author: FITZGERALD III, J.,

text:
    Commonwealth v. Gallman

      Emily Zimmerman, for respondent.

      Joseph C. Santaquida, for defendant.

      Burt M. Rubin, for intervening party.
    June 23, 2000
   FITZGERALD III, J.,

Before this court are motions by WPVI-TV to proceed as an intervening party, and to be allowed access to and the right to reproduce or copy a certain videotaped “confession” given by the defendant, James Gallman, to Philadelphia police officers prior to trial, and which was introduced in the Commonwealth’s case in chief during the defendant’s trial.

The issues have been argued and briefed by the parties.

By stipulation, the defendant, James Gallman, via trial counsel, Joseph Santaguida, Esquire, joins with the Commonwealth in opposing the motions of WPVI-TV. Counsel for defendant did not formally appear at the hearings regarding the motions and did not file any formal brief.

BRIEF SUMMARY OF TRIAL

The defendant, James Gallman was arrested on or about February 1,1999, and charged with the murder of his 2-year-old stepson, Vladmir Marchuk, who died on January 31,1999, as a result of receiving “blunt trauma” blows to the abdomen, while the defendant was caring for him.

On August 4, 1999, a bench trial was conducted before this court, and the defendant was found guilty of third-degree murder. On November 9, 1999, the defendant was sentenced to a term of incarceration of not less than seven years, nor more than 20 years at a state correctional institution. Thereafter, no direct appeal was taken by the defendant.

After being arrested, the defendant gave a statement to Homicide Detective Michael Walter, wherein he admitted to supervising the child, and attempting to “discipline” him by administering corporal punishment. The defendant stated that he struck the child four times, and hit him “harder than normal.”

The defendant’s statement was reduced to writing and signed by the defendant, and admitted into evidence. After executing the written statement, the defendant was re-interviewed, and the statement was reviewed by Detective Walter and the defendant together, and the defendant admitted that the statement was true and voluntarily given. This “statement,” that is, the review of the written statement, was videotaped by the police, with the defendant’s consent, and was also admitted into evidence, and shown to the court, acting as trier of fact. It is this videotaped “confession” that is the subject of the within litigation.

WPVI-TV was given access to the videotaped statement, for the purpose of viewing it, but moves this court to allow it to copy the tape for purposes of dissemination of the tape as it relates to the issue of the use of videotaped confessions at trial.

I. WPVI-TV’s Application To Intervene

The Commonwealth, in its brief, does not address the issue of the right of WPVI-TV to intervene. Furthermore, as a public news agency, WPVI-TV has a right to attempt to intervene in order to attempt to obtain relief. In matters affecting the purported right of the public, and, or, the news media to access and possibly subsequently disseminate court documents, or, other information obtained from evidence admitted at a criminal trial, representatives of the news media have frequently filed a “petition to intervene” in order to obtain judicial relief. See Commonwealth v. Lambert, 723 A. 2d 684 (Pa. Super. 1998); Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980); Capital Cities Media Inc. v. Toole, 506 Pa. 12, 483 A.2d 1339 (1984).

Generally, whether to allow intervention or not is a matter of the trial court’s discretion, and the trial court’s decision will not normally be disturbed absent a manifest abuse of discretion. Further, the trial court will not be found to have abused its discretion unless the record reflects that the judgement exercised by the trial court was manifestly unreasonable or the result of partiality, prejudice, bias, or ill will.

In the instant matter, this court finds that the application of WPVI-TV to intervene is meritorious. The sought for videotaped confession is a “judicial document” or “public record,” subject to the public’s asserted right to inspect and, or, copy. See Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987); United States v. Criden (I), 648 F.2d 814 (3d Cir. 1981); See also, In re Application of National Broadcasting Company Inc., 635 F.2d 945 (2d Cir. 1980).

Accordingly, WPVI-TV’s application to intervene is granted.

II. WPVI-TV’s Motion To Copy the Videotaped “Confession, ” Which Was Introduced at Trial

This court is not aware of any Pennsylvania case decision on the specific issue of the release of a videotaped “confession” of a criminal defendant. However, videotapes admitted into evidence at trial have been the subject of litigation regarding the public’s (media’s) right to access.

In United States v. Criden (I), 648 F.2d 814 (3d Cir. 1981), the Third Circuit Court of Appeals reversed the United States District Court for the Eastern District of Pennsylvania, and ruled that television networks were entitled to copy video and audio “surveillance” tapes of purported criminal activity between criminal defendants and third parties, which were admitted as evidence at trial, for the purpose of disseminating the tapes and information to the public. The basis for the decision was:

(1) That there was a strong common-law presumption of access, and there was an educational and informational benefit to the public by release of the evidence which raised significant issues of public interest. See Nixon v. Warner Communications Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978);

(2) That there was a strong presumption that material introduced at trial should be made reasonably accessible to the public in a manner suitable for copying and dissemination;

(3) That the rebroadcast of the videotapes of the (criminal) defendants’ activities, which were admitted into evidence and played for the jury, could not be appropriately considered as “enhanced punishment” of the defendants;

(4) That the rebroadcast of evidence already admitted into trial was far less likely to create a “circus or stadium atmosphere” than concurrent (to trial) broadcasting of video evidence;

(5) That although the rebroadcast of videotaped evidence could serve to prejudice the potential jurors in defendants’ future litigation, this problem did not outweigh the public’s interest in dissemination of the court materials where the future use of voir dire of potential jurors would protect the defendants’ rights to a fair trial;

(6) That possible harm or prejudice to third parties could be addressed by judicious excision of the videotapes. (The District Court’s initial excision of the videotapes was deemed to be excessive, and the Third Circuit Court of Appeals subsequently reviewed the tapes and permitted the showing of more third party activity than the District Court had allowed. See Criden (II), 681 F.2d 919 (3d Cir. 1982).

In U.S. v. Martin, 746 F.2d 964 (3d Cir. 1984), the District Court had refused to allow the media to copy audiotapes that were admitted into trial, in part because the “legitimate public interest in the [criminal] proceedings” did not rise to the level of extraordinary public interest, as it did in Criden (I), supra. The Third Circuit rejected this argument, noting that “we do not believe that the court intended that this should be an important factor in the balancing process.” However, the Martin court did not altogether dismiss the degree of the public’s interest as a factor in deciding whether to allow access and copying of audiotaped evidence, and, additionally noted that the Martin case involved the prosecution of local law enforcement personnel by federal authorities, and involved police officers testifying against their fellow officers, and therefore was a “rare case” of “extraordinary moment.” U.S. v. Martin, supra at 969.

Further, the Third Circuit noted in Martin, that a most troubling aspect of these types of cases was the factor relating to the effect that release and dissemination of evidence would.have on subsequent proceedings. Citing, with approval, Criden (I), supra, the court noted that the tapes had been played in open court and that none of the participants in the tapes were defendants currently awaiting trial.

THE PURPORTED RIGHTS OF THE PUBLIC

AND WPVI-TV ARE NOT CONSTITUTIONAL IN NATURE

In criminal proceedings, as in the instant case, the issue is frequently framed as one of competing interests between the defendant’s rights to a fair trial and the public’s right to access under the First Amendment. However, although the public may have a constitutional right to access to criminal proceedings, the right is not an absolute or unqualified right. Commonwealth v. Hayes, 489 Pa. 419, 414 A.2d 318 (1980).

The Constitution of the Commonwealth of Pennsylvania, Article 1, Section 11, stating that “all courts shall be open,” may place an added responsibility on Pennsylvania courts to protect the public’s right of access. However, in Hayes, supra, the court noted that the protections of Article 1, Section 11, were considered to be not greater than those protected by Article 1, Section 9, (guarantee of a speedy trial). The primary concern of these state constitutional provisions are to provide the accused with protection against star-chamber proceedings.

In Philadelphia Newspapers Inc. v. Jerome, 478 Pa. 484, 387 A.2d 425 (1978), the Pennsylvania Supreme Court noted that there was no “absolute right of access to every [criminal] court proceeding, or to all information in the possession of the government or the courts.” Id. at 502, 387 A.2d at 434.

With regard to “access” the Jerome court stated that access to any court proceeding should not be limited for any reason less than the compelling state obligation to protect constitutional rights of criminal defendants, and the public interest, to fair, orderly, prompt and final disposition of criminal proceedings. Jerome, 478 Pa. at 503, 387 A.2d at 434.

Just as the right to access is not absolute, there is also no constitutional right of the public, via the media, to have unfettered access to court evidence. However, there is a strong presumption in favor of the public’s common-law right to inspect and copy “judicial records.” Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978); U.S. v. Criden (I), supra.

Accordingly, this court does not grant any relief pursuant to constitutional claims, but bases its decision on the principles enunciated in the cases cited herein, (particularly the factors set forth in Criden (I), supra; Martin, supra; Fenstermaker, supra).

The Commonwealth argues that videotaped confessions are a developing area of law, and that there is a compelling public interest in denying intervenor’s request, in that future defendants may be discouraged from consenting to videotaped confessions.

In Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987); P.G. Publishing Company v. Commonwealth, 532 Pa. 1, 614 A.2d 1106 (1992), legitimate law enforcement interests must be considered in weighing a request for documents. Further, the press does not have any right to access information which is superior to the general public’s right. Nixon v. Warner Communications, 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), quoting Estes v. Texas, 381 U.S. 532, 588-89, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965), rehearing denied, 382 U.S. 875 (1965); Commonwealth v. Davis, 431 Pa. Super. 42, 50, 635 A.2d 1062, 1066 (1993).

In the instant case, the transcript of the defendant’s confession is readily available. Arguably, it may be that there is no singular interest in the defendant’s videotaped confession.

The Commonwealth essentially argues that the media’s right of access to the tape is limited, that there is no legitimate public interest in the tape, that the interest of WPVI-TV is a private interest (to attract viewers), and, that whatever interest WPVI-TV does have is outweighed by the Commonwealth’s law enforcement agencies need to obtain videotaped confessions, unhampered by possible chilling effects which the rebroadcast of the taped confession may engender.

This court considers the Commonwealth’s argument sound, but considers the possible chilling effect argument to be but one of the several factors to be considered.

CONCLUSION

This court also notes that its rulings within the instant case are, of course, applicable to this case only, and are based upon the unique facts of the case. This court makes no attempt to rule upon the appropriateness of the general policy which the Commonwealth (district attorney’s office) has instituted or may wish to institute.

Further, the taking of videotaped confessions and their introduction at trial is a very recent development, and to this court’s knowledge, limited to the prosecution of homicide cases. The appropriateness of the taking of videotaped confessions in all criminal matters appears to be a matter of continuing public debate.

Accordingly, upon consideration of the pleadings, briefs, and arguments of the parties, and the history of defendant James Gallman’s criminal case, this court finds that WPYI-TV’s request should be granted, and enters the following findings:

(1) The videotaped confession is a “judicial document” or a “public record;”

(2) There is a common-law presumption favoring the granting of WPVI-TV’s request;

(3) The defendant’s trial has terminated, and in fact this was a post-trial request, and possible adverse effects on future proceedings are minimal. As previously noted, the defendant did not pursue any appeal;

(4) This videotaped conversation does not involve third parties;

(5) Although the public interest in the defendant’s specific case may or may not be of extraordinary moment, there is a public interest in whether or not confessions should be videotaped, and a concurrent interest in observing and understanding the process;

(6) The release of the tape is not an enhanced punishment of the defendant;

(7) A rebroadcast of the tape is not likely to impede the court’s administration of justice and does not prejudice the defendant’s right to a fair trial, since the tape was admitted into evidence and shown to the jury, and the criminal trial had been terminated;

(8) The Commonwealth’s interest in obtaining videotaped confessions and its concern that release of the tape will have a possible chilling effect upon the securing of future videotaped confessions does not outweigh factors favoring release of the tape to WPVI-TV;

(9) The granting of relief is not based upon any federal or state constitutional right of WPVI-TV or the public, but is based upon common-law principles.

Accordingly, WPVI-TV’s motion for access to, and the right to copy, the videotaped confession is granted.

ORDER

And now, June 23, 2000, upon consideration of the motion of WPVI-TV for permission to copy videotaped evidence introduced at trial and the responses thereto by the Commonwealth and the defendant, it is hereby ordered and decreed that WPVI-TV is granted leave to proceed as an intervening party.

Further, it is ordered and decreed that the motion is granted. The Commonwealth of Pennsylvania, by and through the district attorney’s office of Philadelphia County, is hereby ordered and directed to make available to WPVI-TV for copying the videotaped evidence introduced at the trial held in this matter. The intervening party, WPVI-TV, to pay reasonable costs.


source: Caselaw Access Project

author: ENDY, S.J.,

license: Public Domain

text:
    Hertz v. Hertz

      C.P. of Chester County,
    no. 01738 N 1999.

      Walter P. Eells, for plaintiff.

      William Litvin, for defendant.
    May 25, 2000
   ENDY, S.J.,

In the matter at bar, we are asked to determine the post-reconciliation enforceability of an agreement reached through mediation and captioned as a “memorandum of understanding.” Because we find the self-styled “memorandum of understanding” to be a valid, comprehensive property settlement agreement rather than a mere separation agreement, it is enforceable against the plaintiff, notwithstanding the parties’ interim reconciliation prior to final separation.

Margaret and Cyril Hertz married on June 4, 1988. They have two children, Alexander, bom May 30,1990, and Cody, born May 2,1993. Ms. Hertz resides with the children in the marital domicile. Mr. Hertz left the marital residence “for good,” as the parties contend, on or about September 24, 1999. Ms. Hertz filed for spousal and child support three days later, on September 27,1999. At present, there is no divorce pending.

As the 1990s drew to a close, the Hertz marriage grew increasingly tumultuous. In February of 1997, Ms. Hertz removed with the children from the marital home. She and the children spent the next five months at her parent’s farm in Maryland. About two months into the separation, Mr. Hertz contacted Attorney Merle Horwitz for the purpose of mediating the Hertz’ marital problems.

Ms. Hertz returned to the marital home in July 1997. The Hertzs endeavored to improve their marriage by attending counseling sessions together. However, two months later, Ms. Hertz reported her husband to C.Y.F. Subsequently, Mr. Hertz refused to participate in family therapy. Ms. Hertz testified that the couple lived separate and apart in the same home for the next eight months.

In May 1998, Ms. Horwitz prepared the aforementioned “memorandum of understanding,” wherein the Hertzs expressed that they “have both agreed to submit the issues of their dissolution of marriage to the mediation process ... and have achieved a settlement of these issues which they deem fair to each other.” The memorandum of understanding memorializes the parties’ agreement on all aspects of separation and divorce, from equitable distribution and support to child custody and tax consequences. The preamble to the memorandum’s specific terms recites that each party has made a full and fair disclosure to the other of all of his or her respective assets and liabilities. Paragraph II of the memorandum expressly waives each party’s “past, present and future right to spousal support and/or alimony.” Paragraph III provides that “Cy shall pay the mortgage and real estate taxes on the home ... in lieu of child support.” Lastly, the parties contemplated that the memorandum would be “taken by their respective attorneys in order that those attorneys can process their agreement and obtain for them a dissolution of marriage based upon the settlement they have reached.”

On May 31,1998, roughly two weeks after executing the memorandum of understanding, Mr. Hertz left the marital residence and began renting a house in Delaware. The parties remained separated for about six months. In November 1998, however, the Hertzs reconciled. Mr. Hertz moved back into the marital home, although he testified he continued to maintain personal property in the Delaware home he rented, and the parties resumed marital relations. The Hertzs socialized as husband and wife, appeared at family functions together, and regularly attended church services as a married couple. In fact, during one particular church service, Mr. Hertz stood up and, in his wife’s presence, publicly pronounced his gratitude at their reunification.

The Hertz’ enthusiasm at reconciliation dissipated by the fall of 1999. Mr. Hertz returned to Delaware and Ms. Hertz filed for support. At a support conference held on October 28, 1999, Mr. Hertz raised the memorandum of understanding as a bar to Ms. Hertz’ claim for spousal support. Ms. Hertz moved for a separate listing. The court entered a temporary order for child support in the amount of $1,682 per month. We held an evidentiary hearing on April 18, 2000, at which both parties were present and represented by counsel.

The first issue with which we are confronted concerns the viability of the parties’ postnuptial memorandum of understanding following their subsequent reconciliation. A determination as to whether the memorandum of understanding is enforceable against Ms. Hertz turns on its characterization as either a postnuptial agreement, that is, a complete property settlement agreement, or a mere separation agreement. Wareham by Trout v. Wareham, 716 A.2d 674 (Pa. Super. 1998); Wolfe v. Wolfe, 341 Pa. Super. 313, 491 A.2d 281 (1985); Commonwealth ex rel. DiValerio v. DiValerio, 169 Pa. Super. 477, 82 A.2d 687 (1951), allocatur denied. “Where parties desire to settle and dispose of their respective property rights finally and for all time, such agreement should be construed as a postnuptial agreement.” Wareham by Trout v. Wareham, 716 A.2d 674, 677 (Pa. Super. 1998); Commonwealth ex rel. DiValerio v. DiValerio, 169 Pa. Super. 477, 479, 82 A.2d 687, 688 (1951), allocatur denied. A mere separation agreement, in contrast, “is customarily a surrender of the wife’s right to support in consideration of some property settlement.” Wareham, 716 A.2d at 677. It is not intended to constitute a full and final determination of the parties’ respective property rights. Id. The nature of the agreement “depends upon the intent of the parties as gathered from all the facts.” DiValerio, 169 Pa. Super. at 479, 82 A.2d at 688.

In Wareham by Trout v. Wareham, 716 A.2d 674 (Pa. Super. 1998), the court construed an agreement as a comprehensive postnuptial property settlement where the agreement dealt with the division of marital property, life insurance policies, spousal support, alimony, and the establishment of a trust fund for the children. Like the agreement in Wareham, the memorandum of understanding at bar addresses all aspects of marital property and support rights, including equitable distribution, child custody, and the tax consequences incident to divorce.

In Wolfe v. Wolfe, 341 Pa. Super. 313, 491 A.2d 281 (1985), the court characterized an agreement as a comprehensive property settlement, or postnuptial agreement, rather than a mere separation agreement, where the agreement recited that “each party releases the other from ‘all claims, demands, actions, causes of action or suits at law or in equity Id.., 341 Pa. Super, at 318, 491 A.2d at 283. The court also found significant a provision to the effect that “the parties have come to an agreement as to ‘all of their said matters of property.’ ” Id., 341 Pa. Super, at 318,491 A.2d at 283-84. The memorandum of understanding at bar, in which the parties assert that they “have both agreed to submit the issues of their dissolution of marriage to the mediation process ... [and] have achieved a settlement of these issue [s] which they deem fair to each other” and express their desire that their respective attorneys “obtain for them a dissolution of marriage based upon the settlement they have reached,” echoes the breadth and permanence of the provisions in the Wolfe agreement which led the court to find that a comprehensive postnuptial agreement existed.

Based on the foregoing, we find that the parties’ memorandum of understanding constitutes a full and final determination of the parties’ marital rights incident to separation and divorce; that is, we conclude that it is a comprehensive postnuptial agreement. It is valid as it acknowledges that the parties have provided a full and fair disclosure of their assets and liabilities and contains an express waiver of statutory rights. See Simeone v. Simeone, 525 Pa. 392, 581 A.2d 162 (1990). As a comprehensive postnuptial agreement, it survives the parties’ subsequent reconciliation. Wareham by Trout v. Wareham, 716 A.2d 674, 677 (Pa. Super. 1998); Wolfe v. Wolfe, 341 Pa. Super. 313, 317 n.2, 491 A.2d 281, 283 n.2 (1985); Commonwealth ex rel. DiValerio v. DiValerio, 169 Pa. Super. 477, 479, 82 A.2d 687, 688 (1951), allocatur denied. It is therefore enforceable against Ms. Hertz’ claim for spousal support. It is not, however, enforceable against her claim for child support. A parent may not bargain away his or her child’s right to support. Ruth F. v. Robert B., 456 Pa. Super. 398, 690 A.2d 1171 (1997), aff’d; Fish v. Behers, 741 A.2d 721 (1999); Hyde v. Hyde, 421 Pa. Super. 415, 618 A.2d 406 (1992). Mr. Hertz’ mortgage payments do not represent the extent of his child support responsibilities. We now turn to the scope of his financial obligation to his children.

Mr. Hertz is a salesman for Aspen Technologies. He sells software to the industrial marketplace. Based on his 1999 federal form 1040 and his 1999 W-2 and earnings summary, Mr. Hertz received compensation, including bonuses and adding back his group term life insurance payments, of $139,628. He also received $3 in ordinary dividend income, $13,770 in capital gains (an historical source of income for Mr. Hertz), and $142 in taxable refund income. In 1999, Mr. Hertz had a gross annual income of $153,543.

Using a tax status of married, filing separately, with two exemptions and itemizing deductions, we estimated Mr. Hertz’ federal income tax liability to be $37,422. In accordance with exhibit D-9, we assessed Mr. Hertz a Delaware state tax liability of $6,036. We estimated his local Wilmington tax liability to be $1,745. Finally, based on his 1999 W-2, we found Mr. Hertz’ FICA and Medicare obligations to be $6,471. Mr. Hertz’ total estimated tax liability for 1999 amounted to $51,674. Deducting Mr. Hertz’ taxes from his gross annual income, Mr. Hertz is left with a net annual income of $101,869, or $8,489 per month.

Ms. Hertz received her associates’ degree in nursing in 1975. Currently she is licensed as a registered nurse in this Commonwealth. In the past, she has been licensed in Maryland and Delaware, but those licenses have since expired. She has a history of employment in hospitals and private practice, albeit mostly part-time, but she is not working as a nurse now. At present, she cleans houses and gardens for friends and acquaintances and earns a nominal sum from this occupation.

Ms. Hertz last worked full-time from February 1998 to January 1999 in a counseling position. Her 1998 W-2 reveals that she earned $29,269.80 in the 11 months during which she held this position. In addition, she received $30 in 1998 from working as a substitute school nurse in the Avon Grove School District. Finally, she also received $1,669.50 through employment with a firm called Recruitment Specialists Inc. In 1998, Ms. Hertz grossed $30,969.30.

Mr. Hertz introduced testimony from a vocational expert, Dr. Sally Kneipp Ph.D., who opined that, as a nurse, Ms. Hertz has an earning capacity of $43,000 per year. While we agree that, under the circumstances, Ms. Hertz should be attributed an earning capacity greater than the nominal sum she realizes from gardening and housecleaning, we find Dr. Kneipp’s estimation too high, given Ms. Hertz’ history of primarily part-time employment and her demonstrated earnings. Ms. Hertz concedes an earning capacity in the range of $26,000 to $30,000 per year. Considering her work history and actual earnings, her education, and the fact that both of her children attend school full-time, we find an earning capacity of $30,000 gross per year a reasonable representation of Ms. Hertz’ income potential at this time.

Based on her imputed earnings, and utilizing a tax status of married, filing separately, with two exemptions and the standard deduction, we estimated Ms. Hertz would pay $3,135 in federal taxes, $840 in state taxes, $300 in local wage tax, and $2,295 in FICA/Medicare contributions, for a total tax liability of $6,570. Deducting this sum from her imputed gross earnings, we find Ms. Hertz has a net annual earning capacity of $23,430, or $1,953 per month.

The Hertzs’ combined net income/eaming capacity is $10,442 per month. At this level, the guidelines instruct that the Hertzs should allocate $2,413 per month towards the support of their two children. See Pa.R.C.P. 1910.16-3(b), 42 Pa.C.S. Mr. Hertz shares 81 percent of the parties’ combined monthly net, therefore, preliminarily, he is responsible for 81 percent of the children’s basic support, or $1,955 per month. However, Mr. Hertz is entitled to have this sum adjusted to incorporate a contribution from Ms. Hertz representing her share of the health insurance premiums Mr. Hertz maintains on the children’s behalf. Pa.R.C.P. 1910.16-4(a)(III), 1910.16-6(b), 42 Pa.C.S. Calculating the cost of providing health insurance coverage for the children in accordance with Pa.R.C.P. 1910.16-6(b)(2), 42 Pa.C.S., we find Mr. Hertz spends $384 per year on the children’s health insurance coverage. With 19 percent of the parties’ combined monthly net, Ms. Hertz is responsible for 19 percent of the children’s health insurance premium expense, which sum amounts to $6 per month. In accordance with the support guidelines, Pa.R.C.P. 1910.16-4(a)(III), 1910.16-6(b), 42 Pa.C.S., Mr. Hertz’ monthly child support obligation will be reduced by $6 per month to account for Ms. Hertz’ share of the children’s health insurance premiums. Thus, Mr. Hertz’ child support obligation, net of Ms. Hertz’ contribution to health insurance, is $1,949 per month.

Mr. Hertz will be required to maintain health insurance coverage for the couple’s children. Unreimbursed medical expenses, as that term is defined by Pa.R.C.P. 1910.16-6(c)(l), 42 Pa.C.S., shall be divided between the parties in proportion to their net incomes/eaming capacities. Mr. Hertz will be responsible for 81 percent of said expenses and Ms. Hertz will be responsible for the remaining 19 percent. Mr. Hertz is not entitled to credit for the automobile (Caravan) loan payments he has made or for the clothing he has purchased on behalf of the children, as these are voluntary undertakings on his part. Further, we will defer for equitable distribution any credit to Mr. Hertz for the mortgage payments he has made because we consider it unmeet to compromise the children’s support in accommodation of the parents’ choice of shelter. Mr. Hertz, however, will receive credit for all support payments made pursuant to the temporary order entered October 28, 1999. Finally, Mr. Hertz will be required to pay the additional sum of $250 per month towards arrears until paid in full. The effective date of this order is September 27, 1999.

ORDER

And now, May 25, 2000, upon consideration of the foregoing, and based upon this court’s determination that Cyril G. Hertz’ net income is $8,489 per month and Margaret Hertz’ net earning capacity is $ 1,953 per month, it is hereby ordered and decreed that:

(1) Cyril G. Hertz shall pay to the Support Collection and Disbursement Unit in Harrisburg, Pennsylvania for transmission to Margaret Hertz the sum of $1,949 per month in support of the parties’ two minor children, Alexander, d.o.b. 5/30/90 and Cody, d.o.b. 5/2/93;

(2) Cyril G. Hertz shall continue to provide health insurance coverage on behalf of the children. Unreimbursed medical expenses, as that term is defined in Pa.R.C.P. 1910.16-6(c)( 1), shall be divided between the parties in proportion to their net incomes/eaming capacities; that is, Mr. Hertz shall be responsible for 81 percent of said expenses and Ms. Hertz shall be responsible for the remaining 19 percent;

(3) Cyril G. Hertz shall receive credit for all support payments made pursuant to the temporary order entered October 28, 1999;

(4) Cyril G. Hertz shall pay to the Support Collection and Disbursement Unit in Harrisburg, Pennsylvania for transmission to Margaret Hertz the additional sum of $250 per month towards arrears until paid in full;

(5) The effective date of this order is September 27, 1999.


author: McINERNEY, J.,

text:
    White v. Keystone Insurance Co.

      William T. Lawson III, for plaintiff.

      Richard K. Hohn, for defendant.
    May 23, 2000
   McINERNEY, J.,

Plaintiff Toreatha White has filed a declaratory judgment action against defendant Keystone Insurance Company, asking the court to declare that Keystone is responsible to provide coverage under a policy issued to its insured, Charles Wiener, for an occurrence that resulted in the tragic death of Carol White.

Given that this is a declaratory judgment action, it is subject to the rules of procedure governing equity matters at large. See Pa.R.C.P. 1601 (stating that the practice and procedure in actions for declaratory judgment must follow the rules of equity).

In conformity with the procedural requisites, this court is issuing an adjudication notice and decree nisi as mandated under Pa.R.C.P. 1517. See Winkelman v. PFRACP, 418 Pa. Super. 439, 614 A.2d 717 (1992) (the procedures applicable to equity matters govern declaratory judgment actions, requiring the issuance of a decree nisi and compliance with Rule 1517), overruled on other grounds, Swartz v. Union Mutual Insurance Co., 547 Pa. 632, 692 A.2d 1058 (1997); see also, Hertz v. Hertz, 302 Pa. Super. 259, 448 A.2d 626 (1982); Temple University v. City of Philadelphia, 698 A.2d 118 (Pa. Commw. 1997) (requiring compliance with Rule 1517 for actions involving applications for declaratory judgment).

I. FINDINGS OF FACT

The parties have stipulated to the facts. They have been made part of the record and need not be repeated here. See “Stipulation of agreed upon facts.”

II. STATEMENT OF THE ISSUES

Defendant Keystone does not dispute the fact that its insured, Charles Weiner, was negligent in providing a gun to Houser, and that Weiner’s negligence ultimately resulted in the tragic death of Ms. White. Defendant argues, however, that Weiner was not covered under the policy in question because his action in giving the gun to Houser was intended to protect the assets of the bar and therefore falls under the “business pursuits” exception to the policy. Plaintiff counters that the exclusion does not apply because at the time of the shooting, although Weiner was in the process of purchasing the bar, Weiner was not yet the legal owner of the bar, and the act of providing the gun in no way furthered the purchase of the bar which plaintiff argues is the only means by which that action could be classified as a business pursuit.

in. DISCUSSION

In deciding the applicability of the “business pursuits” exception to a particular activity of an insured, the majority of courts, including our own, have applied a two-prong test; first, there must be a “continuous or regular” activity, and second, it must be engaged in for the purpose of earning an income, profit or livelihood. See Travelers’ Indemnity Co. v. Fantozzi, 825 F. Supp. 80 (E.D. Pa. 1993). La Coe v. Valley Forge Insurance Co., 31 D.&C.3d 156 (1984), citing State Mutual Cyclone Insurance Co. v. Abbot, 52 Mich. App. 103, 216 N.W.2d 606, 608 (1974). We know of no case which specifically addresses the issue of whether an agreement to purchase an ongoing business meets the first prong of this test. It is clear, however, that the requirement the activity be both regular and continuous cannot be met in this case. The continuous and regular prong is intended to distinguish business pursuits from part-time, occasional, or hobby-like activities. In La Coe, supra, the insured was engaged in the practice of cutting treetops for his neighbor and others. He would cut their trees in exchange for keeping the firewood he produced. The court found that, though the insured had been cutting wood in this manner for approximately a year and a half, he did so primarily for personal use, selling wood on perhaps four occasions during that time. In holding that the business pursuit exception did not apply, the court found that selling wood four times in an 18-month period was a “sporadic and isolated activity, rather than a continuous business pursuit.” Id. at 160.

The issue in this case is not sporadic versus continuous, the issue is, when does the activity assume the status of a business pursuit. It is clear in this case that the signing of the agreement of sale evidenced Weiner’s intention to purchase the business, a necessary first step to engaging in that business. There is no question Weiner hoped to obtain and operate the bar and, in fact, eventually did. However, the first prong of the test cannot be met because, at the time of the occurrence, there was no ownership, “continuous” or otherwise, by Weiner. At the time of the incident, not only was the sale still pending, but the sale was contingent on Weiner’s obtaining the liquor license. (See agreement of sale, ¶20, pp. 18-19.) While the existence of the agreement evidenced Weiner’s intent to take over this business, he had not done so. There was not even a set date for settlement. According to the agreement, settlement was to occur within 15 days of the final order approving transfer of the license. (See agreement, ¶16, p. 16.) Weiner paid a $6,000 deposit into escrow which was refundable if the license was not approved. Inventory was not to be taken, nor paid for, until immediately prior to settlement. (See agreement, ¶11, p. 13.) The agreement specifically stated the seller continued to bear the risk of any loss by fire or other casualty, and, furthermore, Weiner was not bound by any employment agreements or contracts. (See agreements ¶¶25, 30, pp. 22-24.)

The license approval did not come through until January 1996, and settlement did not occur until January 17, 1996. Timing is, unquestionably, a factor here. Weiner could only be said to be acting in an individual capacity when he gave his gun to Houser. Weiner had no authority over Houser, and any assets in the bar, as well as the bar itself, belonged to the owner and not Weiner. Therefore, this court is constrained to find that the business exclusion does not apply.

Even if the exclusion were to apply, it wouldn’t end our inquiry. The policy provides that the business pursuits exclusion does not apply to “activities which are usual to non-business pursuits.” The difficulty in interpreting this exception has caused numerous courts to find the exception ambiguous. 35 ALR 5th 375. There is clearly no unanimity of opinion in how to apply the exception, despite its appearance in almost every homeowners general liability policy. 35 ALR 5th 375.

Again, we find no Pennsylvania case directly on point, but in Curbee Ltd. v. Rhubart, 406 Pa. Super. 505, 594 A.2d 733 (1991), alloc. denied, 529 Pa. 649, 602 A.2d 859 (1992), the court found that the insured, a restaurateur, was engaged in a business pursuit when she hosted a luncheon for her employees at a separate, independently owned restaurant. However, the court determined that her homeowners policy provided coverage for an injury suffered by an employee attending the event, because the activity fell within the exception to the business pursuits exclusion. The court held that, as a social function, even though it was only for employees and intended to boost employee morale, it was an activity which was “incident to a social and non-business purpose.” Although the insured was clearly engaged in a business pursuit, the activity was not directly related to running a restaurant.

Similarly, in Myrtil v. Hartford Insurance Co., 510 F. Supp. 1198 (E.D. Pa. 1981), a Bucks County restaurateur hosted a party for her employees at a home she rented at the New Jersey shore. The district court, in applying Pennsylvania law, held that although the business pursuits exclusion applied, the policy contained the same non-business pursuits exception to the exclusion. The court determined that the wording of the exception was ambiguous, requiring it to be construed in favor of coverage for injuries one of the guests incurred when he dove into a canal adjacent to the property. The Myrtil decision is not unique in interpreting the exception as rendering the exclusion ambiguous; such a course has been followed by a number of courts in keeping with decisional precedent that any ambiguity is construed against the insurer. See 35 ALR 5th 375.

In contrast, in Bullock v. Pariser, 311 Pa. Super. 487, 457 A.2d 1287 (1983), one of the relatively few cases interpreting the business pursuits exception in Pennsylvania, the result was different. In Bullock, the owners, partners in a day care operation, kept guard dogs on the premises for security purposes. Neither business partner resided on the premises, which were open only during business hours. The dogs, however, were present at all times. The Bullock court held injuries to a third party incurred when he was bitten by one of the dogs arose out of the “business pursuits” of the owners and, therefore, were not covered under the partners’ homeowner policies. In reaching this decision, the court found the partnership was formed for the specific purpose of operating the day care business, and covered by its own general liability policy. In reaching its decision, the court noted that neither partner sought coverage under their homeowners policies; the issue arose only due to the insolvency of the business carrier. The court determined that this was a clear-cut case of a “business pursuit,” and they need not examine the applicability of the exception.

We need not reach the question of the applicability of the exception or whether we would find it ambiguous, because we have concluded that as Weiner was not the owner of the bar, the exclusion does not apply. Just as the agreement of sale specified Weiner was under no obligation to carry insurance for fire or other casualty loss during the pendency of the sale because he was not the owner of the bar and not legally responsible for it, he was under no obligation to obtain business liability insurance separate from his own homeowners liability policy during that limited period. Not until January 17, 1996, when that status changed, could his actions with regard to the bar be excluded.

IV. CONCLUSIONS OF LAW DECREE NISI

It is hereby determined that defendant Keystone is responsible for providing coverage under the policy issued to Charles Weiner.

STIPULATION OF AGREED UPON FACTS

(1) Plaintiff Toreatha M. White is a resident of the City and County of Philadelphia, Commonwealth of Pennsylvania, and is the administratrix of the estate of Carol Lynn White, deceased, having been appointed by the Register of Wills of Philadelphia County, Pennsylvania, on November 29, 1995, bearing administration number 6277 of 1995, and is also the intestate heir of the decedent.

(2) William R. Houser is an adult individual, currently residing at 3437 North Carlisle Street, in the City and County of Philadelphia, Commonwealth of Pennsylvania.

(3) 1252 Bar Inc. is a corporation organized and existing under and by virtue of the internal laws of the Commonwealth of Pennsylvania, having a place of business at 1252 S. 21st Street, in the City and County of Philadelphia, Commonwealth of Pennsylvania.

(4) Charles Weiner is an adult individual.

(5) On or about November 21, 1995, and all times relevant herein, Joseph Silverman was the owner and operator of a certain tavern business in current operation known as the 1252 Bar, located at 1252 S. 21st Street, in the City and County of Philadelphia, Commonwealth of Pennsylvania.

(6) On or about November 21, 1995, for a long time prior thereto, and at all relevant times, Joseph Silverman was the sole shareholder, and sole officer and director of the bar.

(7) On August 11, 1995 and for all relevant times, Weiner had entered into an agreement with the bar to purchase the assets of the bar, and with the Silvermans to purchase the real property, which agreement was awaiting approval from the Pennsylvania Liquor Control Board.

(8) On or about November 21, 1995, for a long time prior thereto, and at all relevant times, Weiner was the registered and actual owner of a certain handgun manufactured by Smith and Wesson, same being a 44 magnum revolver, model 29 blue, with a 4-inch barrel bearing serial number AZF8307.

(9) On or about November 21, 1995, for a long time prior thereto, and all relevant times, Houser was employed by the bar as the manager of the business.

(10) On or about November 21,1995, for a long time prior thereto, and all relevant times, Weiner specifically authorized, placed and permitted the gun to remain on the premises for the specific and express purpose of being used by employees of the bar, including Houser.

(11) On or about November 21,1995, at or about 11:15 p.m., decedent was in the premises and a business invitee of the bar.

(12) At the aforementioned time and place, Houser, acting in the course and scope of his employment and authority, had placed the gun on his person, at the express and/or implied direction of Weiner and with the express and/or implied permission of Weiner.

(13) Houser has had no formal firearms training.

(14) Houser is not eligible to own and/or carry a firearm, since Houser has been convicted of a crime of violence, to wit, simple assault, under municipal court no. 9606-2950, before the Honorable Judge Kaffrison, and was sentenced on or about August 20,1990 to two years probation.

(15) At or about the aforementioned time and place, Houser had extracted the gun from his waistband and negligently and carelessly handled the gun, so as to cause same to discharge a bullet which struck decedent’s body and entered the right lateral chest wall 12 inches below the top of the shoulder and nine inches to the right of the midline, roughly in the mid-axillary line. Thereafter, the bullet passed leftward and moderately downward, passing through skin and muscle overlying the lateral right chest wall, entering the right hemithorax through the ninth right rib, grazing the right lower lung lobe laterally. Thereafter, the bullet pierced the right hemidiaphragm. Thereafter, the bullet perforated the right lobe of the liver, then the bullet perforated the right kidney. Thereafter, the bullet continued on its track, perforating the inferior vena cava. Thereafter, the bullet perforated the aorta at the level of the renal arteries. Thereafter, the bullet went on to perforate the left kidney and finally exited the abdominal cavity along the left lateral and lower abdominal wall, 20 inches below the top of the shoulder and 12 inches to the left of the midline. The track of the bullet caused the decedent’s entire abdomen to fill with blood, resulting in hemorrhage which caused her death.

(16) As a result of the impact of the bullet, the decedent suffered injuries which resulted in her death at 1 a.m. the next day at Thomas Jefferson University Hospital, in the City and County of Philadelphia, Commonwealth of Pennsylvania.

(17) The negligence of Weiner consisted of the following:

(a) entrusting the gun to Houser and/or allowing him access thereto when he knew or should have known that Houser had a history of violent behavior;

(b) entrusting the gun to Houser and/or allowing him access thereto when he knew or should have known that Houser had no firearms training;

(c) entrusting the gun to Houser and/or allowing him access thereto when he knew or should have known that Houser had been convicted of a crime of violence and of carrying firearms on a public street without a license;

(d) entrusting the gun to Houser and/or allowing him access thereto for its use on the premises when Weiner knew or should have known that Houser was likely to use or brandish the gun during business operating hours, in the presence of business invitees such as the decedent;

(18) As a direct and proximate result of the aforesaid acts of negligence, decedent suffered grave and serious injuries which ultimately led to her demise.

(19) At all times relevant and on November 21,1995, Weiner was the owner of and was the insured under a policy of insurance, being policy number 229018, issued by defendant.

(20) The policy was fully paid and in full force and effect on November 21, 1995 and at all times relevant hereto.

(21) On November 21, 1995 and at all times relevant hereto, defendant was duly licensed and did engage in the business of providing insurance in the Commonwealth of Pennsylvania.

(22) Attached hereto, incorporated by reference and labeled exhibit A is a true and correct copy of the entire policy.

(23) On November 21,1995, the bar was the holder of liquor license number TR11436 issued by the Pennsylvania Liquor Control Board.

(24) No one may operate a business selling alcoholic beverages in the Commonwealth of Pennsylvania unless they hold a liquor license for the premises on which alcohol is to be sold.

(25) Weiner entered into an agreement with the bar on or about August 11, 1995 to purchase the assets of the bar, including the liquor license.

(26) Attached hereto, incorporated by reference and labeled exhibit B is a true and correct copy of the agreement to purchase the assets of the bar.

(27) On or about August 30,1995, Weiner applied for a transfer of the liquor license to 1252 A & M Inc., a corporation in which he was the sole shareholder, director and officer.

(28) Attached hereto, incorporated by reference and labeled exhibit C is a true and correct copy of the application for transfer of the liquor license which was forwarded to the Pennsylvania LCB on August 30, 1995.

(29) The transfer of the liquor license was approved on January 11, 1996.

(30) Attached hereto, incorporated by reference and labeled exhibit D is a true and correct copy of the approval of the license transfer.

(31) On or about January 17, 1996, settlement was held on the purchase of the assets of the bar.

(32) Attached hereto, incorporated by reference and labeled exhibit E is a true and correct copy of the settlement sheet.

(33) Weiner began to operate the bar on January 17, 1996, the date of settlement.

(34) Plaintiff has previously filed a lawsuit against Weiner, which suit is presently deferred.

(35) Keystone has denied coverage under the policy.

(36) Weiner has assigned all right, title and interest to bring a declaratory judgment action against Keystone to plaintiff, which is the subject of this lawsuit, wherein plaintiff and defendant now seek a ruling on the issue of coverage from this court.

      . Applying Pennsylvania law, the district court determined that for an activity to be a “business pursuit” and subject to exclusion under a general liability policy, such as the case here, it must be a continuous or. regular activity engaged in for the purpose of earning an income, profit or livelihood.

      . The term “business” is defined in Weiner’s policy as a “trade, profession or occupation.” The same definition appeared in the policies in La Coe and in Fantozzi. There is no evidence in the record that on November 25, 1995, Weiner was engaged in the trade, profession or occupation of tavern owner.

      . In dicta, however, the court made reference to a number of cases from other jurisdictions involving the discharge of firearms, where courts held the exception did not apply. See Neal v. Celina Mutual Insurance Co., 522 S.W.2d 179 (Ky. 1975); Kermans v. Pendleton, 62 Mich. App. 576, 233 N.W.2d 658 (1975).


author: WETTICK,

text:
    Vartani v. Board of Property Assessment, Appeals and Review of Allegheny County
    C.P. of Allegheny County,
    no. GD99-15171.

      Kenneth D. Perkins, for plaintiff.

      Craig C. Stephens, for defendant.
    May 3, 2000
   WETTICK,

Plaintiff instituted this action to compel the Board of Property Assessment, Appeals and Review to alter its hearing procedures for assessment appeals.

Plaintiff is the owner of residential property located in Allegheny County. For the 1999 year, his property was assessed at $52,000. He filed an appeal to the board from this assessment in which he sought a reduction to $38,570. Plaintiff had purchased the property in late 1998 for $190,000 and the reduction that he sought was based on this purchase price. Plaintiff’s appeal was heard by a single member of the board. No record of the hearing was made. The board member recommended that the assessment not be changed.

At its August 3, 1999 meeting, the members of the board were furnished with a document titled “Listing of real estate appeal cases for board action” which included more than 300 appeals, including plaintiff’s appeal. The listing showed that the current assessment of plaintiff’s property was $52,000 and the adjusted value was also $52,000. One board member made a motion that the board approve the listings as submitted for each of the more than 300 appeals with the exception of a single appeal. The motion carried with five affirmative votes and two abstentions. There was apparently no discussion prior to the vote. On August 6, 1999, the board mailed a disposition of appeal which notified plaintiff’s representative that the assessment had not been changed.

Except for commercial property and residential property with a high fair market value, it is the practice of the board to assign a single board member to hear an appeal from an assessment. Following the hearing, the board member completes and files a one-page document titled “appeal review.” This appeal review is available to the other board members prior to their voting on the appeal.

In this lawsuit, plaintiff seeks the entry of a court order that abolishes this procedure under which only a single board member is familiar with the evidence supporting a tax assessment which is being appealed.

The initial issue that the parties have raised is whether a single board member may make a final decision on an appeal on behalf of the entire board. However, the board has never voted to adopt a procedure under which a single member may act on behalf of the board in an appeal of an assessment. The board, in fact, utilizes a procedure in which its decision is made through the vote of the entire board. Consequently, the board cannot assert that it has a procedure under which it authorizes a single board member to decide the appeal on behalf of the entire board.

Furthermore, the board would not have the power to delegate to a single board member the authority to decide an appeal. The assessment law governing second class counties provides that the “Board of Property Assessment, Appeals and Review” shall have the power and its duty shall be to hear all cases of appeals from assessments. 72 P.S. §5452.4(c). This law further provides that in any appeal of an assessment, the “board” shall make the following determinations: (1) current fair market value for the tax year in question; (2) common level ratio; and (3) fair market value. 72 P.S. §5452.10(c).

Under common and accepted usage, authority conferred by statute on a board may be exercised only by a majority vote. A single board member is not the board and cannot act on behalf of the board in the absence of legislation permitting a single board member to do so. See Rule of Statutory Interpretation §1905 which states that words in the statute “conferring a joint authority upon three or more public officers or other persons shall be construed to confer authority upon a majority of such officers or persons.” 1 Pa.C.S. §1905.

Nothing in the assessment legislation suggests that the legislature intended to permit a single board member to act on behalf of the entire board with respect to appeals from assessments. To the contrary, the authority of the board to hear appeals from assessments is contained in the same provision of the assessment law that authorizes the board to exercise the following powers that must be exercised by the full board: to make and supervise all assessments and valuations of all subjects of taxation; to establish a predetermined ratio; to use a current market value or to adopt a base year market value in arriving at actual value; to establish and maintain various records; and to perform and exercise such other powers and duties as may be conferred or imposed upon it by any act of assembly. 72 P.S. §5452.4.

Assuming that an appeal must be decided by a vote of a majority of the board members, the board contends that it has met this requirement. The recommendation of the individual board member is not binding until there is a board vote. Furthermore, board members do not vote until they have had the opportunity to review the record which includes the “appeal review.”

The case law is clear that a statute which provides for an appeal to be heard by a board does not impose a requirement that a majority of the board attend the evidentiary hearing.

In Appeal of Smith, 49 Pa. Commw. 591, 412 A.2d 184 (1980), Ms. Smith, along with more than 2,500 other property owners, appealed their assessments to the Board of Assessment Appeals of Huntingdon County. For these appeals, individual members of the board conducted the hearings. At the end of each day of hearings, the board members convened, discussed, and disposed of the appeals heard by each of them. Ms. Smith claimed that the statute provided for a hearing before the board and that her hearing was defective because it was held before only one member of the board. The court rejected this claim:

“Ms. Smith next claims that her hearing before the board was defective because it was held before only one member of the board. Nothing in the Assessment Law requires the hearing to be held before the full board. The Assessment Law requires only that the board ‘(h)ear and determine’ appeals. Assessment Law, §302(3), as amended, 72 P.S. §5453.302(3). In Foley Brothers Inc. v. Commonwealth, 400 Pa. 584, 163 A.2d 80 (1960), the Pennsylvania Supreme Court held that identical language contained in section 4 of the Act of May 20, 1937, PL. 728, as amended, 72 P.S. §4651-4, relating to the powers of the Board of Arbitration of Claims, does not require all members of the board to attend hearings. This court has stated in the same context that ‘all that need be done is that members not present when testimony is taken review such testimony before an adjudication is published.’ General State Authority v. Loffredo, 16 Pa. Commw. 237, 245, 328 A.2d 886, 892 (1974). Since it is undisputed in this case that the entire board considered the evidence taken at Ms. Smith’s hearing, the decisions were regularly made.” Appeal of Smith, 49 Pa. Commw. at 594-95, 412 A.2d at 185.

In Caldwell v. Clearfield County Children and Youth Services, 83 Pa. Commw. 49, 476 A.2d 996 (1984), the statute permitted an employee to appeal his termination to a three-member State Civil Service Commission. A hearing was held before a single commission member. The other two members were not present. Following the hearing, the commission by a 2-1 vote dismissed the employee’s appeal. The commissioner who was present at the hearing dissented, indicating that she found the employee’s testimony to be credible.

The court held that:

“Before this court, Caldwell argues that his rights to due process were violated in that the two commissioners who rendered the majority opinion were not present at the hearing.

“We have held that due process does not require that all the commissioners rendering a decision be present at the hearing; all that is required is that those not present review and consider the record before an adjudication is issued. Fleming v. State Civil Service Commission, 13 Pa. Commw. 421, 319 A.2d 185 (1974); Siegel v. Civil Service Commission, 9 Pa. Commw. 256, 305 A.2d 736 (1973); see also, State Board of Funeral Directors v. Cieslak, 24 Pa. Commw. 315, 355 A.2d 590 (1976); General State Authority v. Loffredo, 16 Pa. Commw. 237, 328 A.2d 886 (1974). The commission’s opinion states that the testimony and all the exhibits were reviewed by all the commissioners and that briefs submitted by both parties were read and considered.” Caldwell, 83 Pa. Commw. at 50-51, 476 A.2d at 996.

The court rejected the employee’s argument that the majority’s determination as to credibility could not control because they were not present to observe the employee’s demeanor. It pointed out that administrative adjudicators are not precluded from determining the credibility of testimony from a reading of the transcript.

In Penzenstadler v. Avonworth School District, 43 Pa. Commw. 571, 403 A.2d 621 (1979), the school board, through a unanimous vote, sustained the suspension of a tenured professional employee. The professional employee argued that the suspension should be set aside because only four of the nine school board members attended the hearing at which evidence was presented. The Commonwealth Court rejected the argument, stating that neither due process nor the applicable legislation requires those who finally vote on the status of a teacher to have had direct aural reception of all of the evidence. The only requirement is that the board members give full consideration to the testimony presented at the hearing. The court said that the references to the notes of testimony in the findings of fact unanimously adopted by the board indicate that the board gave full consideration to the testimony presented at the hearing.

Where a statute provides for a decision by a board or a commission, each of the three cases cited above (as well as the cases upon which these cases rely) requires that each board member voting on the appeal, be in a position to independently evaluate the evidence presented at the hearing. If this requirement is not met, the board or commission has not fulfilled its statutory obligations.

In FR&S Inc. v. Pennsylvania Department of Environmental Resources, 113 Pa. Commw. 576, 537 A.2d 957 (1988), aff’d, 522 Pa. 114, 560 A.2d 128 (1989) (per curiam), the court rejected the argument of a landfill operator that the adjudication of the Environmental Hearing Board must be set aside because a majority of the decision-makers had not heard the evidence. However, it vacated the adjudication because one of the two voting members had not examined “the prime source of the facts — the testimony and exhibits.” Id. at 591, 537 A.2d at 964. The court stated:

“With respect to the adjudicative duties of members of administrative agencies, two major premises are clear. First, in a multimember agency, where there is authorized machinery to permit fewer than all of the agency members, or a hearing officer appointed for the purpose, to hear and receive the evidence, there is no requirement that all of the decision-makers must sit in upon the evidentiary proceedings. This court has confirmed the point several times....

“However, equally well settled is the principle that decision-makers, if not present at the taking of evidence, must give specific consideration to the testimony and exhibits by reading and examining the same. In PennDOT v. Human Relations Commission, 510 Pa. 401, 407, 508 A.2d 1187, 1189-90 (1986), the Supreme Court stated:

“We do not agree that the requirement that the full commission review the recommended findings, conclusions, and order, is satisfied by a vacuous review of the recommendations. The conclusions and order must be based on the findings of fact. No meaningful review of the findings of fact can be made without reference to the record. In order to properly review findings of fact, the record from which they are derived must be examined in order to determine if the findings are based on substantial evidence. To merely read the findings without examining the record in order to determine if those findings are supported is not to ‘review’ those findings within the meaning and effect that tribunals regularly perform reviewing constructions.” FR&S Inc., 113 Pa. Commw. at 588-89, 537 A.2d at 963. (citations omitted)

The board argues that its members are in a position to make an independent judgment on the merits of each appeal because prior to their vote they are expected to have reviewed the entire file including the “appeal review.” As part of the record in this case, the parties have submitted 25 randomly selected files for me to review. It is not possible for me to make an independent judgment as to the merits of any of the 25 appeals from a review of these files. The files do not contain the testimony of the parties. They do not contain any findings of fact. At the most, they contain a three to five word rationale for the individual board member’s decision.

At the trial of this case, the board offered evidence which clearly establishes that because of the large number of appeals, it would not be possible for each appeal to be heard by the entire board. However, as I stated, the law does not impose such a requirement. It does, however, impose a requirement that board members who are not present at the hearing be furnished with or have access to a record that includes a transcript of the hearing with exhibits that were offered into evidence.

In order to satisfy this requirement, the court order that I am entering will require that a tape recording be made of each hearing of an appeal, and that a transcript based upon the recording be made available to each board member. However, my court order will not preclude the board from adopting, with court approval, an alternative procedure.

ORDER

On May 3, 2000, it is hereby adjudged and decreed that:

(1) all appeals to the Board of Property Assessment, Appeals and Review of Allegheny County from tax assessments that are heard by less than the full board shall be recorded and transcribed;

(2) board members shall not vote on an assessment appeal until at least five days after a transcript of the hearing, together with exhibits, has been made available to each member of the board for his or her review;

(3) the board may seek court permission to implement other procedures, in lieu of the procedures set forth in paragraphs 1 and 2, that are consistent with the opinion accompanying this court order;

(4) the August 1999 decision of the Board of Property Assessment, Appeals and Review rendered in plaintiff’s appeal is vacated and within 60 days the board shall schedule a new hearing of this appeal which complies with this court order; and

(5) the provisions of paragraphs (1) and (2) shall apply to any existing appeals for which a hearing date is not yet scheduled or for which a hearing date is scheduled after May 31, 2000.

      . As of 1999, the common level ratio for Allegheny County was 20.3 percent. Consequently, a property with a fair market value as of 1999 of $256,157 would have an assessed value of $52,000 and aproperty with a fair market value of $190,000 would have an assessed value of $38,570.

      . Attached to this opinion is the appeal form that plaintiff filed in this case (exhibit 1) and the appeal review (exhibit 2). [Not published here.]


author: MINORA, J.,

text:
    W.V. Realty Inc. v. Maryland Insurance Group
    C.P. of Lackawanna County,
    no. 98 CV 5938.

      Michael R. Mey, for plaintiffs.

      Joseph F Saporito and Jay M. Levin, for defendants.
    May 15, 2000—
   MINORA, J.,

I. INTRODUCTION

Two matters are currently before the court. The first is plaintiff’s petition to confirm appraisal award pursuant to 42 Pa.C.S. §7341. The second is defendant’s motion to vacate appraisal award. Since they are essentially two sides of the same coin, we will dispose of both matters with this one opinion.

Some background information is necessary to explain how we arrived at this point. The plaintiffs, W.V. Realty Inc. and New Montage Manor Inc., were the owners of a motel, restaurant and catering business located in Moosic, Pennsylvania. On January 12,1996, the roof of the subject building collapsed under the weight of accumulated snow.

The defendant, Northern, had issued an insurance policy to the plaintiffs which provided coverage between August 24,1995 and August 24,1996 providing for business interruption and building damage. (See exhibit “A” to defendants’ motion to vacate appraisal award.)

After the parties were unable to amicably agree on an adjustment of the loss, the court upon petition appointed Edward Krowiak, Esquire as a neutral umpire with the direction that “The umpire and appraisers are directed to proceed with determining the amount of the plaintiff’s losses and claims, in accordance with the terms and conditions of the insurance policy issued by the defendant.” (See court order of March 3, 1999 by Judge Terrence Nealon.)

On September 13, 1999, the defendants filed a motion to limit appraisal solely to a determination of the amount of business interruption loss sustained by W.V. Realty.

On September 13, 1999, the undersigned summarily denied this motion to limit the appraisal and the full appraisal was conducted on September 15,1999 before the umpire, Edward Krowiak, Esquire. The proceeding was conducted by submissions and arguments by counsel. No stenographic record was made. This was all done by agreement of counsel.

An appraisal award was subsequently issued by the neutral umpire and joined by the appraiser appointed by plaintiff on December 6, 1999 which itemized the following losses:

Business interruption: $ 695,706.39

Subject to policy limit of: $ 650,000.00

Extra expenses for return deposits: $ 25,358.31

Building and personal property: $ 549,840.00

Debris removal: $ 16,200.00

Total: $ 1,241,398.30

The umpire further gave a credit for any monies paid by the defendant to that date. He also awarded interest from October 6, 1996 (30 days after the date all necessary information was submitted to defendants to evaluate loss) until the loss is paid. (See exhibit “H” to defendants’ motion to vacate appraisal award.)

On January 5, 2000, the defendants filed a motion to vacate appraisal award. On January 24, 2000, plaintiffs filed a petition to confirm appraisal award pursuant to 42 Pa.C.S. §7341.

On January 24, 2000, the plaintiffs were also granted a rule to show cause why the appraisal should not be confirmed and also why that instant petition to confirm should not be consolidated with the defendant’s motion to vacate the appraisal award. Rule was returnable on February 21, 2000 at 9 a.m. with an argument scheduled, if necessary, for March 23, 2000 at 9:30 a.m. On January 24, 2000, the plaintiff also filed an answer to defendant’s motion to vacate appraisal award.

On February 24,2000, President Judge James J. Walsh issued an order making the rule of January 24, 2000 absolute and ordering the arbitrator’s award confirmed and dismissing defendant’s motion to vacate for failure to answer the rule returnable of January 24, 2000.

However, the record indicates that on February 22, 2000, the defendants had, in fact, filed a response in opposition to plaintiff’s petition to confirm appraisal award pursuant to 42 Pa.C.S. §7341.

On March 20, 2000, the plaintiffs filed a brief in support of confirmation of appraisal award and denial of motion to vacate.

On March 21, 2000, the defendants filed a brief in support of defendants’ motion to vacate appraisal award and in opposition to plaintiff’s motion to affirm appraisal award.

The court entertained oral argument on March 23,2000 and also received several follow-up informal letter submissions by counsel after the argument date of March 23, 2000.

All submissions have now concluded and the matter is now ripe for disposition.

II. ISSUE(S)

(1) Should the appraisal award of December 6, 1999 be confirmed pursuant to 42 Pa.C.S. §7341?

(2) Conversely, should the appraisal award of December 6, 1999 be vacated?

m. DISCUSSION

Before we proceed, it has come to the court’s attention that counsel have agreed prior to this matter being brought to the undersigned for resolution that the rule absolute of Judge Walsh of February 22, 2000 will be disregarded and that the above issues will and should be decided on their merits. We will now do so.

A. The Scope of Review

The relevant statutory authority is contained at 42 Pa.C.S. §7341 which states in pertinent part:

“The award of an arbitrator in a non-judicial arbitration ... is binding and may not be vacated or modified unless it is clearly shown that a party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award.”

Let us note that both the appraisal and arbitration process are intended as alternatives in litigation whereby the parties submit the issues in dispute to an independent counsel for resolution. The only distinction between arbitration and appraisal is the scope of issues encompassed in each proceeding. An appraisal is limited to determining the amount of loss with all other issues reserved for settlement by either negotiation or litigation, while arbitration considers all issues necessary for disposition of the entire controversy between the parties. Ice City Inc. v. Insurance Co. of North America, 456 Pa. 210, 314 A.2d 236(1974).

For purposes of enforceability, there is no distinction between arbitration and appraisal and both will be reviewed accordingly. McGourty v. Pennsylvania Millers Mutual Insurance Co., 704 A.2d 663 (Pa. Super. 1997); Riley v. Farmers Fire Insurance Co., 735 A.2d 124 (Pa. Super. 1999).

The trial court’s scope of review in appraisal matters is much more limited than a typical arbitration provision since appraisal provides only for resolution of issue of valuation while arbitration provides for resolution of the entire controversy between the parties. Boulevard Associates v. The Seltzer Partnership, 445 Pa. Super. 10, 664 A.2d 983 (1995); Ice City Inc. v. Insurance Co. of North America, 456 Pa. 210, 314 A.2d 236 (1974).

“In arbitration governed by common-law principles, the arbitrators are the final judges of both law and fact and the award is not subject to judicial review for mistakes of either unless it is clearly shown that the party was denied a hearing or that fraud, misconduct, corruption or other irregularity caused the rendition of an unjust, inequitable or unconscionable award. To prevail on these grounds, actual fraud must be shown. . . . Similarly, an ‘irregularity’ will not be found simply upon a showing that an incorrect result was reached. An irregularity which requires reversal of a common-law arbitration award refers to the process employed in reaching the result of the arbitration, not the result itself.” Boulevard, supra, 445 Pa. Super, at 18, 664 A.2d at 987; Gwin Engineers Inc. v. Cricket Club Estates Development Group, 382 Pa. Super. 533, 555 A.2d 1328 (1989). In addition, arbitrator’s authority is restricted to the powers the parties have granted them, and the trial court may examine whether the arbitrators exceeded the scope of their authority. Sley System Garages v. Transport Workers Union of America, 406 Pa. 370, 178 A.2d 560 (1962); Giant Markets v. Sigma Marketing Systems, 313 Pa. Super. 115, 459 A.2d 765 (1983).

Specifically, the Boulevard court held that judicial review of appraisal is limited to fraud, misconduct, corruption or other irregularity causing an unjust result. Boulevard, supra at 18, 664 A.2d at 987. The panel also determined that the reviewing court may examine the appraisers’ scope of authority and whether they have exceeded it. The powers of the appraisers are determined by the submission assigned to them by the parties. Since appraisers do not have authority to decide matters not included in the submission, the trial court may review the scope of their authority. Assigning this review function to the trial court maintains the strict limitation on review but assures the parties that the appraisers have not gone beyond the submission assigned to them. Boulevard, supra at 18-19, 664 A.2d at 987.

We must remember that limited judicial review imposes finality in a contested matter and to permit anything but limited judicial review defeats the purpose of appraisal as well as arbitration. Riley, supra 735 A.2d at 129.

Moreover, we note that the trial court’s decision in these appraisal confirmation (and/or vacation) matters will not be disturbed absent an abuse of discretion or error of law. Hall v. Nationwide Mutual Insurance Co., 427 Pa. 449, 629 A.2d 954 (1993), appeal denied, 537 Pa. 623, 641 A.2d 588 (1993).

B. Discussion of the Merits

With the above legal principles in mind, we must first note one other matter. On September 13, 1999, the undersigned summarily dismissed defendants’ motion to limit the appraisal solely to a determination of the amount of business interruption loss sustained by W.V. Realty Inc. However, we want to make clear that we did so without prejudice to the defendant’s right to raise the same issues that they have now raised in their motion to vacate.

While we are now allowing the defense to revisit some issues raised before us summarily on September 13,1999, we see difficulty in reconciling defendant’s inconsistent positions regarding the amount of the loss.

The defendants have filed a companion subrogation complaint in federal court for the Eastern District of Pennsylvania alleging approximately $1.2 million dollars in damages yet in this proceeding are now disputing that amount.

We are troubled that a defendant can make a claim for an amount certain in one proceeding where they seek reimbursement and yet dispute that same amount in a proceeding wherein their payment is sought. The doctrine of judicial estoppel does not allow such capricious conduct. In re: Superior-Pacific Fund Inc., 693 A.2d 248 (Pa. Commw. 1997); Ligon v. Middletown Area School District, 136 Pa. Commw. 566, 584 A.2d 376 (1990); Tops Apparel Manufacturing Co. v. Rothman, 430 Pa. 583, 244 A.2d 436 (1968).

Beyond that, there is no irregularity of the appraisal proceeding alleged by defendants that is sufficient to vacate the appraisal award or business interruption loss. Certainly, this is a covered policy item (see exhibit “D” to defendant’s motion to vacate appraisal award) which is essential for lost income rather than the value of damaged or destroyed property. The umpire and appraisers relied on the submissions of the parties and were free to make a determination of which numbers they found credible. We cannot disturb that finding. Boulevard Associates v. The Seltzer Partnership, 445 Pa. Super. 10, 664 A.2d 983 (1995).

The same can be said for that portion of the appraisal award for loss of income based upon the period of restoration, a separate recovery for “extra expenses” and award for “debris removal.” Those numbers were based on the submissions of the parties of which the umpire and appraisers are free to make a determination of the valuations they found more credible. In fact, the valuation of $549,840 (value of the building) is nearly identical to the value placed upon it by the defendant’s own expert and the $16,200 for the debris removal is the defendant’s valuation of the amount. None of these amounts can be said to have been arrived at by fraud, corruption or irregularity. See Boulevard, supra.

However, the court does feel that the computation of interest was not in proper conformity with the policy language and the appraisal award may have exceeded its scope of authority in that respect. This small oversight can be easily corrected and molded.

Loss payment is not due until 30 days after the defendants receive the sworn proof of loss if inter alia, an appraisal award had been made. (See exhibit “A” to defendant’s motion to vacate, building and personal property coverage form at p. 6.)

Therefore, interest is not due according to the terms of the policy or applicable case law absent an agreement until an appraisal award is made. J. Purdy Cope Hotels Co. v. Fidelity Phenix Fire Insurance Co., 126 Pa. Super. 260, 191 A. 636 (1937). Also, any interest paid should only be due on the net amount of money owed. (The appraisal award less a credit for any amounts paid.)

The umpire erroneously awarded interest beginning 30 days after September 6, 1996 (the day the umpire determined the defendant had information in its possession sufficient to determine the loss). See exhibit “H” to defendant’s motion to vacate appraisal award.

The proper computation of the award would be $1,241,398.30 less credit to the defendant for any money amount previously paid. Interest would run at the legal rate on that remaining net amount due commencing 30 days for December 6, 1999 (the date of the appraisal award) until paid in full. Therefore, this issue must be remanded for exact calculations since the court lacks critical information on credits prepaid and net amounts remaining.

For the reasons set forth above, other than the adjusted calculation for interest, we find no fraud, misconduct, corruption or other irregularity, which caused the rendition of an unjust, inequitable or unconscionable award justifying disturbing the appraisal award.

An appropriate order follows.

ORDER

And now, to wit, May 15, 2000, upon consideration of defendant’s motion to vacate appraisal award and plaintiff’s petition to confirm appraisal award pursuant to 42 Pa.C.S. §7341 and the written briefs and oral arguments of counsel, it is hereby ordered and decreed that defendant’s motion to vacate appraisal award is denied and plaintiff’s petition to confirm appraisal award pursuant to 42 Pa.C.S. §7341 is granted.

It is further ordered and decreed that judgment is entered against defendants for $1,241,398.30 less a credit for any payments previously made to plaintiffs to date with interest on the net amount only at the legal rate commencing 30 days from December 6, 1999 (the date of the appraisal award) until paid in full.

It is further ordered and decreed that the parties recalculate the interest consistent with this memorandum and order. If the parties cannot agree on the calculation of interest, the matter shall be resubmitted to the umpire and appraisers for calculation of interest as per the court’s directives.

      . “4 Loss payment
      “F We will pay for covered loss or damage within 30 days after we receive the sworn proof of loss if:
      “(1) You have complied with all of the terms of this coverage part; and
      “(2)(a) We have reached agreement with you on the amount of loss; or
      “(b) An appraisal award had been made.”


author: DOERR, J.,

text:
    Barbish v. Greyhound Lines Inc.

      C.P. of Butler County,
    no. 98-10988.

      John J. Morgan, for plaintiff.

      Paul C. Troy and Bruno Muscatello, for defendant.
    December 29, 1999
   DOERR, J.,

Before the court is defendant’s motion for summary judgment.

FACTUAL BACKGROUND

On June 4, 1997, while alighting from a Greyhound Lines intercity bus, Amy Barbish fell onto the paved surface of the ground below. Ms. Barbish sustained physical injury to her right wrist and hand. Ms. Barbish avers that a hurrying fellow passenger pushed her and caused her to fall. At the time of the incident, the bus driver was not on board. Ms. Barbish brought suit in negligence against Greyhound Lines.

LEGAL STANDARD

Summary judgment is granted properly when the moving party is entitled to judgment as a matter of law. McConnaughey v. Building Components Inc., 536 Pa. 95, 637 A.2d 1331 (1994). When deciding a motion for summary judgment, a court must view the record in the light most favorable to the non-moving party and it must resolve all doubt concerning the existence of a genuine material fact against the moving party. Redland Soccer Club v. Department of Army, 548 Pa. 178, 696 A.2d 137 (1997).

Because an order favorable to the moving party will end prematurely an action, summary judgment should be entered only in the clearest of cases. Boyer v. Walker, 714 A.2d 458 (Pa. Super. 1998).

LEGAL ANALYSIS

Greyhound Lines argues that it owed no duty to protect Ms. Barbish from injury by another passenger unless it knew of that passenger’s propensity for harmful behavior. Ms. Barbish counters that Greyhound Lines owed her a duty of care not only to transport her safely but to provide her with a safe means to exit the bus.

Any action in negligence is premised upon the existence of a duty owed by one party to another. Knoud v. Galante, 696 A.2d 854 (Pa. Super. 1997). It is well established in Pennsylvania that a common carrier is obligated to use the highest degree of care that is consistent with its mode of transportation to provide for the safety of its passengers. Id.

A common carrier’s duty to exercise the highest degree of care is not limited to the journey. Harris v. DeFelice, 379 Pa. 469, 109 A.2d 174 (1954). The duty extends to providing passengers with reasonable and safe means of ingress and egress and to avoid any possible danger while doing so. Coyne v. Pittsburgh Railways Co., 393 Pa. 326, 141 A.2d 830 (1958).

The court finds that Greyhound Lines owed to Ms. Barbish a duty of care at the moment of the incident. Greyhound Lines had the duty to provide Ms. Barbish with a reasonably safe means of egress from its bus and to avoid any possible danger. Harris, at 473, 109 A.2d at 176; Coyne, at 330, 141 A.2d at 832. Ms. Barbish was injured while alighting from the bus; not after she had left the bus. Contrast Knoud, at 859. While Greyhound Lines was not bound to anticipate unusual and unexpected perils to Ms. Barbish, the court finds it had a duty to protect Ms. Barbish from reasonably anticipated perils such as shoving, pushing and unruly exiting by fellow passengers. Branch v. Philadelphia Transportation Co., 374 Pa. 60, 96 A.2d 860 (1953). In addition, the court finds that the absence of Greyhound Line’s employee, the bus driver, does not negate its duty of care to Ms. Barbish.

Viewing the record in the light most favorable to the non-moving party, the court concludes that Ms. Barbish has shown the existence of a duty on the part of Greyhound Lines to her. Summary judgment is inappropriate. Askew by Askew v. Zeller, 361 Pa. Super. 35, 521 A.2d 459 (1997). Accordingly, defendant’s motion for summary judgment is denied.