Rambo v. Greene

• Decision Date: 23 August 2006
• Citation: 906 A.2d 1232
• Parties: Kelly RAMBO and Philip J. Berg, in the Superior Court of Esquire, Appellants, v. Ronald B. GREENE, M.D. and Ronald B. Greene, M.D., P.C., Appellees.
• Court: Pennsylvania Superior Court

906 A.2d 1232

Kelly RAMBO and Philip J. Berg, in the Superior Court of Esquire, Appellants, v. Ronald B. GREENE, M.D. and Ronald B. Greene, M.D., P.C., Appellees.

Superior Court of Pennsylvania.

Argued June 6, 2006.

Filed August 23, 2006.

Philip J. Berg, LaFayette Hill, for appellants.

Andrew W. Bonekemper, Lansdale, for appellees.

BEFORE: JOYCE, MUSMANNO, and KELLY, JJ.

OPINION BY JOYCE, J.:

¶ 1 Kelly Rambo (Rambo) and Philip J. Berg, Esquire (Berg)¹ appeal from the order entered July 15, 2005, in the Philadelphia County Court of Common Pleas that dismissed their complaint against Ronald B. Greene, M.D. and Ronald B. Greene, M.D., P.C. (collectively "Greene"). Upon review, we reverse and remand for further proceedings consistent with this opinion. The relevant facts and procedural history of this matter are as follows.

¶ 2 On September 20, 1999, Rambo sustained an ankle injury and was treated by Dr. Paul Hecht. Dr. Hecht subsequently performed surgery on the ankle. Thereafter, Rambo instituted a medical malpractice lawsuit against Dr. Hecht in which she averred his treatment fell below the applicable standard of care.

¶ 3 During this time, Rambo sought treatment from Greene. Greene evaluated her condition, rendered treatment, and prepared two expert reports in preparation for Rambo's suit against Dr. Hecht. The record reveals that Greene received payment for the expert reports, dated November 27, 2001 and July 1, 2003, respectively. However, on the eve of trial, Greene refused to testify. Greene was then served a subpoena to appear, yet he remained absent. As a result of Greene's absence, Rambo's case against Dr. Hecht could not proceed, and a non-suit was entered in that medical malpractice action.

¶ 4 Thereafter, Appellants filed a Complaint against Greene. Greene filed preliminary objections to the Complaint, and upon review of the pleadings the trial court ruled as follows:

ORDER and MEMORANDUM

AND NOW, this 28 day of February 2005, upon consideration of Defendants' Preliminary Objections, all responses in opposition, the respective memoranda, all matters of record, and in accordance with the Opinion being filed contemporaneously with this Order, it hereby is ORDERED and DECREED that said Preliminary Objections are SUSTAINED as follows:

1. Counts I (breach of contract) and II (breach of implied contract) are dismissed pursuant to Pa.R.C.P. 1028(a)(3) for insufficient specificity. However, in the event that either Plaintiff is in possession of sufficient facts, Plaintiff(s) hereby are granted leave to amend their contractual claims within twenty (20) days from the date of entry of this Order;

2. Count III (breach of implied warranty and fair dealing) fails as a matter of law and is dismissed, as Pennsylvania recognizes no such independent cause of action;

3. Counts IV (negligence), V (fraud/fraudulent misrepresentation), VI (constructive/legal fraud), and VII (professional negligence) are barred by the gist of the action doctrine and are therefore dismissed;

4. Plaintiff Rambo has failed to state a legally cognizable claim for either negligent infliction of emotional distress (Count VIII) or intentional infliction of emotional distress (Count IX). Accordingly, these claims are dismissed; and

5. Plaintiffs have failed to set forth a valid basis to support an award of punitive damages. All references to punitive damages hereby are stricken from the Complaint.

Trial Court Order and Memorandum, 02/28/2005.

¶ 5 As noted in the February 28, 2005 memorandum, Appellants were afforded an opportunity to amend. Appellants filed their Amended Complaint and Greene again filed preliminary objections. Upon review of the amended pleadings, the trial court dismissed Appellants' complaint against Greene in its entirety due to lack of specificity. See Order and Memorandum, dated 06/30/2005, and filed 07/15/2005.²

¶ 6 On appeal, Appellants raises the following claims of error:

Whether the entry of an order sustaining preliminary objections and dismissing [Appellants'] complaint was erroneous and/or an abuse of discretion in a matter in which:

1. there existed a contract between [Greene] and his patient not only for diagnosis and treatment to rectify past medical errors made by Dr. Hecht, but to substantiate the legal remedy and compensation due to [Rambo] arising from that malpractice;

2. there existed a contract between [Greene] and [Berg] in the preparation and litigation of a valid [medical] malpractice action on behalf of Rambo, the essential component of which was the expert testimony of Greene, whose refusal to testify and the absence therefrom resulted in a directed verdict entered against Rambo in Rambo v. Hecht. 3. the components of that contract were evidenced not only in the patient-doctor contracts, the attorney-doctor correspondences and phone conversations, but in Greene's statement at a hearing related to a bench warrant for his failure to obey a subpoena and in Greene's filing his own suit for compensation related to his medical reports and advice.

Brief for Appellants, at 3.

¶ 7 Upon review of the above listed claims of error and the argument portion of Appellants' brief, we find that the issue is in fact: did the trial court err in dismissing Appellants' Amended Complaint on the grounds of lack of specificity pursuant to Pa.R.Civ.P. 1028(a)(3) with respect to the existence of a contract?³

¶ 8 We will begin by setting forth our standard of review from an appeal from the grant of preliminary objections. In determining whether the trial court properly sustained preliminary objections, the appellate court must examine the averments in the complaint, together with the documents and exhibits attached thereto, in order to evaluate the sufficiency of the facts averred. Clemleddy Constr., Inc. v. Yorston, 810 A.2d 693 (Pa.Super.2002). When sustaining the trial court's ruling will result in the denial of claim or a dismissal of suit, preliminary objections will be sustained only where the case is free and clear of doubt, and this Court will reverse the trial court's decision regarding preliminary objections only where there has been an error of law or abuse of discretion. Id.

¶ 9 Here, the trial court dismissed Appellants' Amended Complaint on the basis that it lacked specificity pursuant to Pa.R.Civ.P. 1028(a)(3). See Trial Court Order and Memorandum, 02/28/2005; and 07/17/2005.⁴

¶ 10 Rule 1028(a)(3) reads as follows:

Rule 1028. Preliminary Objections

(a) Preliminary objections may be filed by any party to any pleading and are limited to the following grounds . . . .

(3) insufficient specificity in a pleading[.]

Pa.R.Civ.P. 1028(a)(3).

¶ 11 The pertinent question under Rule 1028(a)(3) is "whether the complaint is sufficiently clear to enable the defendant to prepare his defense," or "whether the plaintiff's complaint informs the defendant with accuracy and completeness of the specific basis on which recovery is sought so that he may know without question upon what grounds to make his defense." Ammlung v. City of Chester, 224 Pa.Super. 47, 302 A.2d 491, 498 n. 36 (1973) (quoting 1 Goodrich-Amram § 1017(b)-9).

¶ 12 Foremost, it cannot be gainsaid that Greene was unable to determine the basis upon which Appellants sought recovery and upon what grounds to make his defense. The Amended complaint clearly raises claims for breach of contract and breach of an implied contract. See Amended Complaint, 03/21/2005, at 9, 11. The question then becomes whether the pleading was sufficiently specific as to the existence of either an express or implied contract.

¶ 13 Initially, we note that there is no written agreement between the parties where Greene affirmatively stated that he would testify as an expert at Rambo's trial. However, the absence of a written agreement is not necessarily fatal, because Appellants averred the breach of an implied contract. See id. at 11.

¶ 14 Under contract law, the objective manifestation of the parties is the governing factor regardless of subjective beliefs and reservations. An "actual" meeting of the minds is not necessary to form a contract. Long v. Brown, 399 Pa.Super. 312, 582 A.2d 359, 363 (1990). Id. citing Ingrassia Construction Co. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478, 482-483 (1984).

¶ 15 In Ingrassia, this Court stated "In ascertaining the intent of the parties to a contract, it is their outward and objective manifestations of assent, as opposed to their undisclosed and subjective intentions, that matter.... In the instant case, it matters not whether Walsh truly believed a contract did not exist if his manifested intent reasonably suggested the contrary to Ingrassia. Ingrassia, supra at 482-483. It follows then that in the case at bar, it does not matter if Greene did not believe there was a contract if his actions suggested the contrary to Berg and Rambo.

¶ 16 Furthermore, we note that a contract implied in fact is a contract arising when there is an agreement, but the parties' intentions are inferred from their conduct in light of the circumstances. See AmeriPro Search, Inc. v. Fleming Steel Co., 787 A.2d 988 (Pa.Super.2001).

¶ 17 We conclude that it is clear from the record that Appellants employed Greene for medical treatment and for the preparations of expert reports, which Greene in fact completed. It is from these facts that we conclude it was inferred that Greene would testify at trial according to those reports in an effort to assist the fact finder in reaching a result.

¶ 18 While Greene could certainly dispute this point and could perhaps offer myriad reasons for refusing to testify,⁵ that is not the test at this stage of the proceedings. The trial court opined that the Amended Complaint lacked specificity to support...