author: CASCIO, J.,

text:
    Commonwealth v. Walker

      Matthew G. Melvin, for petitioner.

      Gerard M. Mackarevich, for Alert Motor Freight Inc.
    September 28, 1990
   CASCIO, J.,

This case is before the court on a license suspension appeal filed by petitioner in which we are required to address the financial responsibility provisions of the Pennsylvania Vehicle Code under fairly unusual circumstances. First, we have a case which appears to involve an issue of first impression concerning the applicability of the financial responsibility provisions of the Vehicle Code in a case involving an indemnity claim, under the provisions of a lease agreement, being pursued by a third party. Second, we are faced with a request by the third party seeking indemnity to intervene in the action.

This matter arose as a result of an accident which occurred on the Pennsylvania Turnpike involving a collision between a tractor-trailer being driven by petitioner and two other similar vehicles. This accident resulted in property damage to all of the vehicles.

At the time of the accident, according to the record, petitioner was leasing his tractor-trailer to Alert Motor Freight Inc. pursuant to a lease agreement, a copy of which is attached as exhibit A to the petition for appeal. Under the provisions of the lease agreement, petitioner agreed to carry adequate insurance coverage and to hold Alert harmless from all claims for damages resulting from loss or injury to the property of third parties caused by petitioner.

Alert, through its own insurance carrier, paid claims arising out of this accident totalling $50,232.71. Subsequently Alert filed a civil action against petitioner seeking indemnification for that amount under the terms of the lease agreement. Petitioner failed to respond to the lawsuit and judgment was entered against him by default.

After more than 60 days had elapsed without satisfaction of the judgment, Alert proceeded pursuant to the provisions of 75 Pa.C.S. §1771(a) to have a copy of the judgment certified by the Office of the Prothonotary in Cumberland County, Pennsylvania, and forwarded a copy of that judgment to the Department of Transportation. Subsequently, the department notified petitioner that his operator’s privileges would be suspended pursuant to 75 Pa.C.S. §1772(a) effective November 22, 1989 as a result of his failure to satisfy this judgment. On October 30, 1989, petitioner filed the within appeal and on January 3, 1990, Alert filed a petition to intervene in this proceeding. Both petitioner and the Commonwealth filed answers to the petition to intervene with petitioner opposing intervention and the Commonwealth not opposing this action.

Argument on both the petition to intervene and the appeal was scheduled for May 9, 1990, and at that time we denied the petition to intervene but permitted Alert to file a brief amicus curiae on the merits. Briefs have been filed in this matter by the Commonwealth and Alert.

DISCUSSION

The essential issues in this appeal are whether Alert’s judgment against petitioner is a “judgment arising from a motor vehicle accident” thus permitting the judgment creditor to forward a certified copy of that judgment to the Department of Transportation under the provisions of section 1771(a) and whether the department acted properly in suspending petitioner’s license on the basis of this certification pursuant to the provisions of section 1772(a).

The Commonwealth takes the position that petitioner’s appeal amounts to a collateral attack on the judgment which gave rise to the suspension order and, therefore, is improper. We disagree. It is clear to us from this record that what petitioner is challenging is not the validity of the judgment entered by default but, rather, the validity of the certification of the judgment as a “judgment arising from a motor vehicle accident.” This difference is fundamental. We agree with the Commonwealth that were petitioner challenging the entry of the judgment, he would have had several avenues available to him to do so directly including an appeal to an appellate court, or a petition to open or strike the judgment.

However, neither of these remedies would address the issue of the certification of this judgment as one arising from a motor vehicle accident. In fact, even if petitioner had vigorously defended the civil action filed by Alert and had pursued that defense through verdict, post-verdict motions and ultimate appeal, the issue of certification of the judgment to the department would never have been addressed. It was only after the final entry of the judgment and the passage of the 60-day statutory period that the action by Alert in seeking certification of this judgment as a motor vehicle judgment occurred and it was only upon that occurrence that petitioner would have been obligated or, in fact, aware of his need to challenge this action to preserve his license from suspension.

Our examination of the Vehicle Code, particularly sections 1771 and 1772, reveals no procedure involving either notification to the operator of the fact that such a certification has occurred or any procedures whereby the operator may challenge the certification. However, it is clear that the broad language of section 1550(a) of the Vehicle Code allows an appeal of the suspension in this case. We note that, following the statutory scheme of the financial responsibility section of the Vehicle Code, the suspension arises not out of the entry of the judgment but out of the certification of the judgment as a “judgment arising from a motor vehicle accident.” Accordingly, we find that petitioner’s appeal is appropriate and that it is not a collateral attack upon the entry of the judgment itself.

As an alternative argument, the Commonwealth sets forth the proposition that there is a presumption that a public official (here, the Cumberland County prothonotary) has performed his or her duty properly and, once the certification documents themselves have been admitted into evidence, the burden shifts to the petitioner to prove that there was an error or otherwise to rebut this presumption. While this may be true, it is all the more reason why petitioner should be permitted to proceed with his appeal in this court in an effort to rebut this presumption. It appears that the action of the protho-notary is precipitated by a request from the judgment creditor and the action of the department is precipitated by the action of the prothonotary. Thus, petitioner’s argument does not arise from the conduct of the prothonotary but, rather, from the conduct of Alert in seeking the certification of this judgment as one arising from a motor vehicle accident. Accordingly, we reject the Commonwealth’s argument on this basis as well.

On the merits, the Commonwealth argues that the judgment in this case is clearly a “judgment arising from a motor vehicle accident.” In response, petitioner argues that this is a judgment arising from a breach of contract and, therefore, Alert acted improperly in certifying this judgment to the Commonwealth and utilizing the sanction of section 1772(a) when it has already sought and gained its remedy arising from petitioner’s breach of its lease agreement through the entry of the judgment. Certainly, this is not the garden variety situation contemplated by section 1772 where an uninsured motorist causes a loss directly to another motorist as a result of a motor vehicle accident. While there is no case law directly on point, we did find an appellate decision involving a somewhat similar fact situation. In Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Roeting, 7 Pa. Commw. 317, 300 A.2d 125 (1973), the Commonwealth Court of Pennsylvania .reviewed an order of the Court of Common Pleas of Lancaster County which reversed a suspension of Roeting’s operator’s license under section 1413, now section 1772. In that case Roeting was involved in an accident with a party insured by Harleysville Mutual Insurance Company. Roeting executed a judgment note to Harleysville which entered the note by confession in the Lancaster County Prothonotary’s Office. This judgment was subsequently certified and the certification forwarded to the Department of Transportation which resulted in the suspension of Roeting’s operator’s license. Thus, the suspension resulted from a contractual obligation between Roeting and the insurance company as evidenced by the judgment note.

In sustaining the order of the lower court, the Commonwealth Court ruled that the Pennsylvania financial responsibility statute was grounded upon a theory of fault or liability for negligent driving, and where the judgment certified arose out of a confession of judgment clause in a judgment note there was insufficient evidence of negligent driving by the debtor to permit the application of the Vehicle Code suspension provisions.

However, in Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Rodgers, 20 Pa. Commw. 393, 341 A.2d 917 (1975), the Commonwealth Court specifically overruled its decision in Roeting, supra, by finding that the purpose of the financial responsibility law is not to punish negligent drivers but, rather, is to protect the public from financially irresponsible drivers, regardless of the issue of competency to drive, by providing some leverage allowing for the collection of damages from those who have been held liable. The court further ruled that due process does not require the production of evidence of negligence before a license suspension where there has been failure to pay a judgment already entered and that the only due process requirement is the determination that the person whose license is being suspended is the same person against whom the judgment was entered.

In our attempt to evaluate the issue before us in light of the Roeting and Rodgers decisions, we find that the Commonwealth Court has indicated, at least tacitly, that the phrase “judgment arising from a motor vehicle accident” may be somewhat broadly construed. In an effort to determine how the appellate courts have interpreted this or similar language found in the Motor Vehicle Code, we have examined all of the sections of the code we could locate which include the phrase “arising from.” Although various sections of the code include this language, the cases interpreting such language essentially fall into two categories, those arising out of 75 Pa.C.S. §1542, relating to the revocation of a habitual offender’s license, and those arising out of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. While the cases interpreting the former are of little help, the cases interpreting the latter, as pointed out by the Commonwealth and Alert, do contain some statutory construction principles and interpretations which are of some aid to us.

Manufacturers Casualty Insurance Co. v. Goodville Mutual Casualty Co., 403 Pa. 603, 170 A.2d 571 (1961), is a decision by the Pennsylvania Supreme Court construing the term “arising out of” in the following manner:

“Arising out of ‘means causally connected with, not proximately caused by.’ ‘But for’ causation, i.e., a cause and result relationship, is enough to satisfy the provisions of the policy.” Id. at 607-8, 170 A.2d at 573. See also, Alvarino v. Allstate Insurance Company, 370 Pa. Super. 563, 537 A.2d 18 (1988).

From these cases, we form the conclusion that, in the case at bar, the Commonwealth must show some causal connection between the loss sustained by Alert and the motor vehicle accident in which petitioner was involved. It is also clear that “[t]his connection must be more than mere happenstance.” Roach v. Port Authority of Allegheny County, 380 Pa. Super. 28, 550 A.2d 1346 (1988).

Couched in terms of the facts in the case at bar, our inquiry is distilled to a determination of whether the action giving rise to the claim of breach of contract arose from Alert’s obligation to pay damages resulting from a motor vehicle accident or whether it arose from the fact that petitioner did not have insurance on his vehicle. As we view it, the loss sustained by Alert arose as a result of the motor vehicle accident and not as a result of petitioner’s breach of the lease agreement. Only upon the occurrence of the accident and the resulting obligation of Alert to pay for these damages incurred did Alert sustain damages as a result of petitioner’s breach. Under this scenario, it would appear to us that the judgment acquired by Alert was a “judgment from a motor vehicle accident” and, accordingly, the provisions of sections 1771 and 1772 were correctly applied.

We also note that when enacting various sections of the Vehicle Code, the legislature has been careful, when intending a more strict definition of causation, to use language clearly evidencing that purpose. See, e.g., 75 Pa.C.S. §§3732 and 3735, both of which provide that a conviction may result “when the violation is the cause of death.” In these sections, the legislature clearly intended that there be a showing of direct causation between the violation of the Vehicle Code and the cause of the loss as opposed to proximate causation as appears to be the standard applicable to section 1771.

For these reasons, we find that the action of the Department of Transportation in suspending petitioner’s operating privileges was appropriate under the provisions of section 1772 and, accordingly, the appeal must be dismissed and the suspension reinstated.

ORDER

And now, September 28, 1990, consistent with the foregoing memorandum, petitioner’s appeal is dismissed and the suspension of his operator’s privileges is reinstated.

      . This section of the Vehicle Code states: “Whenever any person fails within 60 days to satisfy any judgment arising from a motor vehicle accident, the judgment creditor may forward to the department a certified copy of the judgment.”

      . There is case law which indicates that the action of the prothonotary may not be challenged on appeal because, under the Vehicle Code, such action is mandatory: See Commonwealth v. Mabel, 85 D.&C. 367 (1954), applying sections 1412 and 1413 (repealed) of the Vehicle Code, predecessors to sections 1771 and 1772.


source: Caselaw Access Project

author: FRIEDMAN, Member,

license: Public Domain

text:
    In re Anonymous No. 82 D.B. 84
    Disciplinary Board Docket no. 82 D.B. 84.
    September 4, 1990
   FRIEDMAN, Member,

Pursuant to Pennsylvania Rule of Disciplinary Enforcement 218(c)(5), the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with ■ respect to the above-captioned petition for reinstatement.

HISTORY OF PROCEEDINGS

Petitioner, [ ], was suspended by the Supreme Court of Pennsylvania for a period of one year effective on September 2, 1985. The term of suspension imposed by the court expired on September 2, 1986.

On July 17, 1989 petitioner filed his petition for reinstatement with the Disciplinary Board. On July 24, 1989 the petition was referred to Hearing Committee [ ], consisting of [ ]. On June 6, 1990 a hearing was held before the hearing committee at which time petitioner was represented by'[ ], Esq., and the Office of Disciplinary Counsel was represented by assistant disciplinary counsel [ ]. On June 15, 1990 the hearing committee filed its report unanimously recommending reinstatement with conditions. On July 5, 1990 Disciplinary Counsel filed its brief on exceptions. On July 31, 1990 petitioner filed his brief in opposition to disciplinary counsel’s brief on exceptions.

FINDINGS OF FACT

(1) Petitioner is 42 years of age. He received his A.B. degree from [ ] College in May 1970 and graduated from [ ] University School of Law in June 1975. (Petitioner’s reinstatement questionnaire at 1.)

(2) Petitioner has been married to [A] since 1973 and they are the parents of four children, ages nine through 14. (N.T. 8.)

(3) In September 1977 petitioner became affiliated with [B], Esq., in the practice of law. They maintained an office at [ ]. In October 1983 [B] died and petitioner continued the firm as a sole practitioner until his suspension by the Supreme Court of Pennsylvania. (Petitioner’s reinstatement questionnaire at 3.)

(4) On October 2, 1984 a petition for discipline was filed with the Disciplinary Board charging petitioner with violations of Disciplinary Rule 1-102(A)(4), dealing with conduct involving dishonesty, fraud, deceit or misrepresentation, and Disciplinary Rule 6-101(A)(3), dealing with conduct involving neglect of a legal matter entrusted to an attorney. The violations arose out of nine separate matters handled by petitioner. On November 20, 1984 the Office of Disciplinary Counsel and petitioner entered into a stipulation by which petitioner effectively admitted the allegations.

(5) The allegations which were the subject of the stipulation established a pattern of misconduct. On each occasion petitioner accepted the case and then failed to take appropriate steps to promote his client’s interests. Petitioner furthermore repeatedly misrepresented the case status to his clients and even took rather elaborate steps to cover up his lack of progress.

(6) On June 9, 1985 a hearing was held before Hearing Committee [ ]. Petitioner offered the testimony of [C], Ph.D., a licensed psychologist, who testified that petitioner was a “passive/aggressive personality.” Dr. [C] furthermore testified that petitioner was amenable to treatment.

(7) On March 28, 1985 the hearing committee recommended that petitioner be suspended for a period of four months. Neither side took exceptions to the findings or recommendations of the hearing committee.

(8) On June 19, 1985 the Disciplinary Board recommended that petitioner be suspended for a period of one year.

(9) On August 2, 1985 the Supreme Court of Pennsylvania suspended petitioner for a period of one year effective. September 2, 1985.

(10) On June 6, 1990 a hearing was held before Hearing Committee [ ] to consider the petitioner’s petition for reinstatement.

(11) During the first full year of his suspension (1986), petitioner continued his service as a captain in the United States Army Reserves which involved approximately two to three days’ commitment per week. (N.T. 9.)

(12) In 1987 petitioner worked part-time for [D], Esq., as a research assistant and as an office administrator. (N.T. 10, 89.) Petitioner subsequently accepted employment as a professional fund-raiser with the [E]. (N.T. 11, 12.)

(13) After leaving the [E] petitioner worked as an estimator and management consultant. (N.T. 13.) In January 1989 he was hired by [F] in [ ] as a fund-raiser. (N.T. 14.)

(14) In October 1989 petitioner accepted employment with the [G] Foundation as a fund-raiser. (N.T.

14.) He is currently employed in that capacity. (N.T.

15.)

(15) Petitioner and his wife had a joint income of $10,972 in 1986 (N.T. 10), $14,800 in 1987 (N.T. 11), $25,400 in 1988 (N.T. 16), and $22,000 in 1989 (N.T. 66).

(16) Following his suspension, petitioner had three lawsuits filed against him. ([H] v. [Petitioner]; [I] v. [Petitioner] and [J] v. [Petitioner].) (N.T. 30-7; petitioner’s reinstatement questionnaire 10, 10a.) The [H] suit was also the subject of a complaint with Office of Disciplinary Counsel. The other suits were based upon legal malpractice claims but were not filed with the Office of Disciplinary Counsel.

(17) There were four additional complaints filed with the Office of Disciplinary Counsel which were not a basis for petitioner’s suspension. The complaints were the subject of a stipulation entered into between the Office of Disciplinary Counsel and petitioner and were admitted at the reinstatement hearing. The complaints were similar in nature to the original charges for which petitioner was suspended and occurred during the same time period. The [H] complaint was incorporated into the stipulation.

(18) Petitioner and [H] agreed to settle their claim for $6,000. On July 2, 1987 petitioner paid the amount of $2,000 to the [Hs]. The balance of $4,000 was reduced to judgment by consent. (N.T. 30, 31.) Petitioner testified that the $4,000 judgment was a lien on property being sold at sheriff sale. (N.T. 33.) He furthermore indicated that if it were not satisfied at sheriff sale that he would satisfy the judgment. (N.T. 34.)

(19) Petitioner and Mr. and Mrs. [I] agreed to settle that case for $7,500. On June 29, 1987 they entered into a “judgment by agreement” before the Court of Common Pleas of [ ] County, Pennsylvania. On June 29, 1987 petitioner paid the [Is] the amount of $2,500 as per the terms of the agreement. (N.T. 35-6.)

(20) The [J] case was filed in 1986 with the Court of Common Pleas of [ ] County. No action has been taken for approximately four years. (N.T. 44.)

(21) Petitioner completed eight Pennsylvania Bar Institute courses in connection with his petition for reinstatement. He furthermore reviewed several treatises in the areas of real estate and estate administration and taxation. (N.T. 28-30.) Petitioner further reviewed the Rules of Professional Conduct. (N.T. 62.)

(22) Petitioner consulted with [K], Ph.D., a licensed psychologist, in April 1990. Dr. [K] conducted a battery of psychological tests and concluded that there was no psychological reason why petitioner could not resume his profession. (N.T. 79.) Dr. [K] furthermore found that petitioner was not now in need of any additional treatment or counselling. (N.T. 77, 78.)

DISCUSSION

The reinstatement process is a “searching inquiry into a lawyer’s present professional and moral fitness to resume the practice of law.” Philadelphia News Inc. v. Disciplinary Board, 468 Pa. 382, 363 A.2d 779 (1976). The burden is on petitioner to demonstrate:

“[B]y clean and convincing evidence that such person has the moral qualifications, competency and learning in law required for admission to practice law in this Commonwealth and that the resumption of the practice of law within the Commonwealth by such person will be neither detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.” Pa. Rule of Disciplinary Enforcement 218(c)(3)(i).

Petitioner was suspended from the practice of law for a series of similar incidents in which he accepted employment yet failed to complete the necessary work. He frequently misled his clients and even concocted rather elaborate schemes to give the appearance of progress being made on the case. Prior to suspension petitioner sought professional psychological intervention. He was diagnosed by Dr. [C] as having a passive/aggressive personality.

As the hearing committee recognized, petitioner waited almost three years to file for reinstatement. The testimony revealed that during that period of time petitioner completed counselling. He was given a clean bill of health from Dr. [K], who described him at the hearing as a “responsible, concerned, healthy, emotionally healthy individual.” (N.T. 76.) Petitioner is currently gainfully employed as a professional fund-raiser and he and his wife support their four children who reside with them. Petitioner is active in his church and in the community. (N.T. 25.) He also received a very favorable recommendation from a member of the bar, [D], Esq. (N.T. 90-1.) Petitioner testified that he has kept current in those areas of the law in which he proposes to practice. He has also viewed multiple PBI video courses. He furthermore indicated that he has reviewed the Rules of Professional Conduct.

The hearing committee unanimously ruled that petitioner had met his burden. The committee recommended reinstatement. The committee, however, recommended that reinstatement be conditioned upon petitioner either satisfying two outstanding judgments or entering into a repayment schedule.

The Office of Disciplinary Counsel excepted to the hearing committee’s recommendation. The Office of Disciplinary Counsel avers that the outstanding obligations indicate that defendant has failed to prove that he has the proper moral qualifications and that his resumption of the practice of law would be neither detrimental to the integrity of the bar or the administration of justice. The board disagrees.

Petitioner readily acknowledged his indebtedness to the [Hs] and to the [Is]. In June 1987 he agreed to pay the [Hs] the sum of $6,000. He paid them $2,000 and stipulated to the entry of judgment in the amount of $4,000. The [I] matter was also resolved in June 1987. Petitioner and the [Is] entered into a consent judgment whereby the [Is] were paid $2,500 and a personal note was provided them by petitioner in the amount of $5,000.

Petitioner testified that he has been financially unable to make payments on the judgments. (N.T. 36.) He stated, however, that he anticipates a substantial increase in salary and expects to satisfy the judgments within the next two years. (N.T. 37.) He furthermore explained to the committee that the [Hs] may be satisfied from the proceeds of a pending sheriffs sale on property which he owned with his now-deceased law partner.

The board concurs in the Office of Disciplinary Counsel’s and the hearing committee’s interest in having the judgments satisfied as expeditiously as possible. However, petitioner and his wife have enjoyed only very modest earnings since petitioner’s suspension. In fact, in 1987 when petitioner made the payments described above, he and his wife had joint income of $14,800. Their income in 1988 was $25,400 and in 1989, $22,000. The testimony indicated that [petitioner and his wife] live modestly and have four children to support. Under these circumstances, the failure to satisfy the judgments does not reflect adversely upon the petitioner’s moral qualifications to practice law. In re Anonymous Nos. 26 D.B. 73 and 32 D.B. 73, 45 D.&C. 3d 172, 179 (1986). The board is furthermore satisfied that petitioner’s reinstatement would be neither detrimental to the integrity and standing of the bar or the administration of justice nor would it be subversive of the public interest.

CONCLUSIONS OF LAW

The Disciplinary Board of the Supreme Court of Pennsylvania concludes that petitioner has demonstrated by clear and convincing evidence that he has both the moral qualifications and the competency and learning in the law required for admission to practice law in this Commonwealth. The board further finds that petitioner’s resumption of the practice of law will not be detrimental to the integrity and standing of the bar or the administration of justice nor subversive of the public interest.

RECOMMENDATION

The Disciplinary Board respectfully recommends to the Supreme Court of Pennsylvania that the petition for reinstatement to the practice of law in the Commonwealth of Pennsylvania be granted.

The board further recommends that petitioner be directed to pay the necessary expenses incurred in the investigation and processing of the petition for reinstatement. Pa.R.D.E. 218(e).

Dr. Gilbert dissents and would recommend the reinstatement be denied.

Ms. Heh and Mr. Eckell did not participate in the adjudication.

ORDER

And now, November 27, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated September 4, 1990, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: REILLY, RJ,

text:
    Shaffer v. Aetna Casualty and Surety Company

      James A. Naddeo, for plaintiffs.

      John L. McIntyre, for defendant.
    October 2, 1990
   REILLY, RJ,

Anne Marie Shaffer was killed in a one-vehicle accident in which she was a passenger on September 6, 1987. At the time of the accident, Anne Marie was a minor, age 12, residing in the same household as her parents, Richard and Yvonne Shaffer.

Subsequent to the accident, the carrier for the operator of the motor vehicle in which decedent was killed tendered the limits of its liability coverage in the amount of $50,000. At the time of the accident, decedent’s parents, Richard and Yvonne Shaffer, carried insurance with Aetna Casualty and Surety Company under policy no. 322 SY 18768871PCA. This policy provided personal automobile coverage for three different vehicles. The limits of liability contained in the policy were $100,000 per person and $300,000 per accident. The policy also provided uninsured/underinsured motorist benefits in the amount of $100,000 per person and $300,000 per accident.

Richard Shaffer along with Francis A. Romeo were also insureds with Aetna under a policy issued upon a recreational vehicle. (Policy no. 233 RA 211831 PCA V.) This policy provided a single liability limit of $300,000 and underinsured limit of $35,000.

Upon receipt of the tender of the liability limits from the tort-feasor’s liability carrier, the Shaffers immediately placed Aetna on notice of claim for underinsured benefits pursuant to the aforesaid policies. However, the parties were unable to reach an agreement as to how much of said underinsurance coverage should be paid to the estate of Anne Marie Shaffer. Accordingly, the Shaffers made a demand for arbitration as required by the provisions of the policies. Both policies contained arbitration provisions requiring the parties to proceed in accordance with the Pennsylvania Uniform Arbitration Act, 42 Pa.C.S. §7301 et seq. These policies further provided that the issues to be submitted to arbitration be limited to (1) entitlement and (2) damages.

An arbitration board was selected and hearing was held before that board on February 5 and 6, 1990. Prior to the hearing, counsel for the respective parties agreed that the board was to assess damages without reference to the actual amount of underin-surance coverage available to the estate of Anne Marie Shaffer. The arbitration panel then requested counsel to stipulate the limit of defendant’s underin-surance coverage. A stipulation that defendant’s underinsurance exposure totaled $335,000 was prepared by counsel for Aetna and given to the chairman of the panel, Timothy Creany, Esq. At the conclusion of the trial, the arbitrators entered an award dated February 8, 1990, in favor of the estate of Anne Marie Shaffer in the total amount of $401,147.28.

Aetna filed a petition to vacate/modify to which plaintiffs timely filed an answer and new matter. Aetna seeks in its application to vacate/modify to have the court determine post-hearing the issue of coverage. Aetna now maintains that at the time of arbitration its underinsurance coverage totalled only $135,000 rather than the sum of $335,000.

Upon review, this court would note that Aetna is not attacking the amount of the award as entered by the arbitrators. Indeed, Aetna admits that the arbitrators were requested to enter an award based upon their evaluation of the damages. The award entered for the Shaffer estate in the amount of $401,127.28 is not questioned by Aetna. The thrust of Aetna’s petition to vacate/modify is to have this court determine the extent of Aetna’s liability to pay the award. Aetna has in effect raised the question of coverage for the first time in these proceedings.

While the procedure adopted by Aetna to test the issue of coverage may not be appropriate, it does present the first opportunity for either party to address the question. The Shaffer estate in its answer and new matter has placed before the court in a timely manner its position as to the extent of Aetna’s liability to satisfy all or part of the arbitration award. The parties have, in essence, brought an action for declaratory judgment before the court.

Therefore, this court will consider all issues raised by both parties and direct Aetna to pay the amount that is consistent with the law and the evidence.

This court would acknowledge that it is permitted to modify or correct an award which is contrary to law pursuant to 42 Pa.C.S. §7302(d)(2), which states:

“Where this paragraph is applicable, a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of this subchapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury the court would have entered a different judgment or a judgment notwithstanding the verdict.” 42 Pa.C.S. §7302(d)(2).

The issue raised by Aetna Casualty and Surety Company is whether the Shaffers are permitted to stack their underinsured motorist coverage under the Pennsylvania Motor Vehicle Financial Responsibility Law.

This court is of the opinion that plaintiffs are entitled to stack underinsured motorist benefits to the amount of $335,000.

At the time of the accident plaintiffs, Richard and Yvonne Shaffer, were insured by defendant under two policies. The first (policy no. 233 SY 18768871 PCA) provided personal liability coverage for three vehicles in the amount of $100,000 per person/$300,000 per accident and underinsurance coverage for the same amount. Furthermore, Richard Shaffer was also a coinsured under a recreational vehicle policy (policy no. 33 RA 211831 PCA V) which provided liability coverage in the amount of $300,000 and underinsured motorist coverage in the amount of $35,000.

Under the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., plaintiffs assert that they are entitled to stack underin-sured motorist coverage on the three vehicles under the first Aetna personal auto policy, thereby providing coverage in the amount of $300,000. Added to the underinsurance coverage on the second Aetna policy, plaintiffs would be covered up to the amount of $335,000.

MVFRL section 1731, relating to underinsured motorist coverage, provides as follows:

“Underinsured motorist coverage shall provide protection for persons who suffer injury arising out of the maintenance or use of a motor vehicle and are legally entitled to recover damages therefor from owners or operators of underinsured motor vehicles.” 75 Pa.C.S. §1731(c).

Defendant points to MVFRL section 1736 for the proposition that plaintiffs may not stack underinsurance coverage beyond their liability coverage under the same policy. Therefore, defendant asserts plaintiffs’ underinsurance limit is $135,000 under the two policies.

MVFRL section 1736 provides as follows:

“The coverages provided under this subchapter may be offered by insurers in amounts higher than those required by this chapter, but may not be greater than the limits of liability specified in the bodily injury liability provisions of the insured’s policy.” 75 Pa.C.S. §1736.

This court is of the opinion that Pennsylvania case law does not support defendant’s interpretation of this section. In Tallman v. Aetna Casualty and Surety Company, 372 Pa. Super. 593, 539 A.2d 1354 (1988), the court declared void as contrary to the public policy behind the new MVFRL a provision in an automobile insurance policy prohibiting stacking of underinsurance coverage for multiple vehicles under the same policy. Tollman concluded that the legislature clearly intended that stacking of underin-surance coverages be permitted. Id. Stacking of uninsured benefits was permitted prior to passage of the MVFRL, and now underinsured benefits are included with uninsured benefits under Subchapter C. (MVFRL section 1731 et seq.) without limitation on stacking. Tallman, supra.

The only limitation on underinsurance coverage, this court would note, is found in MVFRL section 1731(d) which states that a person who recovers damages for uninsured motorist coverage cannot also recover damages for underinsured motorist coverage. 75 Pa.C.S. §1731(d). “Since the legislature chose not to include a [stacking limitation] provision when enacting Subchapter C., their non-inclusion of such a provision must be construed as intentional where there is no other meaning fairly implied from the legislative intent.” Tallman, supra.

Plaintiffs concede that to allow motorists to purchase underinsurance coverage in amounts in excess of what they are willing to purchase for their own liability, thus essentially establishing a first-party insurance system, would inhibit the policies behind the MVFRL. However, plaintiffs purchased the maximum amount of liability coverage possible, such that stacking in the case at bar does not cause underinsurance coverage to exceed liability coverage. Thus, stacking effectuates the policy behind underinsurance within the MVFRL — to fully compensate the victims of irresponsible drivers. See Tallman v. Aetna Casualty and Surety Company, 372 Pa. Super, at 595, 539 A.2d at 1356.

Thus, defendant’s reliance on Chartan v. Chubb Corp., 725 F.Supp. 849 (E.D. Pa. 1989) is not persuasive. Chartan involved the question of stacking under a policy that expressly limited coverage to $100,000 for two vehicles. While acknowledging that stacking is permitted under the MVFRL, the District Court held the plaintiff could not stack coverage for two vehicles under MVFRL section 1736 to total $200,000 due to the unambiguous language of the policy limiting coverage to $100,000. Chartan at 851, 852.

Initially, this court would note that the case at bar is clearly distinguishable from Chartan. The policy involved herein is split into liability coverage and uninsured/underinsured motorist coverage, unlike in Chartan which involved a single-limit policy. There the court could rationally conclude that the policy was intended to prevent stacking beyond the liability limit of $100,000. No such conclusion can be reached in the case at bar where the policy expressly provided for $100,000/$300,000 coverage for both liability and underinsurance.

Even if this court were to adopt the rationale of the Eastern District in Chartan instead of that of the Pennsylvania Superior Court in Tollman, plaintiffs in the case at bar are permitted to stack underinsurance coverage for the three vehicles. Plaintiffs purchased the maximum amount of liability coverage, i.e. $100,000 per person/$300,000 per accident, and as such, are entitled to stack underinsurance coverage on the personal auto policy in the amount of $300,000. By purchasing $300,000 in liability coverage upon the general public, the Shaffers have avoided the prohibition enunciated in Chartan. Stacking the underinsurance coverage on three vehicles does not cause the underinsurance coverage to exceed the liability coverage purchased on the general public by the Shaffers.

However, this court need not adopt the rationale of the Eastern District in Chartan in that North River Insurance Co. v. Talor, Middle District, no. 1: CV 90-0290, July 13, 1990, refuted the Chartan holding. The court in North River stated that the intent behind 75 Pa.C.S. §1736 is simply that uninsured/underinsured motorist coverage in any one policy cannot exceed the liability coverage in that policy. Judge Rambo pointed out in North River that this legislative intent is evidenced by the lack of a stacking prohibition with regard to underinsurance while such a prohibition was specifically provided in section 1738 with regard to stacking of first-party benefits. Section 1738, entitled “stacking of uninsured and underinsured benefits with option to waive,” further indicates this legislative intent by specifically approving stacking and providing for lower premiums for drivers who waive in writing their right to stack uninsured/underinsured benefits. See North River.

Therefore, defendant’s position that plaintiffs are not entitled to stack underinsured motorist benefits to the amount of $335,000 is both unpersuasive and unsupported by Pennsylvania law. Case law cited by defendant can be distinguished on its facts. The case at bar involves a split-coverage policy whereas the main case relied upon by defendant provided single-limit coverage.

Plaintiffs also assert that the parties entered into a stipulation concerning the amount of the underinsurance coverage of defendant.

Upon submitting to arbitration, pursuant to the provisions of the policies, defendant acknowledged the amount of its underinsurance coverage ($335,000 or $300,000 on the first automobile policy and $35,000 on the recreational vehicle policy) and prepared a written stipulation to this effect. Defendant now seeks to have this issue reconsidered. However, this court would note that a valid stipulation freely entered into becomes the law of the case. Commonwealth v. Rodebaugh, 102 Pa. Commw. 592, 519 A.2d 555 (1986). Furthermore, any concessions made in stipulations constitute judicial admissions that may not later be contradicted or reopened in subsequent proceedings. Id. at 604, 519 A.2d at 563.

Defendant asserts that the figure it submitted to the arbitration board was not a stipulation, but was merely a statement of potential coverage. However, Timothy Creany, chairman of the arbitration board, testified at a May 2, 1990, hearing that the board requested a stipulation as to amount of coverage to assist in its deliberation. (Transcript at 10.) Said stipulation was prepared by John McIntyre, attorney for defendant. Mr. Creany testified that Mr. McIntyre did not want to advise the board as to amounts of coverage unless it would become determinative. (Transcript at 10.)

Thus, it is difficult for this court to understand why Mr. McIntyre would enter into a stipulation, which he was not required to agree to, if the stipulation was only potential coverage having no binding effect on the case. A stipulation as to actual coverage was requested by the arbitration board and a stipulation was provided by Mr. McIntyre. As such, Mr. McIntyre is not precluded from asserting that the figure he provided to the board was only potential coverage.

This court would note that while an attorney has no authority to waive a client’s substantive rights, attorneys have “implied authority to make agreements and stipulations with respect to purely procedural matters during the regular course of litigation.” Philadelphia v. Schofield, 375 Pa. 554, 559, 101 A.2d 625, 627 (1954). It is clear that Mr. McIntyre had full authority to act on behalf of his client, Aetna, and as such, defendant is bound by the stipulation as the law of the case that underin-surance coverage totals $335,000.

Also, defendant claims the stipulation should not now be binding because the issue of amount of underinsurance coverage was not within the jurisdiction of the arbitrators since arbitration was limited to the issues of entitlement and damage. This court is of the opinion that this assertion goes against settled case law and practice in Pennsylvania. Valid stipulations become the controlling law of the case without affecting the jurisdiction or prerogatives of the court. Foley Bros. v. Commonwealth, Department of Highways, 400 Pa. 554, 163 A.2d 80 (1960).

Even if the amount of underinsurance coverage was not immediately within the jurisdiction of the arbitration board, by entering into a stipulation the defense brought that issue within the arbitrators’ final determination. The stipulation, therefore, remains the binding law of the case. Commonwealth v. Rodebaugh, 102 Pa. Commw. 592, 519 A.2d 555 (1986).

As to whether Mr. Shaffer was fully apprised of his rights with regard to the recreational vehicle policy under the MVFRL and his election of unde-rinsurance coverage in an amount less than liability coverage, the issue is moot due to this court holding that the stipulation is binding.

Wherefore, the court enters the following

ORDER

Now, October 2, 1990, it is the order of this court that defendant’s petition to modify/vacate be and is hereby denied.

It is the further order of this court that the estate of Anne Marie Shaffer be awarded the stipulated amount of $335,000.


author: RUFE, J.,

text:
    Angeli v. Government of Middletown Township

      Kenneth C. Citrino, for plaintiff.

      Joseph W. Cunningham, for defendant Middle-town Township.

      Evelyn R. Devine, for additional defendant.
    November 13, 1990
   RUFE, J.,

Defendant Middletown Township has filed a motion for summary judgment in the above action, relying on the Pennsylvania Recreational Use of Land and Water Act, 68 P.S. §477-1 et seq. That act provides that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes. . .” Id. at section 477-3.

Plaintiff was injured in a fall which she sustained on September 24, 1988 while walking in or on the Poplar Street Park, admittedly owned by Middle-town Township, and used without charge for recreational purposes, as provided in RULWA.

Plaintiff has argued that the act does not render immunity to Middletown Township because:

“(1) The landowner is not immune, under the act, from its ‘willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.’ (RULWA, section 477-6(1));

“(2) Walking, in this case, was not recreational activity, as provided in the act;

“(3) RULWA does not apply to Middletown Township.”

In reverse order, we find that RULWA applies to Middletown Township. We find Farley v. Township of Upper Darby, 100 Pa. Commw. 535, 514 A.2d 1023 (1986), to be controlling.

A review of plaintiff’s deposition in regard to her walk on the day in question, in light of the definition of “recreational purpose” as defined in RULWA (section 477-2(2)), makes it clear that her walk was for “recreational purposes.”

Finally, however, we are troubled by plaintiff’s first point, whether the township’s failure to guard against a dangerous condition was willful.

The Recreational Use of Land and Water Act, 68 P.S. §477-1 et seq., was enacted for the purpose of encouraging landowners to make areas available to the public for recreational use by limiting their liability toward persons entering for such purposes. While the property owner is accorded legal protection from certain liability, it is not immune from all liability. Section 477-6(1) excludes from such limitation of liability a “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”

“The Pennsylvania Supreme Court has indicated that willful conduct in this context consists of a failure to disclose ‘dangerous conditions known to it (the possessor of the premises) and not likely to be discovered. ’Kopp v. R.S. Noonan Inc., 385 Pa. 460, 463, 123 A.2d 429 (1956). (emphasis supplied) This formulation of the law is the basis for the court’s conclusion in Hahn v. Commonwealth, supra, that the Recreation Act had the effect of limiting a landowner’s specific duty to persons entering his land for recreational purposes to that duty owed to a gratuitous licensee at common law. Thus, willfulness under section 477-6 contains two elements: (1) actual knowledge of a danger (2) that is not obvious to those entering the premises.” Livingston by Livingston v. PP&L Co., 609 F.Supp. 643, 649 (D.C. Pa. 1985), aff'd 782 F.2d 1029 (1986).

Plaintiff in this case has, on deposition, testified that she was walking in an open grass-covered recreation field when she suddenly stepped into a small hole, causing her injuries. Such a hazard became much more dangerous because it was so much less likely to be expected by the casual user of the recreational land. A jury could conceivably find that the hole was a hazard which was actually known to defendant, and was not obvious to a user of the premises, thereby making defendant’s conduct willful, and therefore not shielded from liability pursuant to section 477-6 of RULWA.

We therefore enter the following

. ORDER

And now, November 13, 1990, defendant’s motion for summary judgment is denied.


author: RAUP, P.J.,

text:
    Commonwealth v. Haefner

      Kenneth Osokow, assistant district attorney, for the Commonwealth.

      Mark Lovecchio, for defendant.
    October 24, 1990
   RAUP, P.J.,

The instant motion in limine raises an issue as to the admissibility of the results attained by a preliminary breath test. Counsel for the Commonwealth invites the courts of this jurisdiction to admit preliminary breath test results as substantive evidence in underage drinking cases. We decline to accept this invitation.

FACTS

On June 26, 1990, Aron Haefner, 17 years of age, received a citation charging him with consuming alcoholic beverages while still under the age of 21. At a summary proceeding held before Magistrate John McDermott, on July 19, 1990, police officer Leonard Dincher testified that after detecting the odor of alcohol he required defendant to provide a sample of his breath for analysis by a portable “BT-3 Breath Alcohol Tester.” The officer then sought to introduce the “positive” result of the preliminary breath test device, allegedly indicating the presence of alcohol, as the sole support for his testimony. Haefner appealed from Magistrate McDermott’s summary sentence involving a $100 fine and a suspension of his driver’s license.

Before this court, Haefner has raised a motion in limine to suppress the information regarding, and flowing from, the preliminary breath test. Since this holding is apt to have repercussions beyond the facts of this case, we have chosen to hear the instant matter en banc.

Presence of Alcohol

The Commonwealth argues that Wall v. Commonwealth, 114 Pa. Commw. 397, 539 A.2d 7 (1988) holds that the preliminary breath test can be used for the purpose of detecting the presence of alcohol; therefore, they assert, since the underage drinking statute does not impose a threshold amount, the result of a device which is currently used to establish the presence of alcohol would be sufficient to convict an underage drinker. This argument fails to recognize the purpose for which the use of the preliminary breath test is authorized.

“The sole purpose of these testing devices is to assist the officer or patrolman in determining whether or not a person should be placed under arrest for violation of 75 Pa.C.S. §3731 (driving while under the influence of alcohol), or for violation of 30 Pa.C.S. §5502 (operating a watercraft while under the influence of alcohol.) After an arrest is made, the person can then be requested to submit to evidential chemical testing as authorized in 75 Pa.C.S. § 1547(a) or 30 Pa.C.S. §5125(a).” 18 Pa. Bull. no. 50, December 10, 1980, at 5535. (emphasis supplied)

We find that the Commonwealth asks us to recognize the preliminaiy breath test result as scientific evidence, without satisfying either of the two alternative standards for the admissibility of scientific evidence.

Standards for Scientific Evidence

Scientific evidence “draws its convincing force from some principle of science, mathematics and the like.” Commonwealth v. Miller, 367 Pa. Super. 359, 363, 532 A.2d 1186, 1188 (1987), citing State v. Reed, 83 Or. App. 451, 732 P.2d 66 (1987)). In Pennsylvania, the Supreme Court has mandated that the party moving scientific evidence must present an “adequate foundation.” Commonwealth v. McGinnis, 511 Pa. 520, 524, 515 A.2d 847, 849 (1986). Our appellate courts have shown that a party may lay such a foundation by invoking a statute which expressly authorizes admission, or by establishing acceptance of the evidence in the scientific community from which a test spawned. Commonwealth v. Miller supra, citing Commonwealth v. Topa, 471 Pa. 223, 231, 369 A.2d 1277, 1281 (1977).

(A) By Statute

In McGinnis, supra, the Commonwealth sought to admit scientific evidence pursuant to a statute specifically authorizing certain forms. The McGinnis case also demonstrates the strict degree to which Pennsylvania courts construe the language of an “admitting statute.” It is clear, following this case, that only those devices named in the statute may be admitted without expert testimony.

In the instant case, a preliminary breath test is authorized by statute only for use in establishing probable cause for an arrest for driving under the influence of alcohol, 18 Pa.C.S. §1547(k). We have neither the authority nor the inclination to extend this statute as authority for the admission of a preliminary breath test result as substantive evidence in an underage drinking case.

(B) Scientific Community

The second method of presenting an “adequate foundation” under McGinnis is to show that the proffered evidence has “the general acceptance of its validity by those scientists active in the field to which the evidence belongs.” Commonwealth v. Miller, supra, citing Commonwealth v. Topa, supra (results of horizontal gaze nystagmus test requires a foundation laid by expert testimony before it is admissible). The Commonwealth should be given the opportunity to establish this requisite “adequate foundation.”

CONCLUSION

While we recognize the need for a portable, expedient, and inexpensive method of testing for a violation of 18 Pa.C.S. §6308, the current device may not fill this need without expert testimony. Absent a statute, we will require expert testimony on which the court can assess an instrument’s reliability. Therefore, this court issues the following

ORDER

And now, October 24, 1990, it is ordered and directed that the evidence regarding the results of the preliminary breath test shall not be admissible, unless the Commonwealth presents expert testimony at trial that establishes the reliability and general acceptance within the scientific community of the preliminary breath test.

       Title 18 Pa.C.S. §6308(a) states:

        “Offense defined — A person commits a summary offense if he, being less than 21 years of age, attempts to purchase, purchases, consumes, possesses or knowingly and intentionally transports any liquor or malt or brewed beverages, as defined in section 6310.6 (relating to definitions).”


author: LOWE, J.,

text:
    DeAngelo v. Murray

      Diane Zabowski, for plaintiff.

      Robert J. Kerns, for defendant.
    November 7, 1990
   LOWE, J.,

This matter is on appeal before the Superior Court of Pennsylvania following an order entered by this court on July 17, 1990 directing Nancy DeAngelo (petitioner), David Murray (respondent), and Arden DeAngelo (child) to submit to red cell enzyme and serum protein tests.

On October 11, 1986 petitioner gave birth to child. Five days later, petitioner filed a complaint in support, wherein she alleged that respondent is child’s father. Respondent denied and has continued to deny paternity. On May 5, 1987 the Honorable William T. Nicholas of this court ordered the three parties to submit to blood tests (red cell typing and human leucocyte antigen testing) under the auspices of Clinical Testing and Research Inc. for the purpose of determining paternity. After analyzing the test results, Clinical Testing issued a report on August 16, 1987, prepared by Dr. Leslie Johnson, in which she concluded that “the calculated probability of [respondent being the father] is 90 percent.” In the report Dr. Johnson recommended that “additional genetic studies should be considered.” In an effort to refute Clinical Testing’s findings, respondent retained the services of Dr. Paul Oldfather, who examined the results of the first test and concluded that further testing in the human leu-cocyte antigen and red cell systems were required. Dr. Oldfather suggested DNA fingerprinting as a means by which paternity could be definitively established. Thereafter, the Honorable Samuel W. Salus II entered an order directing the parties to submit to genetic polymonphismus testing. The blood samples were sent to the Cellmark Diagnostic Center which conducted DNA fingerprinting analysis and issued a report on July 7, 1989 stating that “it is not possible for [respondent] to be the biological father of [child].” Dr. Johnson reviewed the DNA fingerprinting test result and expressed concern over its accuracy and scientific reliability. Again she suggested that further testing be performed and specifically recommended red cell enzyme and serum protein tests. On February 8, 1990 petitioner filed a petition for genetic testing in which she requested, on the basis of Dr. Johnson’s recommendation, that the parties submit to red cell enzyme and serum protein tests. The court granted the petition to which respondent objected on the grounds that substantial and sufficient testing had already been conducted.

The Uniform Act on Blood Tests to Determine Paternity, 42 P.S. §6131 et seq., governs cases such as this in which paternity is an issue and blood testing is necessary to resolve the question. Section 6133 of the act provides:

“In any matter subject to this subchapter in which paternity, parentage or identity of a child is a relevant fact, the court upon its own initiative or upon suggestion made by or on behalf of any person whose blood is involved may, or upon motion of any party to the action made at a time so as not to delay the proceedings unduly, shall order the mother, child and alleged father to submit to blood tests. If any party refuses to submit to such tests, the court may resolve the question of paternity, parentage or identity of a child against such a party, or enforce its order if the rights of others and the interests of justice so require.”

Respondent maintains that it is unprecedented for a court to order a third set of blood tests and therefore argues this court erred in granting petitioner’s request. However, in Koleski v. Park, 363 Pa. Super. 22, 525 A.2d 405 (1987), the Superior Court found the act to be inconclusive on the question of further blood testing because the language of section 6133 is ambiguous as to the number of blood tests that may be ordered by each party. In Koleski and again in Mitchell v. Hopson, 376 Pa. Super. 166, 545 A.2d 371 (1988), the Superior Court endeavored to resolve the ambiguity by promulgating the circumstances under which a court may order parties to submit to additional blood testing. The Superior Court stated that the proponent of further testing must show by a preponderance of the evidence that the initial test(s) were defective and that a subsequent test is necessary to establish paternity conclusively.

In our case, the court finds that petitioner has met this burden. To recapitulate, Clinical Testing’s interpretation of the first tests indicated that respondent in all likelihood is child’s father; conversely, according to Cellmark’s analysis of the second test, respondent is definitely not the father. Although petitioner has not shown that either of the tests was defective, clearly the two tests yielded contradictory results and a third test is essential in order for the court to render an accurate determination of paternity. Otherwise, the court’s ultimate ruling on the issue of child’s paternity would be predicated upon speculation and conjecture.

As the Superior Court was in Koleski, so this court is mindful of the possibility of harassment where one party could impose multiple blood testing on the other. Contrary to respondent’s contentions, petitioner is not “grasping at straws in the hope that sooner or later a test will come out in her favor,” nor is she requesting an additional blood test to harass respondent. She merely wishes to have her daughter’s paternity decided conclusively and believes, as the court does, that requiring all parties to submit to red blood cell enzyme and serum protein tests is the best available means by which this question can be definitively resolved. Petitioner makes this request not only for herself but on her daughter’s behalf because, as the United. States Supreme Court noted in Little v. Streater, 452 U.S. 1, 101 S.Ct. 2202, 68 L.Ed.2d 627 (1981), a child has a compelling interest in the accuracy of a paternity determination.

Respondent argues in his appeal that by ordering a third blood extraction, the court has violated his rights under the Fourth Amendment to the U.S. Constitution and Article I, section 8 of the Pennsylvania Constitution. This court disagrees. As the Pennsylvania Supreme Court observed in John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), the person whose blood is sought has clear privacy interests in preserving his or her bodily integrity, and the constitutional right to be free from unreasonable searches and seizures. “While the rights and interests of a person whose blood sample is sought are also not absolute, neither are they insubstantial, and they must be taken into consideration by a court in determining whether there is ‘good cause3 for court-ordered blood tests under Rule 4010(a).” As the Superior Court noted in Commonwealth v. Hipp, 380 Pa. Super. 345, 551 A.2d 1086 (1988), the proper function of the Fourth Amendment of the U.S. Constitution as well as Article I, section 8 of the Pennsylvania Constitution is to constrain, not against all intrusions, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.

The case at bar is indeed unique, as two reputable blood sampling testers and researchers have arrived at diametrically opposed conclusions as to whether respondent is child’s father. Under these unusual circumstances, this court does not think that it is unreasonable to oblige the putative father to subject himself to a third test. Unquestionably, an accurate determination of child’s paternity is paramount and thus a third test is eminently justified under the circumstances, and does not constitute an unreasonable intrusion violative of respondent’s rights under the Fourth Amendment of the U.S. Constitution or Article I, section 8 of the Pennsylvania Constitution.

In view of the foregoing, the court’s July 17, 1990 order directing all parties to submit to red cell enzyme and serum protein tests should be affirmed.


author: BLAHOVEC, J.,

text:
    Silk v. Silk

      Gino Peluso, for plaintiff.

      Anthony G. Marsili, for defendant.
    October 17, 1990
   BLAHOVEC, J.,

This matter came before this court for hearing as a result of a petition to request HLA blood testing for paternity filed on behalf of defendant, Thomas M. Silk. On July 31, 1990, plaintiff, Karen E. Silk, filed a complaint for support seeking child support for the minor child, Christopher M. Silk, born November 30, 1988.

The parties are husband and wife, having been married on April 3, 1981. They separated on March 4, 1988, reconciled, and separated most recently on July 14, 1990.

Plaintiff admitted having a menstrual period in February 1988. She recalls having sexual intercourse with defendant in February 1988 about the time the parties returned from a billiard tournament. She estimated the date of conception as on or about Februaiy 23, 1988. In March 1988, plaintiff had sexual relations with another man between March 4, 1988 and March 26, 1988.

When plaintiff told defendant he was about to be a father on or about April 2, 1988, he was very happy. Defendant had always treated the child as his own until the parties’ most recent separation on July 14, 1990.

The recent case of Scott v. Mershon, 394 Pa. Super. 411, 576 A.2d 67 (1990) was argued by counsel for both parties as supporting their respective positions. In Scott, a married woman brought a support action against a third party on the theory he was the biological father of a child born in wedlock. The trial court denied the married woman’s motion for blood tests and dismissed the support complaint. The Superior Court affirmed, holding, in very strong language, that the presumption that a child born to a married woman is the child of the marriage precluded her attempt to assert paternity against a third party.

The court noted that the Uniform Act on Blood Tests to Determine Paternity, 42 Pa.C.S. §6131 et. seq., provides that the court may order blood tests in any matter in which paternity is a “relevant fact.” Before paternity becomes a relevant fact, the presumption must be rebutted. The burden of proof to rebut the presumption is extremely heavy. Scott, supra.

In the present case, the child was conceived during marriage and the parties had sexual relations at the time of conception. The sole question to be answered is whether the mother’s admission that she had sexual relations with another man at about the time of conception rebuts the presumption. This court concludes, based on Scott, that it does not.

Counsel for defendant ably argues that part of the rationale of Scott is to preserve intact families, but in the present case the family is no longer intact, with the parties having separated. The court believes counsel is defining the term intact family too narrowly. Christopher has a father and mother who happen not to live together, as so often occurs in our society. A declaration that some outsider to his family unit is the biological father could only disrupt this family, the maintenance of which is in the child’s best interest. This court believes the rationale of Scott applies even when the parties, while legally married, are separated.

In Scott v. Mershon the Superior Court recognized the same result could have been reached on a theory of equitable estoppel, but felt it preferable to rely on the presumption. In the present case, since November 30, 1988, until the most recent separation, defendant has openly held the child out to be his, has received the child into his home and provided support for the child. The Pennsylvania Supreme Court, in John M. v. Paula T., 524 Pa. 306, 571 A.2d 1380 (1990), stated that where equitable estoppel applies, blood tests may be irrelevant, for the law will not permit a person in these situations to challenge the status which he or she has previously accepted. Pennsylvania courts have employed es-toppel to preclude a husband from denying paternity when a child is born in wedlock but the couple separate and the ex-husband attempts to deny paternity subsequent to separation. Christianson v. Ely, 390 Pa. Super. 398, 568 A.2d 961 (1990). That rationale should be applicable in the present case.

In short, defendant cannot, as a matter of law, have his blood tests for two reasons: first, the presumption exists that this child born during a marriage is a child of the marriage; and second, defendant is estopped from denying his paternity of the child because he has held the child out as his. He is the only father Christopher has ever known.

This court is not unaware of the nagging doubts that arise in these cases. The temptation to order blood tests is great — at least everyone will “know for sure.” However, the law does not support such a satisfaction of curiosity.

ORDER OF COURT

And now, October 17, 1990, after hearing, it is hereby ordered and decreed that defendant’s petition for blood tests is denied.

It is further ordered and decreed that the support hearing in this matter previously continued be rescheduled before a domestic relations hearing officer.


author: O’BRIEN, J.,

text:
    Alexanian v. Peffer

      Cletus P. Lyman, for plaintiffs.

      James A. Swetz, for defendants.
    December 20, 1990
   O’BRIEN, J.,

On July 10, 1989, President Judge James R. Marsh entered a decree adjudicating various landlord-tenant disputes between the parties to this proceeding, docketed at no. 3218 Civil of 1988. The decree granted injunctive relief to both parties and provided in part:

“These conditions shall remain in effect until the lease agreement ends or until such measures are no longer necessary to maintain a harmonious landlord-tenant relationship and the court withdraws them.”

While the ink was barely dry on Judge Marsh’s decree, and the injunctive provisions of the decree were still in effect, plaintiffs, Edward M. Alexanian et ux., filed a landlord-tenant complaint before a district justice on October 29, 1989. The district justice dismissed the complaint and plaintiffs filed a notice of appeal. The prothonotary struck the notice of appeal for failure to comply with the service requirements and plaintiffs filed a petition to reinstate their appeal. Defendants filed an answer to this petition and following briefs and arguments the issue of the reinstatement of the appeal is now before the court for disposition.

The rules governing procedure before the district justices provide in relevant part as follows:

“A. The appellant shall by personal service or by certified registered mail serve a copy of his notice of appeal upon the appellee and upon the district justice in whose office the judgment was rendered. . . .

“B. The appellant shall file with the prothonotary proof of service of copies of his notice of appeal, and proof of service of a rule upon the appellee to file a complaint if required to request such a rule by rule 1004B, within five days after filing the notice of appeal.” Pa.R.C.P.D.J. 1005.

In the case at bar, plaintiffs, who filed their notice of appeal pro se, attempted to effect service by first class mail rather than by personal service or certified or registered mail as required by the rule. They also failed to file proof of any service. Therefore the prothonotary, upon praecipe, struck the appeal in compliance with Pa.R.C.P.D.J. 1006 which provides as follows:

“Upon failure of the appellant to comply with Rule 1004(A) or Rule 1005(B), the prothonotary shall, upon praecipe of the appellee, mark the appeal stricken from the record. The court of common pleas may reinstate the appeal upon good cause shown.”

Plaintiffs now seek to have their appeal reinstated upon “good cause shown.” In support of their position, counsel for plaintiffs relies upon the holding of our Superior Court in Quarato v. Facelifters, Ltd., 305 Pa. Super. 536, 451 A.2d 111 (1982). In that case, proper service was effected upon the opposing party and the only non-compliance with the rule was the failure to file a proof of service. However, in the case at bar, plaintiffs failed to both effect service in accordance with the rule and to file proof of service. Therefore, this proceeding is governed by the holding of the Superior Court in the City of Easton v. Marra, 230 Pa. Super. 352, 326 A.2d 637 (1974), where the appeal was stricken for failure to effect proper service. Therefore, we conclude that good cause has not been shown to reinstate the appeal between these litigants. See also, Polybac v. Weiner, 31 D.&C. 3d 320 (1984).

ORDER

And now, December 20, 1990, the petition of plaintiffs, Edward M. Alexanian and Jane M. Ale-xanian, to reinstate their appeal is denied.


author: THOMAS, S.J.,

text:
    Blyler Estate

      David L. Hotchkiss, for Laura R. Johnson.

      Paul D. Shafer Jr. and Jeffrey K. Millin, for Joan E. Wass.
    December 14, 1990
   THOMAS, S.J.,

This matter is before us on a motion for partial summary judgment with the sole issue being the constitutionality of section 2502 of the Probate, Estates and Fiduciaries Code of Pennsylvania, 20 Pa.C.S. §2502(2).

The deceased, Frederick J. Blyler, placed his mark on a will dated September 28, 1989, which will was witnessed by three subscribing witnesses. It is admitted that at the time the deceased placed his mark thereon and the subscribing witnesses observed the same that the typewritten name of the testator had already been typed under the signature line, and therefore did not meet the requirements of section 2502(2), which requires that the name of the testator be subscribed in his presence before or after he makes his mark. There had been a previous will executed July 8, 1987, which was admitted to probate by the Register of Wills.

The sole issue for the court’s determination is the contention of Laura Johnson, a co-beneficiary under the 1989 will which the register refused to probate, that section 2502(2) of the Probate, Estates and Fiduciaries Code is unconstitutional.

DISCUSSION

The thrust of Laura Johnson’s contention is that this section of the Pennsylvania Code in establishing appropriate procedures when wills are signed by mark exceeded legislative authority in that the strict language requiring that the name of the marking testator be subscribed before or after he makes his mark in his presence is such an arbitrary exercise of legislative power as to violate the due process guarantee of the Fifth and 14th amendments of the United States Constitution.

We heard oral arguments on this narrowly focused issue and received excellent briefs from each side. We direct the briefs be filed and made part of the record in this case.

After study of the statute and the case law propounded by each side, we are satisfied that this particular section of the code is not unconstitutional.

We will not here recite case law to the effect that statutory law enacted by state legislators carries a presumption of constitutionality. We need not here restate and analyze applicable decisional law so carefully set forth in the respective briefs. We are satisfied that the Jerokovitch Will case cited in the briefs is controlling. See Jerokovitch Will, 30 Fid. Rep. 265 (1979), affirmed per curiam, 488 Pa. 537, 412 A.2d 1106 (1980), dismissed on appeal to the U.S. Supreme Court in 449 U.S. 803.

Judge Rodgers in Jerokovitch carefully traced the legislative history of requirements necessary to validate wills executed by mark and the necessity of safeguards designed to carry out the intention of the testator and eliminate fraud. As noted by Judge Rodgers, the motive of the legislature is generally not a matter for judicial review and the safeguards built into Pennsylvania Code are not so arbitrary and capricious as to infringe upon the deprivation of property under the Fifth Amendment of the federal Constitution.

Accordingly, this court, as did the Supreme Court of Pennsylvania in deciding Jerokovitch, concludes that section 2502(2) does not violate federal or state constitutional standards and represents appropriate legislative discretion in mandating safeguards when wills are signed by mark.

We note in reaching this conclusion that we do not decide, and, in this narrowly focused issue, we are not called upon to decide, whether Frederick J. Blyler possessed the requisite testamentary capacity at the time he placed his shaky, quivering mark on the will at issue.


author: VANSTON, P.J.,

text:
    Appeal of Yarasavage

      Richard S. Bishop and Sandra Kaplan, for appellants.

      David A. Serchak, for Wyoming County.
    November 30, 1990
   VANSTON, P.J.,

Mr. and Mrs. Edward Yarasavage are the owners of an operating farm in Washington Township, Wyoming County. They have been in the farming business for many years raising corn, hay and cattle.

In 1988, the Yarasavage’s applied for and were granted by Wyoming County a reduced real estate tax assessment by virtue of “The Clean and Green Act,” 72 P.S. §5490 et seq. Thereafter, they conveyed a portion of their farm to their son, William and his wife. The parcel conveyed was 5.04 acres in area and was improved with a dwelling house that William had constructed prior to the conveyance.

As the parcel was in excess of two acres (see 72 P.S. §5490.6(b)), the County of Wyoming revoked Yarasavage’s preferential assessment and. notified them that they owed a “rollback” tax in the amount of $3,380.09. The Yarasavages appealed to the Wyoming County Assessment Appeal Board which denied them the relief they sought. A timely appeal to this court then followed.

At hearing on November 20, 1990, the parties stipulated to various facts from which the court made the following findings of fact:

(1) All of appellants’ realty relevant to the instant matter has been in agricultural use for more than three years and, both before and after conveyance, consisted of more than 10 acres.

(2) Of the 5.04 acres conveyed to William Yara-savage et ux., at least three acres remain in agricultural use.

(3) The lands of Edward Yarasavage et ux. and William Yarasavage et ux., when considered together, have an anticipated yearly gross income of not less than $2,000 from agricultural products.

(4) There has been no change in the nature of the use of the subject land.

Accordingly, this court concludes that both tracts of land meet the requirements of 72 P.S. §5490.3(a)(l), and therefore the conveyance must be deemed to be a “separation” rather than a “split-off” as defined by the act. Therefore, the County of Wyoming was in error in revoking the preferential tax assessment of the appellants and in demanding payment of the “rollback” tax.

This writer’s duties under the law would be acquitted by concluding the opinion at this point. Further gratuitous comments, however, may be of use.

The court’s decision affects only the 1989 and 1990 tax assessment of the remaining lands of Edward Yarasavage et ux. It is anticipated that the county will continue to monitor the use to which the Yarasavage land is put in the future. The act, itself, contemplates a period of seven years from the date of the conveyance. See 72 P.S. §5490.6(c). Should the two tracts during those seven years no longer be in conformity to section 5490.3(a)(1), then the county could petition the court for a redetermination of the present decision. If such occurred after seven years, the county would have to recommence the process in the Assessor’s Office.

A word of guidance to the Assessor’s Office: This court will not take a hypertechnical view of the requirements of the Clean and Green Act. Minor acreage variances of less than half an acre may be ignored where appropriate. Crop income figures may be based on 10-year averages consistent with good farming methods.

The Yarasavages could have easily avoided their present difficulty by conveying only two acres to William in any given year. At the time of the conveyance, they had not been enrolled in Clean and Green for a long period of time. They should have been aware of the restriction but they were not.

This is illustrative of a problem that exists in many counties in Pennsylvania. If lawyers and judges have difficulty understanding the complexities of tax assessment laws, rules and regulations, how are we to expect farmers and other landowners to do so? A burden exists on each county assessment office to affirmatively educate those enrolled or seeking to be enrolled in the Clean and Green Program. Perhaps an annual seminar could be offered under the auspices of the Pennsylvania State University Agricultural Extension Office? Perhaps the seminar could be offered to those already enrolled to enable them to seek answers to some of the difficult questions which may arise? Perhaps as a prerequisite to processing an application?

Such an educational process, we think would go a long way toward avoiding litigation of the like seen here. Thus it will save both those who pay taxes and those to whom taxes are paid more than just the costs of litigation.

ORDER OF COURT

And now, November 30, 1990, for the reasons set forth in the opinion of the court of even date, it is ordered that the appeal of Edward Yarasavage and Gladys Yarasavage in the above-captioned matter be and is hereby sustained.


author: COTTONE, J.,

text:
    Schwab v. Milks

      Terrence R. Nealon, for plaintiffs.

      Joseph A. Quinn Jr. and Neil L. Conway, for defendants.
    November 7, 1990
   COTTONE, J.,

Presently before us is a discovery issue; namely, a motion to compel answers to interrogatories submitted by plaintiffs, Barbara J. and Elvin Schwab.

Plaintiffs instituted this wrongful death action against defendants as a result of the death of their infant son, Steven Charles Schwab. Plaintiffs contend that defendants were negligent in failing to diagnose timely and treat properly the infant’s bron-chopneumonia which ultimately led to his death at age four months.

For purposes of this litigation, defendants have retained the services of two physicians, John Rogers, M.D. and John Shane, M.D., to testify as expert witnesses on their behalf. The interrogatories now in dispute involve matters regarding these medical experts.

In an attempt to determine the existence of possible bias or interest on the part of these defense witnesses, plaintiffs served supplemental expert witness interrogatories inquiring, inter alia, whether these medical experts had, on any prior occasions, enlisted the legal services of the law firm of Houri-gan, Kluger, Spohrer & Quinn, P.C., the firm currently representing defendants. Plaintiffs maintain that they are entitled to the information sought in these interrogatories in order to pursue the presence of a prior relationship or friendship between the experts and defense counsel. Defendants, meanwhile, contend that the requested information raises purely collateral matters, not relevant to the subject matter involved at present.

The scope of discovery is governed by Pa.R.C.P. 4003.1, which provides, in pertinent part:

“(a) [A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . .

“(b) It is not ground for objection that the information sought will be inadmissible at the trial of [sic] the information sought appears reasonably calculated to lead to the discovery of admissible evidence.”

Thus, we must determine whether plaintiffs’ inquiry into defense counsel’s possible prior representation of defendants’ expert witnesses is relevant and reasonably calculated to lead to the discovery of admissible evidence. We believe it is.

The party objecting to an interrogatory has the burden of establishing why the information is non-discoverable and should be refused. Foltz v. Kauper, 35 Somerset Leg. J. 161 (1978). Furthermore, our courts have followed the policy that discovery should be liberally allowed and that any such limitations should be construed narrowly. Goodrich-Amram 2d §4001:3. Cognizant also that the term “relevant” under Pa.R.C.P. 4003.1 “for purposes of discovery has a greater breadth and scope and carries a more flexible standard than ‘relevant’ for purposes of admissibility of evidence at trial,” Beck v. Mann, 40 Lehigh L.J. 479 (1984), we find the instant interrogatories proper.

As a matter of successfully meeting their burden, defendants argue that the requested information is irrelevant and that such discovery would cause “unreasonable annoyance” and “embarrassment” to these witnesses. See Pa.R.C.P. 4011(b). For authoritative support, defendants rest on McNear v. New York, Chicago and St. Louis Railroad Company, 20 F.R.D. 598 (1957), where the court therein deemed improper an inquiry of a medical expert which would direct this witness to state the number of litigants examined or treated by him for an attorney or a law firm within a specified period of years. We are better persuaded, however, that the cases cited by plaintiffs are more analogous at present.

We first look to Smith v. Celotex Corporation, 387 Pa. Super. 340, 564 A.2d 209 (1989). In Smith the Superior Court decided that the cross-examination at trial of an expert witness of the defendant therein, regarding his prior testimony and fees received in different litigation, was proper to demonstrate potential bias and partiality. Though not squarely on point, the circumstances surrounding the instant case are sufficiently similar to Smith that we adopt its holding. We do so mindful of the fact that discovery is not limited to matters of admissible evidence, thereby easing the restrictions on what matters are discoverable. Pa.R.C.P. 4003.1(b).

Next, we examine a case of local significance, Best v. Marmo, 89 Lacka. Jur. 30 (1988). In a decision handed down by Judge Chester T. Harhut, this court held that inquiry into the physician’s/expert witness’ personal friendship with a party’s attorney so as to expose a bias towards either side of the lawsuit was permissible. Id. Again, while the matter today before us does not involve a question of friendship between the medical experts and counsel, it does deal with an issue of witness credibility, an area into which a party is always entitled to explore. See Downey v. Weston, 451 Pa. 259, 301 A.2d 635 (1973); Pittsburgh National Bank v. Mutual Life Insurance Co. of N.Y., 273 Pa. Super. 592, 417 A.2d 1206 (1980), aff’d. 493 Pa. 96, 425 A.2d 383 (1981).

Therefore, since the interrogatories at issue request information which is discoverable according to the provisions of Pa.R.C.P. 4003.1, we shall now grant plaintiffs’ motion. However, in order to make these requests more reasonable, defendants are required only to produce such information dating back to the last five years. Such discovery is basic to good judicial administration, clearly not amounting to a “fishing expedition.” See Estate of Townshend, 430 Pa. 318, 241 A.2d 534 (1968), cert. denied, 393 U.S. 934, 89 S.Ct. 293, 21 L.Ed. 2d 270.

ORDER

Now, November 7, 1990, defendants are hereby ordered to serve full and complete answers to plaintiffs’ supplemental expert witness interrogatories in dispute. It is further ordered that such answers shall be limited in accordance with the foregoing opinion. Defendants are granted 45 days in which to answer the interrogatories.


author: TUMOLO, Chairman,

text:
    In re Anonymous No. 62 D.B. 85
    Disciplinary Board Docket no. 62 D.B. 85.
    November 6, 1990
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

TUMOLO, Chairman,

Pursuant to Pennsylvania Rule of Disciplinary Enforcement 218, the following report and recommendation is hereby submitted by the Disciplinary Board of the Supreme Court of Pennsylvania, hereinafter referred to as “board.”

PROCEDURAL HISTORY

As a result of respondent’s guilty plea on May 31, 1985 to five counts of possession of cocaine the Supreme Court of Pennsylvania placed him on interim suspension by order dated August 2, 1985.

On August 28, 1985 a petition for discipline was filed.

On January 30, 1987 a hearing was held on the petition, at which time respondent was no longer incarcerated but was still serving a period of probation. On June 1, 1987 the hearing committee recommended that respondent remain on suspension until he completed probation.

On October 5, 1987 the board recommended suspension of three and one-half years commencing retroactively on August 2, 1985. The board recommendation rejected the position of the Office of Disciplinary Counsel that a lawyer cannot have a license to practice while he still is on any form of criminal probation.

The Supreme Court by order dated July 15, 1988, exercising its powers of de novo review, suspended respondent for a period of five years retroactive to August 2, 1985.

On May 29, 1990 respondent filed a petition for reinstatement. A hearing was held on August 15, 1990 before Hearing Committee [ ] consisting of [ ]. That committee unanimously recommended reinstatement, and the Office of Disciplinary Counsel did not file exceptions..

FINDINGS OF FACT

(1) Respondent was admitted to the bar of the Supreme Court of Pennsylvania in 1976.

(2) Other than the disciplinary infraction which is the subject matter of this reinstatement proceeding the record does not reveal any other disciplinary violations.

(3) Respondent has satisfied the objective criteria set forth in Board Rule 89.279 by taking the PBI courses in all of the eight areas required to establish current competency in the law of Pennsylvania. In addition, respondent has kept current with advance sheets, and of at least as much importance is the fact that respondent has developed an expertise in real property and mineral rights while working as a paralegal. This will allow respondent, after readmission to the Pennsylvania bar, and upon satisfactorily passing the West Virginia Bar Examination, to become an associate in a [A] law firm.

(4) Petitioner has completed all phases of his criminal probation.

(5) Petitioner has voluntarily participated in drug counseling programs and there is no indication whatsoever on the record that he has any residual drug problem.

(6) After a full revelation of his past history of criminal and disciplinary difficulties, respondent’s work as a paralegal was rated outstanding, as were his moral qualifications, by two attorneys who interacted with him on both a professional and social basis.

(7) Respondent enjoys an excellent reputation for honesty in the community in which he resides, and is involved with family members in local church activities.

(8) Respondent’s readmission to the bar of the Supreme Court of Pennsylvania will neither be detrimental to the integrity of the bar, or to the administration of justice, nor will it be subversive to the public interest.

DISCUSSION

In a readmission proceeding, respondent has the burden of proof by clear and convincing evidence that he has the moral qualifications, competency and learning in the law required for admission to practice, and that the resumption of the practice of law within the Commonwealth will neither be detrimental to the integrity of the bar, or the administration of justice, nor subversive to the public interest. The facts on this record, unopposed by the Office of Disciplinary Counsel, more than meet the criteria for reinstatement. See In re Anonymous No. 30 D.B. 79, 1 D.&C. 4th 14 (1987), and In re Anonymous No. 46 D.B. 75, 50 D.&C. 3d 170 (1987).

As to competency, respondent has met the objective criteria provided for in the rules by taking the courses identified by the Office of the Secretary. In addition, he has been involved in paralegal activities, none of which entailed direct client contact. And finally, he has testified that he has kept abreast of current developments in the law.

The evidence shows that he is completely rehabilitated from any drug problems. His involvement in community activities and the professional way that he has conducted himself has led to the willingness of both attorneys and lay witnesses to vouch for his excellent moral character. In the event he is readmitted to the bar of the Commonwealth of Pennsylvania, he will sit for the West Virginia Bar Examination and, in the event he passes, he will become an associate in a [A] Law Firm.

RECOMMENDATION

The board unanimously recommends to the Supreme Court of Pennsylvania that respondent be readmitted to the bar of the Supreme Court of Pennsylvania, and that he be directed to pay the costs of these proceedings.

Mr. Gilardi did not participate in the adjudication.

ORDER

And now, December 26, 1990, upon consideration of the report and recommendations of the Disciplinary Board dated November 6, 1990, the petition for reinstatement is granted.

Pursuant to Rule 218(e), Pa.R.D.E., petitioner is directed to pay the expenses incurred by the board in the investigation and processing of the petition for reinstatement.


author: BROMINSKI, J.,

text:
    Aetna Casualty and Surety Co. v. Fisher

      Gary A. Brienza, for plaintiff.

      Brigid E. Carey, for defendant.
    October 23, 1990
   BROMINSKI, J.,

This matter comes before the court upon motion for summary judgment of plaintiff, Aetna Casualty & Surety Company. Also before the court is the cross-motion for summary judgment of defendant, Mary M. Fisher. For the reasons advanced herein, plaintiff’s motion for summary judgment is granted, and defendant’s motion for summary judgment is denied.

The facts of this case, succinctly stated, reveal the following: On September 12, 1989, plaintiff filed a complaint in declaratory judgment. The complaint arises out of an automobile accident which occurred on December 9, 1987. Defendant was injured while a passenger in a 1976 Buick operated by her husband, Clarence Fisher. The vehicle being operated by Clarence Fisher was insured by plaintiff. The policy of insurance covering the vehicle provided liability coverage up to a limit of $50,000 and underinsured motorist coverage in the same amount. At the time of the accident, defendant’s husband passed out while operating the aforesaid vehicle, thereafter striking a telephone pole. The accident resulted in serious injuries to defendant.

Under the terms of the insurance policy in effect between plaintiff and defendant, the amount of bodily injury coverage was reduced from $50,000 to $15,000. This reduction was pursuant to an endorsement which limited the maximum amount of bodily injury protection available to persons related by blood, marriage, or adoption, who are residents of the insured’s household. As a result of the aforesaid exclusion, defendant received only $15,000 under the bodily injury coverage of the policy.

Defendant thereafter made a demand upon plaintiff for underinsured motorist benefits. Plaintiff refused to pay such benefits and filed a declaratoiy-judgment action, seeking a judicial interpretation of its obligation to pay underinsured motorist coverage. Plaintiff contends that it is not obligated to pay underinsured motorist benefits to a first-party beneficiary when it has already paid the maximum available pursuant to the bodily injury coverage of the policy.

Plaintiff in its motion and brief submits to the court the recent decision of the Pennsylvania Superior Court entitled Newkirk v. United Services Auto. Assn., 388 Pa. Super. 54, 564 A.2d 1263 (1989). Plaintiff argues that Newkirk is dispositive of the issue and precludes an individual receiving both liability coverage and underinsured motorist coverage under the same policy. Defendant, on the other hand, argues that Newkirk, supra, does not control in that Newkirk was limited to a factual situation wherein the policy language precluded an injured party from receiving both liability benefits and un-derinsured benefits. Plaintiff contends that the policy language in the Aetna policy does not contain language similar to that decided by the court in Newkirk, supra.

After carefully reading the parties’ briefs, as well as reviewing the decision of the court in Newkirk, we conclude that Newkirk is not limited to cases containing an exclusion clause. To the contrary, the language in Newkirk rests on public-policy grounds and precludes a first-party beneficiary from recovering both liability coverage and underinsured motorist coverage from the same policy.

The purpose of underinsured motorist coverage required by the Motor Vehicle Financial Responsibility Law was succinctly stated in Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 535 A.2d 1145 (1988). In Wolgemuth, the court stated the following:

“The purpose of underinsured motorist coverage is to protect the insured (and his additional insureds) from the risk that a negligent driver of another vehicle will cause injury to the insured (or his additional insureds) and will have inadequate liability coverage to compensate for the injuries caused by his negligence. Thus, an insured who purchases $100,000 of liability coverage to protect others from his negligence must, by law, be offered the option of purchasing up to $100,000 of underinsured motorist coverage to protect himself and his additional insureds from the risk that they will be severely injured by a negligent driver who has liability coverage in an amount insufficient to fully compensate them for their injuries.

“The language of the statute itself suggests that underinsured motorist coverage requires the existence of at least two applicable policies of motor vehicle insurance. ” 370 Pa. Super, at 58, 535 A.2d at 1149. (emphasis supplied)

In Newkirk v. United Services Auto. Assn., 388 Pa. Super. 54, 564 A.2d 1263 (1989), plaintiff was injured in a car accident while a passenger in a vehicle owned and operated by her husband. As in the case at bar, she sought to recover underinsured motorist benefits under her husband’s automobile insurance policy. The Superior Court held that she was not entitled to those benefits, based upon the purpose and intent of the Motor Vehicle Financial Responsibility Law. The Superior Court stated that:

“When the legislature created the underinsured motorist coverage provision of the MVFRL, they simply did not intend for an individual to recover third-party liability benefits and first-party underin-sured benefits from the same automobile insurance policy. . . .

“As we explained in Wolgemuth, our legislature enacted underinsured motorist coverage to resolve the inequities which resulted when only uninsured motorist coverage was mandatory and claimant who had purchased uninsured motorist coverage was involved in a car accident with an underinsured motorist rather than an uninsured motorist. Our legislature thus intended underinsured motorist coverage to operate in the same manner as uninsured motorist coverage only for motorists who were injured by underinsured motorists.

“With uninsured motorist coverage, a claimant cannot recover third-party liability benefits and uninsured motorist coverage from a tort-feasor’s policy of insurance. The reason for this is clear. If the tort-feasor has third-party liability coverage from which the claimant can recover, then the tort-feasor is not uninsured, and the claimant is not eligible to recover any uninsured motorist benefits .... When the claimant is entitled to recover uninsured motorist benefits because the tort-feasor is uninsured, the claimant recovers those benefits through his or her own policy of insurance.

“Applying this manner of operation to underin-sured motorist coverage, it follows logically that a claimant cannot recover third-party liability benefits and underinsured motorist coverage from the same policy of insurance. 388 Pa. Super, at 64, 564 A.2d at 1267-8. (citations omitted; emphasis supplied)

It is clear that the basis for the court’s arguments is not the exclusion clause of the policy itself, but rather the purpose and intent of the MVFRL. Neither Wolgemuth, supra, nor Newkirk, supra, limits application of its holding only to those instances where the policy definition specifically excludes such coverage. To the contrary, the courts clearly and unequivocally declare that the public policy of the Commonwealth, as expressed through the Motor Vehicle Financial Responsibility Law, precludes an individual from obtaining both liability and unde-rinsured motorist coverages from the same policy.

In view of the clear and unequivocal language in both Wolgemuth and Newkirk, it is apparent that an individual cannot recover both liability coverage and underinsured'motorist coverage from the same policy. To do so would be a violation of the policy underlying the Pennsylvania Motor Vehicle Financial Responsibility Law. As such, plaintiff’s motion for summary judgment is granted.

ORDER

It is hereby ordered, adjudged and decreed as follows:

(1) Plaintiff’s motion for summary judgment is granted.

(2) Defendant’s motion for summary judgment is denied.

(3) Plaintiff, once it has paid to defendant the maximum amount of bodily injury coverage available pursuant to the terms of its policy of insurance, is not required to pay to defendant any amount for underinsured motorist coverage.