*1 necessary negligence to establish hospi- party cannot make out a claim or a defense tal staff members who comply failed to discovery after relevant has been complet- ed.”). with supervising physician’s written orders notify physician and to patient’s deterio- reasons, foregoing For the we af- condition).
rating firm the trial court’s order granting sum- ¶ Upon record, review of the we note mary judgment in favor of all defendants. that even as of the date which Miller ¶ 14 Order AFFIRMED. filed the Brief for Appellant, she had not obtained an expert opinion or filed an ex-
pert report. Moreover, the medical histo-
ry and condition of Miller’s decedent fol-
lowing her surgery, as well as Miller’s
allegations death, concerning the cause of fraught
are complexity. with medical In a
highly facts, technical recitation of the Mil- LOBAUGH,
ler Appellee, asserts that her William E. decedent died as a result of surgical the failure of clips on the cystic decedent’s bile duct to stop the flow Nancy LOBAUGH, Appellant. of bile into body cavity. Brief for Appellant at 6. As a result of the conse- Superior Court of Pennsylvania. bile, quent leakage of the decedent devel- Submitted Feb. oped peritonitis bile suffered “multi- system organ failure.” Id. at 6. Miller May Filed . argues “Appellees negligent are failing clips to insure the totally occluded cystic duct attached to insure and/or
they slip.” would not Clearly, evaluation
of these circumstances and the extent to
which the negligent defendants were
affixing surgical clips to the decedent’s bile requires
duct professional detailed knowl-
edge of the medical and surgical tech-
niques employed by the defendants. Such beyond
matters are well range expe- laypersons
rience of the empaneled to be jury and are readily subject
comprehension by anyone who is not medi- trained,
cally absent expert guidance.
¶ 12 Accordingly, we conclude that
in failing produce expert an opinion to claim,
substantiate the elements of her
Miller failed to prima demonstrate a facie negligence.
case of medical In accordance pin-pose provisions of Rule
1035.2, the Defendants were entitled to
summary judgment. Consequently, entry
trial court’s of summary judgment appropriate. Eaddy,
was correct and See (“The purpose of the rule
is to prior eliminate cases to trial where a
835 settlement, part As of their divorce property a marital parties entered into agreement January on 1999. settlement year, Appellee petitioned In July of the Trial to terminate Court non- alimony due right to collect parties’ compliance with terms Appellee argued agreement. Specifically, cohabiting another Appellant longer no liable man and that alimony. The Trial Court held pay her August 1999. hearing the matter on on granting The Trial entered an order Court request his alimo- Appellee’s to terminate 24,1999 on made ny obligation August peti- date filing it retroactive to the tion, order, Ap- 1999. July Under Appellee’s also rea- pellant was liable for fees, attorney and court sonable compliance costs in agree- marital settlement parties’ property timely appeal ment. This follows. ¶ (2) issues 3 raises for our consideration: THE ERR IN DE-
1. DID COURT THERE TERMINING THAT WAS TITLE COHABITATION UNDER RE- PA.C.S.A. SECTION WITH GARD TO ALIMONY?
2. THE ERR IN NOT DID COURT LIMITING THE TIME PERIOD FOR OF ALIMONY THE TERMINATION TIME PERIOD OF COHABI- THE TO TATION? In alimo- reviewing Brief at 3. Grieshober, Erie, appel- Donald W. for orders, only to ny “we review determine
lant.
error of law or
there has been an
An
Bruno, Erie,
by the trial court.
appellee.
abuse of discretion
James J.
misapplication
entails a
abuse of discretion
HUDOCK, J., CERCONE,
Before
manifestly
law or
unreasonable
Emeritus,
BECK, J.
Judge
President
record.” Peck v.
judgment
light
Peck,
(Pa.Super.1998)
CERCONE,
Judge Emeritus:
President
omitted).
(citations
¶ 1
appeal
This is a direct
from an order
¶4
parties’ divorce
review of the
Our
alimony pursuant
terminating Appellant’s
parties’
reveals that the
decree
parties’
marital
settlement
property
subject
agreement
property settlement
agreement.
affirm.
We
23 Pa.C.S.A.
to enforcement under
entitled,
July
Effect of
between
married in
of 1980
parties
January 29,
respect
ties.
With
and were divorced
provision under the
agree-
terms of the
See Marital
Settlement Agree-
ment,
ment,
specifically
enforcement is controlled
at 11-12
Although
not specifi-
3105(c).
cally
Code,
under Section
defined
the Divorce
Prop-
order
erty
to be found in
“cohabitation” one
6-7
must at
doing
least
person
12. That section of
be
so “with a
provides:
the statute
*3
opposite sex who is not a member of the
In
provision
the absence of a specific
family
petitioner
[alimony recipient]
contrary
the
in
appearing
agree-
the
within
degrees
the
of consanguinity.” 23
ment, a provision regarding
disposi-
the
§
Pa.C.S.A.
3706. We have elaborated
tion of existing property rights and in-
by
cohabitation,
further
that
holding
alimony,
terests between
parties,
the
purposes
barring alimony,
of
occurs when:
alimony pendente lite counsel fees or
persons
opposite
sex reside
subject
shall not be
to modi-
together in the manner of husband and
by
fication
the court.
wife, mutually assuming
those
3105(c)
23 Pa.C.S.A.
(emphasis sup-
and
usually
upon
duties
attendant
the
Also,
plied).
the agreement between the
relationship.
Cohabitation
parties provides that “unless otherwise
may
by
financial,
be shown
evidence of
herein,
specifically provided
Agree-
this
social, and sexual interdependence, by a
ment shall
in
continue
full force and effect
residence,
sharing of
by
the same
and
after such time as a final
in
decree
divorce
other means....
An occasional sexual
may be entered with respect
to the
liaison, however, does not constitute co-
ties.”
habitation.
¶2.
at 2
Miller,
432,
Miller v.
352 Pa.Super.
agreement
the
reads that “no modification
(1986).
or
any
waiver of
of the terms hereof shall
In light
legal analysis,
foregoing
of
be valid
in writing
signed
unless
and
Appellant avers that the Trial Court erred
parties.”
Thus,
both
at 6 12.
it is
in ruling that cohabitation occurred in this
clear that
in
language
their
case so as to effectuate the termination of
contract,
agreement, a
concerning issues of
her alimony. Specifically, Appellant sub-
alimony is controlling.
mits that:
¶ 5 We recognize that
basic
“[a]
[i]t is contended that it should be ruled
tenet of contract
law is that when the
legal
there was no
cohabitation
language
contract is clear and unam
basis in the case here at issue. There
biguous its meaning must be determined
was no
of
showing
interdepen-
sexual
by an examination of the content of the
commingling
dence. There was no
in-
Little,
contract itself.” Little v.
441 Pa.Su
terdependence
regard
to financial
(1995).
per.
657 A.2d
There
in any
matters
manner. There was no
fore, it is axiomatic that this Court “must
expressed
marry
intention to
in the fu-
construe the
contract
as written and
ture. There was no establishment of an
may not modify
plain
meaning under
cohabit,
any
intent
nor was there
guise
of interpretation.”
Id. With
particular
determination that in' fact the
respect to alimony,
states:
parties, Nancy Lobaugh and Thomas
Jones made a
to each oth-
commitment
agreed
It
that wife shall receive
er,
just
in
occurred.
fact
reverse
(36)
per
thirty-six
month for
$350.00
There was no commitment and this was
consecutive
following
entry
months
temporary
standpoint
matter from the
Alimony
Divorce Decree.
shall
residing
the same home together.
upon
terminate earlier
the death of Hus-
band,
Wife,
the death
or the remar-
Brief at 10-11. We have read
riage or cohabitation of Wife as
carefully
testimony presented
defined
to the
under the Divorce Code....
Trial
August
hearing
Court
August
had started in
that the lease
conclude that the Trial Court did but
and we
prior
Appellant,
to his time with
concerning
in its
“cohabita-
ruling
not err
Finally,
through July
in this matter.
tion”
acknowledged
both
¶7
supports
the fact
record
Ap-
Jeremy
moved out
that Jones and
son, Jeremy, primarily
and his
Tom Jones
dis-
escalating
due to the
pellant’s home
home from some
resided
and Ste-
Jeremy, Appellant
cord between
January
April
until early
of 1999
point
ven.
year.
becomes
of that
The focus
can be
living arrangement
character-
this
we
upon
foregoing,
9 Based
Ap-
“cohabitation” so as
effect
ized as
the evi
agree
the Trial Court that
right
pellant’s
under the terms
Appellee’s
support
dence
record does
*4
parties’
Appellant
agreement.
were
Appellant
that
and Jones
contention
helping
that
maintains
she was
a close
the evi
believe that
“cohabiting.” We
who was ill
the time
his
friend
at
that she
Appellant’s
dence belies
assertion
needs as well as those of his of
personal
his
helping an ill
and
merely
was
friend
However,
his school-aged
child.
the
fact,
conclude,
Trial
as did the
son. In
we
son, Steven,
living
testified that the
Court,
ties’
re
Appellant and Jones were
that
arrangement
that Tom Jones
resided
in the
of husband
siding
manner
together
bedroom,
though
even
assuming
in his mother’s
wife;
thereby, mutually
(that
there was another bedroom
was used
usually
and duties
attendant
those
room)
office-type
as an
that could have
a
v. Mil
upon
relationship.
marital
Miller
Also,
ler,
supra.
agree
accommodated Jones.
Steven testi-
we
that
fied
and Jones were affec-
assessment that “[h]ad
Trial Court’s
harmony,
live in
group
tionate towards
another and often
able to
one
been
kissed,
hands,
living ar
hugged
convinced that the
and held
even Court is not
not have
indefi
though Appellant
having rangement could
and Jones denied
10/18/99,
Opinion,
at
nitely.” Trial Court
relationship.” Appellant,
a “sexual
Jones
respective
togeth-
and their
ate meals
sons
er,
out,
either
home or
attended
¶ Next,
that
Appellant submits
10
weekly.
boys
church
often took
Jones
only
alimony
be
should
award
school,
for
bought
to
mattresses
each of
that she
period
that
of time
barred for
boys’
Appellant’s,
bedrooms well as
as
by the
“cohabited,”
made
finding
if that
telephone calls at Appellant’s
received
Also,
avers that
Appellant baldly
Court.
home and
some minor
made
household
ended before
any
“cohabitation”
supposed
repairs. Although
did not contrib-
petition;
his termination
Appellee filed
bills,
to the household
he often
paid
ute
therefore,
is moot.
Appellee’s argument
the meals the foursome ate
outside
Appellant filed a statement
We note that
home.
pursu
complained
appeal,
on
matters
¶ However,
order,
Septem
does
on
display
8
the record
ant
the Trial Court’s
22,
not
these issues
an
and did
raise
that Jones did not have
income at
ber
1999
in her
See Concise Statement
home
statement.
time he lived
because
Defendant,
Lobaugh,
on Behalf of
waiting
regarding
for confirmation
has held
Security
Supreme Court
filed
Our
qualification
for Social
disabil-
9/22/99.
forward,
28, 1998,
that
Nevertheless,
that
October
money
that
from
ity income.
appellant
an
when
court orders
selling motorcycle
have from
a
a trial
he did
assistance,
complained
a
of matters
file
statement
payments
governmental
from
1925(b)
to Pa.R.A.P.
appeal pursuant
pay
foursome’s meals
he used to
for the
1925(b)
in a
not
Also,
“[a]ny
that
issues
raised
Jones acknowl-
and the mattresses.
Com
be deemed waived.”
a rental
statement will
edged that he did have
lease
420,
Lord,
553 Pa.
monwealth v.
period
question,
during
home
the time
(1998).
Hence,
Consequently,
finding
is clear
a
of cohabitation
that
final
issues are deemed
nullifies
court award of alimony that
also,
was entered based on
waived for our review.
See
the needs of
Giles
dependent
Douglass,
spouse
v.
and that
less stress mutuality indicia in the 4 I find no
emotional, aspects or financial of this social living arrange-
relationship: this was There of Mr. ment for benefit Jones. Lewis, LEWIS, Linda S. A. Robert interdependence no evidence of social Robert and Wife and Husband family community or other than eat- within Lewis, Appellees, J. attending mass ing restaurants Lobaugh’s Financially, Ms. their sons. EXCHANGE, ERIE INSURANCE unchanged; the cost budget was household Appellant. for Mr. for food and utilities increment by offset Mr. Jones’ Jones and his son was Pennsylvania. Court of Superior mattresses. and the restaurant invitations arrangement brevity Sept. 1999. Argued definitively ease with which was and the 30, 2000. May Filed commitment long term terminated belie our Under objective permanency. or relationship
law, absent such a short-lived cannot be
the hallmarks from March not there that Jones was testified heart disease Mr. Jones suffered from spent the Lobaugh, the confirm Steven and could lymphatic cancer. Even 18 to 8/16/99, son, N.T., moved in so at night testified that Jones occasions. on six during help Jones his illness. mom could his N.T., 27-30. at 61. Jeremy’s 4.Nancy Lobaugh testified Lobaugh’s investigator hired 3. The boy because she help with the did not mother of her undertake surveillance husband home from March N.T., handle him. could not 8/16/99 April 1999 to