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JOSEPH WAREHAM v. GLENN JEFFES AND DAVID LARKIN AND GIL WALTERS AND STANLEY GABRIEL AND JOHN STEPANIK AND GEORGE PETSOCK AND JAMES WIGTON AND JOSEPH MORRASH AND ROBERT MARONEY AND RONALD MARKS AND WILLIAM KELSEY AND COMMONWEALTH PENNSYLVANIA (09/19/89)

decided: September 19, 1989.

JOSEPH WAREHAM, APPELLANT,
v.
GLENN JEFFES AND DAVID LARKIN AND GIL WALTERS AND STANLEY GABRIEL AND JOHN STEPANIK AND GEORGE PETSOCK AND JAMES WIGTON AND JOSEPH MORRASH AND ROBERT MARONEY AND RONALD MARKS AND WILLIAM KELSEY AND COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CORRECTIONS, APPELLEES. JOSEPH WAREHAM V. GLENN JEFFES AND DAVID LARKIN AND GIL WALTERS AND STANLEY GABRIEL AND JOHN STEPANIK AND GEORGE PETSOCK AND JAMES WIGTON AND JOSEPH MORRASH AND ROBERT MARONEY AND RONALD MARKS AND WILLIAM KELSEY AND BUREAU OF CORRECTIONS AND COMMONWEALTH OF PENNSYLVANIA, APPEAL OF COMMONWEALTH OF PENNSYLVANIA, BUREAU OF CORRECTIONS AND JOSEPH MORRASH



Appeal from Common Pleas Court, Philadelphia County, Honorable Murray C. Goldman, Judge.

COUNSEL

Harry M. Roth, Raynes, McCarty, Binder, Ross & Mundy, and Kevin P. McCarty, Philadelphia, for appellant.

Alexis Barbieri, Deputy Atty. Gen., Norristown, Alton G. Grube, Office of Atty. Gen., Deputy Atty. Gen. and LeRoy S. Zimmerman, Atty. Gen., Philadelphia, for appellees.

Crumlish, Jr., President Judge,*fn* and Colins and Smith, JJ.

Author: Colins

[ 129 Pa. Commw. Page 130]

Joseph Wareham (Wareham) appeals from orders of the Philadelphia County Court of Common Pleas dated September 9, 1987. These orders denied Wareham's post-trial motions for judgment non obstante verdicto, new trial and delay damages and granted cross-appellants', Joseph Morrash (Morrash) and the Commonwealth of Pennsylvania (Commonwealth), Bureau of Corrections'*fn1 (Bureau), motion for judgment non obstante verdicto.*fn2

Wareham was incarcerated at the State Correctional Institute at Dallas, Pennsylvania (SCID) on August 25, 1980, when he was seriously injured during an attack by other inmates.*fn3 He was taken to Nesbitt Memorial Hospital, Kingston, Pennsylvania, for surgical treatment and following his discharge on September 11, 1980, was transferred to the infirmary of the State Correctional Institute at Pittsburgh, Pennsylvania (SCIP). Wareham received some medical treatment and physical therapy while at the SCIP infirmary prior to his release into the general prison population

[ 129 Pa. Commw. Page 131]

    on October 24, 1980. The parties dispute what, if any, therapeutic treatment he received after his release. The parties further dispute whether treatment, therapeutic or otherwise, was negligent and/or in violation of his constitutional rights.

Wareham instituted suit on August 14, 1984, against Morrash, as chief health care administrator of the infirmary at SCIP, other prison officials and the Commonwealth.*fn4 Wareham initially grounded his claims on common law negligence theories alleging violations of his federal civil rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution,*fn5 and 42 U.S.C. § 1983. After Wareham withdrew certain claims and the trial court granted in part cross-appellants' motions for summary judgment, the only issues that remained for trial were: (1) Section 1983 liability against certain individual defendants for alleged inadequate protection; (2) Section 1983 and negligence claims against Morrash for alleged inadequate medical treatment; and (3) vicarious liability against the Bureau and the Commonwealth under the doctrine of respondeat superior for Morrash's alleged negligence.*fn6 The jury found, via special interrogatories, that Wareham's constitutional rights had not been violated under any of the theories and awarded damages of $260,000 to Wareham against Morrash on the inadequate medical treatment claim. The jury found that Morrash had been negligent and that such negligence caused Wareham to endure unnecessary additional pain and suffering.

Wareham filed post-trial motions seeking a new trial against certain individual defendants, the Commonwealth, and the Bureau on the inadequate protection claims brought

[ 129 Pa. Commw. Page 132]

    under 42 U.S.C. § 1983; judgment n.o.v. or a new trial against Morrash on the claim for inadequate medical treatment under 42 U.S.C. § 1983 and, delay damages. Cross-appellants filed post-trial motions seeking alternatively, a new trial, judgment n.o.v., or to have the verdict molded to reflect the statutory liability limit of $250,000 pursuant to Section 8528(b) of the Judicial Code, 42 Pa.C.S. § 8528(b). By orders dated September 9, 1987, the trial court denied Wareham's post-trial motions and granted cross-appellants' post-trial motion for judgment n.o.v. Hence, these appeals.*fn7

The issues Wareham raises in his appeal are whether the trial court erred in granting cross-appellants' motion for judgment n.o.v. in Wareham's claim for negligent medical treatment, holding that he failed to establish each and every element of his negligence claim; and, whether the trial court erred in denying Wareham's motion for judgment n.o.v. in his claim against Morrash for inadequate medical treatment brought pursuant to 42 U.S.C. § 1983. The sole issue cross-appellants raise is whether the trial court erred in refusing to grant summary judgment or direct a verdict in their favor with respect to the issue of sovereign immunity.*fn8

In considering a motion for judgment n.o.v., the court must view the evidence received and all reasonable inferences drawn therefrom in a light most favorable to the verdict winner. The court can enter judgment n.o.v. only if no two reasonable persons could fail to agree that the verdict is improper. Ruparcich v. Borgman, 119 Pa. Commonwealth Ct. 640,

[ 129 Pa. Commw. Page 133547]

A.2d 1279 (1988); Northwest Sav. Ass'n v. Distler, 354 Pa. Superior Ct. 187, 511 A.2d 824 (1986).*fn9

The trial court granted cross-appellants' motion for judgment n.o.v. based upon its finding that Wareham failed to sustain his burden of proving a prima facie case of negligence.*fn10 Specifically, the trial court held that Wareham failed to show that Morrash had a duty under the law to provide the recommended treatment and that he failed to show a sufficient causal connection between the conduct complained of and his injuries. Wareham's theory of negligence against Morrash is based on his negligent administration of medical treatment to Wareham in light of his serious medical needs. The trial court opined that the jury could not and should not have inferred negligence since the evidence was insufficient to conclude that Morrash had ...


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