Liquori v. Wind Gap Chiropractic Center

75 Pa. D. & C.4th 106, 2005 Pa. Dist. & Cnty. Dec. LEXIS 87
CourtPennsylvania Court of Common Pleas, Northampton County
DecidedMarch 22, 2005
Docketno. C0048-CV2004-6159
StatusPublished

This text of 75 Pa. D. & C.4th 106 (Liquori v. Wind Gap Chiropractic Center) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Northampton County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Liquori v. Wind Gap Chiropractic Center, 75 Pa. D. & C.4th 106, 2005 Pa. Dist. & Cnty. Dec. LEXIS 87 (Pa. Super. Ct. 2005).

Opinion

MORAN, J,

STATEMENT OF REASONS

Dr. Kunkel and Wind Gap Chiropractic Center have filed preliminary objections, alleging that the defendant cannot be found negligent per se, due to the violation of the statutes cited by Frank Liquori in his complaint and counterclaim. He further objects to the overly general and vague allegations of negligence; moves to strike scandalous and impertinent matters; and moves to strike punitive damages. The parties also seek to clarify the procedural irregularity at the district justice level that has led to each party filing a complaint in this matter. Pa.R.C.P.DJ. no. 1004.

Standard of Law

In ruling upon preliminary objections, we must accept as true all well pleaded allegations and material facts averred in the complaint as well as all reasonable infer[108]*108enees deducible therefrom. Wurth v. City of Philadelphia, 136 Pa. Commw. 629, 584 A.2d 403 (1990). This court’s analysis is confined to the complaint itself. Pawlowski v. Smorto, 403 Pa. Super. 71, 588 A.2d 36 (1991). If any theory of law will support a claim, preliminary objections are not to be sustained as any doubt should be resolved against the objecting party. Foster v. Peat Marwick Main & Co., 138 Pa. Commw. 147, 587 A.2d 382 (1991).

Statement of Fact

The docket in this case contains two documents, one filed by Frank Liquori against Dr. Kunkel and the Chiropractic Center, the other filed by Dr. Kunkel against Frank Liquori, both of which are captioned as complaints. These cases began as proceedings before the district justice. In both cases, District Justice Adrianne L. Masut entered a judgment against Mr. Liquori.

The docket indicates that Mr. Liquori filed an appeal from the district justice decisions in both cases. The notice of appeal also contained a praecipe to enter rule to file complaint and rule to file. In short, this required Dr. Kunkel to file a complaint in the court of common pleas by September 7, 2004, or face a judgment of non pros. The docket reflects that Dr. Kunkel’s complaint was filed on September 7, 2004.

On September 10, 2004, Mr. Liquori filed an answer, new matter, and counterclaim to that complaint. A week earlier, on September 3,2004, Mr. Liquori had filed a complaint naming Dr. Kunkel and the Chiropractic Center as defendants. The averments contained in Mr. Liquori’s complaint and in his counterclaim are nearly identical.

[109]*109With respect to the specific averments by Mr. Liquori against Dr. Kunkel and the Chiropractic Center, he asserts they are negligent per se. He asserts that Dr. Kunkel violated 63 P.S. §625.506 and 49 Pennsylvania Administrative Code §5.81. The statute referenced by Mr. Liquori pertains to the state licensure requirements for a chiropractor generally, and the basis for suspending or revoking a license specifically. Likewise, the section of the Administrative Code referenced by Mr. Liquori pertains to the State Board of Chiropractic of the Commonwealth generally, and the basis for disciplinary action of a chiropractor by the board specifically. There is no allegation that any disciplinary action has been taken against the defendants for the treatment of Mr. Liquori.

Mr. Liquori alleges that after receiving spinal manipulations from the defendants, he suffered increased pain in his legs that immediately abated when he ceased treatment. Liquori complaint at 12; counterclaim at 44.

Discussion

When taking an appeal from a hearing before a district justice, the rules of procedure governing the proceedings state:

“When judgments have been rendered on complaints of both the appellant and the appellee and the appellant appeals from the judgment on his complaint or on both complaints, the appellee may assert his claim in the court of common pleas by pleading it as a counterclaim if it can properly be so pleaded in that court. If the appellant appeals only from the judgment on his complaint, the appellee may appeal from the judgment on his complaint at any time within 30 days after the date on which the [110]*110appellant served a copy of his notice of appeal upon the appellee.” Pa.R.C.P.DJ. no. 1004 (C).

This section governs the appeal brought by Mr. Liquori, which is now before this court. Mr. Liquori filed an appeal from both judgments entered against him by District Justice Masut. Therefore, the rules provide that he may assert his claim as a counterclaim if it can be properly pleaded in the court of common pleas. Dr. Kunkel and the Chiropractic Center filed a complaint within the time allotted by the rules. The Rules of Civil Procedure allow Mr. Liquori to raise his lawsuit by way of a counterclaim to Dr. KunkePs and the Chiropractic Center’s complaint, which is precisely what Mr. Liquori did. Mr. Liquori also filed a complaint. The Pennsylvania Rules of Civil Procedure do not permit a party to an individual to file a complaint and a counterclaim. Pa.R.C.P. 1017. Accordingly, we strike Mr. Liquori’s complaint, which is nearly identical to the counterclaim he filed to the complaint filed by Dr. Kunkel, however, the Chiropractic Center is not named as a counterclaim defendant in Liquori’s counterclaim. The caption in this case shall reflect that Dr. Kunkel is the plaintiff and Mr. Liquori is the defendant.

Negligence Per Se

In order to plead a claim based on negligence per se, a plaintiff must allege that (1) the purpose of the statute must be, at least in part, to protect the interest of a group of individuals, as opposed to the public generally; (2) the statute or regulation must clearly apply to the conduct of the defendant; (3) the defendant must violate the statute or regulation; (4) the violation of the statute or regulation must be the proximate cause of the plaintiff’s [111]*111injuries. Wagner v. Anzon Inc., 453 Pa. Super. 619, 627, 684 A.2d 570, 574 (1996); Restatement (Second) ofTorts §§286, 288.

The provisions of the Chiropractic Practice Act cited by Mr. Liquori, and the administrative regulations thereunder, deal with disciplinary actions the Board of Chiropractic may take against a chiropractor. As such, they are irrelevant to a claim of negligence by a chiropractor’s former patient. The provisions cited by Mr. Liquori do not set a standard of care and are irrelevant to this cause of action. The preliminary objections are therefore granted. All allegations of negligence per se are stricken from Mr. Liquori’s answer with new matter and counterclaim. Paragraph 64 of the counterclaim is likewise stricken insofar as there have been no allegations of immoral conduct. Immoral conduct is phraseology used in the administrative regulations for disciplinary actions against chiropractors, which are irrelevant, as well as scandalous and impertinent pursuant to Pa.R.C.P. 1028(a)(2).

Shotgun Allegations of Negligence

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Related

WURTH BY WURTH v. City of Philadelphia
584 A.2d 403 (Commonwealth Court of Pennsylvania, 1990)
Pawlowski v. Smorto
588 A.2d 36 (Superior Court of Pennsylvania, 1991)
Foster v. Peat Marwick Main & Co.
587 A.2d 382 (Commonwealth Court of Pennsylvania, 1991)
Wagner v. Anzon, Inc.
684 A.2d 570 (Superior Court of Pennsylvania, 1996)
Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc.
474 A.2d 605 (Supreme Court of Pennsylvania, 1984)
Connor v. Allegheny General Hospital
461 A.2d 600 (Supreme Court of Pennsylvania, 1983)

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Bluebook (online)
75 Pa. D. & C.4th 106, 2005 Pa. Dist. & Cnty. Dec. LEXIS 87, Counsel Stack Legal Research, https://law.counselstack.com/opinion/liquori-v-wind-gap-chiropractic-center-pactcomplnortha-2005.