VOL. LX EASTON, PA July 11, 2019 NO. 80 Jennifer ......ACHENBACH, KEVIN H., dec’d. Late of Northampton County, PA Co-Administrators: Roxan C. Greenzweig and Michael Achenbach c/o

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form by electronic, mechanical, photocopying, or any other means without the prior written permission of the copyright holder.

(USPS 395-280)VOL. LX EASTON, PA July 11, 2019 NO. 80

CONTENTS

INSERT: Pink: 1. Christmas in July Happy Hour 2. 2019 Calendar 3. Legally Bound NCBA Book Club 4. NCBA Listserve Addresses

Cream: 1. Buffalo Bisons vs. Lehigh Valley Iron Pigs 2. 2019 Summer Outing 3. Municipal Law Colloquium

NOTICE TO THE BAR...Announcement From Court AdministrationSettlement Conference ProceduresSee page 10.

* * * * * *Summer Outing – July 18, 2019Registration form inside.

* * * * * *Iron Pigs Game – July 31, 2019Registration form inside.

Announcement From Court Administration, Settlement Conference Procedures . . . . . . 10

Audit—Orphans’ Court . . . . . . . . . . . . . . . . . . . . 8Bar News . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3Easton Office Space and

Associate Opportunity . . . . . . . . . . . . . . . . . . 15District Attorney John M. Morganelli Seeks

Permanent Law Clerk for 2020 . . . . . . . . . . 12

Estate and Trust Notices . . . . . . . . . . . . . . . . . . 4Fictitious Name Registration Notice . . . . . . . . . 8Immigration Attorney! . . . . . . . . . . . . . . . . . . . . 14Legal Aid Attorneys Needed . . . . . . . . . . . . . . 14Legal Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8Relocation of Thomas Aristide’s Office . . . . . . 13Seeking Attorney . . . . . . . . . . . . . . . . . . . . . . . . 13Solicitor—In-House . . . . . . . . . . . . . . . . . . . . . . 17Solicitor—Independent Contractor . . . . . . . . . 16

Jennifer Cartledge and Stacy Cartledge, Wife and Husband, Plaintiffs v. J. Alberto Bastidas, M.D., Atul K. Amin, M.D. and Amin Bastidas Cosmetic & Plastic Surgery

Center a/k/a Northwood Surgery Center, Defendants

2

Northampton County ReporterAttorney Referral & Information Service

155 South Ninth Street, P.O. Box 4733Easton, PA 18042

Phone (610) 258-6333 Fax (610) 258-8715E-mail: [email protected]

PBA (800) 932-0311—PBI (800) 932-4637

NORTHAMPTON COUNTY BAR ASSOCIATION2019 BAR ASSOCIATION OFFICERS

Lisa Spitale . . . . . . . . . . . . . . . . . . . . . . . . . . . PresidentRobert Eyer . . . . . . . . . . . . . . . . . . . . . President-ElectMaura Zajac McGuire . . . . . . . . . . . . . . Vice PresidentPaul J. Harak . . . . . . . . . . . . . . . . . . . . . . . . . TreasurerSteven B. Molder . . . . . . . . . . . . . . . . . . . . . . SecretaryDaniel O’Donnell . . . . . . . . . . . . . . . . . . Past President

BOARD OF GOVERNORSDavid M. Backenstoe

Jeremy F. ClarkJacqueline K. HolmesMichael A. SantanastoRichard Eugene Santee

Douglas J. Tkacik Scott M. Wilhelm

ZONE II DELEGATESMichael C. Deschler Jonathan M. Huerta Richard P. Kovacs

Joel M. ScheerDaniel O’Donnell

BAR ASSOCIATION STAFFMary Beth Leeson . . . . . . . . . . . . . .Executive DirectorPatti A. Gober . . . . . . . . . . . . . . . . . . . . . . . .AccountingJelissa Fernandez . . . . . . . . . . . . . . . . . . . Legal JournalHeather Rizzotto-Stefanik . . . . . . . . .Attorney ReferralDeborah J. Flanagan . . . . . . . . . . . . . .Attorney Referral

The Northampton County Reporter will be published every Thursday by the Northampton County Bar Association, 155 South Ninth St., Easton, PA 18042-4399. All legal notices relating to the business of the county, are required by rule of Court, to be published in this Journal. All legal notices must be submitted in typewritten form and are published exactly as submitted by the advertiser. Neither the Law Reporter nor the printer will assume any responsibility to edit, make spelling corrections, eliminate errors in grammar or make any changes to content.

Subscription Price—$75.00 per year.Periodical Postage Paid at Easton, PA and additional office.Postmaster: Send all communications and address changes to:

NORTHAMPTON COUNTY REPORTER155 South Ninth St., Easton, PA 18042-4399

Telephone (610) 258-6333 FAX (610) 258-8715Ralph J. Bellafatto, Esquire

Editor

3

Success isn’t just about what you accomplish in your life; it’s about what you inspire others to do. ~ Unknown

NOTICE TO NCBA MEMBERS – BAR NEWS

Annual Summer Outing – Thursday, July 18, 2019Registration form inside.Deadline to register July 11, 2019.

Courthouse Library Copy Machine CardsCopy machine cards are still available at the NCBA Office. If you make

any copies on the copy machine in the Law Library you may want to consider purchasing copy cards. The cards sell for $10.00. If you use the cards, copies are 15 cents rather than the usual 25 cents.

NORTHAMPTON COUNTY REPORTER Vol. 60 No. 80 7/11/2019

4

ESTATE AND TRUST NOTICESNotice is hereby given that, in the

estates of the decedents set forth below, the Register of Wills has granted letters testamentary or of administration to the persons named. Notice is also hereby given of the existence of the trusts of the deceased settlors set forth below for whom no personal representatives have been appointed within 90 days of death. All persons having claims or demands against said estates or trusts are requested to make known the same, and all persons indebted to said estates or trusts are requested to make payment, without delay, to the executors or administrators or trustees or to their attorneys named below.

FIRST PUBLICATIONACHENBACH, KEVIN H., dec’d.

Late of Northampton County, PACo-Administrators: Roxan C. Greenzweig and Michael Achenbach c/o Connie J. Merwine, Esquire, 501 New Brodheadsville Blvd N., Brod-headsville, PA 18322Attorney: Connie J. Merwine, Esquire, 501 New Brodheadsville Blvd. N., Brodheadsville, PA 18322

CAFFREY, MARY T., dec’d.Late of the Township of Bethlehem, Northampton County, PAAdministratrix: Ann Marie Hoffman c/o Theresa Hogan, Esquire, Attorney-at-Law, 340 Spring Garden Street, Easton, PA 18042Attorney: Theresa Hogan, Esquire, Attorney-at-Law, 340 Spring Garden Street, Easton, PA 18042

CAMPBELL, JACOB, dec’d.Late of the Township of Moore, Northampton County, PAAdministrator: Maynard S. Campbell, Jr., 601 Creek Road, Bath, PA 18014Attorney: Daniel G. Spengler, Esquire, 110 East Main Street, Bath, PA 18014

COSTACURTA, KATHERINE V., dec’d.Late of Bethlehem, Northampton County, PAExecutor: Gary A. Costacurta c/o Steven B. Molder, Esquire, 904 Lehigh St., Easton, PA 18042Attorney: Steven B. Molder, Esquire, 904 Lehigh St., Easton, PA 18042

DRIVER, JOAN ANN, dec’d.Late of the City of Easton, Northampton County, PAExecutors: Glenn Driver and Kevin Driver c/o Robert A. Pinel, Esquire, Law Offices of Robert A. Pinel, LLC, 1502 Center Street, Suite 201, Bethlehem, PA 18018Attorneys: Robert A. Pinel, Esquire, Law Offices of Robert A. Pinel, LLC, 1502 Center Street, Suite 201, Bethlehem, PA 18018

FACCHIANO, ROSE J., dec’d.Late of Bethlehem, Northampton County, PACo-Executors: Michael P. Facchiano, Rosalie J. Marques and Vincent T. Facchiano c/o Law Offices of Lawrence B. Fox, P.C., 1834 Pennsylvania Avenue, Hanover Township, Allentown, PA 18109Attorneys: Law Offices of Lawrence B. Fox, P.C., 1834 Pennsylvania Avenue, Hanover Township, Allentown, PA 18109


5

East Broad Street, P.O. Box 1217, Bethlehem, PA 18016-1217Attorneys: Michael F. Corriere, Esquire, Corriere and Andres, LLC, 433 East Broad Street, P.O. Box 1217, Bethlehem, PA 18016-1217

RENALDO, CONCETTA M., dec’d.Late of the Borough of Roseto, Northampton County, PAAdministrator: Thomas J. Renaldo c/o Mark P. Albright, Esquire, 403 Main Street, Heller-town, PA 18055-1721Attorney: Mark P. Albright, Esquire, 403 Main Street, Heller-town, PA 18055-1721

SECOND PUBLICATIONBOSAK, WILLIAM P., dec’d.

Late of 1476 Madison Avenue, Bethlehem, Northampton County, PAExecutor: Jeffrey J. Bosak c/o Amy J. Miller, Esquire, O’Keefe, Miller & Thielen, P.C., 22 E. Main Street, Fleetwood, PA 19522Attorneys: Amy J. Miller, Esquire, O’Keefe, Miller & Thielen, P.C., 22 E. Main Street, Fleetwood, PA 19522

MARINA, SANTO, dec’d.Late of Easton, Northampton County, PAExecutor: Jude A. Marina c/o Douglas J. Tkacik, Esquire, 18 East Market Street, Bethlehem, PA 18018Attorney: Douglas J. Tkacik, Esquire, 18 East Market Street, Bethlehem, PA 18018

MILLER, BRUCE A., JR., dec’d.Late of Mount Bethel, Northamp-ton County, PAPersonal Representative: Irene K. S. Miller c/o Ryan K. Fields,

GENTEMPO-McALLISTER, KIMBERLY A., dec’d.Late of Forks Township, North-ampton County, PAExecutor: Peter Ivan McAllister c/o Joel M. Scheer, Esquire, Fishbone and Scheer, 940 W. Lafayette Street, Easton, PA 18042Attorneys: Joel M. Scheer, Esquire, Fishbone and Scheer, 940 W. Lafayette Street, Easton, PA 18042

GODSHALK, RONALD K., SR., dec’d.Late of the City of Easton, Northampton County, PAExecutor: Ronald K. Godshalk, Jr. c/o Alexander J. Karam, Jr., Esquire, Alexander J. Karam, Jr., P.C., 675 Walnut Street, Easton, PA 18042Attorneys: Alexander J. Karam, Jr., Esquire, Alexander J. Karam, Jr., P.C., 675 Walnut Street, Easton, PA 18042

PICHEL, RAMON, dec’d.Late of the Township of Lower Saucon, Northampton County, PACo-Executors: Kathy Pichel McGovern, Jay Scott Pichel and Thomas L. Walters c/o Thomas L. Walters, Esquire, Lewis and Walters, 46 S. 4th Street, Easton, PA 18042Attorneys: Thomas L. Walters, Esquire, Lewis and Walters, 46 South Fourth Street, Easton, PA 18042

RAWSON, SHIRLEY J., dec’d.Late of Easton, Northampton County, PAExecutor: Peter F. Rawson c/o Michael F. Corriere, Esquire, Corriere and Andres, LLC, 433


6

SCHLITTLER, ELIZABETH A., dec’d.Late of the Borough of Heller-town, Northampton County, PAExecutor: Robert W. Schlittler c/o Bradford D. Wagner, Esquire, 662 Main Street, Hellertown, PA 18055-1726Attorney: Bradford D. Wagner, Esquire, 662 Main Street, Heller-town, PA 18055-1726

TIMER, RICHARD F., dec’d.Late of Hellertown Borough, Northampton County, PACo-Executors: Richard F. Timer, Jr. and Robert Alan Timer c/o Aman M. Barber, III, Esquire, Fiore & Barber, LLC, 418 Main St., Suite 100, Harleysville, PA 19438Attorneys: Aman M. Barber, III, Esquire, Fiore & Barber, LLC, 418 Main St., Suite 100, Harleysville, PA 19438

TOMINO, ANTOINETTE, dec’d.Late of Easton, Northampton County, PAExecutor: Peter Tomino c/o Steven B. Molder, Esquire, 904 Lehigh St., Easton, PA 18042Attorney: Steven B. Molder, Esquire, 904 Lehigh St., Easton, PA 18042

THIRD PUBLICATIONBETTS, GEORGE A., dec’d.

Late of Forks Township, North-ampton County, PAExecutor: Scott A. BettsAttorneys: Gladys E. Wiles, Esquire, Snyder & Wiles, P.C., 7731 Main Street, Fogelsville, PA 18051

DODSON, DONALD LYNN, M.D., dec’d.Late of Bethlehem, Northampton County, PA

Esquire, King Spry Herman Freund & Faul LLC, One West Broad Street, Suite 700, Bethlehem, PA 18018Attorneys: Ryan K. Fields, Esquire, King Spry Herman Freund & Faul LLC, One West Broad Street, Suite 700, Bethlehem, PA 18018

PICHEL, RAMON, dec’d.Late of the Township of Lower Saucon, Northampton County, PACo-Executors: Kathy Pichel McGovern, Jay Scott Pichel and Thomas L. Walters c/o Lewis and Walters, 46 S. 4th Street, Easton, PA 18042Attorneys: Thomas L. Walters, Esquire, Lewis and Walters, 46 South Fourth Street, Easton, PA 18042

REMALEY, BERTHA M., dec’d.Late of the Township of Moore, Northampton County, PAExecutors: Cori Lynn Turner and Keith Gerard Turner, Jr., 495 Twin Lane, Bath, PA 18014Attorney: Daniel G. Spengler, Esquire, 110 East Main Street, Bath, PA 18014

ROCCOSANTO, JUDITH S., dec’d.Late of the Township of Lower Nazareth, Northampton County, PAExecutrix: Graceann Freeman c/o Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, 1 South Main Street, Nazareth, PA 18064Attorneys: Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, 1 South Main Street, Nazareth, PA 18064


7

Executrix: Maryellen P. Ahern c/o Fitzpatrick Lentz & Bubba, P.C., 4001 Schoolhouse Lane, P.O. Box 219, Center Valley, PA 18034-0219Attorneys: Fitzpatrick Lentz & Bubba, P.C., 4001 Schoolhouse Lane, P.O. Box 219, Center Valley, PA 18034-0219

GILDS, RUTH M., dec’d.Late of the Township of Palmer, Northampton County, PAExecutrix: Donna Brown c/o Goudsouzian & Associates, 2940 William Penn Highway, Easton, PA 18045-5227Attorneys: Goudsouzian & Asso-ciates, 2940 William Penn Highway, Easton, PA 18045-5227

LOPEZ, FRANCISCO ARIAS a/k/a FRANCISCO LOPEZ, dec’d.Late of the City of Bethlehem, Northampton County, PAAdministratrix: Minerva I. Rivera Perez c/o Joshua D. Shulman, Esquire, Shulman Law Office PC, 1935 Center Street, Northamp-ton, PA 18067Attorneys: Joshua D. Shulman, Esquire, Shulman Law Office PC, 1935 Center Street, Northamp-ton, PA 18067

McMANN, TERRELL C., dec’d.Late of Bethlehem, Northampton County, PAExecutrix: Sandra J. Magill c/o Charles W. Stopp, Esquire, Steckel and Stopp LLC, 125 S. Walnut Street, Suite 210, Slat-ington, PA 18080Attorneys: Charles W. Stopp, Esquire, Steckel and Stopp LLC, 125 S. Walnut Street, Suite 210, Slatington, PA 18080

REESER, LLEWELLYN C., dec’d.Late of the Township of Upper Nazareth, Northampton County, PAExecutor: Steven Michael Reeser c/o Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, 1 South Main Street, Nazareth, PA 18064Attorneys: Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, 1 South Main Street, Nazareth, PA 18064

RICE, LINDA A., dec’d.Late of Palmer Township, Northampton County, PAExecutrix: Jennifer Lynne Tarpey c/o Constantine M. Vasiliadis, Esquire, Kolb, Vasiliadis and Florenz, LLC, 60 W. Broad Street, Suite 303, Bethlehem, PA 18018-5721Attorneys: Constantine M. Vasiliadis, Esquire, Kolb, Vasiliadis and Florenz, LLC, 60 W. Broad Street, Suite 303, Bethlehem, PA 18018-5721

RILEY, BARBARA S., dec’d.Late of the Township of Plain-field, Northampton County, PAExecutor: Dennis Charles Riley c/o George M. Vasiliadis, Esquire, Vasiliadis Pappas Asso-ciates, LLC, 2551 Baglyos Circle, Suite A-14, Bethlehem, PA 18020Attorneys: George M. Vasiliadis, Esquire, Vasiliadis Pappas Asso-ciates, LLC, 2551 Baglyos Circle, Suite A-14, Bethlehem, PA 18020

STEM, JANET A., dec’d.Late of Nazareth, Northampton County, PAExecutor: Leander K. Stem, III c/o Ralph J. Bellafatto, Esquire,


8

4480 William Penn Highway, Easton, PA 18045Attorney: Ralph J. Bellafatto, Esquire, 4480 William Penn Highway, Easton, PA 18045

WAGNER, BETTYLOU F., dec’d.Late of the Borough of Catasau-qua, Northampton County, PAExecutrix: Luann Dorothy Peters c/o Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, 1 South Main Street, Nazareth, PA 18064Attorneys: Peters, Moritz, Peischl, Zulick, Landes & Brienza, LLP, 1 South Main Street, Nazareth, PA 18064

FICTITIOUS NAME REGISTRATION NOTICE

NOTICE IS HEREBY GIVEN that pursuant to the provisions of Section 311 of Act 1982-295, a Fictitious Name Registration was filed with the Department of State of the Common-wealth for:

GAROFALO REAL ESTATEwith its principal place of business at: 1700 Northampton Street, Easton, Pennsylvania 18042. The names and address of the persons owning or interested in said business are: HelenBeth Garofalo and David J. Vilcek, 1700 Northampton Street, Easton, PA 18042.McFALL, LAYMAN & JORDAN, P.C.134 BroadwayBangor, PA 18013

July 11IN THE NORTHAMPTON COUNTY

COURT OF COMMON PLEAS ORPHANS’ COURT DIVISIONThe following Executors, Admin-

istrators, Guardians & Trustees have filed Accounts in the Office of the Orphans’ Court:

ESTATE; AccountantJULIE F. STEWARD; Sylvia L.

Hand, AdministratrixAUDIT NOTICE

All parties interested are notified that an audit list will be made up of all Accounts and the said list will be called for audit at the Northampton County Government Center, Easton, PA on: FRIDAY, JULY 19, 2019 AT 9:00 A.M. IN COURTROOM #1.

Gina X. GibbsClerk of the Orphans’ Court

July 4, 11NOTICE FOR CHANGE OF NAME

NOTICE IS HEREBY GIVEN that on May 24, 2019, the Petition of Kathryn Boehm was filed in Northampton County Court of Common Pleas at No. C-48-CV-2019-04417, seeking to change the name of Petitioner from Kathryn Amanda Boehm to Kasper Adrian Boehm. The Court has fixed Tuesday, August 13, 2019 at 9:00 a.m., in courtroom #4 at the Northampton County Court-house as the date for hearing of the Petition. All persons interested in the proposed change of name may appear and show cause, if any they have, why the prayer of the Petitioner should not be granted.

July 11NOTICE FOR CHANGE OF NAME

NOTICE IS HEREBY GIVEN that on July 2, 2019, the Petition of Edwyna Bowie was filed in Northamp-ton County of Common Pleas at No. 2019-C-5987, seeking to change the name of Petitioner from Edwina Bowie to Edwyna Bowie. The Court has fixed September 6, 2019 at 9:00 a.m., in courtroom #4 at the Northampton County Courthouse as the date for hearing of the Petition. All persons interested in the proposed change of name may appear and show cause,


9

if any they have, why the prayer of the Petitioner should not be granted.

July 11NOTICE FOR CHANGE OF NAME

NOTICE IS HEREBY GIVEN that on June 20, 2019, the Petition of Gabriella Garrido was filed in Northampton County Court of Common Pleas at No. 2019-C-5484, seeking to change the name of Peti-

tioner from Gabriella Garrido to Gabriel Garrido. The Court has fixed Tuesday, August 20, 2019 at 9 a.m., in courtroom #4 at the Northampton County Courthouse as the date for hearing of the Petition. All persons interested in the proposed change of name may appear and show cause, if any they have, why the prayer of the Petitioner should not be granted.

July 11


10

TO: NCBASUBJECT: ANNOUNCEMENT FROM COURT ADMINISTRATION, SETTLEMENT CONFERENCE PROCEDURESDATE: JUNE 27, 2019

The Court has implemented a new procedure for scheduling settlement conferences. Court Administration has provided the following information:

All cases scheduled for a civil jury trial will be scheduled for a settlement conference. Three settlement masters have been appointed by the Court: Honorable Robert A. Freedberg,1 Honorable Emil A. Giordano,2 and Honorable Leonard N. Zito.3

Settlement conferences will proceed as follows:1. Judge Koury will assign a settlement master.2. The settlement master’s assistant will contact counsel to

schedule the date and time of the settlement conference. An Order will be filed and e-mailed to counsel by Court Administration confirming the settlement conference.

3. The Order scheduling the settlement conference will set deadlines and procedures for submission of the settlement conference memorandum and supporting exhibits.

4. Counsel are not permitted to request a specific settlement master.

5. Only the President Judge has the authority to excuse attendance of the adjuster or trial counsel from the settlement conference. If a request is being made by the adjuster to be excused from attending the settlement conference, trial counsel must prepare and submit to the President Judge a Motion for Excusal of Attendance. This can be submitted to Court Administration by e-mail and does not need to be presented in person.


11

6. Initial requests for a continuance of a settlement conference should be made to the assigned settlement master. An Application for Continuance is not necessary. Once the conference has been rescheduled, a new scheduling Order will not be entered.

———1 Retired Judge from the Pennsylvania Superior Court and the Northampton

County Court of Common Pleas.2 Retired Judge from the Northampton County Court of Common Pleas.3 Retired Judge from the Northampton County Court of Common Pleas.

July 4, 11, 18


12

DISTRICT ATTORNEY JOHN M. MORGANELLI SEEKS PERMANENT LAW CLERK FOR 2020

District Attorney John M. Morganelli is seeking applications from qualified lawyers who are interested in being employed as a full-time, permanent law clerk in the Court of Common Pleas for Northampton County, Pennsylvania beginning in January 2020. Applicants must possess strong writing and research skills. The position is a county position with full health coverage and other county benefits. Salary ranges are established by county pay scales and can be ascertained through the Northampton County HR Department and/or Court Administration. The position will report directly to John Morganelli who is running unopposed for judge in the upcoming general election and who will be sworn in as Judge of the Court of Common Pleas in January 2020.

To indicate your interest, please send a cover letter and resume directly to District Attorney John Morganelli via e-mail at [email protected].

July 11, 18, 25


13

RELOCATION OF THOMAS ARISTIDE’S OFFICEThomas Aristide is pleased to announce the relocation of

his office. After many years in Northampton County on Maple Street in Bethlehem, he is relocating to 414 West Broad Street, Bethlehem, PA 18018; (610) 691-2522; www.aristidelaw.com. Attorney Aristide has focused exclusively on Workers’ Compensation Law for the last 25+ years and still serving the public in this capacity. He is “Of Counsel” with the law firm of Pearson Koutcher Law which also focuses exclusively on Workers’ Compensation claims on behalf of the injured worker. Pearson Koutcher Law is likewise situated at 414 West Broad Street, Bethlehem, PA 18018; (484) 294-4090; www.pearsonkoutcherlaw.com.

July 11——————

SEEKING ATTORNEYEstablished firm seeking attorney to share space,

expenses, handle overflow work, especially in area of domestic relations. Excellent opportunity for growth and practice expansion.

Contact Steve Bergstein, [email protected] or (610) 439-8430.

July 4, 11


14

LEGAL AID ATTORNEYS NEEDED— BETHLEHEM OFFICE

North Penn Legal Services is recruiting two attorneys and a paralegal to join the current attorney and paralegal who represent victims of domestic violence. These are full-time positions with very competitive benefits.

For information on the positions and how to apply, visit www.northpennlegal.org/about/careers.

July 4, 11


15

EASTON OFFICE SPACE ANDASSOCIATE OPPORTUNITY

Office space available for lawyer(s) in well-maintained office building. Shared use of all facilities, library, copier, fax, WiFi, etc. Currently staffed with an experienced Paralegal in various areas of law, criminal and civil law. Parking provided. Associate opportunity.

Contact: Henry R. Newton, Jr., Esquire and William K. Murphy, Esquire.

E-mail: [email protected].

June 20, 27; July 4, 11


16

LEHIGH COUNTY AUTHORITY Solicitor, Independent Contractor

Lehigh County Authority (“the Authority”) is a municipal authority providing public water and wastewater service. The Authority is seeking written proposals from experienced and qualified lawyers and legal firms to fulfill duties of Solicitor. This will be an independent contractor position to replace the services provided by the Authority’s existing Solicitor who will be retiring. The Authority is conducting a parallel search for an in-house Solicitor, to consider both options within the same selection process.

Proposals are due to the Authority by July 31, 2019. Proposals will not be accepted from individuals/firms without prior indication of interest. To indicate your interest in proposing and to receive a full copy of the Request for Proposals, please contact Patricia Walck, Purchasing Manager: [email protected].

June 27; July 4, 11


17

LEHIGH COUNTY AUTHORITYSolicitor, In-House

Lehigh County Authority (“the Authority”) is a municipal authority providing public water and wastewater service. We provide high quality, affordable and reliable water and sewer service to more than 55,000 customers primarily in Lehigh County, Pennsylvania. The Authority is seeking applications from experienced and qualified lawyers to fulfill duties of Solicitor. This will be an in-house Solicitor position to replace the services provided by the Authority’s existing Solicitor who will be retiring.

However, the Authority is conducting a parallel search for an independent contractor to provide legal services so that both options may be considered within the same selection process. A Request for Proposals (RFP) has been prepared to assist with the search for an independent contractor, and includes the scope of work that is expected to be covered by either an independent contractor or in-house Solicitor, depending on the outcome of the search process. When applying for the in-house Solicitor position, please follow the timeline and schedule indicated in the RFP.

Applications will be due to the Authority by July 31, 2019 and shall include qualifications, salary requirements and statement of applicable experience to address the scope of work as outlined in the RFP. Applications will not be accepted from individuals without prior indication of interest. To indicate your interest in applying and to receive a full copy of the RFP, please contact Patricia Walck, Purchasing Manager: [email protected].

June 27; July 4, 11

411Cartledge et vir v. Bastidas et al.

Cartledge et vir v. Bastidas et al.

JENNIFER CARTLEDGE and STACY CARTLEDGE, Wife and Husband, Plaintiffs v. J. ALBERTO BASTIDAS, M.D., ATUL K. AMIN, M.D. and AMIN BASTIDAS COSMETIC &

PLASTIC SURGERY CENTER a/k/a NORTHWOOD SURGERY CENTER, Defendants

Preliminary Objections—Res Ipsa Loquitur—Negligent Infliction of Emo-tional Distress—Battery—Punitive Damages.

Plaintiffs filed a complaint alleging that Defendants negligently performed liposuction surgery on Plaintiff Jennifer Cartledge (“Plaintiff ”) by lacerating her spleen during the surgery. Plaintiffs also alleged that Defendants were negligent and/or reckless in failing to investigate the cause of Plaintiff ’s post-operative complications during a follow-up appointment. Defen-dants filed preliminary objections.

First, Defendants asserted a demurrer to Plaintiff ’s claim for damages under the doc-trine of res ipsa loquitur. The court sustained this demurrer because res ipsa loquitur is merely a rule of evidence and not an independent cause of action or ground for recovery. Next, Defendants asserted a demurrer to Plaintiff ’s claim for negligent infliction of emotional distress (“NIED”). Defendants also argued that Plaintiff ’s NIED claim was duplicative of her negli-gence claim. The court overruled Defendants’ second objection and determined that Plaintiff could plead alternate theories of liability pursuant to Pennsylvania Rule of Civil Procedure 1020(c). The court also determined that Plaintiff sufficiently pleaded an NIED claim based on Defendants’ breach of a fiduciary duty that it owed to Plaintiff as her surgeon.

Defendants also asserted demurrers to Plaintiff ’s claims for “lack of informed consent” and battery. The court determined that lack of informed consent is not an independent cause of action but, rather, is an element of a medical battery claim. However, the court found that Plaintiff sufficiently pleaded a claim for medical battery. Thus, the court sustained Defendants’ demurrer to Plaintiff ’s claim for lack of informed consent, overruled Defendants’ demurrer to Plaintiff ’s battery claim, and granted Plaintiff leave to file an amended complaint consoli-dating the two claims into a single count for medical battery.

Lastly, Defendants moved to strike Plaintiff ’s allegations of recklessness and her in-ferred claim for punitive damages. The court determined that Plaintiff ’s allegations, at most, demonstrated that Defendants were negligent or grossly negligent in performing Plaintiff ’s surgery and failing to investigate the cause of Plaintiff ’s post-operative complications during her follow-up appointment. However, these allegations were insufficient to support an award of punitive damages. Thus, the court sustained Defendants’ final objection.

In the Court of Common Pleas of Northampton County, Pennsylvania, Civil Action—No. C-48-CV-2017-1692.

Stephen M. Mowrey, Esquire and Leonard J. Artigliere, Esquire, for Plaintiffs.

John P. Shusted, Esquire, for Defendants.

Order of the Court entered on March 27, 2018 by Beltrami, J.

OPINION

This matter is before the court on the “Preliminary Objections of the Defendants, J. Alberto Bastidas, M.D., Atul K. Amin, M.D., and Amin Bastidas Cosmetic & Plastic Surgery Center, to the Plaintiffs’ Second Amended Complaint” (“POs”), filed on September 25, 2017. On October

18

Cartledge et vir v. Bastidas et al.412 Vol. 60

12, 2017, Plaintiffs filed an Answer to Defendants’ POs. Briefs have been filed, and the matter was submitted to the court at Argument Court on February 20, 2018, for disposition on the parties’ briefs.

On August 16, 2017, Plaintiffs filed a Second Amended Complaint that alleges the following facts. On April 3, 2015, Defendant Atul K. Amin, M.D. (“Dr. Amin”) and Defendant J. Alberto Bastidas, M.D. (“Dr. Bastidas”) performed an abdominoplasty and liposuction surgery on Plaintiff Jennifer Cartledge (“Plaintiff ”). (Second Am. Compl. ¶7.) In performing Plaintiff ’s surgery, Dr. Amin and Dr. Bastidas were acting within the scope of their employment with Defendant Amin Bastidas Cosmetic & Plastic Surgery Center (the “Surgery Center”). (Id. ¶¶44-45.) During the course of the surgery, Plaintiff suffered a laceration of her spleen that was not discovered by either Dr. Bastidas or Dr. Amin. (Id. ¶¶9-10.)

On April 6, 2015, Plaintiff returned to the Surgery Center for a post-operative check with Dr. Bastidas and complained of weakness and increas-ing pain. (Id. ¶11.) Dr. Bastidas gave Plaintiff anti-nausea medication and treated her with intravenous fluids. (Id.) Dr. Bastidas “did not evaluate [Plaintiff] to determine the root cause of her symptoms, nor did he order [Plaintiff] to seek immediate medical testing to determine the cause of her symptoms.” (Id. ¶74). Soon after Plaintiff returned home from the Surgery Center, Plaintiff ’s husband found her unresponsive, and she was immedi-ately transported to St. Luke’s Hospital—Anderson Campus by ambulance. (Id. ¶12.) On the same date, Plaintiff underwent emergency surgery at Easton Hospital and was then transported to St. Luke’s University Hospital, where she remained until her release on April 15, 2015. (Id. ¶¶15-16.) Plaintiff now suffers “from severe pain, excessive swelling, scarring at the surgical sites, decreased stamina and energy, anxiety, post-traumatic stress disorder, and has been required to undergo additional medical procedures.” (Id. ¶18.)

In Counts I and II of the Second Amended Complaint, Plaintiff seeks damages for negligence. In Count III, Plaintiff asserts a vicarious liability negligence claim against the Surgery Center. In Count IV, Plaintiff alleges that Defendants are liable for “res ipsa loquitur.” In Count V, Plaintiff seeks damages for negligent infliction of emotional distress (“NIED”). In Count VI, Plaintiff seeks damages for “failure to provide informed consent.” In Count VII, Plaintiff asserts a claim for battery. Finally, in Count VIII, Plaintiff Stacy Cartledge seeks damages for loss of consortium.

In their POs, Defendants assert demurrers to Counts IV, V, VI, and VII of Plaintiffs’ Second Amended Complaint. Defendants also move to strike any references to recklessness or reckless conduct in the Second Amended Complaint.

The court first addresses Defendants’ demurrer to Plaintiff ’s claim for damages under the doctrine of res ipsa loquitur in Count IV. Pursuant to Pennsylvania Rule of Civil Procedure 1028(a)(4), any party may file

19


preliminary objections alleging “legal insufficiency of a pleading (demur-rer).” Pa. R.C.P. No. 1028(a)(4).

A preliminary objection in the nature of a demurrer is properly granted where the contested pleading is legally insuf-ficient. Preliminary objections in the nature of a demurrer re-quire the court to resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the com-plaint may be considered to dispose of the legal issues pre-sented by the demurrer. All material facts set forth in the pleading and all inferences reasonably deducible therefrom must be admitted as true.

...Thus, the question presented by the demurrer is whether,

on the facts averred, the law says with certainty that no recov-ery is possible. Where a doubt exists as to whether a demurrer should be sustained, this doubt should be resolved in favor of overruling it.

Hill v. Slippery Rock University, 138 A.3d 673, 676-77 (Pa. Super. 2016) (quoting Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 208-209 (Pa. Super. 2012)).

[T]he doctrine of res ipsa loquitur allows a fact-finder to infer from the circumstances surrounding the injury that the harm suffered was caused by the negligence of the defendant. The doctrine applies under the following circumstances:(a) the event is of a kind which ordinarily does not occur in the absence of negligence;(b) other responsible causes, including the conduct of the plaintiff and third persons, are sufficiently eliminated by the evidence; and(c) the indicated negligence is within the scope of the defen-dant’s duty to the plaintiff.

Restatement (Second) of Torts §328D(1) (1965) (hereinafter “Restate-ment”); Gilbert v. Korvette, Inc., 457 Pa. 602, 612-13, 327 A.2d 94, 100 (1974) (adopting the Restatement’s formulation of res ipsa loquitur).

Res ipsa loquitur is merely a shorthand expression for a rule of evidence that allows a jury to infer negligence and causation where the injury at issue is one that does not ordinar-ily occur in the absence of negligence.

Fessenden v. Robert Packer Hospital, 97 A.3d 1225, 1230 (Pa. Super. 2014).The [r]es ipsa loquitur doctrine is simply a rule of evi-

dence and like any other rule of evidence it is brought into play where the situation presented makes it applicable. It does not have to be pleaded in the complaint or noticed by specific designation to the adverse party at a pre-trial or at trial, since

20


it is neither a cause of action nor a ground for recovery, nor an ‘issue.’

Hollywood Shop, Inc. v. Pennsylvania Gas and Water Company, 270 Pa. Super. 245, 253, 411 A.2d 509, 513 (1979) (quoting Fassbinder v. Penn-sylvania R.R. Co., 322 F.2d 859, 863 (3d Cir. 1963); see also, Toogood v. Owen J. Rogal, D.D.S., P.C., 573 Pa. 245, 256, 824 A.2d 1140, 1146 (2003) (“Res ipsa loquitur is neither a doctrine of substantive law nor a theory of recovery ... .”). Since res ipsa loquitur is merely a doctrine of circumstan-tial evidence and not an independent cause of action, Count IV of the Second Amended Complaint is legally insufficient and must be dismissed.1

The court next addresses Defendants’ demurrer to Plaintiff ’s claim for NIED in Count V. Defendants’ argument appears to be based, in part, on their assertion that recovery for NIED is only permitted “when the inflic-tion of emotional distress is intentional, ... or sufficiently reckless to amount to intent.” Armstrong v. Paoli Memorial Hospital, 430 Pa. Super. 36, 56, 633 A.2d 605, 615 (Pa. Super. 1993). However, the standard quoted by Defendants applies to the tort of intentional infliction of emotional distress. In addition, Defendants argue that permitting Plaintiff to recover for NIED would constitute an improper “duplication” of her claim for emotional distress damages in her negligence claims. However, Defendants present no legal precedent supporting this argument. In fact, “[c]auses of action ... may be pleaded in the alternative.” Pa. R.C.P. No. 1020(c); see also, Schrei-ber v. Republic Intermodal Corporation, 473 Pa. 614, 626, 375 A.2d 1285, 1291 (1977) (“[P]laintiffs should not be forced to elect a particular theory in pursuing a claim ... .”). Thus, the court finds that these arguments are without merit, and it will assess Plaintiff ’s claim for NIED under the es-tablished standards.

In Pennsylvania, the cause of action for negligent inflic-tion of emotional distress has been limited by court decisions. In order to recover, the Plaintiff must prove one of four ele-ments: (1) that the Defendant had a contractual or fiduciary duty toward him; (2) that Plaintiff suffered a physical impact; (3) that Plaintiff was in a ‘zone of danger’ and at risk of an immediate physical injury; or (4) that Plaintiff had a contem-poraneous perception of tortious injury to a close relative. ... In all cases, a Plaintiff who alleges negligent infliction of emotional distress must suffer immediate and substantial physical harm.

Doe v. Philadelphia Community Health Alternatives AIDS Task Force, 745 A.2d 25, 27-28 (Pa. Super. 2000), aff’d, 564 Pa. 264, 767 A.2d 548 (2001) ———

1 Plaintiff is not precluded from relying on the doctrine of res ipsa loquitur to establish Defendants’ alleged negligence at trial if it is determined to be applicable.

21


(emphasis in original) (citations omitted).2 The latter two of these theories are obviously not applicable in the instant case. Thus, Plaintiff can only recover damages for emotional distress as a result of Defendants’ breach of a contractual or fiduciary duty owed to her or in connection with having suffered a physical impact.

The court finds that Plaintiff has sufficiently stated a claim for NIED under either of these two applicable theories. Regarding the physical impact theory, “[w]here ... a plaintiff sustains bodily injuries, even though trivial or minor in character, which are accompanied by fright or mental suffering directly traceable to the peril in which the defendant’s negligence placed the plaintiff, then mental suffering is a legitimate element of damages.” Brown v. Philadelphia College of Osteopathic Medicine, 449 Pa. Super. 667, 679, 674 A.2d 1130, 1135-36 (1996) (quoting Potere v. City of Phila-delphia, 380 Pa. 581, 588, 112 A.2d 100, 104 (1955)). In this case, Plaintiff alleges that Defendants’ negligent laceration of her spleen has caused continuing physical pain, anxiety, and post-traumatic stress disorder. These allegations suggest that Plaintiff suffered a bodily injury which caused her mental suffering, all of which can be traced back to Defendants’ negligence. Thus, Plaintiff has stated a claim for NIED under the physical impact theory.

The court also finds that Plaintiff has sufficiently stated an NIED claim due to Defendants’ breach of a contractual or fiduciary duty owed to her. With regard to this theory, the Pennsylvania Superior Court has stated that

[t]he crux of a negligent infliction of emotional distress claim is that [the defendants] breached some duty they owed to [the plaintiff] and that that breach injured her. ... Therefore, under this theory of recovery, a plaintiff must establish the elements of a negligence claim, i.e., that the defendant owed a duty of care to the plaintiff, the defendant breached that duty, the breach resulted in injury to the plaintiff, and the plaintiff suffered an actual loss or damage.

Weiley v. Albert Einstein Medical Center, 51 A.3d 202, 217 (Pa. Super. 2012) (quoting Toney v. Chester County Hosp., 961 A.2d 192, 198 (Pa. Super. 2008)) (internal citations and quotation marks omitted). When de-termining what constitutes a contractual or fiduciary relationship warrant-ing recovery for NIED, Pennsylvania courts have found that it is “ ‘prudent to limit the reach of this NIED claim to preexisting relationships involving duties that obviously and objectively hold the potential of deep emotional harm in the event of breach’ and that these ‘special relationships must encompass an implied duty to care for the plaintiff ’s emotional well-being.’ ” Id. at 218 (quoting Toney, 36 A.3d at 95)). When discussing what types of ———

2 The court notes that, in their brief, Defendants only discuss the fourth element.

22


special relationships are encompassed by this standard, the Pennsylvania Supreme Court noted in Toney, a plurality opinion, that

[i]t is impossible, and indeed would be irresponsible on our part, to create an exhaustive list of qualifying relationships in this opinion. Rather, we find it prudent to leave the legal question of whether a sufficient duty exists to our trial judges to decide on a case-by-case basis, at some point prior to trial, be it preliminary objections, summary judgment, or the like.[ ]

Nonetheless, we would hold that some relationships, includ-ing some doctor-patient relationships, will involve an implied duty to care for the plaintiff ’s emotional well-being that, if breached, has the potential to cause emotional distress result-ing in physical harm.

Toney v. Chester County Hospital, 614 Pa. 98, 117, 36 A.3d 83, 95 (2011) (emphasis added) (footnote omitted). Resolving any doubt as to whether to sustain Defendants’ demurrer in favor of Plaintiff, the court finds that Plaintiff has alleged facts sufficient to support an NIED claim under this theory. When a patient undergoes surgery, it is reasonable to conclude that her physician assumes a duty to care for her emotional well-being by per-forming the surgery with due care and by thoroughly addressing any com-plaints of abnormal, post-surgery pain. In addition, the court finds that a breach of this duty has the potential to result in a patient’s severe emo-tional distress. Here, Plaintiff alleges that Defendants breached their implied duty of care by lacerating her spleen during surgery, failing to discover their error, and failing to adequately respond to Plaintiff ’s complaints of pain during her post-operative check. Finally, Plaintiff alleges that this breach of duty has caused her continuing physical pain, emotional distress, and post-traumatic stress disorder. Thus, the court will overrule Defendants’ demurrer to Count V of the Second Amended Complaint.3

Next, the court addresses Defendants’ demurrers to Count VI and VII of Plaintiffs’ Second Amended Complaint, which assert claims for “failure to provide informed consent” and battery respectively. Before addressing the demurrers, the court will first clarify the procedural implications of Plaintiffs’ decision to assert these claims separately.———

3 The court notes that, in their brief, Plaintiffs appear to argue that they have suffi-ciently pleaded NIED claims with respect to both Plaintiff and her husband. However, in Count V of the Second Amended Complaint, Plaintiffs only assert a cause of action on behalf of Plaintiff. Plaintiffs do briefly allege that Plaintiff Stacy Cartledge suffered emotional distress after observing Plaintiff in an unconscious state. (See Second Am. Compl. ¶¶76, 87.) How-ever, the ad damnum clause in Count V seeks an award of damages for Plaintiff only. See Pa. R.C.P. No. 1021(a) (“Any pleading demanding relief shall specify the relief sought.”). In any event, it is unlikely that Plaintiff Stacy Cartledge can recover for NIED on the facts pleaded. In this regard, the court notes that Defendants did not have a contractual or fiduciary duty toward him; he suffered no physical impact; he was not in a “zone of danger” and at risk of an immediate physical injury; and he did not contemporaneously perceive the tortious injury.

23


“The [intentional] tort of battery has been described as unconsented touching that is either harmful or offensive.” Cooper ex rel. Cooper v. Lankenau Hospital, 616 Pa. 550, 563, 51 A.3d 183, 191 (2012). In addition, “[i]t has long been the law in Pennsylvania that a physician must obtain informed consent from a patient before performing a surgical or operative procedure.” Morgan v. MacPhail, 550 Pa. 202, 205, 704 A.2d 617, 619 (1997). Section 1303.504 of the Medical Care Availability and Reduction of Error (MCARE) Act (the “MCARE Act”) establishes the doctrine of informed consent.

(a) Duty of physicians.—Except in emergencies, a physi-cian owes a duty to a patient to obtain the informed consent of the patient or the patient’s authorized representative prior to conducting the following procedures:(1) Performing surgery, including the related administration of anesthesia....

(b) Description of procedure.—Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with ac-cepted medical standards of medical practice would provide.

(c) Expert testimony.—Expert testimony is required to determine whether the procedure constituted the type of pro-cedure set forth in subsection (a) and to identify the risks of that procedure, the alternatives to that procedure and the risks of these alternatives.

(d) Liability.—(1) A physician is liable for failure to obtain the informed consent only if the patient proves that receiving such informa-tion would have been a substantial factor in the patient’s deci-sion whether to undergo a procedure set forth in subsection (a).(2) A physician may be held liable for failure to seek a patient’s informed consent if the physician knowingly misrepresents to the patient his or her professional credentials, training or ex-perience.

40 P.S. §1303.504.The informed consent doctrine requires physicians to

provide patients with ‘material information necessary to deter-mine whether to proceed with the surgical or operative proce-dure or to remain in the present condition.’ Sinclair by Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137, 1140 (1993). We have

24


on several occasions defined the nature of this ‘material infor-mation.’ We have stated that the information provided by a physician must give the patient ‘a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.’ Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663, 674 (1966). Thus, a physician must ‘advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the pa-tient’s situation would consider significant in deciding wheth-er to have the operation.’ Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331, 334 (1992). A claim that a physician failed to obtain the patient’s informed consent sounds in battery.

Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 584, 798 A.2d 742, 748 (2002) (quoting Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255, 1258 (2001)(emphasis in original). Thus, there is no separate cause of action for lack of informed consent. Rather, lack of informed consent is one way to estab-lish the required elements of the intentional tort of battery. The Pennsylva-nia Supreme Court has expanded upon the relationship between informed consent and battery as follows:

In addressing the parameters of a medical battery, we have clarified that physical injury is not required, but only ‘some contact.’ Montgomery, 798 A.2d at 749. The nature of the surgeon’s contact, i.e., whether it is offensive or harmful so as to constitute a battery, depends on whether the patient gave consent, as consent to being touched is a defense to battery. Id. Accordingly, surgery performed without the patient’s consent constitutes an intentional and offensive touching, and satisfies the elements of battery. No intent to harm the patient need be established.

Cooper, supra at 564, 51 A.3d at 191.For the above reasons, the court will analyze Defendants’ demurrers

to Counts VI and VII together, since Plaintiff ’s claim asserting lack of in-formed consent is merely an element of her overarching claim for battery. Plaintiff alleges that Defendants “failed to adequately and properly advise [her] regarding the procedure, the risks and benefits of said procedure and failed to otherwise provide sufficient information for [her] to make an in-formed decision.” (Second Am. Compl ¶89.) Taken in context, these allega-tions clearly refer to Defendants’ failure to inform Plaintiff of the possibil-ity of sustaining an injury to her spleen and the medical complications that could result from such an injury. As noted in the MCARE Act, expert testimony will be required to determine whether Defendants had a duty to inform Plaintiff of these particular risks before performing the surgery at issue. Thus, at this stage, Plaintiff has sufficiently pleaded a claim for bat-

25


tery based on the doctrine of informed consent, and Defendants’ demurrer to Plaintiff ’s battery claim asserted in Count VII of the Second Amended Complaint will be overruled. However, since failure to provide informed consent is merely an element of a claim for battery and not an independent cause of action, the court will sustain Defendants’ demurrer to Count VI of the Second Amended Complaint but will grant Plaintiff leave to file an amended complaint to consolidate the allegations contained in Counts VI and VII into a single count for battery.

Finally, the court will address Defendants’ objection to the allegations of recklessness and reckless conduct in Plaintiffs’ Second Amended Com-plaint. Plaintiffs’ use of such language is clearly intended to establish their entitlement to a punitive damages award. A motion to strike impertinent matter is the appropriate means for challenging the legality of damages sought in a complaint. See Hudock v. Donegal Mutual Insurance Company, 438 Pa. 272, 277 n.2, 264 A.2d 668, 671 n.2 (1970). Pennsylvania Rule of Civil Procedure 1028(a)(2) allows for any party to file a preliminary objec-tion on the ground of “inclusion of ... impertinent matter[.]” Pa. R.C.P. No. 1028(a)(2). “To be ... impertinent, the allegations must be immaterial ... to the proof of the cause of action.” Common Cause/Pennsylvania v. Com-monwealth, 710 A.2d 108, 115 (Pa. Commw. 1998).

In Pennsylvania, ‘punitive damages are awarded for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifferen[ce] to the interests of others.’ Judge Technical Servs., Inc. v. Clancy, 813 A.2d 879, 889 (Pa. Super.2002) (emphasis and internal quotation marks omitted). ‘[P]unitive damages are penal in nature and are proper only in cases where the defendant’s actions are so outrageous as to demonstrate willful, wanton or reckless conduct.’ Empire Trucking, 71 A.3d at 937 (quoting Hutchison v. Luddy, 582 Pa. 114, 870 A.2d 766, 770 (2005)). ‘The state of mind of the actor is vital. The act, or the failure to act, must be intentional, reck-less or malicious.’ Hutchison, 870 A.2d at 770.

Sears, Roebuck & Co. v. 69th Street Retail Mall, L.P., 126 A.3d 959, 983 (Pa. Super. 2015). For purposes of awarding punitive damages, Pennsyl-vania law requires a specific type of recklessness defined in comment a to Section 500 of the Restatement (Second) of Torts. Hutchison ex rel Hutchi-son v. Luddy, 582 Pa. 114, 123, 870 A.2d 766, 771 (2005). Under that definition, a person acts with recklessness where he “knows, or has reason to know, ... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk.” Id. at 122-23, 870 A.2d at 771 (quoting Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088, 1097 (1985)). Therefore, “a punitive damages claim must be supported by evi-dence sufficient to establish that (1) a defendant had a subjective apprecia-

26


tion of the risk of harm to which the plaintiff was exposed and that (2) he acted, or failed to act, as the case may be, in conscious disregard of that risk.” Id. at 124, 870 A.2d at 772. Section 1303.505 of the MCARE Act codifies the common-law elements of a punitive damages claim in relation to a medical malpractice action as follows:

(a) Award.—Punitive damages may be awarded for con-duct that is the result of the health care provider’s willful or wanton conduct or reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the health care provider’s act, the nature and extent of the harm to the patient that the health care provider caused or intended to cause and the wealth of the health care provider.

(b) Gross negligence.—A showing of gross negligence is insufficient to support an award of punitive damages.

40 P.S. §1303.505(a)-(b).Here, Plaintiff alleges that Defendants negligently performed her

surgery, failed to discover their error, and failed to take appropriate measures to identify the root cause of her complaints of weakness and increased pain at her post-operative check. In Wagner v. Onofrey, the Court of Common Pleas of Lackawanna County was faced with a similar factual scenario, discussing it as follows:

Instantly, the plaintiff contends that Dr. Onofrey’s failure to prescribe antibiotics, order further studies or request an in-fectious disease consult upon being advised of the decedent’s 100 [degree] temperature and possible signs of infection ... constituted outrageous, willful, wanton, malicious or reckless conduct. We find that the plaintiff ’s malpractice allegations amount to nothing more than ordinary negligence and are insuf-ficient to support an award of punitive damages.

Wagner v. Onofrey, No. 03 CV 403, 2006 WL 3704801, at *6 (Ct. Com. Pl. Nov. 30, 2006). Here, the court finds that Plaintiffs’ allegations, viewed in the light most favorable to them, demonstrate gross negligence on the part of Defendants, at best, and are insufficient to support an award of punitive damages. Moreover, because Plaintiffs do not request punitive damages in their Second Amended Complaint, and because recklessness is not required to be proven to establish negligence, the allegations are mere surplusage and, thus, impertinent. For these reasons, the allegations of recklessness and reckless conduct will be stricken from Plaintiffs’ Second Amended Complaint.

WHEREFORE, the court enters the following:

27


ORDER

AND NOW, this 26th of March, 2018, the “Preliminary Objections of the Defendants, J. Alberto Bastidas, M.D., Atul K. Amin, M.D., and Amin Bastidas Cosmetic & Plastic Surgery Center, to the Plaintiffs’ Second Amended Complaint” (“POs”), filed on September 25, 2017, are hereby SUSTAINED, in part. It is hereby ORDERED as follows:

1.) Count IV of the Second Amended Complaint is hereby DISMISSED, without prejudice to Plaintiffs arguing the doctrine of res ipsa loquitur at trial;

2.) Count VI of the Second Amended Complaint is hereby DISMISSED;

3.) All references to recklessness and reckless conduct are hereby STRICKEN from the Second Amended Complaint and;

4.) In all other respects, Defendants’ POs are hereby OVERRULED.Plaintiffs are granted leave to file an amended complaint, in accor-

dance with this court’s Opinion, within twenty (20) days.

28


29

Skeptics say she will never start her own company.

A lawyer says she will.

She is denied her loan.

A lawyer helps her get one.

She can’t get a lease for office space.

A lawyer sees to it that she does.

She needs a business plan.

A lawyer helps her draft one.

Skeptics said she would never start her own company.

A lawyer helped her prove them wrong.

You have rights. Lawyers protect them.Pennsylvania Bar Association

Northampton County Bar Association


30

NORTHAMPTON COUNTY REPORTER

17


6639


Lawyers Concerned For LawyersLawyers Only Recovery Meetings

Substance Use Only Recovery Meetings

Allegheny CountyBerks CountyLackawanna County

Substance Use and Mental HealthRecovery Meetings:

Delaware CountyErie CountyCumberland CountyMontgomery CountyNorthampton CountyPhiladelphia CountyCentre CountyWashington County

These are “closed meetings”—that is, only lawyers recovering from or trying to recover from alcohol, other drug or gambling problems may attend.

Stress, Anxiety and DepressionFor more information, time and location of these

meetings, call the LCL Administrative Office(1-800-335-2572)

or the Confidential Lawyers’ Helpline

(1-888-999-1941).


31

Northampton County Bar Association

Notification of Change Form

In order to maintain up-to-date information on all members and subscribers of the Reporter, complete the form below and return it to the NCBA Office whenever you have a change and/or addition to your address, telephone number, fax number or e-mail address. Return to: Northampton County Bar Association, 155 South Ninth Street, Easton, PA 18042-4399, FAX: (610) 258-8715.

Previous information:

NAME _____________________________________________________________________

ADDRESS ___________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

TELEPHONE ______________________________ FAX _____________________________

E-MAIL ____________________________________________________________________

New information:

NAME _____________________________________________________________________

ADDRESS ___________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

___________________________________________________________________________

TELEPHONE ______________________________ FAX _____________________________

E-MAIL ____________________________________________________________________

DELI TO: VER

PERIODICAL PUBLICATION* Dated Material. Do Not Delay. Please Deliver Before Monday, July 15, 2019

VOL. LX EASTON, PA July 11, 2019 NO. 80 Jennifer ......ACHENBACH, KEVIN H., dec’d. Late of Northampton County, PA Co-Administrators: Roxan C. Greenzweig and Michael Achenbach c/o

Documents