# Clark v. Philadelphia College of Osteopathic Medicine

> Superior Court of Pennsylvania · March 12, 1997 · 693 A.2d 202

URL: https://www.frixlaw.com/law-library/cases/4954002

## Case

- **Full name:** Cynthia CLARK v. PHILADELPHIA COLLEGE OF OSTEOPATHIC MEDICINE, Christine Viola, D.O., David A. Bevan, D.O. Eugene Wyszynski, D.O., John Simelaro, D.O., Pete Hedrick, D.O.: Gail Shirley, D.O., Harold Tabaie, D.O., Edward Silverman, D.O., and Osteopathic Medical of Philadelphia Clinical Assocs. Appeal of John SIMELARO, D.O. and Philadelphia College of Osteopathic Medicine
- **Court:** Superior Court of Pennsylvania
- **Decided:** March 12, 1997
- **Citations:** 693 A.2d 202; 1997 Pa. Super. LEXIS 568; 1997 WL 116913
- **Precedential status:** Published
- **Opinion:** Dissent by Schiller
- **Judges:** Eakin, Files, Montemuro, Schiller
- **Cited by:** 30 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4954002

## How later opinions describe it (automated extraction)

- concluding that -5- J-A23032-19 the trial court properly declined to grant a mistrial after plaintiff’s counsel, referring to a drawing of a triangle with a horizontal line drawn through it, argued to the jury that plaintiff’s medical expenses were only the “tip of the iceberg…
- stating that “[w]here evidence which would properly be part of a case is within the control of the party in whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so,” an inference that it was unfavorable to the party may be drawn
- explaining that a jury may infer that evidence would disfavor a party “[w]here [it] would properly be part of a case, [it] is within the control of the party whose interest it would naturally be to produce it, and, without satisfactory explanation he fails to do so[.]”
- stating that “[w]hile it may be that further expenses were incurred by Yale, they were not satisfactorily shown at trial by either Uku’s testimony or [the Appellants’] documentary evidence.”

## Opinion text

SCHILLER, Judge,
dissenting.
I agree with the Majority that the plain language of the joint tortfeasor’s release limited plaintiffs recovery to $200,000.00 per non-settling defendant. However, I respectfully disagree with the conclusion that “none of the (Buttermore) exceptions is apparent here,” op. p. 207, and on that basis I would remand this case to the Court of Common Pleas for further proceedings.
In Buttermore v. Aliquippa Hospital, 522 Pa. 325 , 561 A.2d 733 (1989), the Supreme Court summarized the law on releases and cogently described the sometimes harsh reality of entering into one, to wit:
*208 However improvident their agreement may be or subsequently prove for either party, their agreement, absent fraud, accident or mutual mistake, is the law of their case.
Id. at 328-29 , 561 A.2d at 735 . Here, where you have non-settling defendants seeking the advantage of an agreement which specifically sought to preserve rights against them, and where that agreement conveys tremendous benefits to those defendants, for which they neither negotiated nor rendered consideration, one could conclude that there was an “accident.” Moreover, this record, as well as the trial court’s opinion, raises at least the spectre of a “mutual mistake” between the signatories to the joint tortfeasors’ release; for it is clear from appellee’s argument that the language as it was written was not reflective of appellee’s understanding. The unanswered question then is what was the CAT Fund’s understanding when it included this language in the agreement. I would remand this case to the Court of Common Pleas for a factual finding on these issues.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4954002. Public record. Not legal advice.