to comply with professional requirements. Office of Disciplinary Counsel v. Belli, 41 D.&C.4th 290 (1998). Moreover, if there are aggravating factors or additional charges of misconduct, the Supreme Court has suspended attorneys for more than one year. A sampling of recent cases supports the imposition in the instant matter of a suspension of one year and one day.

In Office of Disciplinary Counsel v. Harris, 150 D.B. 2002, 930 disciplinary docket no. 3 (Pa. July 15, 2004), Mr. Harris received notice that he was transferred to inactive status for failing to complete his CLE requirements. In defiance of the Supreme Court order, Mr. Harris continued to practice and handled the legal matters of one client. He also kept the indicia of his licensure by maintaining a large office sign advertising him as a lawyer. Mr. Harris was suspended for one year and one day.

The Supreme Court imposed a suspension of one year and one day on an attorney who continued to practice after he was transferred to inactive status for failing to complete his CLE requirements. Office of Disciplinary Counsel v. John D. Enright, no. 136 D.B. 2002, 890 disciplinary docket no. 3 (Pa. March 14, 2004). Mr. Enright knowingly continued to provide services to his clients and filed a petition for appeal in a license suspension case. Mr. Enright failed to appear for his disciplinary hearing.

Even when an attorney claims he never received notice of his transfer to inactive status, the Court has imposed a suspension of one year and one day. Office of Disciplinary Counsel v. Forman, no. 70 D.B. 2001, 799 disciplinary docket no. 3 (Pa. Jan. 31,2003). Mr. Forman practiced for 12 years while on inactive status. Although he attempted to excuse himself by claiming he never received notification, the record demonstrated that Mr. Forman never provided his new address to the board, as mandated by the Rules ofDisciplinary Enforcement.

In Office of Disciplinary Counsel v. Holder, no. 131 D.B. 1999, 660 disciplinary docket no. 3 (Pa. March 23, 2001), Mr. Holder was aware that he was inactive due to CLE deficiencies, but continued to enter his appearance and attend court hearings on behalf of five clients during a three-month time period. The Supreme Court suspended Mr. Holder for one year and one day.

In sum, the Supreme Court does not tolerate lawyers who take a lax approach to the administrative rules governing the practice of law. Even in situations where lawyers lack disciplinary records and have otherwise good reputations, the court finds their misconduct contemptuous and requires them to be suspended for one year and one day, thus obligating the lawyer to petition for reinstatement in the future.

Application of this strong line of precedent leads to the conclusion that respondent should be suspended for one year and one day.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, Harry Curtis Forrest Jr., be suspended from the practice of law for a period of one year and one day.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Vice-Chair Rudnitsky and Board Member Brown dissent and would recommend a one year suspension.

Board Member Nordenberg did not participate in the November 17, 2004 adjudication.

ORDER

And now, March 24, 2005, upon consideration of the report and recommendations of the Disciplinary Board dated December 30,2004, it is hereby ordered that Harry Curtis Forrest Jr., be and he is suspended from the bar of this Commonwealth for a period of one year and one day.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


source: Caselaw Access Project

author: JAMES, J.,

license: Public Domain

text:
    Herb v. Spock
    C.P. of Montour County,
    no. 82 of 2000.

      Paul F. D ’Emilio and Stephanie E. Chertok, for plaintiff.

      Donna Rae, for defendant Geisinger.

      Kevin Osborne, for defendant Danella.

      May 27, 2005
   JAMES, J.,

— This matter is before the court to consider defendant John R Danella M.D. ’s summary judgment motion seeking to dismiss plaintiff’s claims against him. Plaintiff filed this action on behalf of his wife, Rochelle R. Herb (decedent), contending that defendant Danella was negligent in treating and managing her renal cell carcinoma from which she eventually died. Discovery has been completed, and the case is scheduled to be tried to a jury at the end of June 2005.

Defendant contends that there are no genuine issues of material fact. Specifically, defendant Danella contends that plaintiff’s experts fail to establish a prima facie case for negligence and that the matter must be dismissed.

FACTUAL HISTORY

Decedent underwent a right radical nephrectomy and cavotomy on April 3, 1997, to remove a tumor on her kidney. She was followed up by defendant Danella, a board-certified urologist. He is not board certified in uro-logic oncology, but since 1992 has devoted over two-thirds of his practice to urologic oncology. He completed a fellowship at UCLA in urologic oncology.

In March 1998, decedent was found to have cancer involving her pelvic bone and liver. Geisinger oncologist Dr. Nair prescribed immunotherapy, but she ultimately died of metastatic cancer.

Plaintiff’s claim of liability relies on the expert reports of two physicians. First, Dr. Thomas E. Kasper, a urologist, opines that “Dr. John Danella failed to meet the accepted standards of good urologic practice in not referring Ms. Herb for oncologic consultation after performing a right nephrectomy on Ms. Herb on April 3, 1997, for renal cell carcinoma.” He further states that “[b]y not referring Ms. Herb for oncologic consultation, she was not afforded the opportunity for adjuvant therapy (im-munotherapy and/or chemotherapy) which would have reduced the potential for development of metastatic spread of her renal cancer.”

Dr. Lillian F. Pliner, a medical oncologist, opined:

“There is no established role for adjuvant treatment after nephrectomy in patients who have undergone a complete resection of tumor. Thus, the standard of care following nephrectomy remains observation and enrollment of eligible patients in randomized clinical trials if available. (emphasis added)
“Follow-up of cancer patients is best undertaken by medical oncologists, who are best qualified to inform cancer patients about their prognosis and treatment options. If such a referral is not made, however, at a minimum, the treating physician is obligated to inform himself or herself, and then the patient, of the appropriate follow-up care and treatment options so that the patient suffers no detriment from the failure to refer her for evaluation by a medical oncologist. In the present case, Mrs. Herb was neither referred to a medical oncologist early in her post-surgical period, nor advised by her physicians of the recommended follow-up care and treatment options as a medical oncologist would have done. As a result, she was not timely informed of the potential for her enrollment in clinical trials, which might have been of benefit to her.”

In a later report dated March 25,2005, Dr. Pliner said:

“[T]he treating physician’s failure even to seek such a trial for Ms. Herb necessarily prevented her from being enrolled in one. This was a violation of the applicable standard of care at that time, which was observation and enrollment of eligible patients in clinical trials if available. (emphasis added)
“To date, adjuvant treatment trials in kidney cancer have not shown improvements in survival or relapse-free survival. However, the close medical supervision provided to patients in such trials permits the early identification of the development of metastatic disease. Once identified in Ms. Herb, certain such metastases could have been subject to resection. Complete resection of such metastases has been shown to be associated with improved survival.”

However, defendant Danella properly states that the record shows that there is no evidence of any clinical trials that were available for decedent in 1997. Dr. Pliner stated:

“[I]t has not been possible for me to identify to date the clinical trials that were open to new patient accrual for the adjuvant treatment of Stage III renal cell cancer in 1997. This is because the principal purpose of the available databases is to assist physicians presently caring for patients in identifying clinical trials that are presently open to new patient accrual, not actually creating an historical record of past trials. Such databases also existed in 1997, however, and it would not have been difficult for the treating physicians to have consulted them if they had chosen to do so.... I have not been able to locate to date an historical database identifying clinical trials that were open to accrual in 1997 ...

Discovery has revealed no clinical trials for which decedent would have qualified. Importantly, neither of plaintiff’s experts has specifically addressed the facts of this case. Dr. Pliner simply said that enrolling a person in a clinical trial may indirectly improve survival because of closer medical supervision. This decedent’s facts and situation are never addressed.

Moreover, the only evidence of clinical trials and the availability for the decedent shows there were none available. The following is the exchange between plaintiff’s counsel and defendant Danella in his deposition dated December 29, 2003, pp. 55-56:

“Q. Would there have been clinical trials available to her in March 1998? Excuse me. I’ll rephrase that.
“A. You mean after she was proven to have recurrence?
“Q. No. I gave you the wrong date. Were there clinical trials available to her after April 3, 1997?
“A. Not to my knowledge.
“Q. In April of 1997, did you make an independent investigation as to whether any clinical trials existed?
“A. I don’t recall. As a matter of fact, I don’t think there are any today.
“Q. Was Geisinger doing clinical trials in March 1997?
“A. In all cancers?
“Q. Yeah.
“A. Yeah.
“Q. Including renal cell?
“A. I believe they had a trial for patients with metastatic disease. I don’t know if this patient was enrolled in that. Did they have one for patients with Stage 3 resected cancer? No.”

The record shows that decedent was a patient with Stage 3 resected cancer.

The issue is whether a prima facie case for medical negligence is established when plaintiff’s expert opines that the treating physician’s standard of care is breached by his failure to seek to place decedent in a clinical trial, when there is no proof that such trial was available for decedent and where there is no expert evidence that failure to seek to place decedent in such a clinical trial caused her death and damages.

Discussion

The standard for determining whether summary judgment should be granted is set forth in Pa.R.C.P. 1035.2:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”
“The essence of the revision set forth in new Rule 1035.2 is that the motion for summary judgment encompasses two concepts: (1) the absence of a dispute as to any material fact and (2) the absence of evidence sufficient to permit a jury to find a fact essential to the cause of action or defense. The former rule was unclear as to whether it encompassed the type of motion which is based upon a record which is insufficient to sustain a prima facie case. New Rule 1035.2(2) is explicit in authorizing such a motion.” Pa.R.C.P. 1035.2, Explanatory comment — 1996.

In determining the merit of a motion for summary judgment, the court must examine the record in the light most favorable to the non-moving party. Ward v. Rice, 828 A.2d 1118, 1120 (Pa. Super. 2003). All doubts as to the existence of a genuine issue of material fact must be resolved in favor of the non-moving party on motion for summary judgment. Id.

Relevant Medical Negligence Law

The requisite proof required for a medical malpractice action is well settled. “In order to establish a prima facie case of malpractice, plaintiff must establish (1) a duty owed by the physician to the patient, (2) a breach of duty from the physician to the patient, (3) that the breach of duty was the proximate cause, or substantial factor in bringing about the harm suffered by the patient, and (4) damages suffered by the patient that were a direct result of the harm.” Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990).

In proving a medical malpractice case, a plaintiff is required to present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Flanagan v. Labe, 446 Pa. Super. 107, 111, 666 A.2d 333, 335 (1995), aff’d, 547 Pa. 254, 690 A.2d 183 (1997).

The Pennsylvania Supreme Court outlined the following approach for determining whether the plaintiff established causation in a medical malpractice case:

Once a plaintiff has demonstrated “that defendant’s act[s] or omissions increased the risk of harm to a person in plaintiff’s position, and that the harm was in fact sustained, it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm.” Hamil v. Bashline, 481 Pa. 256, 269, 392 A.2d 1280, 1286(1978).

“Where the events and circumstances of a malpractice action are beyond the knowledge of the average layperson, the plaintiff must present expert testimony that the acts of the medical practitioner deviated from good and acceptable medical standards, and that such deviation was a substantial factor in causing the harm suffered.” Montgomery v. South Philadelphia Medical Group Inc., 441 Pa. Super. 146, 155, 656 A.2d 1385, 1390 (1995).

“[Mjedical opinion need only demonstrate, with a reasonable degree of medical certainty, that a defendant’s conduct increased the risk of the harm actually sustained, and the jury then must decide whether that conduct was a substantial factor in bringing about the harm.” Jones v. Montefiore Hospital, 494 Pa. 410, 417, 431 A.2d 920, 924 (1981). (emphasis in original)

In this case, plaintiff asserts that his expert has stated that the omission of defendant Danella in failing to seek clinical trials to treat decedent’s Stage 3 kidney cancer increased the risk of harm to her. Plaintiff argues that this is a jury question. This argument fails on the undisputed facts and law for several reasons. First, there is no evidence whatsoever that clinical trials existed which were available to decedent. Defendant Danella specifically denied that there was a clinical trial available “for patients with Stage 3 cancer.” (Danella depo. p. 56.) Plaintiff’s expert knew of no applicable and available clinical trials. Discovery revealed no clinical trials. Without the existence of clinical trials, plaintiff’s premise for liability fails. Plaintiff has the burden of proof, and there is a hole in that proof that simply invites guess and conjecture. The fact-finder, however, “cannot be permitted to reach a decision on the basis of speculation or conjecture.” Biddle v. Johnsonbaugh, 444 Pa. Super. 450, 455, 664 A.2d 159, 161 (1995). Without proof that clinical trials actually existed, assigning liability to defendant Danella requires a major leap of faith.

Moreover, plaintiff’s expert, Dr. Pliner, further speculates that if decedent had been enrolled in clinical trials, she would have been observed more closely, and if metastases were identified, they “could have” been subject to resection, thus improving survival. Once again, such testimony and opinion invites conjecture. “Statements that an assigned cause ‘ could have’ been the cause of the condition have repeatedly been held to be legally insufficient.” Stenton Hall Nursing & Rehabilitation Center v. Medical Professional Liability Catastrophe Loss Fund, 829 A.2d 377, 382 (Pa. Commw. 2003). There is no evidence that decedent had the kind or type of metastases that could have, or would have, been identified by closer observation in clinical trials (if there were any available, of which there is no proof). In fact, there is no evidence that the metastases that were ultimately found were subject to complete resection.

Finally, the speculative nature of the opinion evidence, in light of the factual context, is supported by the expert’s analysis of the effectiveness of clinical trials in cases of this type. Dr. Pliner says that “[t]o date, adjuvant treatment trials in kidney cancer have not shown improvements in survival or relapse-free survival.” Such testimony can only confuse a jury and invite a verdict based on guess, speculation, and conjecture.

In summary, based on the undisputed genuine material facts, plaintiff cannot present a prima facie case for the jury to consider. Plaintiff’s expert testimony at best creates an incomplete circuit of proof. Without proof of the existence of clinical trials that were available to the decedent, plaintiff cannot prove breach of duly, causation, or damages.

ORDER

And now, May 27,2005, after consideration of defendant John F. Danella M.D. ’s summary judgment motion, summary judgment is granted in favor of defendants John F. Danella M.D., Geisinger Medical Center and Geisinger Clinic, and against plaintiff.

      . The action against the corporate defendants, Geisinger Medical Center and Geisinger Clinic, must also be dismissed since the actions against them are based on defendant Danella’s alleged liability and vicarious liability.


author: TURGEON, J,

text:
    McNaughton v. McNaughton

      C.P. of Dauphin County,
    no. 2003 CV 0661.

      Richard Gaffney Jr., for plaintiff.

      Sandra Meilton, for defendant.
    C. Clark Hodgson Jr., for House of Representatives.
    July 7, 2005
   TURGEON, J,

— Plaintiff Diane McNaughton (Wife) has filed a subpoena seeking financial documents in connection with her divorce action against her husband, defendant Mark McNaughton (Husband), a member of the Pennsylvania House of Representatives (House). Before the court is the House’s motion to quash that subpoena. Wife seeks documents related to Husband’s House expense checking account and his House calendar. The House argues that the items sought are not subject to discovery under the Pennsylvania Constitution’s Speech and Debate Clause, which creates a legislative privilege protecting General Assembly members from all inquiries concerning activities that fall within the legislative sphere. I denied the motion to quash, finding that the legislative privilege does not apply. This opinion is written in support of that order.

BACKGROUND

Wife’s divorce action includes counts for equitable distribution of marital property, child and spousal support, alimony and counsel fees. To advance her economic claims, she seeks to determine Husband’s “income from any source,” as permitted under the law, including Husband’s assets and bank accounts. See 23 Pa.C.S. §4322; Pa.R.C.P. 1910.16-2(a). Wife asserts that, although Husband ceased earning a second income from his father’s real estate development company in 2003, he has been able to maintain his lifestyle by using his House expense account to pay for various personal expenses. Wife argues that, to the extent he uses these funds for his personal expenditures, they are “income” to him. Wife also seeks information regarding Husband’s schedule to determine the extent of his travel and also whether he has engaged in marital misconduct. To that end, Wife served a subpoena upon Husband’s chief of staff in his House office, Kathleen Pacella, seeking the following items:

(a) Copies of any and all calendars and date book for Mark S. McNaughton for the time period of January 1, 2002 through the present date;

(b) Copies of any and all bank statements, cancelled checks, and check registers for the time period of January 1,2002 through the present date for any and all bank accounts in the name of Mark S. McNaughton on which you are a joint owner; and

(c) Copies of any and all expense account documentation for Mark S. McNaughton for the time period of January 1,2002 through the present date.

Husband filed a “declaration” with the court stating that he and Ms. Pacella are joint owners of the checking account from which he pays out-of-pocket expenses incurred in the performance of his legislative duties. Declaration of Representative Mark S. McNaughton, ¶4. His duties and expenses include maintenance of his district office, legislative vehicle lease, constituent breakfasts, constituent meetings, other legislator meetings, industry group meetings, out-of-state meetings and informational materials for constituents. Id. at ¶5. For convenience, Ms. Pacella is a joint owner of the account, an arrangement used by many legislators to manage their House-related accounts. When Husband incurs an expense related to a legislative function, he normally pays for it by a check drawn on this joint account. Ms. Pacella then applies for reimbursement of that expense from either the House Office of the Chief Clerk or the House Leadership Account. Upon receipt of the reimbursement check, Ms. Pacella deposits the monies into the joint account. Id. at ¶6.

Regarding his calendar, Husband states that he has a single date book/calendar maintained by Ms. Pacella. Except for the occasional personal appointment, he states that the entries on the calendar are almost exclusively related to official legislative business, such as committee hearings, meetings with legislators, aides, industry representatives and constituents, and fact-finding or investigative tasks. Id. at ¶8.

The House sought to quash the subpoena under Rule of Civil Procedure 4012, in order to protect a third party, Ms. Pacella, from unreasonable annoyance, embarrassment, oppression, burden or expense on the basis that the discovery sought is prohibited by the Pennsylvania Constitution’s Speech and Debate Clause.

LEGAL DISCUSSION

The sole issue is whether our Constitution’s Speech and Debate Clause provides an absolute privilege that protects Husband’s chief of staff from producing his House checking and expense account documentation, as well as his House date books and calendars. The Speech and Debate Clause provides as follows:

“The members of the General Assembly shall in all cases, except treason, felony, violation of their oath of office, and breach or surety of the peace, be privileged from arrest during their attendance at the sessions of their respective Houses and in going to and returning from the same; and for any speech or debate in either House they shall not be questioned in any other place.” Pennsylvania Constitution, Article II, Section 15.
“The Speech and Debate Clause prohibits inquiry into those things generally said or done in the House or Senate in the performance of official duties and into the motivation for those acts.” Pennsylvania School Boards Association v. Commonwealth Association of School Administrators, 569 Pa. 436, 805 A.2d 476, 486 (2002) (citing Powell v. McCormack, 395 U.S. 486, 502-503, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). “The veiy core of the Speech and Debate Clause is protection of ‘the integrity of the legislative process by insuring the independence of individual legislators.’ ” Pennsylvania AFL-CIO by George v. Commonwealth, 691 A.2d 1023, 1034 (Pa. Commw. 1997), aff’d, 563 Pa. 108, 757 A.2d 917 (2000) (quoting United States v. Brewster, 408 U.S. 501, 507 (1972)). The constitutional immunity provided under this clause “insures that legislators are free to represent the interests of their constituents without fear that they will be later called to task in the courts for that representation.” Pennsylvania School Boards Association, 805 A.2d at 485 (quoting Powell at 503).

The Pennsylvania Speech and Debate Clause is essentially identical to and derived from the federal Speech or Debate Clause (U.S. Constitution Article I, Section 6). Consumers Education and Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675, 680 (1977). The federal clause has been interpreted broadly “to protect legislators from judicial interference with their legitimate legislative activities, and that even where the activity questioned is not literally speech or debate, a court must determine if it falls within the ‘legitimate legislative sphere’; if it does, the action against the legislator calling it into question, whether criminal or civil, must be dismissed.” Id. at 382, 368 A.2d at 680-81. (citations omitted) Our Supreme Court has found “no basis for distinguishing the scope of the Pennsylvania Speech and Debate Clause applicable to members of the General Assembly from that of the federal clause applicable to members of Congress ....” Id. at 383, 368 A.2d at 681. Furthermore, we note that the Speech and Debate Clause extends beyond providing legislative immunity from suit or shielding oral testimony; it also protects documents from discovery, if the documents contain information that is the product or result of activity within the legitimate legislative sphere. See Hamilton v. Hennessey, 783 A.2d 852 (Pa. Commw. 2001) (en banc), aff’d, 569 Pa. 101, 800 A.2d 927 (2003) (per curiam); Brown & Williamson Tobacco Corp. v. Williams, 62 F.3d 408, 418, 421 (D.C. Cir. 1995).

The U.S. Supreme Court has defined the sphere of legitimate legislative activities to include “activities that are ‘an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters which the Constitution places within the jurisdiction of either House.’ ” Youngblood v. DeWeese, 352 F.3d 836, 840 (3d Cir. 2003) (quoting Gravel v. United States, 408 U.S. 606, 625 (1972)). The federal courts have thus defined the legitimate legislative sphere to include such acts as voting for a resolution, subpoenaing and seizing property and records for a committee hearing, preparing investigative reports, addressing a congressional committee and speaking before the legislative body in session. Id. The protection of the Speech or Debate Clause has been described as cordoning off from judicial inquiry only a portion — albeit the core — of a Representative’s or Senator’s work life. United States v. Eilberg, 507 F. Supp. 267, 286 (E.D. Pa. 1980).

The U.S. Supreme Court has denied extension of the Speech or Debate Clause, however, to everything “related to the due functioning of the legislative process.” Id. (quoting Brewster at 513). Thus, the Youngblood court clarified that “immunity does not extend to acts that are ‘casually or incidentally related to legislative affairs but not a part of the legislative process itself’ ” including performance of legitimate errands for constituents, making appointments with government agencies, assistance in securing government contracts, preparation of newsletters and news releases, and delivering speeches outside the Congress. Id. (quoting Brewster at 512, 528).

Wife directs this court to the Commonwealth Court’s en banc decision in Hamilton v. Hennessey, supra. In that case, the plaintiffs, political opponents of a state representative, filed suit seeking, among other things, an audit of a state representative’s campaign expenses. The plaintiffs alleged that the representative had sent out publicly funded newsletters that were really political advertisements which should have been listed as campaign expenses under state election law. The plaintiffs issued subpoenas seeking financial records related to the newsletters, as well as a request for information about how the House Caucus decided the number of mailings per candidate. The House Republican Caucus, as inter-venor, sought to quash the subpoenas arguing, among other things, that the information was protected under the Speech and Debate Clause. The case was assigned to the Honorable Judge Warren G. Morgan, senior judge, who held that the preparation of the newsletter “although ‘related’ to official business, was not a protected activity,” within the legitimate legislative sphere. Id. at 860. The Commonwealth Court, on en banc reconsideration, affirmed Judge Morgan’s opinion and adopted it as its own.

In addressing Speech and Debate Clause immunity, Judge Morgan analyzed the issue as follows: “[t]he Caucus argues that the subpoenas must be quashed based on Article II, Section 15 of the Pennsylvania Constitution, commonly known as the Speech and Debate Clause, which protects members of the General Assembly and their aides from all inquiry concerning activities that fall within the legislative sphere. The Caucus posits that, since petitioners seek information about decisions concerning expenditures made on behalf of House members, the information sought is within the ‘legislative sphere’ and thus protected by the Speech and Debate Clause.

“The Caucus points out that, when interpreting the Speech or Debate Clause of the Pennsylvania Constitution, it is appropriate to look to decisions interpreting the federal Speech and Debate Clause, Article I, Section 6 of the U.S. Constitution, citing Consumers Education & Protective Association v. Nolan, 470 Pa. 372, 368 A.2d 675 (1977). In reviewing such decisions, however, we are compelled to conclude that the immunity afforded by the Speech and Debate Clause is unavailing here.

“In Schiaffo [v. Helstoski, 492 F.2d 413 (3d Cir. 1974)], the incumbent congressman attempted to raise the Speech and Debate Clause as preventing inquiry into the alleged abuses of the frank. The Third Circuit noted that the U.S. Supreme Court in United States v. Brewster ... had distinguished between activities protected by the Clause and activities that, although ‘related’ to official duties, were unprotected.5 492 F.2d at 418. Among the ‘related’ but unprotected activities was the preparation of a newsletter. Id. Consequently, the Third Circuit concluded that:

“[T]he thrust of Brewster requires us to regard [the] use of the frank to mail materials in this case as outside the protection of the Speech and Debate Clause. Mailings of items such as newsletters may well be necessary if a congressman is conscientiously to perform his legislative tasks. But Brewster makes it clear that the immunity of the Speech and Debate Clause does not extend to a number of legitimate legislative activities, and we would include among such activities the mailing of materials under the frank.
“5. Chief Justice Burger, writing for a four-member majority of the Supreme Court, stated that:
“It is well known, of course, that members of the Congress engage in many activities other than the purely legislative activities protected by the Speech and Debate Clause. These include a wide range of legitimate ‘errands’ performed for constituents, the making of appointments with government agencies, assistance in securing government contracts, preparing so-called ‘newsletters’ to constituents, news releases, and speeches delivered outside the Congress. The range of these related activities has grown over the years. They are performed in part because they have come to be expected by constituents, and because they are a means of developing continuing support for future elections. Although these are entirely legitimate activities, they are political in nature rather than legislative, in the sense that term has been used by the court in prior cases. But it has never been seriously contended that these political matters, however appropriate, have the protection afforded by the Speech and Debate Clause. [Brewster at 512.]
“Similarly, the Seventh Circuit’s decision in Hoellen [v. Annunzio, 468 F.2d 522 (7th Cir. 1972)] rejected Speech and Debate Clause immunity in a franking case, citing the opinion in the District Court, which held that:
“The Brewster decision is decisive of this issue. In holding that the Speech and Debate Clause did not immunize Senator Brewster from prosecution on federal bribery charges, the Supreme Court distinguished between Congressional conduct which is clearly part of the legislative process — such as voting, speaking on the floor or conducting a legislative hearing — and conduct which is incidentally related to the legislative process. The court confined the protections of the Clause to the former and specifically included the conduct with which we are concerned in the latter....
“In light of this language, there can be no doubt that the activities at issue in this case, sending out documents and questionnaires to constituents and others, while ‘entirely legitimate activities’ related to the legislative process, are not ‘purely legislative activities’ protected by the Speech and Debate Clause. Therefore no doctrine of legislative immunity precludes judicial inquiry into the legality of Congressman Annunzio’s use of the frank in this case, even if that inquiry necessitates a consideration of his motives in making the mailings.
468 F.2d at 527 (quoting Hoellen v. Annunzio, 348 R Supp. 305, 314 (N.D. Ill. 1972)).” Id. at 860-61.

With these principles in mind, we turn our attention to whether the privilege applies to protect from discovery, and production, the items sought in Wife’s subpoena. Chief Justice Burger’s list in Brewster of “entirely legitimate activities” that are “political in nature rather than legislative,” not afforded protection by the Speech or Debate Clause, include a wide range of legitimate errands performed for constituents, including the making of appointments with government agencies. Id. at n.5 (citing Brewster at 512). Therefore, Husband’s calendars and date books, at least insofar as they reflect appointments political in nature, fall directly under the category of items not protected under the Speech and Debate Clause. To the extent they contain personal appointments; they are, of course, unprotected. Insofar as these items might reflect appointments related to the legislative process (such as committee meetings, meetings with legislators and aides, and investigative tasks), they are merely administrative records incidentally related to legislative affairs. They are not in and of themselves part of the legislative process since they reflect only the existence of such legislative meetings and tasks. See Young-blood at 840.

Regarding the other items subpoenaed — bank statements, cancelled checks, check registers and expense account documentation — while they may be entirely reflective of legitimate activities related to the legislative process, they are only “casually or incidentally” related thereto and not a part of the legislative process itself. Thus, they are not protected by the Speech and Debate Clause. See Hamilton at 861 (citing Hoellen v. Annunzio). These documents are merely administrative in nature, not reflective of duties central to the core of a husband’s work life as a House member. See Eilberg, supra. As noted above, the sphere of shielded legislative activities include those that are “an integral part of the deliberative and communicative processes by which members participate in committee and House proceedings with respect to the consideration and passage or rejection of proposed legislation or with respect to other matters that the Constitution places within the jurisdiction of either House.” Youngblood at 840. Traditionally integral parts of the legislative process include such things as voting, speaking before the legislative body, conducting hearings, subpoenaing and seizing property and records for a committee hearing, preparing investigative reports and addressing committees. Id.; Hamilton at 861 (citing Hoellen v. Annunzio). The keeping of House account records for the purpose of paying/obtaining reimbursement for expenses related to the functioning of a legislative office is not an integral part of either a deliberative or communicative process required for Husband to participate in the duties required of him as a House member or other such duties required of him under the Pennsylvania Constitution.

The House argues this court should quash the subpoena under the Third Circuit’s decision in Youngblood, supra. That court held two Pennsylvania state representatives were protected by legislative immunity from a civil rights action filed against them by another representative who claimed that, in retaliation for dissenting against party leadership, they had denied her an adequate budget allocation for district office staffing and constituent services. The Pennsylvania House of Representatives annually appropriates funds to be used by state representatives for district office staffing and constituent service programs. The political party leadership, however, decides how the appropriation is allocated among individual representatives. Upon review of federal jurisprudence, the Youngblood court concluded that the House leadership’s exercise of its authority to allocate office staffing appropriation was protected by legislative immunity because “the sphere of legitimate, legislative activity” extends to “committee and House proceedings with respect to .. . matters which the Constitution places within the jurisdiction of either House.” Id. at 841 (quoting Gravel v. United States at 625). The court reasoned that under the Pennsylvania Constitution, the General Assembly is granted authority to appropriate funds to be used by members. By making a lump sum appropriation for all representatives’ staffing, the General Assembly delegated to the party leaders in the House its legislative authority to determine individual funding. The court concluded: “In this sense, delegating to the party leadership is no different than delegating to a legislative committee completing the allocation process. The party leaders’ exercise of that authority is more than merely ‘casually or incidentally related’ to the appropriation-legislation; it is its direct consequence. [The House leaders’] ... ‘deliberative and communicative processes’ in the course of exercising that legislative authority are, therefore, privileged from judicial scrutiny.” Id. at 841. (citations omitted) The court explained that were it to permit the House member to challenge House leaders’ budgetary discretion, the court would be enabling the judicial branch to scrutinize the manner in which the General Assembly allocates internal funds. This, the court found, “would compromise the independence of the legislative branch, the very principle legislative immunity is intended to protect.” Id. at 842.

The House argues that Youngblood is on point and that the appropriation of House funds for official expenses— as reflected in Husband’s legislative account records at issue here — are of the same kind involved here and thus protected by the Speech and Debate Clause. The House asserts that Youngblood involved the House’s leadership allocation of funds to individual legislators, while this dispute involves an individual legislator’s requests for allocations from the leadership. These are two sides of the same coin, according to the House.

Though this case and Youngblood bear some facial similarity, the central judicial inquiries invoked are dissimilar. The plaintiff in Youngblood sought judicial inquiry into a legislative decision, derived directly from the state constitution, about how House leadership chose to exercise its authority to allocate office staffing appropriations to members of the General Assembly. The party leaders’ exercise of constitutional authority was properly deemed more than merely casually or incidentally related to the appropriation-legislation; it was held to be of direct consequence. Such inquiry was clearly prohibited under the Speech or Debate Clause because the judicial branch was being asked to scrutinize the manner in which the General Assembly allocated internal funds.

We are not here asked to scrutinize whether the House leadership has appropriately allocated funds to Husband or his office. The issue here is not whether Husband has been allocated certain House funding, but how he has spent those funds and if for his personal expenses. The legislative decision on allocation of funds to Husband in this case has already been made and Wife is not in any way asking this court to subject that decision for review. Thus, she does not seek judicial inquiry into the purely legislative decision involved in Youngblood, i.e., howto allocate funds under constitutional authority. As such, the Speech and Debate Clause does not protect from discovery the items sought by Wife.

Finally, I note that, upon reviewing the issue of whether to quash the subpoena, this court discovered the existence of a House Rule that permits limited public review of the individual spending made by House members. House Resolution 1 (2005-06 session). House Rule 14 provides reimbursement for certain expenses incurred by House members and their staff for items such as transportation, lodging and food; administrative and clerical services; costs related to running a legislative office; official entertainment; and the purchase of flags, plaques and publications or similar items. Id. House Rule 14 requires that disbursements made, debts incurred or advancements paid from any appropriation account made to a House member under a General Appropriation Act or any other appropriation Act must be recorded in a monthly report. Id. All such monthly reports filed, as well as the documentation evidencing payment of vouchers and requisitions relating to expenditures, “shall be available for public inspection ... in the office of the chief clerk.” Id. Certainly, Husband’s monthly reports on file with the chief clerk are discoverable. However, both the Husband and Wife, in their supplemental briefs addressing House Rule 14, believe it has limited application in this case. They note that it applies only to very specific and rather limited disbursements made to House members and that the limited information available concerning Husband’s expenses would provide only a portion of the information requested by Wife under subparagraph (c) of the subpoena (“any and all expense account documentation”). Both parties agree Rule 14 is not applicable to the requests in (a) (for calendars and date books) or (b) (bank statements, cancelled checks and check registers). As such, the existence of this Rule may not resolve all the issues before the court nor provide any basis for limiting the Wife’s access to the items sought in her subpoena.

Accordingly, this court issued an order July 1, 2005, denying the motion to quash.

      . Husband indicated in a previous discovery matter that Ms. Pacella is the custodian of his House calendars, date books and expense account documentation, including bank statements, cancelled checks and check registers.

      . At oral argument, the House attorney stated that the leadership instructs House members to create accounts as described by Husband.

      . There is no right of public access to legislative records under Article I, Section 7 of the Pennsylvania Constitution and no such right otherwise exists under either common law or the Pennsylvania Right to Know Act. Uniontown Newspapers Inc. v. Roberts, 576 Pa. 231, 839 A.2d 185 (2003).

      . While not bound by cases interpreting the federal clause, those cases nevertheless provide guidance to Pennsylvania courts. Sweeney v. Tucker, 473 Pa. 493, 504 n.14, 375 A.2d 698, 703 n.14 (1977); see also, Consumer Party of Pennsylvania v. Commonwealth, 510 Pa. 158, 171-74, 507 A.2d 323, 329-31 (1986).

      . Husband and/or the House may, of course, file a motion seeking to seal any documents delivered to Wife under her subpoena.

      . Published at http://www2.legis.state.pa.us/WU01/Ll/BI/BT/2005/ 0/HR0001P0113 .pdf (2005-06 session).


author: SOLOMON, J.,

text:
    Daugherty v. South Union Township

      C.P. of Fayette County,
    no. 2473 of 2003, G.D.

      Thomas E. Crenney, for plaintiffs.

      Christian D. Marquis, for defendant.
    May 13, 2005
   SOLOMON, J.,

— Before the court is a motion for reconsideration of this court’s order denying the motion for summary judgment filed by the defendant, North Fayette County Municipal Authority (NFCMA). The motion for reconsideration alleges that this court erred in its determination that there exist genuine issues of material fact which preclude this court from granting summary judgment to NFCMA. After careful consideration of the record and the reasons raised in the motion, this motion for reconsideration must be denied.

BACKGROUND

The plaintiffs’ complaint arises from an incident that occurred on September 11, 2002, at the intersection of Marie Alley and Redstone Furnace Road in South Union Township, Fayette County. While exiting a school bus, Janet Daugherty, then a minor (minor-plaintiff), stepped into a depression in the roadway, tripped and fell, breaking her right fibula and left tibia, and tearing or spraining her medial and lateral deltoid ligaments.

The minor-plaintiff, by and through her mother, Carol Daugherty (plaintiff), and the plaintiff, in her own right, subsequently filed this lawsuit against several defendants, alleging four counts of negligence, two of which are leveled against NFCMA. In the complaint, the plaintiffs allege that one or more of the municipal defendants owned and/or serviced the roadway located at the intersection of Marie Alley and Redstone Furnace Road, and that one or more of the municipal defendants owned and/ or serviced the utility cover which is at the bottom of the depression where the minor-plaintiff fell. The plaintiffs also claim that the section of roadway surrounding the utility cover was, and had been for some time, in a state of disrepair, a condition that caused a defective and dangerous condition to exist. The plaintiffs contend that they have suffered significant economic and noneconomic losses due to minor-plaintiff’s injuries.

NFCMA filed a motion for summaiy judgment, arguing that there existed no genuine issues of material fact as to its liability and, therefore, it was entitled to judgment as a matter of law. This court denied that motion, finding from the record that there existed a genuine issue of material fact with regards to whether NFCMA had, or should have had, notice of the depressions surrounding the utility cover. NFCMA then filed this motion to reconsider.

DISCUSSION

We fully discussed the applicable rules of law in our previous opinion. Flowever, to quickly review, summary judgment may only be granted when there are no genuine issues of material fact. Upon examining the record, the court must find that reasonable minds could not differ on the outcome and, therefore, the moving party is entitled to judgment as a matter of law. To overcome this burden, the non-moving party need not prove its case, but it must present evidence sufficient to show a prime facie case, i.e., evidence that shows that it may be able to prove all of the necessary elements. In determining whether the moving party is entitled to summary judgment, we must view the record in the light most favorable to the non-moving party and we may not judge the credibility of witnesses or their testimony.

NFCMA argues that the plaintiffs failed to prove the notice element of their negligence claim and that, therefore, this court erred in finding that there was a genuine issue of material fact with respect to notice. NFCMA appears to be particularly troubled by our statement that

“. . . NFCMA testified that it was never notified of a hole, nor was it notified of any paving project for which it was supposed to provide risers. However, NFCMA also testified that it does not keep records of notifications if, and when, it receives them. Thus, under such circumstances, NFCMA, as a moving party, has not demonstrated that it is entitled to judgment as a matter of law.” Opinion at pp. 12-13.

As the entire opinion reflects, however, we did not rely solely on NFCMA’s testimony in making the determination that there is a genuine issue of material fact with respect to the issue of notice.

The applicable statute requires that the municipal authority have actual or constructive notice of the dangerous condition upon which the complaint is based. While we did not feel it necessary to cite to every instance in the record that casts doubt upon whether NFCMA had, or should have had, notice of the depression surrounding its utility cover, in the interest of clarity, we will correct that assumption now.

The minor-plaintiff testified that the holes had been there for at least six years and that “everyone that lived there” knew about the holes, though she did not know if anyone ever complained about them. Dep. of Janet F. Daugherty, 6/1/04 at 23, 37, 69.

Thomas Prankhouser, a South Union Township supervisor, testified about the procedures that the township follows when performing road maintenance. Once the township has completed a list of roads to be serviced that year, the township provides that list to the various utility companies and asks them to perform any needed maintenance before the paving begins. Dep. of Thomas L. Frankhouser, 5/21/04 at 11-17. Except for the list provided to the utilities at the beginning of the construction season, the township provides no other notice or requests for risers to the utilities. Id. at 11-17. Instead, it then becomes the responsibility of the paving contractors to contact the utilities to obtain risers. Id. at 11-17. The responsibility then falls to the utility company to either install the risers or provide them to the contractors. Id. at 65-67. If the township noticed a problem with a valve box, or received a complaint about a valve box, they would contact the utility company to address the problem. Id. at 20-21. In the two years previous to the minor-plaintiff’s accident, there had been complaints that an area of Redstone Furnace Road near the location of the valve boxes at issue was caving in. Id. at 69. Frankhouser notified PennDOT about that problem. Id.

Robert Softcheck, NFCMA’s general manager, testified that the water authority provides risers to the paving contractors when they are notified either by the contractor or the township as to where paving will occur. Dep. of Robert S. Softcheck, 5/21/04 at 8-13. NFCMA does not have a regular maintenance or inspection program to determine whether a valve box has problems. Id. at 13-14, 43. There is also no regular system of documenting complaints which NFCMA may receive regarding the valve boxes. Id. at 18-19. NFCMA received notice of paving subsequent to September 11,2002, id. at 31, and risers were distributed to PennDOT or PennDOT’s contractor for the paving that occurred after that date. Id. at 42-43. NFCMA also does not keep records of riser distribution. Id. at 42-43.

In their response to the defendant’s motion for reconsideration, the plaintiffs also submitted the deposition of James Johnson, the PennDOT highway foreman overseeing the roads at issue. We did not consider his testimony in our original opinion, but, as it is now part of the record, we will consider it for the purposes of this motion. Johnson testified that it is the paving contractor’s responsibility to contact the utility companies and to obtain risers for any valve boxes. Dep. of James Johnson, 2/3/05 at 15-16. Upon being shown a picture of the valves at question, he felt that the top valve box needed a riser. Id.

The Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq., under which NFCMA claims immunity, requires that, in order to recover, the plaintiffs must show a dangerous condition of which NFCMA had notice or should have had notice. We agree with NFCMA that the plaintiffs have not yet shown that NFCMA had actual notice. Flowever, the question of whether a landowner had constructive notice of a dangerous condition and, thus, should have known of the defect — i.e., the defect was apparent upon reasonable inspection — is a question of fact. PennDOT v. Patton, 546 Pa. 562, 686 A.2d 1302 (1997). “As such, it is a question for the jury, and may be decided by the court only when reasonable minds could not differ as to the conclusion.” Id. at 568, 686 A.2d at 1305 (citing Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 124 (1983)). If the evidence reveals any dispute, the court is not permitted to decide the issue. Id. A court may not substitute its judgment for that of the jury on an issue of fact as “such a determination is solely within the province of the jury which had the exclusive opportunity to weigh the expert and lay testimony, observe the witnesses, and to form opinions on credibility.” Id. (citing Melzer v. Witsberger, 505 Pa. 462, 476 n.9, 480 A.2d 991, 998 n.9 (1984)). Additionally, the question of what is or is not a dangerous condition must be considered by a jury. Starr v. Veneziano, 560 Pa. 650, 747 A.2d 867 (2000) (citing McCalla v. Mura, 538 Pa. 527, 649 A.2d 646(1994)).

Given the above, reasonable minds could differ on whether NFCMA had, or should have had, notice. The holes had apparently been there for some time and NFCMA had no regular maintenance or inspection program. Further, NFCMA does not keep any record of complaints. A complaint about a drain near the valve boxes caving in was received by the township and passed on to PennDOT. Both PennDOT and the township testified that if they received a complaint about, or noticed a problem with, a valve box, they would notify the utility company, informally and without documentation, because it is the utility company’s responsibility to maintain the valve boxes. PennDOT’s highway foreman opined, based solely on a picture, that at least one of the valve boxes needed a riser. Further, the township testified that it notifies the utilities every year as to the roads they intend to service and requests that they perform any needed maintenance before the onset of paving.

This testimony raises sufficient issues of material fact such that reasonable minds could differ as to the conclusion. Additionally, NFCMA has presented little, if any, evidence refuting the plaintiffs’ averment that the holes present a dangerous condition. Given the evidence, and the rules of law by which this court must abide, NFCMA is not entitled to summary judgment.

Wherefore, we shall enter the following order.

ORDER

And now, May 13,2005, upon the record, it is hereby ordered and decreed that the motion of defendant North Fayette County Municipal Authority for reconsideration is denied.

      . The immunity claim is more fully explored in our original opinion on the motion of NFCMA for summary judgment.


author: MOTTO, P.J.,

text:
    McConnell v. Bara

      C.P. of Lawrence County,
    no. 10709 of 2003, C.A.

      Robert B. Woomer, for plaintiff.

      Louis Pomerico, for defendant Bara.

      Michael K. English, for defendant GPO Energy.

      John L. Kwasneski, for defendant Rockland Township.
    March 22, 2005
   MOTTO, P.J.,

Before the court are plaintiff’s preliminary objections to counterclaim of defendant Sankovich. The issue dispositive of this matter is whether the counterclaim of the owner of a dune buggy, alleging the passenger of a dune buggy was involved in a common enterprise with the driver, sets forth a cause of action against the passenger for damages to the dune buggy pursuant to section 876 of the Restatement (Second) of Torts.

Plaintiff McConnell filed a complaint alleging causes of action in negligence against defendants Bara and Sankovich. The complaint alleged that plaintiff was injured on June 30, 2001, when the dune buggy made by defendant Sankovich, in which plaintiff was a passenger, was driven off the road by defendant Bara and struck a utility pole.

Defendant Sankovich filed a counterclaim alleging that plaintiff, a passenger in the dune buggy, and defendant Bara, the driver of the dune buggy, were engaged in a common enterprise when the dune buggy was wrecked and damaged. The counterclaim asserted that plaintiff, as a member of a common enterprise or common undertaking, was vicariously liable for any negligent action of defendant Bara that resulted in damage to the dune buggy; and that defendant Bara was negligent in operating the dune buggy in a careless manner, driving it into an obstacle, and operating while his abilities were impaired.

The Restatement (Second) of Torts §876 sets forth the basis to proceed with a claim of common enterprise. Section 876 is as follows:

“For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he: (a) does a tortious act in concert with the other or pursuant to a common design with him, or (b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other to so conduct himself, or (c) gives substantial assistance to the other in accomplishing a tortious result and his own conduct, separately considered, constitutes a breach of duty to the third person.” Restatement (Second) of Torts §876 (1977).

The Pennsylvania appellate courts have not expressly adopted section 876 of the Restatement. However, at least three appellate cases have addressed whether a cause of action pursuant to section 876 was stated, with the decision either being without a majority, or being dicta as to the issue of adoption, or finding no cause of action stated without deciding the issue of adoption. See Goldberg v. Delta Tau Delta v. Goldberg, 418 Pa. Super. 207, 215-16, 613 A.2d 1250, 1254-55 (1992), allocatur denied, 534 Pa. 639, 626 A.2d 1158 (1993), and Jefferis v. Com monwealth, 371 Pa. Super. 12, 18-19, 537 A.2d 355, 358-59 (1988). The court here finds that section 876 has received sufficient analysis from the Pennsylvania appellate courts that an analysis of whether the allegations of the counterclaim are sufficient to invoke section 876 should be undertaken.

Those jurisdictions which have permitted a cause of action under section 876(b) of the Restatement did so where the plaintiff pled or proved facts which clearly demonstrated that the passenger actively encouraged the driver to commit the tortious conduct. Welc v. Porter, 450 Pa. Super. 112, 120, 675 A.2d 334, 338 (1996). See e.g., Cobb v. Indian Springs Inc., 258 Ark. 9, 17, 522 S.W.2d 383, 387 (1975) (substantial encouragement or assistance in the driver’s tortious conduct could be found where the defendant was respected as an authority figure by the minor driver and he encouraged him to demonstrate the vehicle’s performance ability); Sanke v. Bechina, 216 Ill. App. 3d 962, 964-65, 971, 576 N.E.2d 1212, 1214-15, 1218 (1991) (passenger’s encouragement that driver ignore a stop sign and exceed the posted speed limit fell squarely within the conduct contemplated by section 876); Price v. Halstead, 177 W. Va. 592, 600, 355 S.E.2d 380, 389 (1987) (passenger’s conduct substantially assisted or encouraged the driver’s continued use of alcohol and drugs by providing these substances to him while he drove the vehicle). However, liability has not been imposed in those jurisdictions pursuant to section 876(b) of the Restatement (Second) of Torts where it was established that the passenger did nothing to substantially assist or encourage the driver in his voluntary consumption of alcohol and operation of the ve-hide while intoxicated. Id. See e.g., Cully v. Bianca, 186 Cal. App. 3d 1172, 1178, 231 Cal. Rptr. 279, 282-83 (1986) (other than passengers’ accompaniment of driver after they obtained and drank tequila, the plaintiff pointed to no facts indicating that the passengers gave substantial assistance and encouragement to the driver); Stock v. Fife, 13 Mass. App. 75, 82, 430 N.E.2d 845, 849-50 (1982), review denied, 385 Mass. 1103, 441 N.E.2d 1043 (1982) (facts did not permit recovery under section 876 where there was no showing that the passengers forced, pressured, or induced the driver to drink); Olson v. Ische, 343 N.W.2d 284, 289 (1984) (the kind of substantial encouragement needed to impose liability under section 876 was not present where the driver and passenger each drank voluntarily and the passenger accompanied the driver on his trip); Lind v. Slowinski, 450 N.W.2d 353, 357 (1990) (passengers did not give substantial assistance and encouragement to the driver where the passengers’ and driver’s consumption of alcohol was entirely voluntary); Cecil v. Harden, 575 S.W.2d 268, 272-73 (1978) (passenger’s conduct in voluntarily consuming alcohol with the driver and in acquiescing in the driver’s decision to drive his own car fell far short of the substantial encouragement and assistance required to justify liability under section 876). See also, Clayton v. McCullough, 448 Pa. Super. 126, 131, 670 A.2d 710, 713 (1996) (no recovery was possible under section 876 where there were no factual averments indicating that the passenger gave substantial assistance or encouragement to the driver to engage in tortious conduct).

The Welc court went on to state that, according to the language of 876(b), as well as the authorities which have applied it, it is clear that an individual who is a passenger of a vehicle operated by a driver who has ingested alcohol voluntarily cannot be held responsible for the driver’s negligent conduct. “Rather, liability can only be imposed where a plaintiff avers sufficient facts indicating that the passenger substantially assisted or encouraged the driver’s tortious conduct.” Welc, 450 Pa. Super, at 119, 675 A.2d at 338.

In the case sub judice, the counterclaim does not aver that the passenger engaged in any conduct that substantially assisted or encouraged the driver to consume alcohol and operate the dime buggy in a negligent manner. Therefore, a claim has not been adequately presented which would permit recovery pursuant to section 876(b).

It is also apparent that a claim pursuant to 876(a) and/ or (c) has not been presented. In order to establish a claim under section 876(a) of the Restatement it must be shown that the driver and passenger acted in concert, i.e., that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result. Id. Here, the counterclaim alleges that both parties voluntarily drank alcohol and that the driver operated the dune buggy in a negligent manner. These facts, if proven, are insufficient to allow the inference or finding that the driver and passenger acted in concert, or that they acted in accordance with an agreement to cooperate in a particular line of conduct or to accomplish a particular result in the doing of a tortious act.

Further, in regard to section 876(c), the counterclaim does not allege facts from which it could be inferred that Mr. McConnell provided substantial assistance to the driver in accomplishing the tortious result and that his own conduct, separately considered, constituted a breach of duty to the third party. Therefore, a claim under 876(c) has not been properly established.

Defendant Sankovich has failed to specifically allege in what manner plaintiff acted in concert with, or provided substantial assistance or encouragement to, defendant Bara in his alleged negligent operation of the dune buggy or any other facts which could invoke any subsection of section 876 of the Restatement. However, since the court cannot at this juncture determine that it is impossible for defendant to allege a cause of action, the court will provide such defendant an opportunity to amend the counterclaim, if he can do so, to allege a cause of action pursuant to section 876 of the Restatement.

ORDER

And now, March 22,2005, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed that the counterclaim of defendant Jared Sankovich against the plaintiff, Russell McConnell, is dismissed and the preliminary objections of plaintiff to such counterclaim are granted. However, defendant Jared Sankovich shall have 20 days from the date this order is docketed to file an amended counterclaim if defendant is able to allege facts sufficient to state a cause of action in accordance with the foregoing opinion.