Before: Honorable Dan Pellegrini, Judge, Honorable Rochelle S. Friedman, Judge, Honorable Samuel L. Rodgers, Senior Judge. Opinion BY Judge Pellegrini. Senior Judge Rodgers Dissents.
The opinion of the court was delivered by: Pellegrini
OPINION BY JUDGE PELLEGRINI
Before this court is the Commonwealth of Pennsylvania, Medical Professional Liability Catastrophe Loss Fund's and Thomas Callahan's, as Director of the CAT Fund, (collectively, CAT Fund) Motion for Summary Judgment and Margaret Connolly's (Mrs. Connolly) Cross-Motion for Partial Summary Judgment. For the reasons set forth below, we grant the CAT Fund's Motion for Summary Judgment and deny Mrs. Connolly's Cross-Motion for Partial Summary Judgment.
Mrs. Connolly filed a complaint in our original jurisdiction *fn1 against the CAT Fund requesting a declaratory judgment that the CAT Fund was required to defend her in an action previously concluded in the United States District Court for the Eastern District of Pennsylvania (District Court) and, because it did not, requesting an award of damages for the costs and attorney's fees she incurred in defending herself.
The underlying action for which Mrs. Connolly is alleging a duty to defend by the CAT Fund was filed in the District Court in 1992. Anthony Semeraro, as executor of the estate of his wife, Lilla Semeraro, brought an action against the estate of Mrs. Connolly's husband, John M. Connolly, Jr., M.D. (Dr. Connolly), his medical practice, which was organized as a professional corporation, and Mrs. Connolly. The Semeraro complaint alleged that Dr. Connolly negligently treated Lilla Semeraro in 1984, while she was suffering from mental and physical problems related to Alzheimer's disease, and that he failed to inform her that she needed follow-up care for cancer, resulting in her death. As to Mrs. Connolly, the Semeraro complaint alleged that she was an employee and corporate officer of the professional corporation. Exhibit A to the Complaint, p. 2, P 5.
Count Six of the Semeraro complaint, the one against Mrs. Connolly, averred as follows:
80. As of July 1987, Defendant [Mrs.] Connolly was aware that her husband, John M. Connolly, Jr., M.D. was suffering from severe mental, physical and visual deficits as a result of what was diagnosed as Alzheimer's Disease.
82. From June, 1987 through May, 1988, Defendant [Mrs.] Connolly unofficially directed the operation of Dr. Connolly's professional corporation which was the entity through which Dr. Connolly had provided medical services to Lilla L. Semeraro.
83. During that time period, Defendant [Mrs.] Connolly failed to notify any of Dr. Connolly's former patients, including Lilla L. Semeraro, or any physician who had referred patients to Dr. Connolly, of the nature of, severity of and/or duration of Dr. Connolly's disabilities.
84. At all times subsequent to June, 1987, Defendant [Mrs.] Connolly has known and appreciated the manner and extent to which her husband's disabilities compromised his abilities to practice medicine and to perform diagnostic procedures such as colonoscopies and to otherwise properly treat and diagnose colorectal cancer.
85. In or about May, 1988, Defendant [Mrs.] Connolly became an officer and employee of Dr. Connolly' [sic] professional corporation and thereafter officially continued to operate the professional corporation.
87. At all times subsequent to May, 1988, as an officer and employee of the professional corporation, Defendant [Mrs.] Connolly had an independent affirmative duty to notify Dr. Connolly's former patients, including Plaintiff's Decedent, and their referring physicians of the nature ...