author: STALLONE, J.,

text:
    Berg v. Lindgren Chrysler-Plymouth Inc.

      Benjamin J. Mayerson and Hy Mayerson, for plaintiffs.

      Kenneth C. Myers, for defendants Lindgren.

      Craig A. Cohen, for defendant Nationwide.

      Brett A. Huckabee, for additional defendant.
    April 7, 2005
   STALLONE, J.,

This is an action for damages involving claims of fraud, civil conspiracy and violation of the Pennsylvania Unfair Trade Practices and Consumer Protection Law, arising out of the repair of body damage to a 1996 Jeep Grand Cherokee by defendants Lindgren Chrysler-PIymouth Inc. a/k/a Lindgren Chrysler Plymouth Mazda Inc. and Lindgren and Manske Inc. a/k/a Lindgren Chrysler Plymouth Mazda Inc. (Lindgren) and by the additional defendant, K.C. Auto Body Inc. At the time, the vehicle was being leased by the plaintiffs, Dan Berg and Sherry Berg, and was insured by defendant Nationwide Mutual Insurance Company.

Prior to the close of the evidence, and the submission of the case to the jury, this coart directed the parties to prepare proposed special interrogatories for the jury to answer concerning each of the Bergs’ claims. Nationwide prepared special interrogatories, which instructed the jury that it could find Nationwide and/or Lindgren liable either on any, all, or none of the claims, and circulated them to the other parties, who did not object to their submission to the jury by the court.

Thereafter, this court instructed the jury concerning the elements of common-law fraud, not only with respect to the underlying common-law fraud claim but also at the request of Nationwide, which was not objected to, a second time relative to the unfair trade practices and consumer protection claim.

And when it came to damages, we instructed the juiy that the Bergs were seeking (in this part of the bifurcated trial) to recover their lease payments made during the repair period, along with the insurance premiums which they paid while the vehicle was not available for their use.

After deliberating for more than four hours, the jury found in favor of Lindgren and Nationwide on the common-law fraud and civil conspiracy claims, but against Lindgren and Nationwide on the unfair trade practices and consumer protection claim.

After the jury announced its verdicts, and before it was discharged, but returned to the deliberation room, counsel for Nationwide and Lindgren made oral motions for judgment n.o.v. on the basis that the jury’s verdicts on the common-law fraud and unfair trade practices and consumer protection claims were “inconsistent,” which we denied after articulating on the record our reasons for doing so.

Nationwide and Lindgren have now each filed a motion for post-trial relief, in which they are once again seeking the entry of judgment n.o.v. on the unfair trade practices and consumer protection claim. We are filing this opinion in disposition of these motions.

Initially, Nationwide and Lindgren contend that they are entitled to the entry of a judgment on the basis that the jury’s verdicts were inconsistent because, in order for the jury to have found in favor of the Bergs on their unfair trade practices and consumer protection claim, the jury would have necessarily had to first find in favor of the Bergs on their commoia-iaw fraud claim. We strenuously disagree.

In deciding a motion for entry of judgment n.o.v., the reviewing court must keep in mind that it should only be entered in a clear case, with any doubt resolved in favor of the verdict winner. Reading Radio Inc. v. Fink, 833 A.2d 199 (Pa. Super. 2003); City of New Castle v. Uzamere, 829 A.2d 763 (Pa. Commw. 2003); Education Resources Institute Inc. v. Cole, 827 A.2d 493 (Pa. Super. 2003). Moreover, in Pennsylvania, there is a presumption of consistency with respect to a jury’s findings which can be rebutted only by a showing that there is no reasonable theory to support the jury’s verdict. Giovanetti v. Johns-Manville Corporation, 372 Pa. Super. 431, 440, 539 A.2d 871, 875 (1988); see also, Curran v. Greate Bay Hotel and Casino, 434 Pa. Super. 368, 372, 643 A.2d 687, 688 (1994); Goldmas v. Acme Markets Inc., 393 Pa. Super. 245, 251, 574 A.2d 100, 103 (1990).

Therefore, strict form is not required to sustain a verdict; rather, all that is essential is that a jury’s intention be clearly understood. James v. Nolan, 418 Pa. Super. 425, 614 A.2d 709 (1992). As the James court noted at p. 435, 614 A.2d at 714-15 of its opinion:

“[W]e cannot become so enmeshed in language that we ignore the clear expression of a conscientious lay jury. The record demonstrates without question that they exerted every effort to perform their duties in accordance with the instructions given and to convey to the court and litigants with all the clarity they could summon the results of their deliberations. No more can be reasonably required [from] those not trained in the law. Nor can we discard their diligent effort because of an asserted lack of precision in legal expression [of a conscientious lay jury].”

In looking to section 201 -2(4)(xxi) of the Unfair Trade Practices and Consumer Protection Law, which serves as the legal basis for the Bergs’ unfair trade practices and consumer protection claim, we see that the term “fraud” is used but not defined... but that an “unfair or deceptive act or practice” is defined as follows: “engaging in any other fraudulent or deceptive conduct which creates a likelihood of confusion or of misunderstanding. ”

Although the courts have interpreted this catch-all provision of the Unfair Trade Practices and Consumer Protection Law to require a finding of common-law fraud, the statute goes much further to provide that the fraudulent or deceptive conduct must create a likelihood of confusion or misunderstanding in the course of a consumer transaction, which the jury could have easily concluded is quite different in its application from a common-law fraud claim, which makes no mention whatsoever of its relationship to a consumer or business transaction and certainly does not require the creation of a likelihood of confusion or misunderstanding.

Simply put, the jury was presented with two separate and distinct claims of common-law fraud and a violation of the Unfair Trade Practices and Consumer Protection Law. Therefore, this court instructed the jury relative to both the common-law fraud and the Unfair Trade Practices and Consumer Protection Law claims as follows (N.T., trial, pp. 974-75):

“Okay, we will start off with fraud. This is fraud — the fraud claim as to defendant’s, Nationwide Insurance Company and/or Lindgren Chiysler-Plymouth Inc. The law says that a person who makes a fraudulent misrepresentation of a material fact to another is responsible for all the harm resulting from that other person’s reliance on the fraudulent misrepresentation.

“In order for parties in the position of Mr. and Mrs. Berg to recover for fraud against Nationwide and/or Lindgren, they must prove by clear and convincing evidence the following elements of the claim.

“The first element is that Nationwide and/or Lindgren made a misrepresentation to the Bergs. The second is that this misrepresentation was fraudulent. The third element is that the misrepresentation was of a material fact, and the fourth, that Nationwide and/or Lindgren intended that Mr. and Mrs. Berg rely on that fraudulent misrepresentation, and five, that Mr. and Mrs. Berg did justifiably rely on that fraudulent misrepresentation, and that Mr. and Mrs. Berg’s reliance on that representation was a factual cause of the harm allegedly suffered by them.

“Now, let’s go to the first element, misrepresentation. A misrepresentation is any certification by words or conduct which is not in accordance with the facts. Fraudulent — a misrepresentation is fraudulent when the person making the misrepresentation knows that it is untrue or does not believe it is true or is indifferent as to whether it is true or by reason of special circumstance has a duly to know whether it is true.

“As to the element of materiality, a fact is material if it is one which would be of importance to a reasonable person in determining a choice of action. A material fact need not be the sole or even a substantial factor in inducing or influencing a reasonable person’s decision. A fact is material if the maker of the misrepresentation knows that the person to whom it is made is likely to regard it as important even though a reasonable person would not regard it as important.

“And then with regard to reliance and justifiable reliance, the law says that reliance means that a person would not have acted or failed to act as he or she did unless he or she considered the misrepresentation to be true.

“Now, the second claim of unfair trade practices, and this is as against the defendants, Nationwide Insurance Company and/or Lindgren Chrysler-Plymouth Inc., the general purpose of the Unfair Trade Practices and Consumer Protection Law is to protect the public from fraud and unfair or deceptive business practices.

“This Act provides that it shall be unlawful for any person, be it a natural person or a corporation, to use any unfair or deceptive act or practices in the conduct of any trade or commercial transaction. Now, as you know, Mr. and Mrs. Berg claim that Nationwide and/or Lindgren violated the statute by engaging in fraudulent or deceptive conduct that created a likelihood of confusion or misunderstanding.

“It is your responsibility to determine whether or not Nationwide and/or Lindgren engaged in any unfair or deceptive act or practice. You must determine after carefully considering all of the evidence whether or not the conduct of Nationwide and/or Lindgren or Mr. and Mrs. Berg constituted an unfair or deceptive business practice that created a likelihood of confusion or misunderstanding. ”

In applying the evidence to these two separate instructions given by this court, the jury could very well have determined, based on the evidence in the case, that it would be more appropriate to find that Nationwide and Lindgren engaged in fraudulent or deceptive conduct in a consumer or business transaction which created a likelihood or confusion or misunderstanding, rather than simply common-law fraud. And when we consider that the law requires a presumption of consistency, we believe that it was reasonable for this lay jury, after making a diligent effort, to have found Nationwide and Lindgren liable on the unfair trade practices and consumer protection claim, but not liable on the common-law fraud claim.

Moreover, it must be noted here that Nationwide did not include any wording within the special interrogatories document to the effect that only if the jury first found Nationwide and/or Lindgren liable on the common-law fraud claim that it could then find them liable on the unfair trade practices and consumer protection claim. Accordingly, having found that there is a reasonable and understandable theory to support the jury’s verdicts, we cannot agree that Nationwide and Lindgren should be entitled to take away the jury verdict in favor of the Bergs on the grounds of inconsistency.

However, even assuming arguendo that we were to find such an inconsistency, Nationwide and Lindgren have clearly waived this argument inasmuch as, prior to the jury’s discharge and while the jury was sequestered in a separate room waiting for further instructions, this court invited counsel for Nationwide and/or Lindgren to request that the jurors be brought back into the courtroom and either questioned as to how they arrived at these two verdicts or to otherwise correct any inconsistency which they alleged. They, of course, chose not to do so (N.T., oral colloquy following jury verdict, pp. 5-7):

“The Court:... maybe we could bring the jury in here and you could question them as to how they arrived at the verdict, unfair trade practices, without a separate verdict with regard to fraud.

“Mr. Myers: Your honor, while Mr. Cohen ponders that, I would simply state for the record we would join in the motion for, or we make a separate motion on behalf of, Lindgren for a judgment notwithstanding a verdict and I understand your ruling.

“The Court: The same applies in your situation as well. I think that the case for the court’s interpretation is stronger in view of the fact that I repeated those elements of fraud under unfair trade practices and emphasized that those elements had to be in addition to those elements of just common-law fraud. I mean, we do not have unintelligent people here. The foreman of this jury is a very intelligent individual He works for the Reading Eagle/ Times. I still believe that he does, and I think that not only him but I think several of the jurors were very attentive.

“And I also want to note for the record, not that I have to at this particular point, but this jury gave serious consideration to this case. They were out for four hours. They didn’t come back and ask one question, which is an indication to the court that the instructions and the arguments were clear on the subject.

“And the instructions that went to the jury, as you also know, went to the jury without any exception being taken by any of the attorneys. The verdict slip went out to the jury as prepared by counsel and as stipulated to.

“Anything further?

“Mr. Mayerson: No, your honor.

“The Court: Anything further?

“Mr. Myers: No, your honor.

“Mr. Cohen: No, your honor.”

As an afterthought, Nationwide now goes on to suggest for the first time in its supporting brief that this court should have brought the jurors back into the courtroom, sua sponte, provided them with additional instructions and directed them to engage in further deliberations. In doing so, Nationwide relies upon the following footnote which appears in the court’s opinion in Curran v. Greate Bay Hotel and Casino, 434 Pa. Super. 368, 376 n.2, 643 A.2d 687, 691 n.2 (1994) (emphasis added):

“We note that the trial court was apparently well aware of the problems presented in the jury’s answers to the interrogatories. Immediately after discharging the jury, the court asked counsel to offer their opinions interpreting the verdict. While we reiterate that the type of inconsistency which resulted in this case demonstrates the ‘impracticability of interrogatories,’ Ferrick v. Senger, supra, we caution trial courts not to discharge juries where there are obvious problems with a jury verdict which might be resolved with more instruction and further deliberations. Had such occurred in the instant case, the problems which necessitated this appeal may well have been avoided.”

In Curran, the jury found that one of the defendants, Greate Bay Hotel and Casino t/a Sands Hotel & Casino (the hotel), was negligent but that its negligence was not a substantial factor in causing the plaintiff’s injuries. Nevertheless, the jury assigned 30 percent of the total causal negligence to the hotel, which was obviously inconsistent with its finding on causation.

However, we believe that Curran is clearly distinguishable in that, not only is it a footnote and certainly not the holding or dicta in the case, but that there is no such obvious problem or inconsistency in the jury’s verdicts in the case before us. Furthermore, both Nationwide and Lindgren declined the opportunity to request this clarification from the jury or to ask the court to give additional instructions and/or direct further deliberations by the jury as the court offered it would do. Had they done so, the issue could very well have been cleared up then and there; but, for reasons known only to them, such as, perhaps, strategy, they chose not to. Nor was there any suggestion by Nationwide or Lindgren, before the jury was discharged, that this court should have brought the jurors back into the courtroom, sua sponte. Therefore, they must now accept the consequences of choosing the strategy they did at the time of trial, as well as the rejection of this argument as being without merit.

Secondly, Nationwide challenges the jury’s award of damages against it in the amount of $295, which it represents in their brief is the amount which the Bergs paid for automobile insurance premiums for five out of the six-month time period during which their vehicle was being repaired. We disagree, since Nationwide has no factual basis for knowing how the jury calculated this amount of damages and, therefore, its argument is based only on its assumption as to how the jury arrived at that figure. As our Superior Court of Pennsylvania said in Beswick v. Maguire, 748 A.2d 701, 702 (Pa. Super. 2000):

“Since, under our system of jurisprudence, our courts in most cases have no way of knowing how or why a jury reached their verdict in a given case, the presence of passion, prejudice, partiality or corruption on the part of the jury, or whether they disregarded instructions, acted under misapprehension or mistake can only be a matter of surmise by a reviewing court.”

Furthermore, Nationwide has waived any objection to the damage part of the award, as well, inasmuch as it did not place any objection on the record to the charge given by this court on damages (N.T., trial, pp. 978-79; 1060).

For these reasons, we enter the following attached order.

ORDER

And now, April 7, 2005, the defendants’ motions for post-trial relief are hereby denied.

      . Title 73, 73 P.S. §201-2(xxi) (Supp. 2005).

      . Prior to trial, the plaintiffs agreed to withdraw claims for breach of contract, breach of warranty and negligence and agreed to bifurcate other claims of bad faith, punitive damages, attorney’s fees and costs for hearing before this court at a later time, if necessary.

      . On September 7, 1999, defendant Nationwide Insurance Company joined K.C. Auto Body as an additional defendant solely for purposes of a claim for contribution.

      . And not simply a new trial which is not before us.

      . Title 73, 73 P.S. §201-2 (Supp. 2005).

      . All italicized language appearing in this opinion is for emphasis only.

      . See Booze v. Allstate Insurance Co., 750 A.2d 877 (Pa. Super. 2000).

      . City of Philadelphia, Police Department v. Gray, 534 Pa. 467, 475, 633 A.2d 1090, 1094 (1993).

      . Lindgren has not joined in this argument. See N.T., argument on motions for post-trial relief, p. 21.

      . Mazlo v. Kaufman, 793 A.2d 968 (Pa. Super. 2002); Pa.R.C.P. 227.1(b)(1).


source: Caselaw Access Project

author: BIGHAM, J.,

license: Public Domain

text:
    Hoke-D’Amico v. D’Amico

      Henry O. Heiser III, for plaintiff.

      Thomas E. Milter, for defendant.
    March 10, 2005
   BIGHAM, J.,

STATEMENT OF FACTS

This case began on May 24, 2004, when Karen L. Hoke-D’Amico (plaintiff) filed a divorce complaint including the following counts: (1) divorce (irretrievable breakdown), (2) equitable distribution, (3) alimony, and (4) alimony pendente lite, counsel fees and expenses. On September 9, 2004, John R. D’Amico (defendant), filed the affidavit of consent and waiver of notice required by Pa.R.C.P. 1920.72. On. September 15, 2004, plaintiff’s request for alimony pendente lite in the amount of $ 1,911 a month was granted. Prior to the alimony pendente lite award, defendant served plaintiff’s counsel with defendant’s filed affidavit of consent and waiver of notice, and requested that plaintiff promptly file her corresponding documents. Defendant was notified by plaintiff’s attorney that plaintiff was mentally unable to file the affidavit. In response, defendant filed a petition to suspend plaintiff’s alimony pendente lite effective September 17, 2004, the date plaintiff refused to file an affidavit of consent and waiver of notice. An evidentiary hearing was held by this court on December 3, 2004, and subsequently an order of court was entered on January 3, 2005, directing the parties to submit memoranda of law on the issue of whether or not defendant’s alimony pendente lite obligation should be suspended due to plaintiff’s failure to file an affidavit of consent and waiver of notice. The memoranda were filed and the issue is presently before the court.

LEGAL DISCUSSION

Alimony pendente lite provides a level playing ground for financially disadvantaged litigants who otherwise might be forced to settle or compromise their position because they financially are unable to litigate. Either party to a divorce proceeding is entitled to receive alimony pendente lite if there is a financial need. Rueckert v. Rueckert, 20 D.&C.3d 191 (Allegheny Cty. 1981). The net award is calculated solely based, “on the relative finances of the parties,” without regard to fault. Id. at 195. So long as there is a pending divorce, alimony pendente lite is a possible resource. Id.

An unfortunate side-effect of an alimony pendente lite award is that sometimes the receiving party may lose its incentive to proceed with a divorce, especially if that party is receiving a substantial award. To allow a party to begin a divorce case and then allow that same party to effectively place it in neutral by refusing to file a necessaiy document, while continuing to collect a monthly check for alimony pendente lite, is unjust. The courts are not equipped with a remedy to order a party to proceed with a divorce. Karchner v. Karchner, 26 D.&C.3d 172 (Adams Cty. 1983). However, equity demands that the party either proceed with divorce and receive alimony pendente lite or refuse to go forward with the divorce and not receive alimony pendente lite. A reasonable alternative is to bifurcate the divorce action, preserving the economic issues with alimony pendente lite continuing until all economic issues are resolved.

Presently, plaintiff’s counsel objects to the filing of an affidavit of consent and a waiver of notice because his client is, “unable to litigate due to her health, which is out of control. It is not a matter of plaintiff voluntarily choosing not to proceed — she simply can’t.” (Plaintiff’s memorandum in opposition to suspension of alimony pendente lite atp. 2.) In support of this proposition, plaintiff has produced two letters from health care providers stating that she is unable to work at this time due to her mental condition. The court does not take issue with the severity of plaintiff’s precarious mental condition. However, this court cannot allow a litigant who sought the help of the judicial system and is receiving its protection to, “be permitted the benefits of a law [alimony pendente lite] whose spirit she is defying.” Reuckert, cited above at 197. Therefore, plaintiff wifi be given until March 28, 2005, to sign and file the necessary documents required by 23 Pa.C.S. 3301(c), including, but not limited to, an affidavit of consent and a waiver of notice. If plaintiff chooses not to file the requisite documents, then defendant’s alimony pendente lite obligation will be suspended effective March 28, 2005. The court notes that the divorce action will not be terminated, thus providing an opportunity for defendant to file a counterclaim for divorce under 23 Pa.C.S. 3301(d).

Accordingly, the attached order will be entered.

ORDER

And now, March 10, 2005, it is ordered that plaintiff has until March 28,2005, to sign and file an affidavit of consent and a waiver of notice as required by 23 Pa.C.S. 3301(c). If plaintiff chooses not to file the requisite documents, then defendant’s alimony pendente lite obligation will be suspended as of March 28, 2005.

      . The court notes that on March 28,2005, a combined support and evidentiary hearing has been scheduled in the present case. Therefore, March 28,2005, is not an arbitrary date decided by the court but rather it is a date selected for the convenience of the parties.


author: MORAN, J,

text:
    Byrne v. Mowad

      Steven Margolis and Dennis Seeley, for plaintiffs.

      Anthony Parker, Zachary Cohen and Ellen Schurdak, for defendant.
    February 4, 2005
   MORAN, J,

STATEMENT OF REASONS

The defendant, Flory Tolino, has moved for summary judgment arguing inter alia that he was not the proximate cause of the accident, that the plaintiffs cannot recover for conscious pain and suffering based on plaintiffs’ expert report, and that plaintiffs are not entitled to punitive damages. The motion for summary judgment is before the court and is ready for disposition.

Standard of Law

Pennsylvania Rule of Civil Procedure 1035.2 states that, where there is no genuine issue of material fact and the moving party is entitled to relief as a matter of law, summary judgment may be entered. However, a non-moving party may not rest on averments contained in pleadings or answers to survive a motion for summary judgment if the burden of proof rests on the non-moving party. Manzetti v. Mercy Hospital of Pittsburgh, 565 Pa. 471, 776 A.2d 938, 945 (2001). In determining whether summary judgment should be entered, the record must be viewed in a light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Manzetti, supra. What follows is a recitation of the relevant facts for this motion, construed in the required light.

Statement of Fact

Kimberly Byrne was a passenger in a vehicle driven by Michael Mowad when it tragically was involved in an accident that took both their lives. It is undisputed that at the time of the fatal crash, the driver had a blood alcohol count (BAC) of 0.2 percent.

Earlier in the evening, several minors including Byrne and Mowad had attended an underage drinking party at Judith Claire McCloskey’s house. There are varied accounts as to how much alcohol Mowad consumed at the party and whether he was visibly intoxicated when he left. The only surviving passenger from the vehicle at the time of the accident testified that she did not believe Mowad was too intoxicated to drive. Pl.s’ mem. of law in opp. of deft. Flory Tolino’s mot. for summ. j. at exhibit D, dep. of Courtney Kiefer, pp. 40-46. In contrast, several witnesses at the party describe him as being drank. See e.g., app. to deft.’s Flory Tolino’s br. in supp. of mot. for summ. j. at exhibit Q, dep. of Kristin Engler at pp. 22-23.

At approximately 11:30 p.mu, the police arrived at the house where the minors were consuming alcohol. Biyan Kiefer, Courtney Kiefer, Byrne, and Mowad were not apprehended by the police. Instead, these four individuals fled the scene in Mowad’s vehicle.

When the Mowad vehicle was traveling south on Mount Pleasant Road, it was involved in a sideswipe accident with defendant, Flory Tolino. At the time of the accident, shortly after midnight, Tolino was driving a yellow Mustang. Dep. of Tolino at pp. 7-8, app. T. Tolino testified that the sideswipe accident occurred when Mowad’s vehicle negotiated the curve in the road and crossed into his lane of travel. Id. at pp. 9-10.

Following the accident, Tolino brought his vehicle to a stop and looked in his rear-view mirror, expecting the Mowad vehicle to stop. Id. at pp. 14-15. When he saw that the Mowad vehicle was not going to stop or turn around, he turned his vehicle around and drove in the direction of the Mowad vehicle. Id. He testified that he pursued the vehicle at approximately 50 to 60 miles per hour, but that he never got closer than a quarter of a mile before the Mowad vehicle was involved in the fatal single-car accident. Id. at pp. 16-18. He acknowledged that the speed limit in the area was 35 miles per hour. William Wagner Jr., who was at the scene of the accident, testified that, shortly after the accident, Tolino told him that he had been traveling in excess of 70 miles per hour. Pis’ br. at exhibit F, dep. of William Wagner Jr. at p. 21.

Courtney Kiefer, who was in the Mowad vehicle, testified that at the time of the sideswipe accident that Mowad was not driving at an excessive speed. Dep. of Courtney Kiefer at p. 50. Tolino acknowledges that at the time of the sideswipe the Mowad vehicle was not traveling fast. Dep. of Tolino at p. 15. She further testified that, prior to the sideswipe accident with Tolino, she did not notice that Mowad was swerving or driving erratically. Dep. of C. Kiefer at p. 46.

Ms. Kiefer testified that, upon seeing Tolino’s vehicle turn around, Mowad’s vehicle sped up. Dep. of Courtney Kiefer at pp. 53-54. Her testimony differs from Tolino concerning the distances between the vehicles. Specifically, she testified:

“Q. How do you know that he [Mowad] saw [Tolino’s] car turn around?
“A. Well, he had a mirror. I’m sure he saw the lights right behind us. They were pretty bright, like right here.” Id. at p. 54.

Later, she testified:

“Q. Why were you scared?
“A. Because we were going fast and I’ve never been in a situation like that where someone is behind us chasing us like that.
“Q. How do you know someone was chasing you?
“A. Well, they were right behind us and they kept following us.
“Q. What do you mean right behind you?
“A. I don’t — well, we saw the lights behind us and they kept following us.
“Q. You don’t know how far behind they were?
“A. They weren’t that far behind.
“Q. Do you know if they were a quarter mile, half a mile?
“A. No, I don’t know....
“Q. Okay. But the headlights certainly weren’t right behind you?
“A. Right behind me meaning like?
“Q. Right on your fender or within two, three car lengths.
“A. I think within two or three car lengths.” Id. at pp. 68-69.

During his deposition, Tolino admitted that at the scene of the second and fatal accident, he told someone that he was “chasing” the Mowad vehicle prior to the crash, although he characterized that as a “figure of speech.” Dep. of Tolino atp. 28.

Traci Wagner, who lives at the house directly in front of the scene of the fatal accident, is able to place Tolino’s vehicle at the scene of the accident within 17 to 25 seconds after she heard the accident. Because of dust and debris, she is not able to give an opinion how long, if at all, it had been parked there before the 17- to 25-second time period. Dep. of Traci Wagner at p. 19, pl.s’ br. at exhibit G. John Dietz was also at the scene of the accident. He testified that, while driving, he came upon Mowad’s vehicle while it was overturned and its wheels were still spinning. He testified that he did not see either the Wagners or Tolino at the accident scene when he arrived. App. U, dep. of Dietz at pp. 20-24. See also, app. V, dep. of Deborah Black, pp. 13-16.

Discussion

Simply stated, Tolino’s first argument is that he is not the proximate cause of the accident. In response, Byrne argues that, under the particular facts in this case, proximate cause is an issue for the jury.

Proximate Cause

We agree that under Pennsylvania law, the question of proximate cause is generally for the jury. However, in cases where “the relevant facts are not in dispute and the remoteness of the causal connection between the defendant’s negligence and the plaintiff’s injury clearly appears, the question becomes one of law.” Liney v. Chestnut Motors Inc., 421 Pa. 26, 29, 218 A.2d 336, 338 (1966). Stated differently, “[ojnly if the facts are not in dispute and thus reasonable minds cannot differ can the question be removed from the consideration of the fact-finder, since then there is only a question of law to be decided.” Commonwealth, Dept. of General Services v. United States Mineral Products Co., 809 A.2d 1000, 1011 (Pa. Commw. 2002).

In order to find that an act is the proximate cause of an accident, there must be a nexus between the wrongful acts and the injury sustained of such a nature that it is socially and economically desirable to hold the wrongdoer liable. Under Pennsylvania law, as well as under the Restatement (Second) of Torts, a defendant’s wrongful conduct must be a substantial factor in bringing about plaintiff’s harm. Gutteridge v. A.P. Green Services Inc., 804 A.2d 643 (Pa. Super. 2002); Restatement (Second) of Torts §431. A cause can be found to be substantial if it is significant or recognizable; it need not be quantified as considerable or large. Jeter v. Owens-Corning Fiberglas Corp., 716 A.2d 633 (Pa. Super. 1998).

Section 433 of the Restatement (Second) of Torts sets forth a standard for determining whether negligent conduct is a substantial factor in producing the injury:

“The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another:

“(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
“(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
“(c) lapse of time.” quoted in Taylor v. Jackson, 164 Pa. Commw. 482, 491, 643 A.2d 771, 775 (1994). See also, Restatement (Second) of Torts §433 cmt. a (“[These factors] are important to a court in determining whether upon the evidence there is room for a reasonable difference of opinion as to whether the defendant’s negligence is a substantial factor in bringing about the other’s harm.”).

In explaining proximate cause, Pennsylvania’s Suggested Standard Civil Jury Instructions have recently replaced the term “substantial cause” with the term “factual cause.” In relevant part, it advises a jury that, to be a factual cause, the negligent conduct must be “an actual, real factor, not a negligible, imaginary, or fanciful factor, or a factor having no connection or only an insignificant connection with the injury.” Pennsylvania Suggested Standard Civil Jury Instruction, second edition, 3.25.

Given all these considerations, we cannot, as a matter of law, hold that Tolino’s conduct was not a proximate cause of the accident. We find that reasonable minds may differ on the effect of Tolino’s conduct on the accident, and that a sufficient nexus between Tolino’s conduct and the injury sustained exists. Therefore this issue is properly resolved by a jury. In so holding, we are bound by the summary judgment standard, and accept as true that Tolino chased the Mowad vehicle at speeds in excess of 70 miles per hour, twice the legal speed limit, while following the vehicle at an unsafe distance.

We make this finding although we find that the police chase cases cited by plaintiffs are factually distinguishable and ultimately unavailing to the court in resolving this issue. Aiken v. Borough of Blawnox, 747 A.2d 1282 (Pa. Commw. 2000); Agresta v. Gillespie, 158 Pa. Commw. 230, 631 A.2d 772 (1993). Police and other emergency vehicle pursuit cases involve their own unique circumstances, and their applicability is best suited to other police pursuit cases. We do note, however, that, similar to the case at bar, in at least one police chase case, the appellate court opined that liability is not excused as a matter of law “on the sole basis that the pursued vehicle, and not the police pursuer, was physically involved in the collision.” Kuzmics v. Santiago, 256 Pa. Super. 35, 40, 389 A.2d 587, 590 (1978). See also, Commonwealth v. Levin, 184 Pa. Super. 436, 440, 135 A.2d 764, 766 (1957). The case most factually similar to this case that our research has uncovered is a common pleas case from Lancaster County. Brim v. Wertz, 35 D.&C.4th 277 (1996). In Brim, two individuals had been racing each other arising out of an episode of apparent road rage, whereupon, while attempting an illegal pass, one of the drivers struck a third oncoming car in a head-on collision. The driver of the third vehicle, the plaintiff, sought to recover damages from both vehicles involved in the race. In holding that the plaintiff could not recover from both drivers, the court found that, by the time of the accident, the driver not involved in the collision had withdrawn from the race and was not speeding at the time of the accident, and thus could not be found to be the proximate cause of the accident. Id. at 286. The court noted that if the accident had occurred during the race, “our analysis would be hard-pressed to find a similarly complete severance of causal connection.” Id. at 286 n.6.

In the case before this court, there are several similarities and distinguishing factors from Brim, although we find it instructive. The most obvious distinguishing factor is that the accident in this case involves only two vehicles, both of which were traveling at unsafe speeds. The fact that the collision in this case involves a single car being driven by a legally intoxicated individual may affect that driver’s contributory negligence, but, as noted above, a driver can be legally negligent without being involved in the accident itself. Kuzmics, 256 Pa. Super, at 41, 389 A.2d at 590. Unlike Brim, Tolino had not removed himself from the high speed chase at the time of the accident. The evidence viewed in the required light shows that, at the time of the accident, Tolino was involved in a high speed chase of a vehicle, following it at an unsafe distance. Reasonable minds may differ on what effect Tolino’s conduct had on the accident, and whether it was a substantial factor in bringing about the accident. Therefore we cannot absolve him from liability as a matter of law.

With specific reference to the factors set forth in section 433 of the Restatement, we acknowledge that there are other factors which contributed to the harm — specifically, the furnishing of alcohol to minors and Mowad’s decision to drive while intoxicated. The proximity of Tolino’s negligent conduct and the accident, however, convinces the court that he is a part of the causal chain of events that leads to the accident. Restatement (Second) of Torts §433(c). We do not find fault with Tolino’s initial decision to turn his vehicle around after the sideswipe accident. We do, however, find fault with his decision to pursue the Mowad vehicle at unsafe speeds and at an unsafe distance when it became apparent that Mowad intended to flee the scene. This behavior created an unreasonable risk of danger to third parties, and it would not be unreasonable for a jury to conclude that this conduct was a substantial factor in bringing about the injuries to the plaintiff. Therefore, on these facts, a jury must determine whether Toiino’s conduct proximately caused the injuries m. this case.

Punitive Damages

Pennsylvania law has embraced section 908(2) of the Restatement (Second) of Torts regarding punitive damages: “[pjunitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others.” See Feld v. Merriam, 506 Pa. 383, 395, 485 A.2d 742, 747 (1984). In defining the “reckless indifference to the rights of others” standard for punitive damages, our courts have referred to section 500 of the Restatement of Torts. Focht v. Rabada, 217 Pa. Super. 35, 268 A.2d 157 (1970). In the comment to that section, it delineates reckless conduct into two separate types. Restatement (Second) of Torts §500 cmt. a. We direct our attention to the first type of reckless conduct, because our Supreme Court has held that of the two types described, only the first type is sufficient to create a jury question on punitive damages. SHV Coal Inc. v. Continental Grain Co., 526 Pa. 489, 495, 587 A.2d 702, 704 (1991). It states that reckless conduct may only be found where the “actor knows, or has reason to know,... of facts which create a high degree of risk of physical harm to another, and deliberately proceeds to act, or to fail to act, in conscious disregard of, or indifference to, that risk[.]” Id. at 494, 587 A.2d at 704. Thus, in sum, our Supreme Court concludes, “punitive damages are awarded only for outrageous conduct, that is, for acts done with a bad motive or with a reckless indifference to the interests of others.” Id. at 495, 587 A.2d at 705. (emphasis in original) We hold that the plaintiffs have adduced sufficient evidence of Tolino’s conduct in order to create a jury question on the issue of punitive damages. The determination of whether a person’s actions arise to outrageous conduct lies within the sound discretion of the fact-finder. See id. As set forth above, the evidence viewed in the required light would permit a jury to conclude that by Tolino’s own admission, he chased the Mowad vehicle at speeds at least double the posted speed limit, while following the Mowad vehicle at an unsafe distance. Lewis v. Miller, 374 Pa. Super. 515, 521, 543 A.2d 590, 592 (1988) (holding conduct was wanton as a matter of law for traveling 75 m.p.h. in a 45 m.p.h. zone while racing on a windy road). His conscious decision to chase the Mowad vehicle can properly be considered by a jury to demonstrate wanton and outrageous conduct and/or reckless indifference to others.

Conscious Pain and Suffering

The final issue raised by Tolino is whether the plaintiffs’ medical expert report raises an issue of fact with regard to the damages sought for conscious pain and suffering under the survival action. The long-standing rule in Pennsylvania is that where an individual is killed instantaneously, the estate cannot recover for pain and suffering. Fisher v. Dye, 386 Pa. 141, 125 A.2d 472 (1956). Likewise, an individual cannot recover for the fright one experiences before an accident occurs. Nye v. PennDOT, 331 Pa. Super. 209, 480 A.2d 318 (1984). We therefore look to plaintiffs’ expert report with a view to determining whether it would support testimony concerning conscious pain and suffering.

The expert report details the injuries, which upon her ejection from the vehicle would have instantaneously caused her death. It concludes, however, that she would have suffered pain while “she was being jostled and thrown around while within the vehicle before she was ejected.” Pl.s’ mem. of law in opp. of mot. for summ. j. at exhibit I. The report does not attempt to qualify these injuries. However, it is clear that these injuries are distinct from pre-impact fright because it notes that the plaintiff would “also” feel terror at the notion of her impending death. We therefore deny summary judgment on this basis. The conscious pain and suffering in this case may have occurred for seconds or even fractions of a second. However, the plaintiff is still entitled to recover for it.

ORDER

And now, February 4,2005, defendant Flory Tolino’s motion for summary judgment is denied.

      . Tolino also raised the capacity of Daniel and Leila Byrne to sue in their individual capacities under the Wrongful Death Act. At oral argument and in their brief, plaintiffs explain the only damages sought to be recovered by the individuals are funeral expenses. In Tolino’s reply brief, Tolino concedes that the estate and/or named beneficiaries are entitled to recover funeral expenses. 42 Pa.C.S. §8301 (b) and (d). Therefore, we do not address this issue.

      . McCloskey is the adult mother of two of the minors who attended the party and a defendant in this action. A jury convicted McCloskey of three counts of involuntary manslaughter arising out of her knowledge of the party and the accident that occurred. See Commonwealth v. McCloskey, 835 A.2d 801 (Pa. Super. 2003).


author: GENTILE, Member,

text:
    Office of Disciplinary Counsel v. Eagen
    Disciplinary Board Docket no. 102 D.B. 2003.
    November 1, 2004
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

GENTILE, Member,

Pursuant to Rule 208(d)(2)(iii) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania herewith submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

I. HISTORY OF PROCEEDINGS

By order of July 29,2003, the Supreme Court of Pennsylvania placed respondent, Francis Peter Eagen III, on temporary suspension following his conviction of one count of obstructing administration of law or other governmental function, in violation of 18 Pa.C.S. §5101. Office of Disciplinary Counsel filed a petition for discipline against respondent on October 8, 2003. Respondent did not file an answer to petition.

A pre-hearing conference was held on January 22, 2004. Respondent participated by telephone and admitted that the averments in the petition were true. He advised the committee that he would not attend the disciplinary hearing.

A disciplinary hearing was held on February 26,2004, before Plearing Committee 3.02 comprised of Chair Karen M. Balaban, Esquire, and Members Samuel L. Andes, Esquire, and Thomas C. Clark, Esquire. Respondent did not appear at the hearing.

The Hearing Committee filed a report on July 14,2004 and recommended that respondent be disbarred.

No briefs on exception were filed by the parties.

This matter was adjudicated by the Disciplinary Board at the meeting of September 27, 2004.

II. FINDINGS OF FACT

The board malees the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 1400,200 North Third Street, Harrisburg, Pennsylvania 17101, is invested, under Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of that rule.

(2) Respondent, Francis Peter Eagen III, was born in 1949 and was admitted to the practice of law in the Commonwealth of Pennsylvania in 1976. His attorney registration address is 312 Conroy Ave., Scranton, PA 18505.

(3) Respondent is currently on temporary suspension by order of the Supreme Court dated July 29,2003.

(4) Respondent has no prior history of discipline.

(5) In January 1988, respondent commenced service as Judge of the Court of Common Pleas for the 45th Judicial District, Lackawanna County, Pennsylvania.

(6) At respondent’s request, he was placed on administrative leave on September 22,1997, by President Judge James J. Walsh.

(7) Respondent continued to serve until January 4, 1998, when his term ended after an unsuccessful bid for re-election.

(8) In January 1999, the Attorney General of Pennsylvania filed a 12-count criminal information against respondent in the Court of Common Pleas of Lackawanna County. The information charged respondent with one count of unsworn falsification to authorities, one count of false report to law enforcement authorities, four counts of bribery in official and political matters, one count of criminal conspiracy, one count of obstructing administration of law or other governmental function, two counts of tampering with public records or information, and one count of restricted activities in Ms capacity as a governmental official.

(9) All of the crimes with which respondent was charged were based on facts which allegedly occurred during his service as a judge.

(10) On October 12,1999, respondent proceeded to a jury trial presided over by Senior Judge Barry Feudale.

(11) On October 20, 1999, a jury found respondent guilty of one count of obstructing administration of law or other governmental function, a misdemeanor of the second degree.

(12) The circumstances surrounding the criminal charges against respondent began in 1996, when the Lackawanna District Attorney’s office and the Federal Bureau of Investigation launched a joint investigation into irregularities in the appointment and administration of certain guardianship estates under respondent’s supervision as a judge of the Orphans’ Court of Lackawanna County.

(13) Both federal and state grand juries were convened to probe the diversion of money from these estates by, among others, one Philip Bosha, an insurance agent with no previous estate experience who had been appointed by respondent as guardian of the estates of several incapacitated persons.

(14) In finding respondent guilty of obstructing the administration of law or other governmental function, the trial jury concluded that respondent: lied to the FBI, and failed to give them requested information; on various occasions instructed co-conspirator Philip Bosha not to cooperate with the investigations, including a suggestion that Bosha commit suicide; and, on various occasions, solicited confidential grand jury information, documents and transcripts from five different prosecutors.

(15) As a result of his conviction, respondent was sentenced to two years of unsupervised probation and a fine of $5,000.

(16) As a result of respondent’s conviction, by order dated January 24,2003, the Court of Judicial Discipline removed respondent from office and held that he shall be ineligible to hold judicial office in the future. The opinion and order in that matter are reported at In re Francis P. Eagen, no. 4 JD 01, 814 A.2d 304 (2002).

(17) Respondent received proper notice of the date and time of the disciplinary hearing.

(18) Respondent did not appear at the disciplinary hearing.

III. CONCLUSIONS OF LAW

By his conduct as set forth above, respondent violated the following Rules of Professional Conduct and Rules of Disciplinary Enforcement:

(1) Pa.R.D.E. 203(b)(1) — Respondent’s criminal conviction constitutes a per se ground for discipline.

(2) R.P.C. 8.4(b) — It is professional misconduct for a lawyer to commit a criminal act that reflects adversely on the lawyer’s honesty., trustworthiness or fitness as a lawyer in other respects.

(3) R.P.C. 8.4(d) — It is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter is before the board on a petition for discipline charging respondent with violation of the Rules of Professional Conduct and Rules of Disciplinary Enforcement arising out of his conviction of obstructing the administration of law or other governmental function. Respondent’s criminal activity occurred during the time that he sat as a judge on the Court of Common Pleas of Lackawanna County. Respondent’s specific unlawful behavior included lying to the FBI and failing to hand over requested information, instructing a co-conspirator concerning testimony to be provided or withheld from an investigating grand jury, and soliciting prosecutors for confidential grand jury information to which he was not entitled. In each instance, respondent intended to hinder the inquiry into judicial matters that were under his direct supervision.

As with all disciplinary matters predicated on a criminal conviction, the sole issue to be resolved is the extent of discipline to be imposed on respondent. Office of Disciplinary Counsel v. Eilberg, 497 Pa. 388, 441 A.2d 1193 (1982). Consideration is to be given to any aggravating and mitigating circumstances. Office of Disciplinary Counsel v. Valentino, 556 Pa. 609, 730 A.2d 479 (1999).

Two egregious aggravating factors exist in this matter. As previously stated, respondent was a judge of the court of common pleas at the time of his misconduct. In this capacity, respondent was charged with administering justice, not obstructing it. Respondent clearly violated the trust placed in him by the public. His odious actions have brought embarrassment to the bar and the courts, and have subjected the court system of Lackawanna County to severe public censure.

Compounding respondent’s problems is his failure to appear at the disciplinary hearing. From the onset of formal proceedings against respondent, he has shown a marked lack of interest in the status of his law license. He did not file an answer to petition, he participated in the pre-hearing conference by telephone, and he ultimately did not appear at his own disciplinary hearing, choosing to forego his opportunity to put forth any mitigating circumstances.

Respondent engaged in egregious criminal misconduct. This, in consideration of the aggravating factors set forth above and the lack of persuasive mitigating factors, leads the board to the conclusion that disbarment is amply justified. See Office of Disciplinary Counsel v. Scola, 734 disciplinary docket no. 3, 52 D.B. 2002 (Pa. Nov. 14, 2003) (attorney disbarred after conviction of one count of tampering with witnesses and theft by deception); In re Anonymous No. 67 D.B. 82, 4 D.&C.4th 586 (1989) (attorney disbarred after conviction of tampering with a witness); Office of Disciplinary Counsel v. Raiford, 546 Pa. 628, 687 A.2d 1118 (1997) (attorney disbarred for interfering in the truth-determining process of the judicial system after his conviction for unsworn falsification to authorities and tampering with public records). Disbarment is the most severe sanction in our disciplinary system, and not one to be lightly recommended. However, the board is of the opinion that respondent’s violation of the public trust demands the most severe sanction available.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania unanimously recommends that the respondent, Francis Peter Eagen III, be disbarred from the practice of law.

It is further recommended that the expenses incurred in the investigation and prosecution of this matter are to be paid by the respondent.

Board Member Nordenberg did not participate in the September 27,2004 adjudication.

ORDER

And now, February 1,2005, upon consideration of the report and recommendations of the Disciplinary Board dated November 1,2004, it is hereby ordered that Francis Peter Eagen III be and he is disbarred from the bar of this Commonwealth, and he shall comply with all the provisions of Rule 217, Pa.R.D.E.

It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to Rule 208(g), Pa.R.D.E.


author: NICKLEACH, PJ,

text:
    Ford City Borough Municipal Sewage Disposal Authority v. EMC Insurance Companies

      James J. Panchik, for plaintiff.

      Stephen J. Poljak, for defendants.
    May 20, 2005
   NICKLEACH, PJ,

This case is an insurance coverage dispute between the Ford City Borough Municipal Sewage Disposal Authority and its insurer, EMCASCO Insurance Company, a division of EMC Insurance Companies, (collectively EMC), over a property damage claim resulting from, the accidental discharge of chlorine gas at the Sewage Authority’s treatment plant in September 2002. Before the court for disposition is EMC’s motion for summary judgment.

STATEMENT OF THE FACTS

The Sewage Authority owns and operates a sewage treatment plant within the Borough of Ford City, Pennsylvania. The Sewage Authority is in the business of processing raw sewage, treating it, and disposing of the treated sewage. Complaint, paragraph 6. One aspect of the sewage treatment process involves chlorination of the sewage at various stages. Id.

“On or about September 28,2002, a component of the [plant’s] chlorine distribution system, a chlorine yoke which regulates the discharge of chlorine, failed resulting in the discharge of chlorine into the plant and surrounding areas. The yoke developed a hole allowing the chlorine to leak out.” Complaint, para. 8. (emphasis added)

“The product failure resulting in the discharge of the chlorine caused damage to the sewage treatment plant and property within the sewage treatment plant through a chemical reaction resulting in corrosion and rust. The damage caused by the failure is ongoing as the chlorine is bleeding through the various metals. Equipment, tools and various items of personalty were destroyed by the incident.” Id. at para. 9. (emphasis added) At the time the complaint was filed, the property damage totaled $65,213.89. Id.

EMC had issued a commercial property insurance policy numbered ***_**_** to the Sewage Authority, which policy was in effect from January 1,2002 through January 1, 2003. See policy, exhibit A of complaint. On October 1,2002, the Sewage Authority filed a claim under the policy asking to be compensated for property damage caused by the chlorine leak. Id. at para. 12.

On November 8, 2002, EMC issued a reservation of rights letter, stating that, because of various exclusions, it did not believe the property damage was covered under the policy. In its reservation of rights letter, EMC said:

“Mr. Andrew D. Mizerak of Mizerak Adjusting Company Inc. investigated and inspected the damages on behalf of EMCASCO Insurance. Based upon his inspection and conversations with John Smerick, it was discovered that a small hole in a metal value [sic] on a chlorine tank developed, which allowed chlorine gas to escape and contaminate the entire building. The vapor filled the room where the chlorine tanks are located. The vapor escaped through a vent in the wall of the chlorine room and entered the rest of the building through a nearby open window. The only area of the building that did not sustain damage was the sealed laboratoiy. The escaped chlorine gas turned to a ferric chloride solution upon contact with metal. As a result, all of the metal fixtures and computer equipment are rusting.” EMC Nov. 8,2002 letter, exhibit B, brief in support of motion for summary judgment, (emphasis added) The letter referred the Sewage Authority to the Municipality Property Coverage Special Causes ofLoss form (CP7121.3 E. 11-95) in the policy, which, on page 2 of 6, under section B. Exclusions, states:
“(2) We will not pay for loss or damage caused by or resulting from any of the following:...
“(c) Smoke, vapor or gas from agricultural smudging or industrial operation. . . .
“(d) (2) Rust, corrosion, fungus, decay, deterioration, hidden or latent defect or any quality in property that causes it to damage or destroy itself; ...
“(1) Discharge, dispersal, seepage, migration, release or escape of ‘pollutants’unless the discharge, dispersal, seepage, migration, release or escape is itself caused by any ofthe ‘specified causes of loss. ’ But if the discharge, dispersal, seepage, migration, release or escape of ‘pollutants’ results in a specified cause of loss, ‘we will pay for the loss or damage caused by that “specified cause of loss.” ’ ” Id, quoting pertinent provisions of policy (emphasis added); see also, exhibit H, brief in support of motion for summary judgment.

The letter went on to cite the definition of “pollutant” in the Municipality Property Coverage form (CP7121 Ed. 1-99) under section H. Definitions, page 12:

“(1) ‘Pollutants’ means any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste including Polychlorinated Biphenyls. Waste includes materials to be recycled, reconditioned or reclaimed.” Id. (emphasis added); see also, p. 12 of exhibit F, brief in support of motion. On January 9, 2003, EMC denied coverage of the Sewage Authority’s property damage claim, citing the above exclusions as the reason for the denial. See exhibit C, brief in support. This denial of coverage by EMC resulted in the filing of the instant lawsuit.

DISCUSSION

The standard to be used in determining whether to grant a motion for summary judgment is well-established. Pa.R.C.P. 1035.2(2) provides that summary judgment shall be granted “if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

In determining whether to grant summary judgment, a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. Kelly v. Ziolko, 705 A.2d 868, 870 (Pa. Super. 1997). Summary judgment may only be granted in cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Id. The moving party bears the burden of proving that there is no genuine issue of material fact and that judgment as a matter of law is appropriate. Butterfield v. Giuntoli, 448 Pa. Super. 1, 11, 670 A.2d 646, 651 (1995).

“Where an insurer relies on a policy exclusion as the basis for its denial of coverage ..., the insurer has asserted an affirmative defense and, accordingly, bears the burden of proving such defense.” Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 605, 735 A.2d 100, 106 (1999). (citation omitted)

“To determine whether... [defendant] has met its burden of proof, we rely on well-settled principles of contract interpretation.

“[T]he task of interpreting [an insurance] contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. ...

“Contractual language is ambiguous ‘if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. ’. . . This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts.... We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity.” Id., 557 Pa. at 605-606, 735 A.2d at 106-107. (citations omitted) (emphasis added)

The first question the court must address in order to decide defendants’ motion for summary judgment is whether chlorine meets the definition of a pollutant under the terms of the policy. The policy defines pollutants as “any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals and waste including Polychlorinated Biphenyls. . . .” Exhibit F at p. 12, brief in support of motion for summary judgment, (emphasis added)

The policy does not define irritant or contaminant. However, “[wjords of common usage in an insurance policy are to be construed in their natural, plain and ordinary sense,... and we may inform our understanding of these terms by considering their dictionary definitions.” Madison, 735 A.2d at 108. (citations omitted)

As was explained in Municipality of Mt. Lebanon v. Reliance Insurance Co., 778 A.2d 1228, 1233 (Pa. Super. 2001), another case involving the pollution exclusion of an insurance policy, “Webster’s New Universal Unabridged Dictionary (1989) defines an ‘irritant’ broadly as, inter alia, ‘a biological, chemical or physical agent that stimulates a characteristic function or elicits a response, especially] an inflammatory response. ’ Similarly, it defines a ‘contaminant’ as ‘something that contaminates,’ while the verb to contaminate is defined as ‘to render impure or unsuitable by contact or mixture with something unclean, bad, etc.’ ” Id. (emphasis added)

Chlorine is defined in the dictionary as “[a] highly irritating, greenish-yellow gaseous halogen, capable of combiningwith nearly all other elements, produced principally by electrolysis of sodium chloride and used widely to purify water, as a disinfectant and bleaching agent, and in the manufacture of many important compounds. ...” American Heritage Dictionary (3d ed. 1996). (emphasis added)

It is clear from the above definitions that chlorine is a gaseous chemical agent which elicits an inflammatory response. Therefore, it fits the definition of an irritant as that term is used in the pollution exclusion of the policy. The chlorine in this case also meets the definition of a contaminant, since when it escaped the plant’s chlorine containment system, the chlorine combined with the oxygen and water in the plant’s air, rendering the plant’s air unsuitable by contact or mixture. As either an irritant or a contaminant, chlorine clearly and unambiguously falls within the definition of pollutant in the policy’s pollution exclusion.

The policy by its express terms excludes from its coverage any “[discharge, dispersal, seepage, migration, release or escape of’ pollutants, in this case, chlorine gas. See p. 12 of exhibit F, brief in support of motion for summary judgment. The court finds no ambiguity in those words given the specific facts of this case. The complaint states that “a component of the chlorine distribution system, a chlorine yoke which regulates the discharge of chlorine, failed resulting in the discharge of chlorine into the plant and surrounding areas. The yoke developed a hole allowingthe chlorine to leak out” Complaint, para. 8. (emphasis added) “The product failure resulting in the discharge of the chlorine caused damage to the sewage treatment plant and property within the sewage treatment plant through a chemical reaction resulting in corrosion and rust.” Id. at para. 9. (emphasis added)

Given the facts of the case, as well as the Sewage Authority’s own description of what occurred, there can be no question that the chlorine gas in the plant escaped, seeped out, or was discharged or released, from the chlorine containment system. As such, the accidental discharge of the chlorine gas into the plant’s atmosphere and the property damage caused by that discharge are clearly and unambiguously excluded from coverage under the pollution exclusion of the policy.

The Sewage Authority protests that the cause of the property damage to the plant was the yoke failure, not the chlorine, and that yoke failure is not an excluded cause. However, the court finds that argument to be wholly without merit. Although it is true that a hole in the yoke initially allowed the chlorine to escape, the chlorine unquestionably caused the rust and corrosion damage for which the Sewage Authority now seeks compensation, not the hole in the yoke.

The Sewage Authority also argues that, because chlorine is safe when used as intended in the plant, it cannot be classed as an irritant or contaminant. This same argument was made in Madison, which involved a claim brought by a worker injured when he fainted and fell after being overcome by fumes from concrete sealer that had been applied in an enclosed area. The trial court and Judge Del Sole’s dissenting Superior Court opinion found that “the curing compound was a useful product and therefore, when used as intended, could not be considered a pollutant.” Madison, 735 A.2d at 105. However, the Supreme Court soundly rejected that argument, noting that the curing compound was “not innocuous; its harmful effects are well known.” Id. at 107. The fact that it was a useful substance had no bearing on whether or not it was a pollutant.

Similarly, the Supreme Court found “no merit in Madison’s claim that the pollutant in this case consisted solely of the fumes released by the application of Euco Floor Coat to the cement, and that what Madison ‘brought on ... to the premises’ within the meaning ... [of the policy] was not the pollutant (that is, the fumes themselves) but a non-polluting substance (Euco Floor Coat) in sealed containers.” Id. The court said, “[W]hile the form of the substance may have changed, its chemical composition did not. Given that fact, as well as the all-encompassing language of the definition, Madison avers a distinction without a difference.” Id. (footnote omitted)

In light of the above analysis, the argument that chlorine cannot be a pollutant because it is a useful substance which is safe when used as intended has no merit. Where the language of the policy is clear and unambiguous, the court is required to give effect to that language. The court holds that, as a matter of law, the pollution exclusion of the policy clearly and unambiguously excludes coverage for the chlorine gas discharge which is the basis of the Sewage Authority’s claim. As such, EMC was within its rights under the policy in denying that claim. For all the foregoing reasons, defendants’ motion for summary judgment is granted.

An appropriate order will be entered.

ORDER

And now, May 20, 2005, after due consideration of defendants’ motion for summary judgment, it is ordered, adjudged and decreed that summary judgment against plaintiff and in favor of defendants is hereby granted.

      . Plaintiffs do not allege that the discharge of the chlorine gas was caused by a specified cause of loss.

      . The plant’s air was thus given a corrosive quality it had not possessed before.

      . Having so found, there is no need for the court to address whether the other policy exclusions cited by EMC in its reservation of rights letter and denial letter also preclude recovery by the Sewage Authority.


author: BROWN JR., P.J.,

text:
    Burega v. Centre Community Hospital Inc.

      Richard A. Wilson, for plaintiff.

      Charles A. Fitzpatrick III, for defendants.

      August 24, 2005
   BROWN JR., P.J.,

Before the court are defendants’, Centre Community Hospital Inc. and J.R. Paine M.D., motions in limine to preclude testimony of Mary Harter (Aumati) R.N. Both defendants filed separate motions in limine, but the claims and underlying bases are identical. Therefore, the court will address both motions jointly. After oral argument, the court determines the following:

BACKGROUND

On or about April 11, 2002, a complaint was filed alleging negligence against the defendants in failing to properly treat minor-plaintiff’s condition, with an amended complaint being filed on or about January 7, 2003. The amended complaint alleged Dr. Paine was negligent with regard to the care and treatment he provided to plaintiff minor during an emergency room visit on September 7,1997, in failing to diagnose Group B strep meningitis and sepsis. The pleadings are closed and discovery is complete.

During the course of discovery, a deposition was taken of Mary Harter R.N. (previously Auman R.N.) on December 22, 2004. Nurse Harter is the emergency room nurse who assessed plaintiff minor during the September 7, 1997 emergency room visit. At the deposition, nurse Harter was questioned regarding her opinions of plaintiff minor’s condition while in the emergency room. On or about June 1,2005, both defendants filed motions in limine to preclude nurse Harter’s testimony.

Both defendants and plaintiff have submitted briefs for the court’s consideration.

DISCUSSION

Citing Pennsylvania Nursing Law, 63 P.S. §212(1), defendants argue nurse Harter is not permitted to make medical diagnoses or to prescribe medical therapeutic or corrective measures. Plaintiff argues nurse Harter will not offer expert medical testimony but will instead be a fact witness, testifying to her notations in plaintiff minor’s chart and to her observations, based on her 19 years of experience as a certified emergency room nurse. Plaintiff will present expert medical testimony from witnesses who will rely, in part, on nurse Harter’s testimony.

Plaintiff has stated nurse Harter’s testimony will likely contradict that of Dr. Paine. However, the contradiction of a fact witness is not prejudicial enough to his case to warrant preclusion. Conversely, precluding nurse Harter’s testimony would be prejudicial to plaintiff’s case as nurse Harter is a fact witness whose testimony will be relied upon by plaintiff’s expert witnesses. The veracity of nurse Harter’s testimony, and who to believe in disputes of fact between her testimony and those facts presented by defendants, will be an issue for the finder of fact.

Nurse Harter’s testimony may be presented by plaintiff. However, such testimony must be restricted to that which she is qualified to testify, including but not limited to descriptions of what she observed, what she did, and notations she made in plaintiff minor’s chart. The court will not rule on the admissibility or the preclusion of any testimony regarding conversations she had at the time, with Dr. Paine and others, unless and until plaintiff provides a specific offer of proof at or near the time of trial. Nurse Harter may not offer opinions as to either the medical diagnosis of plaintiff minor’s condition or to the medical causes of that condition. As this is to what plaintiff has stated nurse Harter will testify, such a restriction should not be unduly burdensome. To further avoid confusion, the jury will be informed at time of trial, and prior to deliberations, that testimony of a nurse is not expert medical testimony.

Accordingly, the following is entered:

ORDER

And now, August 24,2005, upon consideration of defendants’, Centre Community Hospital Inc. and J.R. Paine M.D., motions in limine to preclude testimony of Mary Harter (Auman) R.N., and after oral argument, the court determines the following:

Defendants’ motions in limine are denied. Plaintiff may present nurse Harter’s testimony at trial as a factual witness. Nurse Harter’s testimony may not be offered as a medical expert. The court will not rule on the admissibility or the preclusion of any testimony regarding conversations she had at the time, with Dr. Paine and others, unless and until plaintiff provides a specific offer of proof at or near the time of trial.


author: GRIM, PJ,

text:
    Kearns v. Kearns

      Kathleen D. Dautrich, for plaintiff.

      Peter David Maynard, for defendant.
    June 9, 2005
   GRIM, PJ,

Plaintiff, Betty J. Kearns, appeals the order in the above captioned case dated April 7, 2005. This opinion is filed pursuant to Pa.R.C.P. 1925. The following are the pertinent facts and procedural history.

On May 18,2004, the parties, having been represented by counsel, agreed in open court to amend their property settlement agreement (original agreement) filed on February 24, 2003. The original agreement was drafted by them without benefit of counsel and incorporated into the divorce decree dated May 9, 2003. The agreement amended the original agreement in several ways. Defendant, Michael H. Kearns (Husband), no longer has to provide plaintiff, Betty J. Kearns (Wife), with either medical or prescription insurance. Under the original agreement, Husband paid Wife $200 per week in alimony. The amended agreement provides that Husband pays Wife alimony of $ 150 per week from May 18,2004, until February 25,2009. Alimony is $200 per week from February 25, 2009, until February 25, 2013, and $250 per week from February 25, 2013, until February 25, 2015. Under the amended agreement, Husband is to pay Wife $8,000 for her interest in jointly owned real estate in Susquehanna County. Husband was to apply for refinancing within 14 days of May 18,2004, and the refinancing was to be completed within 90 days. The agreement was reduced to writing and signed as an order on May 26, 2004.

Wife subsequently filed a petition for contempt, counsel fees and costs, and for reconsideration and amendment of order of May 26,2004. Husband filed an answer to Wife’s petition and new matter. The new matter alleged that Husband applied for the refinancing on the Susquehanna County real property pursuant to the amended agreement. He was denied refinancing due to outstanding judgments against him. He contends that the judgments were entered without his knowledge and were for services and goods provided to Wife after the separation.

The parties reached an agreement regarding the issue of the processing of the alimony payments. The agreement, however, was silent regarding the issue of Husband’s new matter.

Wife’s petition for contempt of court and for special relief is the subject of the instant appeal. Wife contends that Husband has not paid her for her interest in the Susquehanna County real estate. Her count for special relief contends that Husband refuses to sign a revised amended agreement of May 18,2004.

The following evidence was produced at the hearing.

The real property has a mortgage in the amount of $23,000. Husband attempted to refinance the mortgage at several places to obtain $8,000 to pay Wife for her interest in the property, but he was denied due to his credit history. He discovered that he had judgments against him for things that he had not known anything about. He asked Wife to pay one-half of the outstanding bills but she refused to do so.

Husband testified that he had worked the entire time during the marriage. Wife had paid the bills. She had never informed him about any unpaid bills.

After Husband had been denied refinancing, he investigated the judgments against him. The parties owe their former landlord $2,500 for unpaid rent. Wife stopped paying rent after the parties had decided to buy the residence. However, Wife then disagreed with the purchase price and refused to buy the house. The landlord sued for damages.

The parties owe a former utility company $444. Wife bought her first computer on a credit card and $1,700 is still owed on the card. The computer was an Acer computer. Comcast is owed $282. Husband testified that he never had Comcast cable, but the parties had had its predecessor, Berks Cable, during their marriage until they had gotten satellite service.

Wife testified that she has no idea what the debts are. However, she recognized that a judgment in favor of a doctor had been for Husband’s medical treatment. She also stated that she had paid cash for the computer.

No agreements or prior orders address the marital debts of the parties.

Based on the above facts, the court entered the following order that Wife appeals:

“ORDER
“And now, April 7, 2005, after consideration of plaintiff’s petition for contempt of court and for special relief, hearing, and argument of counsel, it is hereby ordered as follows:
“(1) Plaintiff, Betty J. Kearns, is obligated for the payment of one-half of the following joint marital debts as follows:
“(a) Rent due to landlord, Ada Mazess
($2,522 — total) $1,261
“(b) Inovision NCOP ($444 — total) 222
“(c) Comcast ($282 — total) 141
“Total $1,624
“(2) Plaintiff is obligated for the payment of her computer in the amount of $1,749.
“(3) Within 90 days from the receipt of this order, defendant, Michael H. Kearns, shall pay to plaintiff the sum of $4,627 ($8,00Q-$3,373) for her interest in the parties’ jointly owned real estate in Susquehanna County. After 90 days, interest on the unpaid amount shall accrue at 8 percent per annum.
“(4) Upon receipt of the $4,627, plaintiff shall execute and deliver to defendant any and all documents necessary to convey her interest in the real estate located in Susquehanna County.
“By the court:”

The court shall now address the issues raised in Wife’s concise statement of matters complained of on appeal.

Wife first contends that the court exceeded its authority by not acting on her petition for contempt. This contention is meritless. The court addressed her petition; Wife is unhappy with the result.

Wife submits that it was an error of law and abuse of discretion for the court to take evidence from Husband that was hearsay evidence from a credit report that was not properly authenticated and which she disputed. This contention is without merit.

Wife raised several objections during the proceeding but none were to hearsay or authentication of the credit report. Thus, the evidence could be considered by the court.

Wife did not dispute the report. She disputed the reasons for the judgments. She claimed that she had no knowledge of the judgments or the reasons for them. It is within the trial court’s sole province to weigh the evidence presented and assess the credibility of the witnesses. Palladino v. Palladino, 713 A.2d 676 (Pa. Super. 1998). The court found Wife’s testimony implausible. It was uncontroverted that Wife handled the parties’ finances during their marriage. The judgments constituted marital debt. Wife had to have known about them because she had handled the parties’ finances and paid their bills. Thus, she was in a much better position to know about the outstanding judgments. The court found Husband’s testimony credible that he had possessed no knowledge of the judgments until he had attempted to refinance.

Wife asserts in several complaints that the court exceeded its authority by changing the amended agreement sua sponte. These complaints are meritless.

Husband had filed an answer with new matter to Wife’s earlier petition for contempt. Although the parties came to an agreement, Husband’s new matter was not resolved. Husband again raised it in the instant proceeding. Husband submitted that he had applied for refinancing pursuant to the amended agreement, but he had been denied it due to outstanding judgments against him that had been entered without his knowledge and that were for services and goods that had been provided to Wife. He contended that he was not in contempt of the agreement.

Husband believed that he could refinance and, after paying Wife $8,000 for her share of the real property, he would have no further obligations. Instead, he discovered that outstanding judgments exist against him. He did not get the deal for which he bargained. He requested that Wife be liable for a share of the marital debt. Thus, he asked the court to employ its equitable powers.

23 Pa.C.S. §3332 governs the opening or vacating of decrees and reads as follows:

“Section 3332. Opening or vacating decrees
“A motion to open a decree of divorce or annulment may be made only within the period limited by 42 Pa.C.S. §5505 (relating to modification of orders) and not thereafter. The motion may lie where it is alleged that the decree was procured by intrinsic fraud or that there is new evidence relating to the cause of action which will sustain the attack upon its validity. A motion to vacate a decree or strike a judgment alleged to be void because of extrinsic fraud, lack of jurisdiction over the subject matter or a fatal defect apparent upon the face of the record must be made within five years after entry of the final decree. Intrinsic fraud relates to a matter adjudicated by the judgment, including perjury and false testimony, whereas extrinsic fraud relates to matters collateral to the judgment which have the consequence of precluding a fair hearing or presentation of one side of the case.”

Extrinsic fraud includes fraudulently keeping a party in ignorance of an action. Hassick v. Hassick, 695 A.2d 851 (Pa. Super. 1997). Ehisband knew nothing about the judgments against him. Thus, extrinsic fraud was practiced on him. The decree may be opened because it is less than five years after its entry.

If Wife were not to be held liable for some of the marital debt that she alone knew about and was at least partially responsible for incurring, an inequitable result would occur. By dividing the debt, the court ensured that each party received a fair result.

Lastly, Wife contends that it is an error and abuse of discretion to not have any consequences for Husband for the payment of the marital debt. This argument is vague and fails.

If Wife means that she has no recourse if Husband fails to pay her for her share of the real estate, then she is incorrect. Interest will accrue on the unpaid debt. She, too, may file a contempt petition if he does not obey the order. Thus, Wife has remedies available to her.

If, however, Wife means that the court has not ordered Husband to pay his share of the marital debt immediately, then her complaint is frivolous. Husband already is responsible for the debt because he has the judgments against him. Hence, if he does not pay his share of the debts, the consequences already exist. As he has discovered, he is unable to obtain refinancing. Thus, he too is liable for the marital debt.

For the foregoing reasons, the court submits that its order is not an abuse of discretion and should be sustained.