HomeMy WebLinkAbout94-6724 CivilPAUL BALLOD,
Plaintiff
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DEPARTMENT OF CORRECTIONS;
JOHN ZAVAKI, M.D.;
CARL HOFFMAN, D.O.;
JOHN LESNIEWSKI, M.D.;
MUHAIL KONDASH, M.D.; and
HERBERT FELLERMAN,~ M.D.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-6724 CIVIL TERM
IN RE: PLAINTIFF'S MOTION TO AMEND AND MOTION
FOR LRAVE TO AMEND MOTION TO AMEND
BEFORE SHEELY, P.J., HESS and OLER, JJ.
ORDER OF COURT
AND NOW, this ~Ql~ay of April, 1997, upon consideration of
Plaintiff's Motion To Amend [the Complaint] and Motion for Leave To
Amend Motion To Amend [the Complaint], and for the reasons stated
in the accompanying opinion, Plaintiff's motions are DENIED.
BY THE COURT,
J.~Wesley Oler~
Paul Ballod, AM-2502
State Correctional Institution
at Dallas
Drawer K, I-Block
Dallas, PA 18612-0286
Plaintiff, Pro Se
Jay W. Stark, Esq.
Sr. Deputy Attorney General
Office of Attorney General
Torts Litigation Section
15th Fl., Strawberry Square
Harrisburg, PA 17120
Attorney for Commonwealth
of Pennsylvania, Department
of Corrections
Fred T. Howe, Esq.
Joseph A. Quinn, Jr., Esq.
Suite 700 - Mellon Bank Center
8 West Market Street
Wilkes-Barre, PA 18701-1867
Attorneys for Defendants
Zavaki and Fellerman
Jack M. Hartman, Esq.
One Keystone Plaza, Suite 107
Front and Market Streets
P.O. Box 786
Harrisburg, PA 17108-0786
Attorney for Defendants
Hoffman and Lesniewski
Richard B. Wickersham, Esq.
315 North Front Street
P.O. Box 741
Harrisburg, PA 17108-0741
Attorney for Defendant Kondash
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PAUL BALLOD,
Plaintiff
DEPARTMENT OF CORRECTIONS;
JOHN ZAVAKI, M.D.; :
CARL HOFFMAN, D.O.; :
JOHN LESNIEWSKI, M.D.; :
MUHAIL KONDASH, M.D.; and :
HERBERT FELLERMAN, M.D., :
Defendants :
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
NO. 94-6724 CIVIL TERM
IN RE: PLAINTIFF'S MOTION TO AMEND AND MOTION
FOR LEAVE TO AMEND MOTION TO AMEND
BEFORE SHEELY, P.J., HESS and OLER, JJ.
OPINION and ORDER OF COURT
Oler, J., April 17, 1997.
In this civil case, a state prisoner has sued various parties
for negligent medical malpractice and related violations of his
constitutional rights. Presently under consideration are
Plaintiff's Motion To Amend [the Complaint] and Motion for Leave To
Amend Motion To Amend [the Complaint]. For the reasons stated in
this opinion, Plaintiff's motions will be denied.
STATEMENT OF FACTS
Plaintiff is an inmate who allegedly received medical
treatment while incarcerated at the State Correctional Institution
at Dallas, Pennsylvania.
case.
Named as defendants
Plaintiff is proceeding pro se in this
in Plaintiff's complaint were the
Department of Corrections and Doctors John Zavaki, Carl Hoffman,
John Lesniewski, Muhail Kondash, and Herbert Fellerman. The
complaint alleged that Plaintiff was treated by Defendant Zavaki
NO. 94-6724 CIVIL TERM
from September 1980 to June 1987,~ by Defendant Hoffman from
September 1987 until December 1992,2 by Defendant Lesniewski from
October 1989 to March 1992,3 and by Defendant Fellerman from
December 1992 to March 1993.4 It alleged that Defendant Kondash
refused to treat Plaintiff in December of 1992.5
The complaint, which claimed that Plaintiff had developed
stretch marks in connection with a psoriasis condition, asserted
three causes of action against the Defendant doctors, summarized in
the pleading as follows:
The above Doctors have not used the proper
degree of skill and care of their professions
and have not used the judgment of a reasonable
man under like circumstances and were
negligent for which I ask for unliquidated
compensatory damages.6
Ail of the above Doctors have violated my 8th
amendment right under the United States
Constitution to be free from cruel and unusual
punishment also, my Article 1 § 13
Pennsylvania Constitutional right for which I
ask for compensatory damages in the amount of
twenty thousand $20,000 dollars.?
Plaintiff's Complaint, paragraph 2.
Plaintiff's Complaint, paragraph 3.
Plaintiff's Complaint, paragraph 4.
Plaintiff's Complaint, paragraph 6.
Plaintiff's Complaint, paragraph 5.
Plaintiff's Complaint, paragraph 51.
Plaintiff's Complaint, paragraph 52.
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NO. 94-6724 CIVIL TERM
Ail of the above Doctors violated my
substantive due process rights under the 14th
amendment to the United States Constitution to
be informed of the treatment and viable
alternatives for which I ask for compensatory
damages in the amount of five thousand $5,000
dollars.8
The complaint asserted one cause of action against Defendant
Department of Corrections, summarized in the pleading as follows:
The Department of Corrections is responsible
for my medical care and under Title 42 Pa.
C.S.A. § 8522(b)(2) has waived sovereign
immunity to this action for which I ask for
unliquidated compensatory damages.9
By an order dated August 16, 1996, accompanied by an opinion,
the court granted summary judgment in favor of Defendants Hoffman
and Lesniewski. The grant of summary judgment followed an order,
dated May 2, 1996, by the Honorable Kevin A. Hess of this court
imposing sanctions against Plaintiff, pursuant to Rule 4003.5 of
the Pennsylvania Rules of Civil Procedure. The sanctions precluded
Plaintiff from presenting expert testimony against Defendants
Hoffman and Lesniewski.
The grant of summary judgment was premised upon two
considerations. First, without expert testimony Plaintiff could
not establish his claim of negligent malpractice against Defendants
Hoffman and Lesniewski. Second, because Plaintiff's claims of a
constitutional nature were substantially inseparable from his
Plaintiff's Complaint, paragraph 53.
Plaintiff's Complaint, paragraph 54.
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NO. 94-6724 CIVIL TERM
malpractice claim, and since negligent malpractice could not be
said to rise to the level of an 8th or 14th amendment violation of
an inmate's rights, Plaintiff also could not establish his
constitutional claims against Defendants Hoffman and Lesniewski.
Plaintiff's Motion To Amend [the Complaint] reads as follows:
Comes now Paul Ballod, pursuant to
Pennsylvania Rules of Civil Procedure Rule
1033 and states the following in support of
his motion to amend.
1. None of the defendants have refuted
my main contention that they breached a
confidential relationship and therefore I
should be allowed to change the form of action
to equity.
2. Paragraph 21 should read "Doctors
Zavacki, Hoffman, Lesniewski treated
plaintiff's psoriasis and adrenal
insufficiency with the intention to harm the
plaintiff because of his complaints about his
medical condition and the other doctors
misrepresented plaintiff's injuries."
WHEREFORE, this Honorable Court should
allow this amendment.
Plaintiff's Motion for Leave To Amend Motion To Amend [the
Complaint] reads as follows:
Comes now, Paul Ballod, pursuant to
Pennsylvania Rules of Civil Procedure Rule
1033 and Federal Rules of Civil Procedure
15(c) and states the following in support of
his motion to amend.
1. None of the defendants have refuted
my main contention that they breached a
confidential relationship and therefore I
should be allowed to change the form of action
to equity.
NO. 94-6724 CIVIL TERM
2. Paragraph 21 should read "Doctors
Zavacki, Hoffman, Lesniewski treated
plaintiff's psoriasis and adrenal
insufficiency with the intention to harm the
plaintiff because of his complaints about his
medical condition and the other doctors
misrepresented plaintiff's injuries."
3. In my original motion to amend I did
not include Federal Rules of Civil Procedure
15(0).
WHEREFORE, this Honorable Court should
allow these amendments.
DISCUSSION
Amendment of pleadinqs in qeneral. As a general rule, "[a]
party ... may at any time change the form of action, correct the
name of a party or amend his pleading." Pa. R.C.P. 1033. "A
motion to amend a pleading is addressed to the sound discretion of
the ... court ... [and the] court should liberally allow amendments
.... " Sejpal v. Corson, Mitchell, Tomhave, & McKinley, M.D.'s,
Inc., 445 Pa. Super. 427, 431, 665 A.2d 1198, 1200 (1995). On the
other hand, where a proposed amendment would be unproductive in a
legal sense there is no requirement that the amendment be
permitted.
For example, "[w]here a proposed amendment introduces a new
and different cause of action after the statute of limitations has
run, the amendment will not be permitted." Jaindl v. Mohr, 432 Pa.
Super. 220, 229, 637 A.2d 1353, 1358 (1994), afl'd, 541 Pa. 163,
661A.2d 1362. "An amendment states a new cause of action where
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NO. 94-6724 CIVIL TERM
the amendment rests on a different legal theory, basis for recovery
or relationship between the parties than did the original
pleading." American Motorists Ins. Co. v. Farmers Bank and Trust
Co. of Hanover, 435 Pa. Super. 54, 60, 644 A.2d 1232, 1235 (1994).
Request to transfer case from law to equity. Regarding
Plaintiff's request to transfer the case from law to equity, it may
be observed that the use of a term such as "confidential
relationship" does not in itself create an action in equity. "It
is well settled in Pennsylvania that a suit in equity will not lie
where a plain, adequate, and complete remedy at law may be had."
Stuyvesant Ins. Co. v. Keystate Ins. Agency, Inc., 420 Pa. 578,
580-81, 218 A.2d 294, 296 (1966). Therefore, a party will be
denied permission to proceed in equity where a legal remedy has
been ignored, where a legal remedy has been pursued with
unsatisfactory results, or where a legal remedy has already been
asserted and is in the process of being resolved. Nagle v.
Pennsylvania Ins. Dept., 46 Pa. Commw. 621, 634, 406 A.2d 1229,
1237 (1979). In Plaintiff's complaint, filed as an action at law,
he requested compensatory damages for negligent medical treatment
and constitutional violations arising from the negligent medical
treatment. Plaintiff has not changed the remedy requested, nor has
he asserted a basis for equitable relief. The court is not in a
position, therefore, to transfer the action from law to equity.
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NO. 94-6724 CIVIL TERM
Request to asSert cause of action for intentional harm.
Plaintiff's complaint as initially filed asserted a cause of action
against Defendants arising from allegedly negligent medical
treatment. Plaintiff seeks to amend the complaint to add facts
tending to support a cause of action for an intentional subjection
of Plaintiff to physical harm by Defendants Zavaki, Hoffman, and
Lesniewski.~° A cause of action for negligent medical treatment
involves proving that a defendant owed a duty to the plaintiff,
that the defendant breached that duty, that the plaintiff suffered
an injury, and that the breach of duty was both a cause in fact and
a proximate cause of the plaintiff's injury. Promubo v. Hackett,
Pa. Super. __, , 686 A.2d 417, 420 (1996). In contrast, a
cause of action for an intentional infliction of personal injury
involves proving that a defendant intentionally caused the
plaintiff to suffer the harm alleged. See Herr v. Booten, 398 Pa.
Super. 166, 170, 580 A.2d 1115, 1117 (1990). These two causes of
action rest on different legal theories and require proof of
~0 Included with Plaintiff's allegation of intentional harm
against Defendants Zavaki, Hoffman, and Lesniewski is the further
assertion that "the other doctors misrepresented plaintiff's
injuries." Plaintiff's Motion To Amend, paragraph 2; Plaintiff's
Motion for Leave To Amend Motion To Amend, paragraph 2. It is
noted that Plaintiff had already alleged in various places in his
complaint the specific ways in which Defendant doctors allegedly
misrepresented his condition by not telling him about the cause of
his condition, failing to warn him about side effects, and failing
to properly diagnose him. Plaintiff's Complaint, paragraphs 9, 11,
14, 17, 19, 22, 23, 25, 26, 32, 34, 35, 37, 38, 43, 46, 49. The
addition of this wording to the complaint would be superfluous.
NO. 94-6724 CIVIL TERM
different facts. It follows that Plaintiff's proposed amendment
would add a new cause of action to the complaint.
The statute of limitations for an intentional infliction of
personal injury is two years. Act of July 9, 1976, P.L. 586, § 2,
42 Pa. C.S.A. § 5524. Plaintiff avers in his complaint that
Defendant Zavaki's medical treatment of his condition ended in
1987, that Defendant Hoffman's treatment ended in 1992, and that
Defendant Lesniewski's treatment also ended in 1992. The two-year
statute of limitations for bringing an action against these
Defendants for intentional infliction of physical harm has
therefore already run. The statute of limitations is thus a
compelling reason for denial of Plaintiff's request to amend the
complaint by the addition of a claim for intentional injury.~
~ Even if Plaintiff's amendment could be construed as stating
a claim under 42 U.S.C. § 1983, such a claim would also be a new
cause of action barred by the applicable statute of limitations.
The United States Supreme Court has noted that negligent medical
treatment does not state a cause of action under 42 U.S.C. § 1983.
Estelle v. Gamble, 429 U.S. 97, 105-06, 97 S. Ct. 285, 292, 50 L.
Ed. 2d 251, 261 (1976). Therefore, the addition of a claim under
42 U.S.C. § 1983 to Plaintiff's complaint would constitute a new
cause of action.
The statute of limitations which is applied to actions
brought under 42 U.S.C. § 1983 "is the state statute which is
applicable to the conduct alleged to have violated the plaintiff's
civil rights." Moore v. McComsey, 313 Pa. Super. 264, 268, 459
A.2d 841, 843 (1983). A two-year statute of limitations applies to
"action[s] to recover damages for injuries to the person ... caused
by the wrongful act ... of another." Act of July 9, 1976, P.L.
586, § 2, 42 Pa. C.S.A. § 5524(2). Therefore, the statute of
limitations for bringing the instant type of action under 42 U.S.C.
S 1983 is two years, and the two years has run as to all the
defendants.
NO. 94-6724 CIVIL TERM
In addition, with particular reference to Defendants Hoffman
and Lesniewski, a motion for summary judgment was granted in their
favor on August 16, 1996. Under Pennsylvania Rule of Civil
Procedure 1020(d)(1), Plaintiff was required to join in his
complaint all causes of action arising out of the same transaction
or occurrence against a given defendant. Plaintiff's failure to
join in his complaint the claims now being advanced prior to the
disposition of the summary judgment motion constituted a waiver of
those claims as to those defendants. See Pa. R.C.P. 1020(d)(4)
[failure to join cause of action as required by Pa. R.C.P.
1020(d)(1) "shall be deemed a waiver of that cause of action"].
For this additional reason, it would be inappropriate to grant
Plaintiff's request to amend the complaint as to Defendants Hoffman
and Lesniewski.
Request to incorporate Federal Rule of Civil Procedure 15(c)
in complaint. Regarding Plaintiff's request that Federal Rule of
NO. 94-6724 CIVIL TERM
Civil Procedure 15(c) be incorporated in the complaint,~2 it is
Federal Rule of Civil Procedure 15(c) reads as follows:
(c) RELATION BACK OF AMENDMENTS. An
amendment of a pleading relates back to the
date of the original pleading when
(1) relation back is permitted
by the law that provides the statute
of limitations applicable to the
action, or
(2) the claim or defense
asserted in the amended pleading
arose out of the conduct,
transaction, or occurrence set forth
or attempted to be set forth in the
original pleadings, or
(3) the amendment changes the
party or the naming of the party
against whom a claim is asserted if
the foregoing provision (2) is
satisfied and, within the period
provided by Rule 4(m) for service of
the summons and complaint, the party
to be brought in by amendment (A)
has received such notice of the
institution of the action that the
party will not be prejudiced in
maintaining a defense on the merits,
and (B) knew or should have known
that, but for a mistake concerning
the identity of the proper party,
the action would have been brought
against the party.
The delivery or mailing of
process to the United States
Attorney, or United States
Attorney's designee, or the Attorney
General of the United States, or an
agency or officer who would have
been a proper defendant if named,
satisfies the requirement of
subparagraphs (A) and (B) of this
paragraph (3) with respect to the
United States or any agency or
officer thereof to be brought into
the action as a defendant.
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NO. 94-6724 CIVIL TERM
noted that the Federal Rules of Civil Procedure "govern the
procedure in the United States district courts in all suits of a
civil nature." Fed. R. Civ. Proc. 1. This case is not in a
federal district court, and the rule in question has not been
adopted by the Commonwealth's courts.
For the foregoing reasons, the following order will be
entered:
ORDER OF COURT
AND NOW, this 17th day of April, 1997, upon consideration of
Plaintiff's Motion To Amend [the Complaint] and Motion for Leave To
Amend Motion To Amend [the Complaint], and for the reasons stated
in the accompanying opinion, Plaintiff's motions are DENIED.
BY THE COURT,
s/ J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
Paul Ballod, AM-2502
State Correctional Institution
at Dallas
Drawer K, I-Block
Dallas, PA 18612-0286
Plaintiff, Pro Se
Jay W. Stark, Esq.
Sr. Deputy Attorney General
Office of Attorney General
Torts Litigation Section
15th Fl., Strawberry Square
Harrisburg, PA 17120
Attorney for Commonwealth
of Pennsylvania, Department
of Corrections
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NO. 94-6724 CIVIL TERM
Fred T. Howe, Esq.
Joseph A. Quinn, Jr., Esq.
Suite 700 - Mellon Bank Center
8 West Market Street
Wilkes-Barre, PA 18701-1867
Attorneys for Defendants
Zavaki and Fellerman
Jack M. Hartman, Esq.
One Keystone Plaza, Suite 107
Front and Market Streets
P.O. Box 786
Harrisburg, PA 17108-0786
Attorney for Defendants
Hoffman and Lesniewski
Richard B. Wickersham, Esq.
315 North Front Street
P.O. Box 741
Harrisburg, PA 17108-0741
Attorney for Defendant Kondash
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