author: GOODHEART, J.,

text:
    Land v. The Salvation Army

      C.P. of Philadelphia County,
    February Term 1997,
    no. 1665.

      Daniel L. Thistle, for plaintiffs.

      Paul R. Brady III, for defendants.
    August 14, 2000
   GOODHEART, J.,

THE PARTIES AND THE CLAIMS

The plaintiffs in these consolidated cases are the administrators of the estates of four children who died in a fire at a shelter in Philadelphia, the deceased children’s mother, both in her own right and as parent and natural guardian of two other children who were injured but not killed by the blaze.

The defendants are The Salvation Army, which owned and operated the shelter; Cope Lippincott Slifer Architects, the architectural firm that designed recent renovations to the building; Weyman Associates Inc. the electrical contractor for the renovation project; and C. Daniel Weyman, its principal.

Before trial, the claims of the survivng children were settled out of court, the mother’s own claims were withdrawn and all defendants except The Salvation Army were dismissed from the case. I tried this case — with a jury of seven — on the claims of the four decedents’ estates against The Salvation Army only.

Because trial of this matter had been bifurcated — by another judge’s ruling, before the case was assigned to me — the jury was asked to answer the following two special interrogatories:

“(1) Was The Salvation Army negligent?

“(2) If the answer to number 1 is ‘yes,’ was that negligence a ‘substantial factor’ causing the deaths of the four children?”

The jury decided that The Salvation Army had been negligent, but that the negligence was not a substantial cause of the deaths, thereby resulting in a defense verdict.

Post-trial motions were filed by both sides — the plaintiffs’ motion sought judgment n.o.v. on the issue of causation, or in the alternative, a new trial; the defendants’ motion sought judgment n.o.v. on the jury’s finding of negligence — and after much thought, I granted the plaintiffs’ motion and ordered a new trial. Both sides then appealed.

BACKGROUND

On March 11, 1995, a fire broke out in room 203 of the Red Shield Residence, a 41-unit shelter owned and operated by The Salvation Army, located at 715 North Broad Street, Philadelphia.

That evening, the residence was full, with 45 adults and 95 children housed there; room 203 was occupied by the four plaintiffs’ decedents, the three surviving children, and their mother, Jeanette Walters. Ms. Walters was away from the room using a public telephone at the end of the hall when the fire started, but by the time help arrived, four of her young children had succumbed. Though the building itself had a fire alarm system that included smoke detectors in the halls, the individual residential units were not equipped with smoke detectors, and, in fact, the building’s alarm system did not trip until the door to the room was opened, releasing smoke into the hallway.

The Philadelphia Fire Prevention Code became effective on January 1,1995, replacing the 1984 Philadelphia Fire Code. The requirement that smoke detectors be installed in each individual unit of the residence was added by the Fire Prevention Code; the 1984 Philadelphia Fire Code had no such requirement.

Because the Fire Prevention Code allowed existing buildings a two-year “grace” period to come into compliance with its heightened requirements, the residence was in compliance with the FPC on March 11, 1995, even though it lacked smoke detectors in the individual residential units, and even though The Salvation Army— tragically — failed to spend the minimal amount of money it would have cost to install smoke detectors in each unit until after the fire occured.

THE DEFENSE MOTION FOR JUDGMENT N.O.V.

Violation of a municipal code can constitute negligence per se. Berkebile v. Brantly Helicopter Corp., 219 Pa. Super. 479, 281 A.2d 707 (1971). Code compliance, however, does not necessarily equate to a lack of negligence; resonable care under the circumstances is still required. The Salvation Army is not, therefore, entitled to judgment as a matter of law based upon its compliance with the Fire Code, as code compliance does not rule out a finding of common-law negligence.

Though the plaintiffs’ evidence on the defendants’ common-law duty of care was fairly sparse — the only witness who testified on the point, Brooks Semple, had only limited scientific training — I believe that his level of knowledge was sufficient to clear the admittedly low bar set for expert testimony in Pennsylvania. Further, I believe that the jury was entitled to determine whether or not The Salvation Army’s failure to immediately install smoke detectors upon the city’s adoption of the Fire Prevention Code constituted negligence even in the total absence of expert testimony.

Thus, defendant is not entitled to judgment n.o.v., though because I granted the plaintiffs’ motion for new trial on all issues — as discussed below — the defendant will get another chance to present its position, to a different judge and jury.

THE PLAINTIFFS’ MOTION FOR NEW TRIAL

After reviewing the parties’ post-trial submissions, I realized that my decision to limit the plaintiffs’ witnesses had perhaps seriously impeded the plaintiffs’ ability to prove their case.

Specifically, the plaintiffs were prepared to call a second expert witness, Albert Tañíala, a licensed Pennsylvania mechanical engineer, to testify that had there been a smoke alarm in room 203, the plaintiffs’ decedents would not have died in the fire.

I precluded Mr. Tantala from testifying, on the basis that his testimony would have been merely cumulative of that given earlier by Mr. Semple, even though I had— by sustaining an objection — prevented Mr. Semple from giving that very opinion during his testimony. (N.T. 5/ 19/1999, pp. 2.85-2.86.) I also prevented the plaintiffs from asking similiar questions of a Philadelphia assistant fire márshal who investigated after the fire, and of a fire department paramedic who responded to the initial alarms,which left the plaintiffs with no witness to give this obviously relevant opinion.

Certainly, an opinion that a smoke alarm in room 203, would have prevented the deaths would have been very useful to the jury in evaluating the issue of causation, and its absence from this case — as a result of my rulings — is, all by itself, a more than sufficient basis for a new trial to be granted.

CONCLUSION

It is impossible for me to say with any degree of certainty that my rulings had no effect on the outcome of this case. That being so, I believe that my decision to award a new trial on all issues is required in the interests of justice, and that it is the only proper outcome; the parties may retry their case before a different judge and jury for whatever result obtains.

      . According to Bruce Livingston, who testified for the plaintiffs, the installation of smoke detectors in the individual units would have cost about $6,000; that plus the additional work required to bring the building into full compliance with the FPC would have cost something less than $16,000 (N.T. 5/17/99, pp. 2.172-2.173).

      . Generally, if a new trial is granted, it is as to all parties and all issues; one may not pick and choose which portions of an inherently flawed proceeding are to be preserved and which are to be discarded. Pennsylvania Company for Insurance on Lives and Granting Annuities v. Lynch, 308 Pa. 23, 162 A. 157 (1932).


source: Caselaw Access Project

author: DiNUBILE, J.,

license: Public Domain

text:
    General Refractories Co. v. Fireman’s Fund Insurance Co.
    C.P. of Philadelphia County,
    April Term 1998,
    no. 1499.

      John N. Ellison and Daniel J. Segal, for plaintiff.

      Wilson M. Brown, for defendant.
    November 10, 2000
   DiNUBILE, J.,

The within appeal arises from this court’s order of October 19, 2000, which entered judgment in favor of the defendant, Fireman’s Fund Insurance Company and against the plaintiff, General Refractories Company and Grefco Inc. (GRC). This judgment was entered as a result of rulings made on certain pretrial motions in limine construing the contract of insurance entered into between the parties. The court found no ambiguity in the insurance contract, thereby barring the plaintiff from introducing extraneous evidence regarding contract interpretation. This decision effectively eliminated any factual issues for a jury to decide. As a result of these rulings, the court found that defendant’s total limit of liability under the policy was $5 million and that Fireman’s Fund was not obligated to pay any legal and loss expenses. The plaintiff’s appeal challenges these findings.

Plaintiff brought suit against its insurer, Fireman’s Fund, to recover funds for the payment and defense of lawsuits arising from asbestos litigation. Specifically, plaintiff sued for breach of contract, breach of a fiduciary duty and bad faith. GRC produced asbestos containing refractories and is presently, and was in the past, the subject of numerous asbestos personal injury lawsuits brought in Philadelphia and throughout the country. In 1994, GRC disposed of all its operating assets. Currently, the business consists of defending and paying judgments and settling lawsuits. GRC also seeks money to satisfy these payments from the numerous insurance policies both underlying and excess which were in effect while GRC was in business. This suit arises from just such a quest. In this case, the policy in question is a second line excess liability insurance policy effective for a three-year period from October 1971 to October 1974, with a one-month extension to November 25, 1974.

Under breach of contract, plaintiff’s theory of recovery was a failure to pay what GRC construed as the total policy limit of $15 million. Also under breach of contract, plaintiff sued for recovery of legal and loss expenses incurred in the defense and settlement of asbestos claims. In conjunction, plaintiff sought recovery for a breach of fiduciary duty and bad faith arising from the alleged contract breaches, pursuant to the Pennsylvania Bad Faith Statute applicable to insurance companies. See 42 Pa.C.S. §8371.

At pretrial hearings on October 17 and 18, 2000, the court ruled on numerous motions in limine and held that the contract was plain and unambiguous. The court determined that the policy had a total limit of $5 million. Consequently, the trial court denied plaintiff’s offer of proof of extraneous evidence designed to prove that the policy limits were $5 million for each individual year with a total of $15 million. The parties stipulated that Fireman’s Fund had paid or agreed to pay $5 million. The court further ruled that Fireman’s Fund was obligated to pay legal and loss expenses only if it had granted consent to such costs. Since all parties agreed that no consent was in fact given, the ruling on this issue, as well as on the aggregate limit of the policy, precluded recovery as a matter of law. The fiduciary breach and bad faith claims were no longer a jury question as well, since they were predicated on plaintiff’s assertion that Fireman’s Fund was obligated to pay an additional $10 million plus expenses and unreasonably failed to do so. In light of these rulings, no jury trial was necessary. The court, however, could not properly grant a nonsuit without empaneling a jury and forcing the plaintiff to present evidence as to liability. Therefore, a hearing was held on October 19, 2000 in which a final judgment was entered against the plaintiff making the matter ripe for appeal. Consequently, GRC filed this appeal challenging the court’s interpretation of the excess insurance contract which precluded plaintiff from recovering more than the $5 million limit and legal/loss expenses as well.

Prior to discussing the court’s rationale, it must be noted that this case was previously assigned to the Hon. Mark I. Bernstein, as co-team leader of the 1998 Day Forward Program of the Philadelphia Court of Common Pleas. There were numerous pretrial motions filed and orders entered. At one time during the discovery proceedings, Judge Bernstein held a hearing and ruled that a prior defense counsel, admitted pro hac vice, had violated certain discovery orders. Fines and sanctions were imposed. See Judge Bernstein’s order opinion of April 22,2000. The Hon. Flora Barth Wolf of the Philadelphia Court of Common Pleas, entered an order denying partial summary judgment on July 15,1999 on the two key issues ruled upon by this court. This court submits that it did not violate the equal jurisdiction rule involving the interlocutory orders entered by Judges Bernstein and Wolf as argued by the plaintiff. Judge Bernstein’s ruling, order and opinion dealt with discovery violations and had nothing to do with interpretation of the terms of the contract of insurance. Likewise, Judge Wolf’s denial of partial summary judgment was in a different court setting and arose prior to the completion of discovery. Unlike partial summary judgment, this court’s rulings occurred at a pretrial hearing on motions in limine. The motions in limine dealt with evidentiary findings involving contract interpretation and admissibility of evidence, which, out of necessity, had to be made prior to commencement of a jury trial.

The issue presented on appeal challenges this trial judge’s interpretation of two of the provisions of the second line excess liability Fireman’s Fund insurance policy issued to GRC, namely, (1) the total limit of liability imposed upon defendant is $5 million; and (2) defendant’s duty to pay legal/loss expenses. The court ruled that the plain meaning of these provisions was clear and unambiguous and, therefore, required no introduction of extraneous evidence to interpret their meaning. The rationale for this decision will be discussed ad seriatim.

LIMIT OF LIABILITY

The- appropriate provision of the policy applicable to this issue provides as follows:

“(2) The insured warrants, and it is a condition of this policy, that underlying insurance (applying as excess over various policies of primary insurance) with combined limits of liability for said underlying insurance in an amount not less than $5,000,000 each occurrence is in full force and effect at the inception of this policy, and further that such underlying insurance shall be maintained in full force and effect during the period of this policy, except for reduction of aggregate limits solely as the result of payment of claims arising out of occurrences during the policy period.

“(3) The limit of the company’s liability under the policy shall be as follows:

“$5,000,000 each occurrence

“$5,000,000 aggregate

“(4) Except as otherwise provided herein the insurance afforded by this policy shall follow the terms, conditions and definitions as stated in the policies of underlying insurance, except for limits of liability, any renewal agreement and any obligation to investigate or defend.” (emphasis added)

It is undisputed that during the term of this policy (effective from 10/71 to 10/74 and an additional month to 11/25/74) there existed a prime coverage from American Mutual Liability Insurance Company, as well as a first-level umbrella liability policy from Insurance Company of North America (INA). It is undisputed that paragraph 4 of the defendant’s policy refers to the INA umbrella policy as underlying insurance. It is undisputed that this INA umbrella policy provided for $5 million limits of liability for any one or all occurrences for each year that the policy was in effect; namely from October 25,1971 to October 25,1974. The policy language specifically states: “INA’s limit of liability ($5 million) arising out of one occurrence . . . (or) all occurrences . . . during each policy year. ” Unlike the INA umbrella policy, the Fireman’s Fund policy contained no such language indicating that the limits of liability were $5 million for each of the three years the policy was in effect. It is horn-book law that when a contract is clear and unambiguous on its face, extrinsic evidence is inadmissible to change its terms. A contract is not ambiguous if the court can determine its meaning on its face. A contract is not rendered ambiguous by the mere fact that the parties cannot agree on its construction. Metzger v. Clifford Realty Co., 327 Pa. Super. 377, 476 A.2d 1 (1984). Silence as to a specific contingency does not render the contract ambiguous. Seven Springs Farm Inc. v. Croker, 748 A.2d 740 (Pa. Super. 2000).

The plain meaning of this policy is clear. It states that the policy limit in total is $5 million and not, as plaintiff asserts, $5 million for each year. Plaintiff argues that there exists an ambiguity which requires this court to accept certain extrinsic evidence so that a jury should decide the limits of the coverage. Plaintiff maintains that because the term of the Fireman’s Fund policy was for three years, the “limit of liability” clause contained in paragraph 3 is unclear, especially when read in conjunction with paragraph 4. Paragraph 4 provides that the insurance afforded by the Fireman’s Fund policy is governed by the terms, conditions and definitions of the underlying insurance (the INA umbrella policy), except as to limits of liability. Since the INA policy provides for $5 million for each year the policy is in effect, the plaintiff asserts the same wording should apply to the Fireman’s Fund policy as well. Or, at the very least, an ambiguity exists and, therefore, the court should allow extrinsic evidence which suggests that some of the defendant’s employees considered the aggregate sum of liability to be $15 million. This court most respectfully disagrees. Since the policy on its face is clear, extrinsic evidence as to interpretation is inadmissible. The plaintiff’s interpretation would result in adding a provision which simply does not exist. GRC wishes to add a phrase in paragraph 3 so it reads, “$5,000,000 each occurrence... $5,000,000 aggregate, for each policy year.” This terminology simply is not contained in the Fireman’s Fund insurance contract. In addition, paragraph 4 of the Fireman’s Fund policy specifically excludes “limitations of liability” in looking to the terms, conditions and definitions of the underlying INA insurance policy. Paragraph 4 is clear that the provisions of the INA umbrella policy apply “except for limits of liability.” The “limits of liability” in paragraph 3 unequivocally states a total of $5 million, not $5 million each year. Plaintiff wants the court to interpret the “except for limits of liability” clause to apply only to the $5 million limit and not to the three-year term of the contract. This interpretation would be strained at best. Paragraph 3 of the Fireman’s Fund policy clearly refers to “limit of the company’s liability,” as $5 million. Paragraph 4 provides that one must look to paragraph 3 to define the limits of liability contained in the policy, not the provisions of the INA umbrella policy. Consequently, this court found no ambiguity and precluded all extrinsic evidence which might indicate the contrary.

Plaintiff, at the pretrial hearing, in order to convince the court to hold otherwise, made what is termed a “boot strap argument.” Counsel argued that since one or more of the defendant’s employees construed the limit to be $15 million, this court should follow their interpretation, or at the very least, permit evidence at trial so that the jury could decide this issue. If the policy is clear and unambiguous, there is no reason to allow evidence at trial for one side to dispute and the other to affirm. To do so would violate the essence of the no ambiguity rule designed to uphold the sanctity of the written contract. To violate this rule of law would mean that no written contract would ever be safe from attack.

OBLIGATION TO PAY LOSS EXPENSES/LEGAL EXPENSES

The plaintiff also argued that the court incorrectly ruled that Fireman’s Fund was under no obligation under the policy to pay legal/loss expenses. Paragraph 8(a) of the policy of insurance provided as follows:

“8(a). Loss expenses and legal expenses, including court costs and interest, if any, which may be incurred by the insured with the consent of the company in the adjustment or defense of claims, suits or proceedings shall be borne by the company and the insured in the proportion that each party’s share of loss bears to the total amount of said loss. Loss expense hereunder shall not include salaries and expense of the insured’s employees incurred in investigation, adjustment and litigation.” (emphasis added)

Plaintiff asserts that the defendants cannot withhold consent unless it is reasonable. Once again, the plaintiff argues that this court should rewrite the contract by inserting the word “reasonable” prior to consent. See Steuart v. McChesney, 498 Pa. 45, 444 A.2d 659 (1982) (holding that it is not the function of the court to rewrite the content or give a construction in conflict with the accepted and plain meaning of the language used). The plain meaning is clear. The defendant must give consent. Since it was undisputed that no consent was given, there existed no obligation to pay. Consequently, the court, in paragraph 2(b) of the final judgment order precluded recovery. It must be borne in mind when construing this provision that the policy is an excess liability contract. There is no obligation on defendant’s part to assume responsibility for the defense of any claims. Thus, the provision requiring defendant to assume a certain proportional share of the legal/loss expenses (including court costs and interest) naturally would be left to the option of the excess carrier. The plaintiff argues that this provision is illogical and makes no sense to be construed in such a fashion as to vest in the insurance company the unilateral right to consent to the expenditure of defense costs. On the contrary, this provision makes perfect sense. As an excess carrier, it is logical to have the right to elect whether or not to proceed and involve itself in the investigation and payment of defense costs, etc. In not electing to do so, it takes its chances as to whether or not it will become liable on the excess policy without its intervention. On the other hand, if the company believes that it may become liable on the policy, then it reserves the option to determine whether or not to assume some of the costs to prevent possible liability. See Stonewall Insurance Co. v. Asbestos Claims Management, 73 F.3d 1178, 1218-19 (2d Cir. 1995) (holding that after construing the provisions of various liability policies pertaining to asbestos claims, the court found there was no obligation to pay defense expenses and/or costs and legal fees by the excess insurance carriers where the policy provided, “incurred jointly by mutual consent”).

The plaintiff relies heavily on North River Insurance Co. v. Cigna Reinsurance Co., 52 F.3d 1194 (3d Cir. 1995) to support its contention that the consent to costs clause is ambiguous and that extrinsic evidence must be introduced to establish that consent could not unreasonably be withheld. As stated in the defendant’s brief, this case is not controlling. It involved an affirmance of an arbitrator’s decision applying Ohio law. The arbitrator found that the excess carrier was obligated to pay defense costs after permitting the introduction of extrinsic evidence of industry custom. The policy in question, however, contained ambiguities not present here. As Judge Scirica pointed out in his opinion, “the arbitrator’s interpretation gives reasonable effect to the various parts. For example, although at paragraph one of the policy, North-River (the excess carrier) agreed to indemnify Owens-Corning (the insured) against ‘ultimate net loss,’ which was defined to exclude ‘costs,’ paragraph eleven referred to North-River’s obligation to pay both ultimate net loss and costs.” Id. at 1208. Since the contract here is unambiguous, this case is not applicable.

Finally, plaintiff argues that the last sentence of paragraph 8(a) would be a nullity if Fireman’s Fund had a unilateral right to consent. The sentence states:

“Loss expenses hereunder shall not include salaries and expense of the insured’s employees incurred in investigation, adjustments and litigation.”

This sentence merely delineates and defines what expenses would not be included (i.e., employees’ salaries, etc.) in the event that the insurer did in fact consent to the expenditure of costs, etc. it in no way nullifies nor derogates the consent provision contained in the policy. In conclusion, the policy is clear and unambiguous and does not require the introduction of extrinsic evidence to construe it. Therefore, the entry of judgment in favor of defendant was proper.

FINAL JUDGMENT ORDER

And now, October 19, 2000, the court enters the following final judgment order.

(1) Defendant, Fireman’s Fund Insurance Company, filed motions in limine to exclude evidence regarding the meaning of the controlling policy language contained in the liability policy in question.

(2) In the context of ruling on those motions, and for the reasons expressed in open court, this court made the following legal rulings:

(a) The FFIC insurance policy at issue in this action unambiguously provides for only one limit of liability of $5 million, which is not an annual limit and which does not apply separately ,to each of the three years of that policy;

(b) The FFIC insurance policy at issue in this action unambiguously provides that FFIC need only pay legal and loss expenses if it consents to plaintiff’s, General Refractories Company’s, incurring of those expenses; that FFIC has no obligation to consent; and that there is no “reasonableness” restriction upon the consent language in section 8(a) of the policy. The parties do not dispute that FFIC has not granted consent.

(3) The parties agree that FFIC has already paid or agreed to pay $5 million under the FFIC insurance policy at issue in this action.

(4) In light of the above and based on the record of the hearing held in open court on October 17 and 18, 2000, GRC has no claim upon which relief may be granted under its breach of contract claim, its bad faith claim, or its breach of fiduciary duty claim.

(5) FFIC has raised the issues of exhaustion of the underlining policies as well as proof of loss; maintaining that plaintiff will be unable to prove either at trial. Both of these issues are rendered moot by virtue of this court’s rulings on heretofore mentioned pretrial motions in limine.

Judgment is hereby awarded, and directed to be entered, in favor of defendant, FFIC, as a matter of law on all counts of GRC’s amended complaint.

      . See Lewis v. United Hospitals Inc., 547 Pa. 626, 692 A.2d 1055 (1997) which holds that a compulsory nonsuit cannot be entered prior to plaintiff presenting evidence as to liability.

      . At the pretrial hearing, defendant raised the defense of exhaustion arguing that the plaintiff, in order to recover, must exhaust all underlying insurance in existence from 1968 to 1984 (the year GRC ceased insurance coverage). Defendant cited J.H. France Refractories Co. v. Allstate Insurance Company, 534 Pa. 29, 626 A.2d 502 (1993) and Koppers Company Inc. v. Aetna Casualty & Surety Co., 98 F.3d 1440 (3d Cir. 1996) to support its position. Fireman’s Fund also asserted that the plaintiff failed to file a proof of loss pursuant to paragraph 7 of this insurance contract. The trial court made certain rulings on these issues which did not preclude the plaintiff from recovery. But, in light of the judgment entered in defendant’s favor on the insurance contract interpretation issue (as reflected in the order of 10/19/ 00) which is the subject matter of this appeal, these issues are rendered moot. See paragraph 5 of this order.


author: CARPENTER, J.,

text:
    Johnson v. Grand Cru Property One Limited Partnership
    C.P. of Montgomery County,
    no. 98-20864.

      Thomas More Marrone, for plaintiff.

      Mark J. Hill, for defendant Energy Management Systems.

      Mary E. Kohart, for defendant NHP Management Co.

      Alan C. Gershenson, for defendant Grand Cru Property One.

      October 30, 2000
   CARPENTER, J.,

FACTUAL AND PROCEDURAL HISTORY

Plaintiff Joanna Johnson, seeks class certification to represent people consisting of former and current tenants at Lynnewood Gardens apartments. The claim arises from an electrical service shutoff or discontinuance by one or more of the defendants for reasons other than accident, emergency, repairs or changes, with respect to dwelling units at Lynnewood Gardens. Lynnewood Gardens is an apartment complex located in Elkins Park, Pennsylvania. Ms. Johnson, a former tenant, individually and on the behalf of those similarly situated seeks damages and equitable relief for defendant’s shutoff or discontinuance of electrical service in the apartment complex. In part, the plaintiff relies on a Cheltenham Township ordinance, Cheltenham Code, chapter 167, §167-5.E, that prohibits electrical shutoff for nonpayment of service. Further, she relies on the rental lease that states “electrical service can only be stopped . . . because of accident, emergency, repairs or changes until the work is complete.”

The electrical shutoff that the plaintiff complains of occurred in April of 1998. The electric service was not billed individually, rather it was combined into the monthly rent for each tenant. Tenants were made aware that electrical service could only be reinstated if the outstanding balance, in addition to a late charge, was paid in full.

Procedurally, on March 26, 1999, the plaintiff filed a fourth amended complaint for breach of contract, breach of warranty of habitability, breach of covenant of quiet enjoyment, negligence, negligence per se, negligent misrepresentation and/or fraud, violations of Pennsylvania Consumer Protection Law, and breach of the property management agreement and named EMS as a third party beneficiary. Moreover, the plaintiff requested certification of this action as a class action. The defendants filed preliminary objections to the fourth amended complaint with support briefs. After oral argument, and an individual review of the record, the court overruled all preliminary objections filed by the defendants. Plaintiff then moved for class certification. Briefs were submitted by plaintiff and defendant NHP on behalf of all defendants, and oral argument was heard by this court on September 15, 2000. The instant opinion follows this court’s decision granting certification.

FINDINGS OF FACT

(1) Plaintiff Joanna Johnson signed a lease agreement, that is the basis for this claim as tenant and resident of Lynnewood Gardens apartment complex, located in Elkins Park, Pennsylvania, on June 2, 1997.

(2) Plaintiff Joanna Johnson has been a tenant at Lynnewood Gardens since April 15, 1994, pursuant to successive lease agreements.

(3) Defendant Grand Cru is the current owner of Lynnewood Gardens. Grand Cru has owned and operated the Lynnewood Gardens apartments, and the dwelling unit leased by plaintiff, since October of 1997.

(4) Defendant NHP was the manager of the Lynne-wood Gardens apartment complex pursuant to a property management agreement. Defendant NHP was an agent/servant and/or employee of Grand Cru.

(5) Defendant EMS managed the provision of electrical service for the dwelling units occupied by tenants and/or residents of Lynnewood Gardens apartments, pursuant to an agreement between receiver and contractor (EMS agreement). At all times EMS was an agent, servant and/or employee of defendants Grand Cru.

(6) Under the terms of the residential lease agreement, the electrical service was charged as added rent and combined with each tenants’ monthly rent responsibility.

(7) The lease agreement does not confer upon the defendants the right to shut off or discontinue electrical service to the plaintiff or any other tenant. The defendants may stop electrical service for reasons such as accident, emergency, repairs or changes, or until that work is complete.

(8) On April 13, 1998, the defendants shut off or discontinued the electrical service to the plaintiff’s leased apartment dwelling.

(9) Plaintiff has produced sufficient evidence to show that the putative class also had their electrical service shut off or discontinued.

(10) Plaintiff has alleged causes of action for breach of contract, breach of warranty of habitability, breach of the covenant of quiet enjoyment, negligence, negligence per se, negligent misrepresentations and/or fraud, and violations of the consumer protection laws.

(11) Plaintiff has produced evidence indicating knowledge of the defendants that a Cheltenham ordinance existed prohibiting them from ceasing electrical service for nonpayment.

(12) No testimony was offered by either party at the evidentiary hearing.

ISSUE

I. Has Plaintiff Satisfied All Requirements Mandated by the Pennsylvania Rules of Civil Procedure Pertaining to Class Certification?

DISCUSSION

I. Plaintiff Has Satisfied All the Requirements Pertaining to Class Certification According to the Pennsylvania Rules of Civil Procedure

Rule 1702 of the Pennsylvania Rules of Civil Procedure defines the “prerequisites to a class action” in pertinent part as follows:

“One or more members of a class may sue or be sued as representative parties on behalf of all members in a class action only if:

“(1) the class is so numerous that joinder of all members is impracticable;

“(2) there are questions of or fact common to the class;

“(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class;

“(4) the representative parties will fairly and adequately assert and protect the interests of the class under the criteria set forth in Rule 1709; and

“(5) a class action provides a fair and efficient method for adjudication of the controversy under the criteria set forth in Rule 1708.” Pa.R.C.P. §1702.

The burden of proof regarding the satisfaction of Rule 1702 rests upon the party seeking certification. Allegheny County Housing Authority v. Berry, 338 Pa. Super. 338, 343, 487 A.2d 995, 998 (1985).

' After the pleadings have been closed, the court will conduct an evidentiary hearing, limited to the class action allegations, for the purposes of determining whether to certify the action as a class action. The court will consider all relevant testimony, depositions, admissions, and other evidence pursuant to Pa.R.C.P. 1707. The hearing’s sole purpose is to determine whether the action meets the class certification requirements, and nothing more. Pa.R.C.P. 1707(c). The worth of the plaintiff’s claim and the right of recovery are not considered at the proceeding. See explanatory note 1977. The subsequent court decision is a finding based on a mixture of law and fact, and will not be upset on appeal absent an abuse of judicial discretion. Cribb v. United Health Clubs Inc., 336 Pa. Super. 479, 485 A.2d 1182 (1984).

Defendants primarily contend that class certification is inappropriate since the commonality and adequate representation elements were not satisfied. This court, however, concludes that the plaintiff has properly satisfied the requirements of Rule 1702(2) and (4) pertaining to “commonality,” and “fair and adequate representation,” in addition to the “numerosity,” “typicality,” and “fair and efficient adjudication” requirements. See Pa.R.C.P. 1702(1), (3), (5).

A. Plaintiff’s Claims for Breach of Consumer Fraud, Fraud and Negligent Misrepresentation, Breach of Warranty of Habitability and Quiet Enjoyment Meet the Commonality Requirement

According to Pa.R.C.P. 1702(2), commonality requires that facts involved are substantially the same so that proof as to one member of the class is proof as to all members. Each question must have the same origin and the same manners of proof to be considered common questions of fact. See Allegheny County Housing Authority v. Berry, 338 Pa. Super. 338, 342, 487 A.2d 995, 997 (1985). However, this requirement does not preclude the existence of differing individual questions of fact within the class. See Klenhow v. Time Inc., 466 Pa. 189, 352 A.2d 12 (1976). The burden of the plaintiff is still met as long as there are a predominance of common issues shared by all class members. Id. Further, common questions generally exist when the class members’ legal grievances arise out of the class opponents’ same practice or course of conduct. See Janicik v. Prudential Insurance Company of America, 305 Pa. Super. 120, 126, 451 A.2d 451, 454 (1982).

The plaintiff has provided sufficient evidence to establish that common issues of law or fact predominate, and the action should be class certified. To begin, the plaintiff’s claim is based on the defendants’ act of shutting off all their electric service in April of 1998, and the demand of payment thereafter. Further, the claim is based on the misrepresentation by the defendants that they were legally entitled to discontinue service, and charge late fees and penalties to have it reinstated when a Cheltenham Township ordinance expressly states the contrary. Cheltenham Code, chapter 167, §167~5.E, provides as follows:

“No owner, operator or occupant shall cause any service, facility, equipment or utility which is required under this chapter to be removed from or shut off from or discontinued for any occupied dwelling let or occupied by him, except for such temporary interruption which may be necessary while actual repairs or alterations are in process or during temporary emergencies when discontinuance of service is approved by the health officer.”

These are questions of law and fact that are common to all members of the class. Further, the plaintiff cites 23 issues in her brief that if proved for one member of the class, they are proved to all members of the class.

Instantly, the defendants’ initial contention is that the plaintiff’s claim for fraud and violations of the consumer protection laws are not common to the class. They argue that specific questions regarding reliance issues exist for each plaintiff that require individualized testimony. However, plaintiff responds, and this court finds as true, that reliance need not be proven here. Rather, reliance is implicit in the fiduciary relationship that existed between plaintiff and defendants. In Basile v. H & R Block Inc., 729 A.2d 574 (Pa. Super. 1999), plaintiffs were certified in an action for fraud, negligent misrepresentation, and consumer protection violations. There, our Superior Court found reliance need not be proven on an individualized basis considering the fiduciary relationship that existed between the parties. Specifically, the defendants failed to disclose that a “rapid refund” program was actually a short term, high interest loan. Further, the court stated that reliance was implicit and established by operation of law since the defendants were bound by a fiduciary duty. Id. Therefore, the parties’ relationship made the reliance element insignificant.

Here, the same type of relationship exists between plaintiffs and defendants. The class members and defendants were bound by a lease agreement that provided for electric services as added rent. As beneficiaries of the agreement, defendants were bound by law to provide electrical service regardless of default on payment. As the Basile court ruled, this relationship implicitly establishes the plaintiffs’ reliance. Therefore, individualized testimony will not be required to prove rebanee. The class members will make the same manner of proof, that if taken as true will be proof for one and for all of the proposed class. Thus, class certification is appropriate for the claims of fraud, misrepresentation, and consumer protection violations.

Next, defendants contend the claim for breach of warranty of habitability and quiet enjoyment should not be certified since there are a number of individualized issues. However, the defendants’ two arguments reach the merits of the case, which will not be decided here. The current responsibility of this court is solely to determine certification and nothing else. See Pa.R.C.P. 1707. Further, “common questions will generally exist if the class members’ legal grievances arise out of the ‘same practice or course of conduct’ on the part of the opponent.” Janicik v. Prudential Insurance Co. of America, 305 Pa. Super. 120, 133, 451 A.2d 451, 457 (1982). Since both of these claims arise out of the allegedly illegal conduct of the defendants’ deprivation of electrical service, class-wide analysis is proper.

B. Plaintiff Is An Appropriate Class Representative and Does Not Have a Conflict of Interest With Other Class Members

Defendants next contend that the plaintiff may have a conflict of interest with the remainder of the class to be certified. However, according to Janicik, courts have presumed a lack of a conflict of interest unless it has been demonstrated otherwise. Id. at 136, 451 A.2d at 459. The defendants have failed to show how the plaintiff has an interest contrary to that of the entire class. The defendants speculate as to billing preferences of the tenants in an attempt to differentiate the class. Specifically, that the class action could result in more, expensive late fees charged to certain class members in lieu of the previous late fees and tum-on fees already paid. The plaintiff responds, stating that the defendants cannot violate the lease agreement, and then later invoke it to protect their position. See West Development Group Ltd. v. Horizon Financial F.A., 405 Pa. Super. 190, 198, 592 A.2d 72, 76 (1991). However, the defendants have failed to support their argument with any legal authority. Therefore, this court is not persuaded by defendants’ argument. Thus, the plaintiff does not have a conflict of interest and does properly represent the interest of the entire class.

CONCLUSIONS OF LAW

(1) The plaintiff has met all the requirements for class certification.

(2) Class certification is appropriate in this case as all claims raised by plaintiff.

CONCLUSION

Based on the foregoing analysis, it is hereby ordered and decreed that the plaintiff’s motion for class certification is granted.

ORDER

And now, October 30, 2000, upon consideration of plaintiff’s motion for class certification, and any response thereto, and after a hearing and argument, it is hereby ordered that plaintiff’s motion is granted. This action is hereby certified as a class action. The class shall consist of:

“All present and former tenants and residents of dwelling units at the Lynnewood Gardens apartments (a) who had electrical service shut off or discontinued by one or more of the defendants for any reason other than by accident, or for emergency, repairs, or changes, and/or (b) who paid a ‘late charge’ with respect to electrical service to a dwelling unit at Lynnewood Gardens.”


author: CEOESLOCK, J.,

text:
    Allstate Insurance Co. v. Fodor

      C.P. of Monroe County,
    no. 8428 Civil 1999.

      Kevin C. Reid, for plaintiff.

      Curtis R. Quay, for defendants Fodor.

      Patrick J. Murphy, for defendants Edinger & Butler Park Self Storage.

      Bradley D. Remick, for defendant The Stanley Works.
    October 12, 2000
   CEOESLOCK, J.,

In 1998, defendants Richard and Cynthia Fodor, policyholders, commenced a legal action against Paul A. Edinger t/a Butler Park Self Storage Inc. and The Stanley Works for injuries sustained by their minor daughter, Louise Fodor, while she had been playing on an automatic security gate located on the Butler Park defendant’s business premises. In his answer to the defendant policyholders’ complaint in the underlying tort action, the Butler Park defendant joined the defendant policyholders as additional defendants. The defendant policyholders then requested the plaintiff, Allstate Insurance Company, to provide them with a defense and indemnification against any potential liability for their daughter’s injuries. The defendant policyholders’ request was made pursuant to the Allstate Deluxe Homeowners Policy bearing policy no. 028546309 and the Allstate Personal Umbrella Policy bearing policy no. 018168599, which were issued by the plaintiff and in full force and effect during the relevant time frame.

The plaintiff responded to the defendant policyholders’ request by filing the above-captioned declaratory judgment action alleging that the plaintiff is not obligated to provide a defense or indemnification to the defendant policyholders because of exclusionary language contained in the above-referenced insurance policies. Plaintiff then filed a motion for summary judgment based on the applicable policy language. On October 2, 2000, this court heard arguments regarding plaintiff’s motion. We are now ready to rule on plaintiff’s motion.

At this time, we note that the defendant policyholders do not oppose the plaintiff’s motion for summary judgment. Rather, the Butler Park defendant opposes plaintiff’s motion.

To begin, we note that a declaratory judgment action is the proper procedure by which a court may determine the rights, responsibilities, status and/or obligations of one party standing in a legal relationship with another party. See General Accident Insurance Co. of America v. Allen, 547 Pa. 693, 706, 692 A.2d 1089, 1095 (1997) and Aetna Casualty & Surety Co. v. Roe, 437 Pa. Super. 414, 422, 650 A.2d 94, 99 (1994). Moreover, the purpose of a declaratory judgment action is to expedite the settlement of claims and to provide practical assistance in resolving controversies before they require adjudication. Id. at 423, 650 A.2d at 99. Additionally, in a matter involving a dispute over insurance coverage, as in the instant case, a declaratory judgment action provides the court with the opportunity to determine the scope of the applicable insurance policy in relation to the claims presented. Id. at 422, 650 A.2d at 99. Thus, plaintiff’s motion is properly before this court so that we may determine the scope of insurance coverage and the rights and responsibilities of the parties in this matter.

In a declaratory judgment action concerning applicable insurance coverage, the court’s first step is to determine the scope of the insurance policy’s coverage. General Accident Insurance Co. of America, 547 Pa. at 706, 692 A.2d at 1095. Second, the court must, then ascertain if the allegations in the underlying complaint trigger coverage under the relevant policy. Id. Accordingly, “if the complaint against the insured avers facts that would support recovery covered by the policy, then coverage is triggered and the insurer has a duty to defend until such time that the claim is confined to a recovery that the policy does not cover.” Id. Moreover, if the insurance company is required to defend the policyholder because coverage has been triggered, then the insurance company is also conditionally obligated to provide the policyholder with indemnification if necessary. General Accident Insurance Co. of America, 547 Pa. at 707, 692 A.2d at 1095. Thus, the relevant inquiry before this court is whether the scope of the defendant policyholders’ insurance policies extends to tort actions such as the ones alleged in the underlying personal injury action.

Initially, we note that summary judgment is available in declaratory judgment actions. Neil v. Allstate Insurance Co., 379 Pa. Super. 299, 302, 549 A.2d 1304, 1305 (1998). We further note that the question of whether a particular claim falls within the scope of coverage of an insurance policy is a question of law that may be decided on a motion for summary judgment. Id.

In determining whether summary judgment is appropriate, this court must examine the pleadings, depositions, answers to interrogatories, admissions on file, together with any affidavits, to determine if any genuine issues of material fact exist and whether the moving party is entitled to judgment as a matter of law. See e.g., Aetna Casualty & Surety Co., 437 Pa. Super, at 420, 650 A.2d at 97 and Neil, 379 Pa. Super, at 302, 549 A.2d at 1305. Additionally, the record must be examined in the light most favorable to the non-moving party and, in doing so, all well-pleaded facts are accepted as true and that non-moving party is given the benefit of all reasonable inferences drawn therefrom. Neil, 379 Pa. Super, at 302, 549 A.2d at 1305. Moreover, summary judgment is only proper in cases that are clear and free from doubt and as such, the moving party must clearly establish that there is an absence of genuine issues as to any material facts. Lititz Mutual Insurance Co. v. Steely, 746 A.2d 607, 609 (Pa. Super. 1999) and Neil, 379 Pa. Super, at 302, 549 A.2d at 1305. Thus, a court may only grant summary judgment in those cases where the moving party can point to “sufficient evidence on an issue essential to his case and on which he bears the burden of proof such that a jury could return a verdict in his favor.” Lititz, 746 A.2d at 609. With these standards in mind, we turn to the substance of plaintiff’s motion.

We begin by reciting several well-settled principles of law. First, the proper construction and interpretation of an insurance policy and the inclusive language is a question of law for the court to resolve. Madison Construction Co. v. Harleysville Mutual Insurance Co., 557 Pa. 595, 606, 735 A.2d 100, 106 (1999). Accordingly, where a policy provision is unclear and ambiguous, the court must construe the language in favor of the policyholder. Id. On the other hand, where the policy language is clear and free from doubt, the court must give full effect to that policy provision. Id. “Contractual language is ambiguous ‘if it is reasonably susceptible of different constructions and capable of being understood in more than one sense.’” Id. Moreover, in determining whether the policy terms or language is ambiguous or vague, the terms or language in question must be considered in the context of the entire policy and not set apart from the remaining provisions that are clear or free from doubt. Riccio v. American Republic Insurance Co., 453 Pa. Super. 364, 373, 683 A.2d 1226, 1231 (1996). Additionally, the court should not distort or alter the meaning of contractual terms in an effort to find an ambiguity in the contract. Madison Construction Co., 557 Pa. at 606, 735 A.2d at 106. Thus, the relevant focus of the court’s inquiry is on the language of the defendant policyholders’ insurance contracts with the plaintiff.

In the instant matter, the plaintiff contends that the relevant language of the Allstate Deluxe Homeowners’ Policy and the Allstate Personal Umbrella Policy unmistakably preclude the plaintiff from providing the defendant policyholders with a defense or indemnification to the underlying action. As set forth in the policies, the following exclusionary language is included in the defendant policyholders’ insurance contracts.

“Section II — Family liability and guest medical protection.

“Coverage X — Family liability protection.

“Losses we do not cover under coverage X:

“(2) We do not cover bodily injury to an insured person or property damage to property owned by an insured person whenever any benefit of this coverage would accrue directly or indirectly to an insured person.” See Allstate Deluxe Homeowners Policy p. 27. (emphasis in original)

The homeowners’ insurance policy defines “insured person” as follows.

“Definitions used in this policy.

“(3) ‘Insured person(s)’ — means you and, if a resident of your household:

“(a) any relative; and

“(b) any dependent person in your care.” See Allstate Deluxe Homeowners Policy p. 3. (emphasis in original)

Additionally, the defendant policyholders’ personal umbrella policy contains similar exclusionary language with respect to personal injuries.

“Exclusions.

“General exclusions — When this policy does not apply.

“This policy will not apply:

“(3) to personal injury to an insured.” See Allstate Personal Umbrella Policy p. 9. (emphasis in original) Moreover, the plaintiff’s definition of an “insured person” in this personal umbrella policy is similar to the definition set forth in the plaintiff’s homeowners’ policy.

“General. Definitions.

“(7) ‘Insured’ — mean:

“(a) you and

“(b) relative residing in your household.” See Allstate Personal Umbrella Policy p. 2. (emphasis in original)

In focusing on the above language set forth in the insurance contracts between the plaintiff and the defendant policyholders, we do not find any ambiguities, uncertainties or any language reasonably susceptible of different interpretations. Rather, we find the language clear, definite and easily understandable by the average insured individual. Thus, we are required to give effect to the exclusionary language in this insurance policy and, in doing so, we conclude that the plaintiff is not obligated to provide the defendant policyholders with a defense or indemnification in the underlying tort action.

Second, we note that Pennsylvania courts have consistently . and repeatedly upheld the unambiguous and explicit exclusionary clauses contained in an insurance policy. Riccio, 453 Pa. Super, at 373, 683 A.2d at 1231. A policyholder should not expect limitless insurance coverage when there is an explicit, lucid clause to the contrary apparent in the contract. Id. Exclusionary clauses are valid and effectively preclude coverage by the insurance provider in all cases where the pertinent language is incontrovertible and unequivocal. Id. Moreover, such exclusionary clauses do not violate public policy but rather, many courts suggest that such clauses prevent collusive litigation. See e.g., Lambert v. McClure, 407 Pa. Super. 257, 264, 595 A.2d 629, 634 (1991) (Wieand, J. dissenting) and Neil, 379 Pa. Super. at 306-307, 549 A.2d at 1306-1307. Therefore, an insurance provider may properly exclude areas of coverage from a policy so long as the language is clear and unambiguous. As stated above, we find the language in this instance to be clear, concise and explicit and will accordingly uphold the exclusionary clause in the defendant policyholders’ insurance policies.

Third, we note that the goal of contract interpretation and construction is to effectuate the intent of the parties manifested by the written document memorializing the insurance contract. Madison Construction Co., 557 Pa. at 606, 735 A.2d at 106. Consequently, the proper focus for the court’s inquiry is the reasonable expectations of the parties to the insurance contract. Bubis v. Prudential Property & Casualty Insurance Co., 718 A.2d 1270, 1272 (Pa. Super. 1998). Generally, to determine the reasonable expectations of the parties, the court must look to the totality of the circumstances of the transaction involved. Id. An insured, however, may not allege that his or her reasonable expectations were frustrated or defeated by policy exclusionary provisions that are clear and unambiguous. Id. Moreover, the policyholder’s failure to read the insurance contract and all of its provisions “is an unavailing excuse or defense and cannot justify avoidance, modification or nullification of the contract.” Id. “While the law provides that an ambiguity in an insurance contract should be read in favor of the insured, this should not hold true when that ambiguity is created by the insured.” Id. at 1273. Thus, it is unfair to allow a policyholder to benefit from their creation of a confusing situation and the policy exclusion will remain effective and limit the insured’s coverage.

In this case, we note that the defendant policyholders do not oppose the plaintiff’s motion. Rather, the Butler Park defendant opposes the plaintiff’s motion on the grounds that the policy exclusion is ambiguous and clouded with doubt. Further, we note that the plaintiff under the policies questioned herein does not insure the Butler Park defendant. If the relevant focus is the insured’s reasonable expectations of the insurance contract, then the Butler Park defendant’s reasonable expectations cannot be frustrated or defeated in this instance. Moreover, the Butler Park defendant cannot be allowed to read an ambiguity into a contract that it was not a party to at its inception. Also, the totality of the circumstances does not suggest that the insurance contract defeated the expectations of any of the parties or that the insurance contract was in any way unfair. Thus, we are compelled to find that the defendant policyholders’ reasonable expectations are not frustrated by the policy exclusions and that the Butler Park defendant can have no reasonable expectations to frustrate with respect to a contract to which it is not a party.

Fourth, we note that an insurance provider’s duty to defend its insured arises when a third party’s complaint triggers coverage as provided for in the scope of the applicable policy. Mutual Benefit Insurance Co. v. Haver, 555 Pa. 534, 538, 725 A.2d 743, 745 (1999). An insurance provider’s obligation to sue does not arise simply because the company’s policyholders are sued, but rather, the obligation arises when the suit falls within the parameters of coverage afforded by the policy. General Accident Insurance Co. of America, 547 Pa. at 704, 692 A.2d at 1093. Consequently, to recover under an insurance policy, the policyholder must prove that the claim falls within the applicable scope of coverage as a necessary prerequisite. Id. In reaching this conclusion, the Pennsylvania Supreme Court stated:

“Appellants further contend that appellee was under a duty to defend by the provision that the insurer would defend ‘even if such suit is groundless, false or fraudulent.’ But this applies only ‘as respects insurance afforded by this policy. ’ It does not require defense of any suit brought but only suits involving claims within the scope of the policy, even though these be groundless, false or fraudulent. In the instant case, there is no question that the claim is founded upon a matter which came within the provision excluding the duty of appellee to defend.” General Accident Insurance Co. of America, 547 Pa. at 703, 692 A.2d at 1093 (emphasis in original) (quoting Warner v. Employers’ Liability Assurance Corp., 390 Pa. 62, 66-67, 133 A.2d 231, 233 (1957)).

Thus, an insurance provider’s duty to defend arises only when the claim falls within the scope of the applicable insurance coverage. See e.g., General Accident Insurance Co. of America, 547 Pa. at 704, 692 A.2d at 1094. If the claim arises outside the applicable coverage of the policy, the insurance provider has no responsibility or obligation to provide the insured with a defense and/or indemnification. Id.

Applying the above language to the insurance policies’ instant case, we reach an identical conclusion. The defendant policyholders requested the plaintiff to defend them in a personal injury action clearly excluded by the explicit terms of their respective insurance policies. We find that the language of the defendant policyholders to be clear, concise and unambiguously set forth. Consequently, we conclude that the Butler Park defendant cannot survive this summary judgment motion, particularly in light of the well-established line of cases permitting insurance policy exclusionary clauses to be applied.

At this point, we question the Butler Park defendant’s capacity to oppose plaintiff’s motion on the grounds that the defendant policyholders were unaware of the exclusionary provisions set forth in the body of the insurance policy document. This court finds it difficult to believe that the Butler Park defendant is capable of knowing just what the defendant policyholders were and were not aware of in defendant policyholders’ insurance policy. For this reason, the Butler Park defendant’s reliance on the Cornwell v. State Farm Fire and Casualty Company, infra, decision is misplaced. The Cornwell decision stands for the proposition that an exclusionary provision can only be given effect if the insurance provider can establish that the policyholders were aware of the limiting language. See Cornwell v. State Farm Fire and Casualty Co., 527 F. Supp. 310, 313 (E.D. Pa. 1981). There is a long line of cases upholding such exclusionary clauses. See e.g., Madison Construction Co., 557 Pa. 595, 735 A.2d 100 (1999); General Accident Insurance Co. of America, 547 Pa. 693, 692 A.2d 1089 (1997); and Neil, 379 Pa. Super. 299, 549 A.2d 1304 (1988). Thus, we conclude that the Butler Park defendant is not in a position to rely on the Cornwell decision because the Butler Park defendant cannot accurately assert what was within the knowledge of the defendant policyholders as to their insurance policies with the plaintiff.

For similar reasons, the Butler Park defendant’s reliance on the Hionis and Bruno, infra, decisions is similarly misplaced. In Bruno, the court stated that “[e]ven where a policy is written in unambiguous terms, the burden of establishing the applicability of an exclusion or limitation involves proof that the insured was aware of the exclusion or limitation and the effect thereof was explained to him.” Selected Risks Insurance Co. v. Bruno, 555 F. Supp. 590, 592 (M.D. Pa. 1982) (quoting Hionis v. Northern Mutual Insurance Co., 230 Pa. Super. 511, 517, 327 A.2d 363, 365 (1974). The Butler Park defendant cannot rely successfully on the defendant policyholders’ knowledge or awareness of the exclusionary language contained in the challenged insurance policies in order to oppose plaintiff’s motion. To withstand a motion for summary judgment, the Butler Park defendant must establish that there are genuine issues as to the material facts of the instant case and by arguing the defendant policyholders’ awareness or unawareness of the policy language, the Butler Park defendant cannot survive plaintiff’s motion. Moreover, the Hionis decision was clearly rejected by the Pennsylvania Supreme Court in its decision in the Standard Venetian Blind, infra, case. In Standard Venetian Blind, the Pennsylvania Supreme Court stated:

“We believe that the burden imposed by Hionis fails to accord proper significance to the written contract, which has historically been the true test of the parties’ intentions. By focusing on what was and was not said at the time of contract formation rather than on the parties’ writing, Hionis makes the question of the scope of insurance coverage in any given case depends upon how a fact-finder resolves questions of credibility. Such a process, apart from the obvious uncertainty of its results, unnecessarily delays the resolution of controversy, adding only unwanted costs to the cost of procuring insurance. Thus, Hionis, which would permit an insured to avoid the application of a clear and unambiguous limitation clause in an insurance contract, is not to be followed. . . . [Thus,] [w]e hold only that where, as here, the policy limitation relied upon by the insurer to deny coverage is clearly worded and conspicuously displayed, the insured may not avoid the consequences of that limitation by proof that he failed to read the limitation or that he did not understand it.” Standard Venetian Blind Co. v. American Empire Insurance Co., 503 Pa. 300, 306-307, 469 A.2d 563, 567 (1983).

Accordingly, we rely on the language of the Pennsylvania Supreme Court and conclude that the parties may not escape the exclusionary language set forth in the insurance contracts, particularly the Butler Park defendant who was not a party to the contract and cannot contest what was said or done at the time of the contract’s execution. Thus, for all the reasons set forth herein, we grant plaintiff’s motion.

Accordingly, we enter the following order:

ORDER

And now, October 12, 2000, the plaintiff’s motion for summary judgment is hereby granted. With respect to the declaratory judgment action, this court concludes that the plaintiff is under no obligation to provide the defendant policyholders with a defense or indemnification in the underlying action.

      . This matter is docketed with the Court of Common Pleas of Monroe County at 7994 Civil 1998.

      . With respect to the above-captioned matter, this court notes that the plaintiff insures only the defendant policyholders. As such, we question whether the Butler Park defendant has standing to oppose the plaintiff’s motion in this declaratory judgment action. See Lititz Mutual Insurance Co. v. Steely, 746 A.2d 607, 609 (Pa. Super. 1999) (stating that “while a [third party] may be intimately involved in the underlying lawsuit, they have no standing before this court on the matter of whether [the insurance company] owes a duty to defend to their policyholder[.]”) Id. at 609 n.2. Nonetheless, being that the parties to the instant action have not challenged the Butler Park defendant’s standing to oppose the plaintiff’s motion, this court will not raise such an issue sua sponte. Rather, we shall rule on plaintiff’s motion and irrespective of the standing issue, we conclude that summary judgment is indeed appropriate in this matter and supported by a myriad of case law.

      . See 42 Pa.C.S. §7531 et seq. (generally referred to as the “Declaratory Judgments Act”).

      . Additionally, the court in Riccio stated that Pennsylvania courts should strive “to avoid ambiguities, if possible, and not torture [the contractual] language to create them.” Riccio, 453 Pa. Super, at 377, 683 A.2d at 1233.

      . In its brief in opposition to plaintiff’s motion, the Butler Park defendant asserts that this court should deny plaintiff’s motion for summary judgment because the insurance contract between the plaintiff and the defendant policyholders is an adhesion contract. For reason similar to those set forth in the body of this opinion, we also reject this argument. We note that insurance contracts are typically considered contracts of adhesion but this, in itself, is insufficient to render the insurance contract unenforceable. Neil, 379 Pa. Super, at 312 n.4, 549 A.2d at 1310 n.4. In cases that involve adhesion contracts, the court must examine the terms and language of the contract for fairness to determine if the contract is unreasonably favorable to one party. Id. As indicated earlier, we do not find the terms of these insurance policies to be unreasonably unfair to the defendant policyholders or, on the other hand, clearly one-sided in favor of the plaintiff. Rather, we find the terms to be clear, certain and readily apparent in the contract. Moreover, as illustrated in Neil, the defendant policyholders were insurance consumers and had the opportunity to choose a policy different from the one they purchased from plaintiff. Hence, the defendant policyholders were not “deprived of a meaningful choice in their decision to purchase the instant policy.” Id. Consequently, the Butler Park defendant cannot now argue that the policy is unfair to the defendant policyholders. For this argument to even make sense, the Butler Park defendant would have had to have been a party to the contract in the first place and they were not. Therefore, the parties limited by the exclusionary language of the contract and summary judgment in favor of plaintiff is appropriate.


author: FIELD,

text:
    Ragland v. Gray

      C.P. of Philadelphia County,
    December Term 1996,
    no. 1474.

      Roland J. Atkins, for plaintiff.

      David Moffitt, for defendant T. Barry Gray.

      Patricia Jackson Gray, pro se.

      November 15, 2000
   FIELD,

Plaintiff, Legora Ragland, appeals from this court’s order of June 28,2000, denying her motion for post-trial relief. For the reasons which follow, the motion was properly denied and judgment in favor of the defendants entered on July 19,2000, should be affirmed.

A jury trial commenced on December 6, 1999. This defamation case arises from the publication and distribution of a newsletter by Barry Gray, entitled “Who Cares?,” which contained statements about Legora Ragland, accusing her of dishonest behavior relating to the defendants. After four days of trial, the jury returned a verdict in favor of the defendants, Mr. Gray and his wife, Patricia Gray, finding that they did not publish defamatory statements about the plaintiff. Plaintiff filed a timely post-trial motion seeking judgment n.o.v. or, in the alternative, a new trial. In her motion, plaintiff alleges several errors by the trial court. These can be summarized as follows: (1) the verdict was against the weight of the evidence; (2) the court erred in its evidentiary rulings; (3) the court erred in bifurcating the issue of punitive damages; (4) plaintiff’s motion for a mistrial was improperly denied; and (5) the court erred in its jury charge. These arguments are without merit and will be discussed in turn.

Plaintiff’s first argument is that she is entitled to a new trial because the jury’s verdict was against the weight of the evidence. When reviewing a jury’s verdict, the evidence must be viewed in the light most favorable to the verdict winner. Boutte v. Seitchik, 719 A.2d 319 (Pa. Super. 1998). A jury’s determination is not to be disturbed as long as there is sufficient evidence on the record to support it. Fannin v. Cratty, 331 Pa. Super. 326, 480 A.2d 1056 (1984).

The following evidence was presented at trial. On February 2, 1993, Katie B. Jackson died after a lengthy illness. N.T. 12/7/99, p. 76. She was survived by three daughters: Gwen, Ingrid, and Patricia, one of the defendants. N.T. 12/7/99, p. 40. During her lifetime Katie Jackson had engaged in several business ventures, including the operation of a catering facility known as the Wynne Plaza. N.T. 12/7/99, pp. 41-42. At the time of her death, the Wynne Plaza was being operated by Patricia, a defendant herein. N.T. 12/7/99, p. 42.

Plaintiff Legora Ragland had been Katie Jackson’s insurance agent for several years, and provided her with life, health and other insurance policies. N.T. 12/7/99, p. 41. One of these policies included a death benefit in the amount of $10,000. N.T. 12/7/99, p. 97. Ms. Jackson’s three daughters were named as beneficiaries of this policy and each was entitled to one-third of the proceeds. N.T. 12/7/99, p. 47. It is payment of these insurance proceeds which is at the heart of this dispute.

As the agent for New York Life, Ms. Ragland received three checks, each in the amount of $3,360.97, i.e., one for each of Ms. Jackson’s daughters. N.T. 12/7/99, p. 104. The check made out to Ms. Gray was not forwarded to her, but rather was transmitted to Irving Lassoff, the executor of Ms. Jackson’s estate. N.T. 12/7/99, p. 105. Mr. Lassoff deposited the check into the estate’s bank account. N.T. 12/7/99, p. 105. He then proceeded to use the funds to pay debts of the estate, specifically debts attributable to the Wynne Plaza. N.T. 12/7/99, p. 105. Ms. Gray maintained that she never authorized Ms. Ragland or Mr. Lassoff to do anything with her check. N.T. 12/9/99, p. 35. This defamation suit arises from Mr. Gray’s publication of a newsletter entitled, “Who Cares?,” in which it was stated that Ms. Ragland “stole” Ms. Gray’s insurance check.

There is no dispute that Ms. Ragland did not use the insurance proceeds for her own personal gain. Ms. Ragland has argued all along that she was, therefore, defamed per se, because she did not take the funds for her own use. Defendants argued that Ms. Ragland’s motive was irrelevant if the check was taken without authorization.

After four days of testimony, and over a day of deliberations, the jury unanimously found that the statement published was not defamatory. There was sufficient evidence in the record for the jury to have found that the statement was true, according to the dictionary definition of “stolen” as having been taken without authorization. Hence, the defendants were properly found not liable.

Plaintiff has raised several issues regarding evidentiary rulings made at trial. A reversal based on an erroneous evidentiary ruling is warranted only where the ruling has caused actual prejudice. Aldridge v. Edmunds, 561 Pa. 323, 750 A.2d 292 (2000). Plaintiff has failed to demonstrate any actual prejudice. A new trial is not warranted on these grounds.

Plaintiff next argues that she was unfairly prejudiced by the court’s decision to bifurcate the issue of punitive damages. This argument, too, is without merit. Rule 213(b) of the Pennsylvania Rules of Civil Procedure, 42 Pa.C.S., provides:

“The court, in furtherance of convenience or to avoid prejudice, may, on its own motion or on motion of any party, order a separate trial of any cause of action, claim, or counterclaim, setoff, or cross-suit, or of any separate issue, or of any number of causes of action, claims, counterclaims, setoffs, cross-suits, or issues.”

It is solely the court’s province to determine when bifurcation is necessary. Absent an abuse of discretion, a trial court’s decision as to bifurcation will not be disturbed. Santarlas v. Leaseway Motorcar Transport Co., 456 Pa. Super. 34, 40, 689 A.2d 311, 314 (1997). Where, as here, the issue of damages was not even reached by the jury, bifurcation cannot be the basis for a new trial.

In her post-trial motion, plaintiff asserts that the court erred in failing to declare a mistrial on December 8,1999, “by reason of the improper, prejudicial, and extraneous evidence that had been presented by the defendants.” (Plaintiff’s post-trial motion, ¶9.) The decision as to whether to grant a mistrial is one committed to the sound discretion of the trial court. Commonwealth v. Fletcher, 561 Pa. 266, 750 A.2d 261 (2000). Since, as discussed above, plaintiff has failed to demonstrate how any of the court’s evidentiary rulings prejudiced her, a mistrial was not warranted.

Plaintiff argues that the court erred in allowing defense counsel to read the statutory definition of “theft” in his closing argument. It is well-established that truth is an absolute defense to defamation. Tucker v. Philadelphia Daily News, 151 A. 2d 938 (Pa. Super. 2000); 42 Pa.C.S. §8342. Consequently, in order to determine the defendants’ liability, the jury had to decide if the statement complained of was true or false. Defense counsel read from 18 Pa.C.S. §3927(a) which provides that a person who obtains property upon agreement, or subject to a known obligation, to make specified payments or other disposition, is guilty of theft if he intentionally deals with the property obtained as his own and fails to make the required payment or disposition. While defendants acknowledge that Ms. Ragland did not receive personal benefit from funds, there was evidence that she received a check made out to Ms. Gray and, instead of forwarding it to Ms. Gray, forwarded it to Mr. Lassoff. Hence, the jury could conclude that Ms. Ragland’s actions fell within the statute and that, in fact, a “theft” had been committed. No error occurred.

Finally, plaintiff seeks a new trial on the ground that the court erred in its jury charge. To be granted a new trial, based on an erroneous charge, a plaintiff must show that the trial court either abused its discretion or committed an error of law that controlled the outcome of the case. Stewart v. Motts, 539 Pa. 596, 654 A.2d 535 (1995). The charges will be found adequate unless the issues are not made clear to the jury, or the judge’s instructions palpably misled the jury, or there is an omission in the charge which amounts to fundamental error. Id. In addition, in determining the adequacy of a charge, an appellate court must review the trial court’s jury instructions in their entirety. Wilson v. Anderson, 420 Pa. Super. 169, 173, 616 A.2d 34, 36 (1992).

The first group of rejected points for charge, plaintiff’s nos. 26 through 38, relating to defamation issues, were all properly rejected because either their substance was covered by the standard jury instructions 13.08 and 13.10, which were given, or they were inapplicable to the facts of this case. The second group, plaintiff’s nos. 39 and 40, relating to conspiracy, were rejected because there was no evidence to support this charge. Finally, plaintiff’s point for charge no. 41, agency, was also rejected because of inappropriateness. With respect to the agency and conspiracy charges, error, if any, which may have occurred must be held harmless since the jury unanimously found that the statement complained of was not defamatory.

For all of the above reasons, judgment as entered on July 19,2000, upon the jury’s verdict for the defendants should be affirmed.


author: MELODY JR., J.,

text:
    Commonwealth v. Starkey

      C.P. of Chester County,
    no. 99-07328.

      Michelle Fioravanti, for Commonwealth.

      S. Lee Ruslander II, for defendant.
    June 9, 2000
   MELODY JR., J.,

We have before us, defendant’s “petition to appeal license suspension” which was filed on August 25, 1999. Said petition sets forth the following grounds for us to sustain his appeal as follows:

(2) That there was no reasonable basis to conclude that the petitioner refused to submit to chemical testing.

(3) That the petitioner did all that was requested of him in regards to the chemical testing.

(4) That the breath testing equipment malfunctioned and should have been removed from service.

(5) That the police should have, but did not, request the petitioner to submit to a blood test after the breath testing machine malfunctioned.

(6) That, alternatively, the petitioner provided two breath samples during the course of the chemical testing and thus complied with any statutory requirements imposed upon him.

On October 21, 1999, the defendant filed a “petition to amend and clarify license suspension appeal.” On the same date, Judge J.P. MacElree II handed down an order granting the amendment of the original petition to include the following:

(7) That the police failed to inform petitioner why he was being requested to submit to a second chemical test of his breath.

(8) That the police failed to inform petitioner why he had to submit to a third chemical test of his breath.

(9) That the police failed to wait the required 20 minutes within which to observe the petitioner prior to conducting the second and third chemical tests.

In addition, said petition to amend sets forth the following:

(3) That the original application touched on these amendments but did not set forth the challenges with the degree of specificity desired by counsel.

(4) That on September 22,1999, after the original appeal was filed, the Commonwealth Court handed down its decision in Karabinos v. PennDOT, 739 A.2d 601 (Pa. Commw. 1999).

(5) That Karabinos is exactly on point and is dispositive of this appeal.

Further, during the initial hearing in this matter on January 20, 2000, Mr. Ruslander, the defendant’s attorney, stated “there are two things that I wanted to add to my petition.” After some discussion, Mr. Ruslander’s request was not objected to by the attorney for the Commonwealth. Mr. Ruslander then handed up to the court, amendments to his amended petition (N.T. pp. 26, 27, 28, 29 and 30) as follows:

(2) That petitioner seeks to add the following to his appeal:

(10) That the police failed to observe the defendant for 20 minutes prior to administering the first breath test.

(11) That the police failed to advise the petitioner of the required implied consent warnings prior to the second and third series of chemical testing.

(12) That the amendments are based on the testimony presented at the hearing.

After hearings on January 20, 2000 and March 30, 2000 and arguments of counsel, we determine as follows:

FINDINGS OF FACT

Trooper Christopher Hessler

(1) On July 19, 1999, at approximately 9:12 in the evening, Trooper Hessler, with reasonable suspicion, stopped the defendant’s vehicle. (N.T. pp. 5, 6 and 9, 1/20/00.)

(2) At 9:20 p.m., the defendant was transported to the Avondale State Police Barracks by Trooper Hessler. (N.T. p. 11, 1/20/00.)

(3) “I generally read the warnings, then wait the 20 minutes.” “I should say that is how I always do it.” (N.T. pp. 14 and 15, 1/20/00.)

(4) According to the 119 affidavit, part of the criminal complaint, and the testimony of Trooper Hessler, he read the implied consent form to the defendant at 2135 hours (9:35 p.m.). (N.T. p. 15, 1/20/00.)

(5) At the barracks, Corporal Mason took the defendant to administer the breath test. (N.T. pp. 14 and 19,1/ 20/00.)

(6) Trooper Hessler did not keep the defendant under observation for at least 20 consecutive minutes. (1/20/ 00.)

Corporal John Mason

(7) Corporal Mason’s purpose to place a defendant under observation prior to criminal testing was to observe him to make sure that he did not consume any alcohol, to keep him physically under observation. (N.T. pp. 21 and 22, 1/20/00.)

(8) Corporal Mason did not keep the defendant under observation for at least 20 consecutive minutes. Corporal Mason did not personally watch the defendant the whole time to make sure that he did not put anything in his mouth, like a lifesaver or a cough drop. (N.T. p. 22, 1/20/00.)

(9) Corporal Mason was present when Trooper Hessler read to the defendant the implied consent warnings. Corporal Mason then took the defendant back into the area where the Intoxilyzer 5000 was located. He then explained to the defendant how he wanted the test done. He then demonstrated, for the defendant, how he wanted him to blow into the mouthpiece and took the information from the defendant’s driver’s license, put it into the system and prepared the test. (N.T. pp. 22 and 23, 1/20/00.)

(10) The defendant consented to chemical testing (breathalyzer). The defendant blew into the breathalyzer a total of six times. (Exhibit C-2, exhibit C-3, exhibit C-4.)

(11) Exhibit C-2 shows the first breath sample to be .175 and the second breath sample to show an invalid sample (mouth alcohol present difference between two breath samples is .020 percent BAC or greater).

(12) Exhibit C-3 shows that the first breath sample was .185 and the second breath sample to show an invalid sample (mouth alcohol present difference between two breath samples is .020 percent BAC or greater).

(13) Exhibit C-4 shows that the first breath sample was .176 and the second breath sample to show insufficient sample.

(14) Exhibit C-5 is page 34 from Corporal Mason’s “The Intoxilyzer 5000 operations guide for the Pennsylvania State Police” dealing with the definition of “invalid sample.”

(15) Exhibit C-6, in the same manual, on page 35, deals with the definition of “insufficient sample.”

(16) There is a difference between “insufficient sample” and “invalid sample.” (Exhibit C-5, exhibit C-6 and N.T. pp. 51 and 52.)

(17) The first test began when the defendant blew for the first time at 2154 hours (9:54 p.m.) and the test was completed at 2158 hours (9:58 p.m.). (Exhibit C-2 and N.T. p. 56.)

(18) The second test began at 2202 hours (10:02 p.m.) and ended at 2208 hours (10:08 p.m.). (Exhibit C-3.)

(19) The third test began at 2212 hours (10:12 p.m.) and ended at 2219 hours (10:19 p.m.). (Exhibit C-4.)

(20) There was no attempt, by the troopers, between the first and second tests to observe the defendant for 20 minutes prior to administering the test. (Exhibit C-2, exhibit C-3 and N.T. p. 60.)

(21) There was no attempt, by the troopers, between the second and third tests, to observe the defendant for 20 minutes prior to administering the test. (Exhibit C-3, exhibit C-4 and N.T. p. 62.)

(22) “The Intoxilyzer 5000 operations guide for the Pennsylvania State Police” (Corporal Mason’s manual) provides that when the printout indicates an amount of alcohol in the mouth, that the operator should wait 20 minutes before starting another test. In this case, Corporal Mason did not follow the procedures set forth in the “guide” or “manual.” (N.T. pp. 66 and 67.)

(23) Between the first and the second test, Corporal Mason did not follow the 20-minute observation, nor wait as suggested in his “manual” or “guide.” (N.T. p. 60.)

(24) Between the second and third test, Corporal Mason did not follow the 20-minute wait as suggested in his “manual” or “guide.” (N.T. p. 67.)

(25) Corporal Mason did not explain, to the defendant, what “invalid sample” meant. (N. T. p. 67.)

(26) The Southern Chester County Medical Center is approved to draw blood for alcohol determination. (N.T. p. 68.)

(27) The Avondale barracks is about 5 miles from the Southern Chester County Medical Center. (N.T. p. 68.)

Corporal Douglas O’Connor

(28) Corporal O’Connor’s duties, inter alia, consist of intoxilizer maintenance and Intoxilyzer 5000 class A operator, and for both, has been certified by the Pennsylvania State Police to do so. (Exhibit C-9 and C-10,3/ 30/00.)

(29) The reason for a 20-minute observation period, prior to the initial administration applies, among other things, to a person who has mouth alcohol present, so that the mouth alcohol will have time to dissipate before the next test. (N.T. p. 28, 3/30/00.)

(30) When a reading comes out from the machine, that indicates that mouth alcohol is present. A 20-minute observation period should then ensue before further testing is conducted. (N.T. p. 29, 3/30/00.)

Trooper Christopher Hessler (Recalled)

(31) Trooper Hessler stopped the defendant at 9:12 p.m. He placed him into custody at approximately 9:27 p.m. Trooper Hessler put the defendant in his patrol vehicle and transported him back to the Avondale barracks where they arrived at 9:30 p.m. (N.T. pp. 32 and 33, 3/30/00.)

(32) Trooper Hessler did not observe the defendant place anything in his mouth after he was taken into custody at 9:27 p.m.

(33) It was not possible for Trooper Hessler to safely drive his patrol vehicle and at the same time, continuously observe the defendant in the back seat of the vehicle through the rearview mirror. Thus, we find that Trooper Hessler did not continuously observe the defendant from 9:27 p.m. until 9:30 p.m., pursuant to the Pa. Code, title 67 §77.24. Breath test procedures.

(34) The defendant was never observed for at least 20 consecutive minutes immediately prior to the administration of the first alcohol breath test pursuant to the requirements of the Pennsylvania Code, title 67 §77.24. Breath test procedures (a) observation.

(35) All of the time preceding the reading of the implied consent warnings must be eliminated from the 20-minute observation time, such as:

“(A) The time when the defendant was in the patrol vehicle.

“(B) The time walking into the police barracks.”

(36) Some of the time after reading of the implied consent warnings must be eliminated from the 20-minute observation time such as:

“(A) The time when Corporal Mason was preparing the Intoxilyzer.

“(B) The time when Corporal Mason typed into the Intoxilyzer all of the information at the middle of exhibit C-2 concerning the defendant’s name, date of birth, driver license number, arresting officer and the incident number.”

(37) The state police did not conduct its observation of the defendant in the obvious and reasonable manner contemplated by Pa. Code title 67 §77.24(a).

(38) The state police did not conduct its testing and observance of the defendant in the obvious and reasonable manner contemplated by “The Intoxilyzer 5000 operations guide for the Pennsylvania State Police.”

DISCUSSION

The Pennsylvania Code title 67 §77.24 breath test procedures subsection (a) observation provides as follows:

“The person to be tested with breath test equipment shall be kept under observation by a police officer or certified breath test operator for at least 20 consecutive minutes immediately prior to administration of the first alcohol breath test given to the other fluids, regurgitated, vomited, eaten or smoked. Custody of the person may be transferred to another officer or certified breath test operator during the 20 consecutive minutes or longer period as long as the person to be tested is under observation for at least 20 consecutive minutes prior to initial administration of the alcohol breath test.” (emphasis added)

Further, “The Intoxilyzer 5000 operations guide for the Pennsylvania State Police” provides as follows:

“The instrument detected residual mouth alcohol in the subject’s breath sample. The instrument completes the mode sequence, prints ‘Invalid Sample .xxx’ in place of ‘Subject Test .###,’ and prepares itself to begin another test.

“Since the normal body processes eliminate residual mouth alcohol within 20 minutes, observe the subject for at least 20 minutes before beginning another breath analysis. During the observation time, the subject may not smoke, eat, drink or introduce any substance into his mouth. Furthermore, if the subject regurgitates, note the time and delay beginning a breath analysis for at least 20 minutes. (Exhibit C-5 p. 4 of “guide” or “manual.”) (emphasis added)

Initially, we note the word regurgitate, in the code, and more specifically the “guide” or “manual” sets forth what is to be done by the operator of the machine if the defendant regurgitates.

There is certainly a difference between “regurgitate” and vomit. Said difference is obvious from a reading of their definitions and also from a reading of exhibit C-l, page (34) of the Intoxilyzer 5000 “manual” or “guide.” The exhibit sets forth: “Furthermore, if the subject regurgitates, note the time and delay beginning a breath analysis for at least 20 minutes.”

Regurgitate is defined as follows:

“(A) Reader’s Digest, Oxford, Complete WordFinder, 1996 American edition: ‘(1) bring (swallowed food) up again to the mouth.’ (emphasis added) While vomit is defined ‘(1) eject (matter) from the stomach through the mouth.’ (emphasis added)

“(B) Funk & Wagnalls New College Standard Dictionary, June, 1947 edition: (2) ‘To cause to surg back; as ruminants regurgitate food already swallowed.’ (emphasis added) While vomit is defined ‘(1) To throw up from the stomach; spew; belch forth.’ (emphasis added) ‘(2) To eject forcibly or issue with violence from any hollow place; be ejected.’ ” (emphasis added)

Thus, in the case sub judice, we have a situation where either the defendant regurgitated or the breathalyzer equipment should have been removed from service under section 77.25(b)(4) because of the various readings on the printouts.

In addition, we have noted that although the troopers believe that the defendant was observed continuously for at least 20 minutes, that is not possible from the evidence presented by the Commonwealth.

First, because the defendant was advised of his implied consent warnings at 9:35 p.m. and he first blew into the equipment at 9:54 p.m., such time is obviously only 19 minutes.

Second, we have eliminated certain time when Corporal Mason was doing paperwork and entering information into the intoxilyzer.

Third, we have found that the troopers did not comply with Pa. Code 77.24. Breath test procedures. Subsection (a) observation.

Fourth, the troopers failed to comply with “The Intoxilyzer 5000 operations guide for the Pennsylvania State Police” with regard to the procedure after an “invalid sample.”

CONCLUSIONS OF LAW

(39) The Commonwealth has failed to meet its burden of proof.

(40) The troopers failed to comply with Pennsylvania Code title 67 §77.24. Breath test procedures, (a) Observation.

(41) The troopers failed to comply with “The Intoxilyzer 5000 operations guide for the Pennsylvania State Police.”

(42) Thus, the defendant did not refuse to submit to chemical testing. First, because he agreed to submit to chemical testing, and second, because the state police did not comply with the requirements to establish the administration of proper, lawful and fair tests.

We note that this decision only decides the issues of the 20-minute observation of this defendant, and the 20-minute wait and observation of the defendant with regard to “invalid sample.”

Because our decision disposes of the suspension by the Commonwealth, it is not necessary for us to determine the defendant’s other issues. We leave the other issues for another day and another court.

ORDER

And now, June 9,2000, upon consideration of the evidence, it is hereby ordered and decreed that the appeal of operating privilege suspension is sustained and the suspension is rescinded.

      . Our findings of fact are, at this time, limited to those necessary to support our decision in this matter and the issues involved.

      . We note that this decision only decides the issues of the 20-minute observation of this defendant and the 20-minute wait and observation of the defendant with regard to “invalid sample.”
      Because our decision disposes of the suspension by the Commonwealth, it is not necessary for us to determine the defendant’s other issues. We leave the other issues for another day and another court.


author: CAPUZZI, J.,

text:
    Harleysville Mutual Insurance Company v. Drake
    October 4, 1989

      Rosemary Petrantoni, for plaintiff.

      William M. Radcliffe, for defendants.
   CAPUZZI, J.,

This matter is before the court pursuant to defendant’s preliminary objections to plaintiffs complaint for a declaratory judgment on the issue of a decedent’s residence in regard to possible benefits under terms of an insurance policy. Defendants contend that such a determination is a matter for arbitration inasmuch as the policy issued by plaintiff Harleysville to defendant Dorothy M. Drake contains a clause providing for arbitration “(A) If [Harleysville] and an ‘insured’ do not agree: (1) whether that person is legally entitled to recover damages under this Part [C-Uninsured Motorists Coverage].”

It must be noted that judicial inquiry in a case where arbitration is sought pursuant to an agreement is limited to determining whether there was an agreement to arbitrate and whether the current dispute comes within the scope of the arbitration provision. Rocca v. Pennsylvania General Ins. Co., 358 Pa. Super. 67, 70, 516 A.2d 772, 773 (1986), citing Flightways Corp. v. Keystone Helicopter Corp., 459 Pa. 660, 331 A.2d 184 (1975).

It is uncontested that the policy at issue does contain an agreement to arbitrate. Plaintiff, however, argues that the arbitration clause applies only to an “insured” and that to be an “insured” decedent had to be a “resident” of Mrs. Drake’s household at the time of the accident. This issue is remarkably similar to that in the very recent case of Anderson v. Erie Ins. Group, 384 Pa. Super. 387, 558 A.2d 886 (1989), wherein a decedent’s estate filed claim that was denied by the insurer because the insurer alleged that the decedent was not an “occupant” of the insured vehicle at the time of her death.

In holding that the insurer had to arbitrate its contention that the decedent was not an “occupant” as required by the policy, and hence, not insured under it so as to allow recovery by her estate, the Superior Court found that the determination of the decedent’s “occupancy” fell within the scope of that policy’s arbitration clause.

Likewise, in the instant case, after careful consideration of the arbitration clause contained within the policy that Harleysvüle issued to Mrs. Drake, this court has concluded that the determination of whether decedent was a “resident” of Mrs. Drake’s household at the time of the accident, and thus an “insured” under terms of the policy, falls within the scope of the arbitration clause because the clause provides for arbitration of disagreements between Harleysvüle and the “insured” over whether “that person” is legally entitled to recover damages.

Defendants’ preliminary objections to the request for a declaratory judgment must, therefore, be sustained.

Accordingly, the court enters the following

ORDER

And now, October 4, 1989, the within preliminary objections are hereby sustained and the complaint dismissed.

       “Insured” is defined in the policy as “you or any ‘family member. ’ ” “Family member” is defined as “a person related to you by blood, marriage or adoption who is a resident of your household.”