author: HORAN, J.,

text:
    PennDOT v. Graham

      C.P. of Butler County,
    no. 99-40041.

      Jeffrey L. Giltenboth, for Commonwealth.

      Alexander H. Lindsay Jr., for defendant.
    June 4, 1999
   HORAN, J.,

— Before the court for consideration is motorist’s license suspension appeal from the Commonwealth of Pennsylvania Department of Transportation’s notice of suspension under 75 Pa.C.S. § 1547(b) for refusal to submit to chemical testing. Hearing on this appeal was held on May 4, 1995. For the reasons which follow, said appeal is dismissed.

The pertinent facts of the case are as follows:

On January 1, 1999, Officer Randall Davison of the Middlesex Township Police Department was dispatched to a single vehicle accident along Route 228 east. He observed the appellant, Eric Wesley Graham, strapped to a backboard and being prepared by paramedics for transportation to the Butler Memorial Hospital. He made several observations about the accident scene and appellant at that time. Officer Davison noticed that the accident vehicle was laying on its driver’s side in the opposite direction from which it had traveled. He observed several injuries to appellant’s head as well as some scrape wounds. Officer Davison could also smell the odor of alcohol on appellant’s breath. Appellant informed Officer Davison that he had been driving too fast and had lost control of his vehicle.

Officer Davison requested appellant to submit to a breath test. Appellant initially stated that he would not take the test, then he stated that he would. He then stated for a second time that he would not take the test, then he stated again that he would. Appellant attempted to blow into a portable breathalyzer machine but was incapable of giving a sufficient breath sample. Officer Davison considered appellant’s conduct to be a refusal because he gave an insufficient breath sample.

Officer Davison accompanied appellant when he was transported to the Butler County Memorial Hospital. He observed that appellant appeared to be in pain even though he could speak fine. After they arrived at the hospital, Officer Davison read appellant the chemical test warnings and requested him to submit to a blood alcohol test. Appellant refused to take a blood alcohol test. Officer Davison warned appellant that if he refused to submit to the test it would cause him to lose his license for one year. Appellant responded that he refused to say anything. He also wrote “refused” on the chemical test warnings form and stated “I ain’t signing nothing.” Appellant testified that he was given pain medication while he was in the hospital. He was later released from the hospital to his niece.

Appellant’s niece transported him to his brother’s house. Appellant’s brother, Barry Graham, observed that he was in intense pain upon their arrival. Appellant informed his brother that he was in pain and having trouble breathing. Mr. Barry Graham testified that he felt his brother should never have been released from the Butler County Memorial Hospital. He immediately drove appellant to Allegheny General Hospital for further evaluation. Mr. Barry Graham kept trying to speak to appellant while en route to the hospital. However, when appellant responded, he made no sense. Appellant was placed in the hospital’s trauma unit for four days with a diagnosis of internal injuries, including a collapsed lung.

Appellant filed this appeal from an order of PennDOT suspending his driver’s license and supersedeas and argues that he did not knowingly refuse to submit to a chemical test because he had a significant head injury at the time. He also argues that his failure to respond to officer Davison’s request to submit to a blood alcohol test suggests that he was in a somewhat confused state.

PennDOT argues that appellant did not establish that he was not capable of making a knowing and conscious refusal to submit to a blood alcohol test. He did not present medical testimony as is required where his injuries were not severe, incapacitating and obvious. Penn-DOT also argues that appellant’s hospital records and testimony do not meet his burden in this case.

The sole issue currently before the court is whether or not appellant was capable of making a knowing and conscious refusal to submit to a blood alcohol test under 75 Pa.C.S. § 1547(b). We find, after a review of relevant Pennsylvania law and the facts in the case that appellant was capable of making a knowing and conscious refusal to submit to a blood alcohol test.

PennDOT’s burden for establishing when a motorist’s operating privilege may be suspended for refusing to submit to a chemical test is well settled:

“A motorist’s operating privilege may be suspended as a result of a refusal to submit to a chemical test if the department establishes: (1) that the motorist was arrested by an officer who had reasonable grounds to believe that the motorist was driving while intoxicated; (2) that the motorist was requested to submit to a chemical test; (3) that he was informed that a refusal to submit to such testing would result in a suspension of his operating privileges; and (4) that he refused to submit to the test. . . . Once the department has proven that the motorist failed to submit to the chemical test, the burden then shifts to the motorist to prove by competent medical evidence that he was not capable of making a knowing and conscious refusal. . . . However, whether a motorist’s refusal is knowing and conscious is a factual determination to be made by the trial court, which cannot be overturned on appeal if based on substantial evidence.” Gordon v. PennDOT, 707 A.2d 1195, 1197 (Pa. Commw. 1998) (citations omitted); see also, Ostermeyer v. PennDOT, 703 A.2d 1075, 1077 (Pa. Commw. 1997); Marinaro v. PennDOT, 703 A.2d 1066, 1067-68 (Pa. Commw. 1997).

Officer Davison had reasonable grounds to believe appellant was driving while intoxicated based on certain observations he made of the appellant and of the accident scene. He could smell the odor of alcohol on appellant’s person when he arrived at the accident scene. He read appellant the chemical test warnings at the hospital. Officer Davison then requested appellant to submit to a blood alcohol test. Appellant refused to submit to a blood alcohol test. He was further informed that a refusal to submit to a blood alcohol test would result in a suspension of his operating privileges for one year. Appellant responded that he refused to say anything. Thus, PennDOT has proven that appellant failed to submit to a blood alcohol test.

Next, it is appellant’s burden to establish that he was not capable of making a knowing and conscious refusal to submit to a blood alcohol test. A driver’s mental and physical state are important factors to be considered in determining whether a driver made a knowing and conscious refusal to submit to a blood alcohol or an intoxilyzer test. PennDOT v. Day, 93 Pa. Commw. 49, 500 A.2d 214 (1985). The nature and extent of the driver’s injuries are important considerations when addressing this issue. Id.

We find appellant presented no evidence to establish that he was suffering from a physical impairment that rendered him incapable of making a knowing and conscious refusal to submit to a blood alcohol test. Appellant did not complain of any injuries at any time to Officer Davison even though he observed some injuries to appellant’s head and some scrape wounds. Appellant did not appear to be in pain and he was able to talk with Officer Davison. The hospital records contain a notation of a head injury. Appellant made no complaint of a headache. There was no significant treatment related to a head injury. Thus, appellant presented no credible nonmedical evidence to prove he was suffering from a physical impairment such that he was not capable of making a knowing and conscious refusal to submit to a blood alcohol test.

In regards to appellant’s mental state, Officer Davison spoke with appellant at the accident scene. Although appellant appeared indecisive at first as to whether he would submit to a breath test, he subsequently agreed to do so. Appellant informed Officer Davison that he had been driving too fast and had lost control of his vehicle. Officer Davison spoke with appellant again at the Butler County Memorial Hospital. Officer Davison read appellant the chemical test warnings and requested him to submit to a blood alcohol test, which he subsequently refused. Appellant appeared capable of understanding the chemical test warnings. Officer Davison warned appellant that if he refused to submit to the test it would cause him to lose his license for one year. Appellant responded that he refused to say anything. We find that appellant exhibited an ability to speak clearly and respond appropriately when he conversed with Officer Davison. Thus, with the exception of some early disorientation at the scene of the accident, there is no evidence of disorientation or confusion to explain any incapacity to consciously or knowingly refuse to submit to a blood alcohol test. The appellant presented insufficient nonmedical evidence to prove he was suffering from a mental impairment such that he was not capable of making a knowing and conscious refusal to submit to a blood alcohol test.

Appellant testified that he could not recall either meeting Officer Davison on the night of his accident or speaking with him at all. However, he testified that he did remember being scared. It is well established that a motorist’s assertion of physical incapacity without any supportive medical evidence is insufficient to meet the required burden of proof in a license suspension appeal hearing. See Day, supra. Similarly, in Waigand v. Commonwealth, 68 Pa. Commw. 541, 542, 449 A.2d 862, 863 (1982), the appellant argued that he did not make a knowing and conscious refusal to submit to a breathalyzer test because he could remember nothing between the time when he was in a bar with his friends one day and when he woke up in jail the next day. The court held the appellant in the Waigand, supra, case failed to present sufficient evidence to support his allegations of incapacity, where the arresting officer testified that appellant appeared “cognizant.” Id. Therefore, in the present case, we find appellant’s assertion that he has no memory of ever speaking to Officer Davison to be insufficient evidence of incapacity in light of the officer’s testimony.

Appellant cites to PennDOT v. Day, supra, in support of his position of incapacity. The facts presented in the Day case are inapposite to the situation in the case at bar. In Day, the Pennsylvania Commonwealth Court found that a driver can establish that a refusal to submit to a blood-alcohol examination was not conscious and knowing, without medical testimony to establish a connection between the injuries sustained and the refusal to take the test. The driver in Day suffered multiple injuries that included a broken jaw, an injured leg, and blows to the back of the head. These physical injuries caused the driver to suffer from rambling speech, confusion, and at times, a total loss of memory. As such, the condition of the driver was severe, incapacitating and obvious such that medical testimony was not required.

In the present case, although the appellant’s injuries were serious, their effect upon his ability to make a knowing and conscious refusal was not incapacitating, severe or obvious. Thus, medical evidence of incapacity is necessary.

Appellant argues that his hospital records are admissible hearsay pursuant to the Uniform Business Records as Evidence Act and as a statement made for the purpose of medical diagnosis or treatment. Certain components of appellant’s hospital records constitute inadmissible hearsay. Hearsay can be “defined as in-court evidence of an out-of-court declaration, whether oral or written, which is offered to show the truth of the out-of-court assertion.” Rafter v. Raymark Industries Inc., 429 Pa. Super. 360, 365, 632 A.2d 897, 899 (1993). Pennsylvania law does not include opinions and diagnoses within records of regularly conducted activity. See comment to Pa.R.Evid. 803(6). However, hospital records are admissible as evidence to show the fact of hospitalization; treatment prescribed, and symptoms given. Commonwealth v. DiGiacomo, 463 Pa. 449, 455, 345 A.2d 605, 608 (1975). A medical opinion contained within records and offered by one party through expert testimony is not admissible where the doctor is not available for cross-examination. Appellant offered no expert medical testimony. Appellant referred to his hospital records during testimony. The medical diagnoses contained in the records are not admissible under the Uniform Business Records as Evidence Act or as a statement made for the purpose of medical diagnosis or treatment.

Based upon the testimony elicited at the proceedings, appellant refused to submit to a blood alcohol test in violation of the implied consent law (75 Pa.C.S. §1547(b)). Notwithstanding the testimony by appellant that he was not capable of making a knowing or conscious refusal, his testimony is not as believable as that of the police officer. The appellant presented no expert medical testimony to support that he was not capable of making a knowing and conscious refusal. Thus, the appellant has not met his burden in this case. The actions of appellant indicate a conscious and knowing refusal to submit to a blood alcohol test. Hence, the suspension of his operating privileges was proper. This appeal from that suspension lacks merit.

Accordingly, we enter the following:

ORDER

And now, June 4, 1999, after due consideration of record and in accordance with the foregoing memorandum opinion, motorist Eric Wesley Graham’s license suspension appeal is dismissed.


source: Caselaw Access Project

author: WALLACH MILLER, J.,

license: Public Domain

text:
    Reinhardt v. Birnbaum

      C.P. of Monroe County,
    no. 6681 Civil 1997.

      Kevin J. Dempsey, for plaintiff.

      John R. O’Rourke Jr., for defendant.
    December 21, 1998
   WALLACH MILLER, J.,

— James Calvin Reinhardt, the 23-year-old son of plaintiffs, Joseph and Mary Jane Reinhardt, died on November 25, 1995 in a fire that occurred in a second story apartment they leased located at 1080 West Main Street, Stroudsburg, Monroe County. Plaintiffs have filed a wrongful death and survival action against the defendants, Wayne and Michele Bimbaum, landlords, in an effort to recover for their son’s death.

The landlords have now filed a motion for summary judgment asserting two arguments. First, they point to the hold harmless clause of the lease between the parties alleging it was the decedent’s own negligence that caused his untimely death, in that a certified fire investigator found that the origin of the fire was a frayed extension cord which decedent, a 300-pound man, had stmng between his mattress and box spring. Defendants alternatively argue that a release signed by the plaintiffs exonerates them from these claims.

Summary judgment is only properly granted in those cases where the right to such a judgment is clear and there are no material facts at issue. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991); Musser v. Vilsmeier Auction Co. Inc., 522 Pa. 367, 562 A.2d 279 (1989). A material fact is one which affects the outcome of the case, Beach v. Burns International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991), and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Co. v. Pike Coal Co., 488 Pa. 198, 412 A.2d 466 (1979). In other words, we must examine the record in the light most favorable to the non-moving party. Ducjai v. Dennis, 431 Pa. Super. 366, 636 A.2d 1130 (1994).

The landlords first contend that the hold harmless clause in the lease between them and the plaintiffs should excuse the claims asserted against them. Conversely, the plaintiffs argue this clause is unenforceable because it violates public policy.

The hold harmless clause in the lease reads in pertinent part:

“Lessee agrees to indemnify and hold lessor in the property of lessor, including said premises and the building free and harmless from any and all liability, claims, loss, indemnities, or expenses . . . caused or allegedly caused by... the fault of lessee, or some act or omission, whether or not negligent or intentional, of lessee ....”

The test used to determine the enforceability of hold harmless clauses is the same one used for exculpatory clauses, although their effect is different. Dilks v. Flohr Chevrolet, 411 Pa. 425,192 A.2d 682 (1963). Three conditions must be met. The clauses must not contravene public policy, the contract, between the parties must relate to their private affairs, and each party must be a free bargaining agent to the agreement. Valhal Corp. v. Sullivan Associates Inc., 44 F.3d 195 (3d Cir. 1995); see also, Topp Copy Products Inc. v. Singletary, 533 Pa. 468, 626 A.2d 98 (1993). The plaintiffs argue that this clause is against public policy.

Assuming arguendo that the faulty extension cord was the cause of the fire, the landlords seek to be held free and harmless from any liability based on the decedent’s negligence. Plaintiffs argue this clause should fail because there were no smoke detectors in the apartment on the day of the fire, thus violating certain legislative laws. They rely on violations of section 919.3.2 of the Building Officials and Code Administrators Code and 36 P.S. §1223.2 both pertaining to the installation of fire detection devices.

We are constrained to deny summary judgment at this time. It is important to note that there is conflicting deposition testimony on whether there were smoke detectors, if ever, in the entire building before the fire occurred. Whether such smoke detectors were at all installed, or they were once installed but later removed by the tenants, is a genuine issue of material fact and a proper issue for the jury to sort out. See Marks, supra.

The next issue before this court is whether a release signed by the decedent’s parents absolves the landlords from any claims or liability made against them.

The release reads:

“This cancels the lease made March 5, 1991 between Ro-Jo Realty lessors and present owners Wayne and Michele Bimbaum and Joseph and Mary Reinhardt lessees of 1080 rear W. Main St. 2nd Floor Stbg. Pa. This payment is payment in full in the amount of $233. This releases both parties from any claims past, present, or future.”

Releases cover only matters that are within the contemplation of the parties when the release was given. Taylor v. City of Philadelphia, 140 Pa. Commw. 264, 592 A.2d 794 (1991); Sparler v. Fireman’s Insurance Co. of Newark, N.J., 360 Pa. Super. 597, 521 A.2d 433 (1987). The intention of the parties is paramount. General Mills Inc. v. Snavely, 203 Pa. Super. 162, 199 A.2d 540 (1964), and “the words of a release ‘should not be construed to extend beyond the express consideration mentioned so as to make a release for the parties which they never intended or contemplated.’ ” Sparler, supra at 601, 521 A.2d at 435.

The plaintiffs and the manager of the leased premises, Carla Tanner, entered into this handwritten agreement that plaintiffs claim is nothing more than a cancellation of the lease so the plaintiffs could secure their security deposit. The document itself lacks an exact date as to when the agreement was signed, but plaintiff, Mr. Reinhardt, agreed in his deposition that this agreement was signed after the fire occurred.

The defendants would have us interpret this handwritten release as one that prevents the plaintiffs from pursuing any causes of action against them. Their argument, that it was the intention of the plaintiffs to release all claims other than to retrieve their security deposit, is a factual question best left for a jury.

Accordingly, we enter the following order.

ORDER

And now, December 21,1998, defendants’ motion for summary judgment is denied.


author: STEWART, Member,

text:
    In re Anonymous No. 85 D.B. 97
    Disciplinary Board docket no. 85 D.B. 97.

      January 18, 1998
   To the Honorable Chief Justice and Justices of the Supreme Court of Pennsylvania:

STEWART, Member,

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

I. HISTORY OF PROCEEDINGS

Office of Disciplinary Counsel filed a petition for discipline against respondent, [ ], on July 15, 1997. The petition alleged that respondent violated Rules of Professional Conduct 1.7(b), 3.1, 3.3(a)(1), 5.1(c)(1), 5.1(c)(2), 8.4(a), 8.4(c), and 8.4(d) by his conduct in a bankruptcy matter. Respondent did not file an answer to the petition.

A disciplinary hearing was held on November 18,1997 before Hearing Committee [ ] comprised of Chair [ ], Esquire, and Members [ ], Esquire and [ ], Esquire. Respondent was represented by [ ], Esquire. Petitioner was represented by [ ], Esquire.

The committee filed a report on July 27, 1998 and found that respondent violated all of the Rules of Professional Conduct alleged in the petition for discipline, as well as Rule 3.3(b), and recommended that respondent receive a public censure.

Respondent filed a brief on exceptions on August 18, 1998 and contended that the committee erred in finding violations of Rules 3.3(a)(1), 3.3(b), and 8.4(c). Respondent requested the board impose private discipline consisting of either an informal admonition or a private reprimand.

Petitioner filed a brief opposing exceptions on September 15, 1998 and contended that the committee correctly determined the rule violations and recommended an appropriate sanction.

This matter was adjudicated by the Disciplinary Board at the meeting of October 5, 1998.

II. FINDINGS OF FACT

The board makes the following findings of fact:

(1) Petitioner, whose principal office is located at Suite 3710, One Oxford Centre, Pittsburgh, Pennsylvania, is invested, pursuant to Rule 207 of the Pennsylvania Rules of Disciplinary Enforcement, with the power and the duty to investigate all matters involving alleged misconduct of an attorney admitted to practice law in the Commonwealth of Pennsylvania and to prosecute all disciplinary proceedings brought in accordance with the various provisions of the aforesaid rules.

(2) Respondent was bom in 1943 and was admitted to practice law in Pennsylvania in November 1971. His office is located at [ ]. Respondent is subject to the disciplinary jurisdiction of the Disciplinary Board of the Supreme Court.

(3) At all times relevant hereto respondent represented [A], a debtor in a Chapter 11 bankruptcy action filed on January 20,1993, in the United States Bankruptcy Court for the [ ] District of Pennsylvania at no. [ ].

(4) The [A] proceeding was assigned to United States Bankruptcy Judge [B].

(5) During the period that respondent represented [A], the president and principal stockholder was [C].

(6) At all times relevant hereto, the Official Committee of Unsecured Creditors was represented by [D], Esquire, of the law firm [E].

(7) Between March and May 1993, respondent, [C], Attorney [D] and the Committee engaged in discussion regarding a plan of reorganization and/or sale of the company to parties who were not members of the Committee.

(a) During that time, respondent or [C] contacted [F], the principal of [G], a Committee member, and suggested that it purchase [A].

(b) [F] notified Attorney [D], who advised respondent that all such plans would have to be communicated through the Committee.

(8) During the afternoon of May 20, 1993:

(a) [¶] of [I], a company interested in purchasing [A’s] contract assembly and custom transformer operations, telephoned Attorney [D] to inform him that [¶] and other representatives of [I] were in [ ] conducting a due diligence inquiry on [A] and requested a meeting with Attorney [D].

(b) Attorney [D] met with [I] representatives.

(9) During the evening of May 20, 1993, respondent and [C], on behalf of [A], met with Attorney [D] and members of the Committee, at which time:

(a) Attorney [D] and the Committee members advised [C] and respondent that the Committee was willing to consider a plan of reorganization which provided for the conversion of debt to equity; some of the debtor’s largest suppliers who were on the Committee were willing to extend credit to debtor in connection with an acceptable plan; if the debtor’s plan only provided for payments over time, or for the conversion of debt to equity without any substantial payment up-front, the Committee’s support would be conditioned upon replacing current top-level management, including [C].

(b) Respondent met privately with [C] to determine his position, after which he responded to the Committee and Attorney [D] that [C] would be willing to leave the management of [A] if he were provided an employment contract, equity in the reorganized company, and a release and/or indemnification of his personal guarantees of [A’s] debts.

(c) Respondent expressed his view that Attorney [D] was representing the Committee members as individuals.

(d) Attorney [D] advised respondent that he was representing them only as members of the Committee, and that the offer was made with the knowledge and assent of the Committee members.

(e) Respondent did not believe Attorney [D],

(10) On May 21,1993, respondent learned that Attorney [D] had met with representatives of [I] the previous day.

(11) On May 21, 1993, respondent telephoned Attorney [D], at which time respondent requested that [D] not meet with representatives of [I] unless negotiations between [I] and [A] reached an impasse. Attorney [D] agreed to the request.

(12) By letter dated June 4, 1993, Attorney [D] advised respondent inter alia:

“The position of the Committee with respect to [C] is clear. It will not accept any plan of reorganization which provides for payments over time or which provides for the conversion of debt to equity if the plan also provides that [C] will continue in a management role. [C] is believed to be part of the problem and not part of the cure.”

(13) By letter to Attorney [D] dated June 8, 1993, respondent asserted that:

(a) Attorney [D] represented members of the Committee both in their capacity as representatives of the creditors and individually as potential purchasers of the business.

(b) This alleged dual representation involved Attorney [D] in an impermissible and unwaivable conflict of interest.

(c) Attorney [D] should withdraw as counsel for the Committee.

(d) If he did not do so, debtor would seek the U.S. trustee’s assistance or file an action in bankruptcy court.

(14) By letter to Attorney [D] dated June 14, 1993, respondent reiterated the demand made in the June 8, 1993 letter that the [E] firm withdraw as counsel to the Committee.

(15) Judge [B] later found that respondent’s accusations in the June 8 letter were without foundation, and he took the position asserted in the June 8 and June 14 letters merely for purposes of delay and to obtain advantage for [C], in that [D] represented the creditors’ positions in opposition to [C], and in that a change of counsel for the Committee would delay the proceedings and give [C] leverage in pressing his demands.

(16) Attorney [D] sent a letter to respondent dated June 16,1993 and denied that the Committee or any member had any intention to pursue a plan that would benefit any individual as opposed to all of the creditors. Attorney [D] denied that there was any conflict of interest.

(17) On June 28, 1993, [J], Esquire, an associate in respondent’s law firm, acting with respondent’s knowledge and at his direction, filed an adversary complaint and a motion for preliminary injunction against attorney [D] and the [E] firm.

(18) The complaint contained six counts and asserted causes of action for: breach of fiduciary duty; breach of contract; promissory estoppel; libel and slander; libel per se and slander per se; and intentional and negligent interference with contractual and prospective relations.

(19) The complaint alleged, among other things, that Attorney [D] and the [E] firm represented individual members of the Committee in their individual efforts to acquire control of ownership of the debtor, in direct conflict with the best interests of the class of unsecured creditors of the debtor.

(20) The motion for preliminary injunction alleged among other things, that Attorney [D] and the [E] firm owed a significant fiduciary duty to the unsecured creditors’ Committee, which was breached by the individual representation of the individual Committee members.

(21) By order of July 1,1993, Judge [B] scheduled an emergency hearing on the motion for July 8, 1993, and respondent was so notified.

(22) Respondent reviewed this order on July 6, 1993 and advised the judge’s clerk that a continuance was necessary because [C] was out of the country on July 8.

(23) On July 6 and July 7, 1993, respondent spoke to [C] and knew that he was in the country and available for the hearing. At no time did respondent advise the court of [C’s] availability.

(24) The court rescheduled the hearing on the motion for August 3, 1993.

(25) By letter of July 16, 1993, [K] of the [E] firm informed respondent that Attorney [D] and the firm continued to represent the Committee, and not any individual member of the Committee.

(26) On July 20, 1993, the [E] firm, on behalf of the Committee, filed a motion for sanctions against respondent’s firm pursuant to Bankruptcy Rule 9011 and Rule 11 of the Federal Rules of Civil Procedure, and a motion for summary judgment in the adversary proceeding.

(27) On August 3, 1993, a hearing was held on respondent’s motion for preliminary injunction.

(28) After the testimony of three witnesses, it became apparent to respondent that the court was not favorably disposed to the motion. Respondent then withdrew the entire adversary proceeding, including the complaint and the motion.

(29) On August 25, 1993, respondent’s firm submitted its fee application in the matter.

(30) A hearing was held on October 20, 1993 on the fee application and the motion for sanctions filed by the [E] firm.

(31) By opinion and order dated November 2, 1993, Judge [B] disallowed respondent’s firm’s fee petition, finding, inter alia:

(a) Debtor’s counsel failed to make any reasonable inquiry into the underlying facts before filing the complaint.

(b) The purpose of the complaint was to separate the Committee from its chosen counsel due to the fact that counsel for the Committee was advocating the Committee’s position to remove [C] from management.

(c) [Respondent] filed a lawsuit against the attorneys for the Committee seeking $4.25 million for the sole purpose of protecting his real client [C] from the legitimate actions of the Committee.

(d) [Respondent] never had any intent to proceed with a trial on the merits of the complaint. His scheme was to use the lawsuit as a wedge to intimidate the Committee and its counsel in his negotiations with it for the benefit of [C].

(e) Respondent’s inappropriate conduct affected the entire case.

(f) Both the debtor and its counsel exhibited conduct of dishonesty, incompetency and gross mismanagement of the affairs of the debtor.

(32) By memorandum opinion and order dated August 8,1994, the United States District Court for the [ ] District of Pennsylvania affirmed the November 2,1993 order of the bankruptcy court.

(33) By decision dated June 22,1995, the United States Court of Appeals for the Third Circuit affirmed the district court’s memorandum and opinion.

(34) Respondent testified at the hearing as to the direct and indirect financial costs suffered by him and his firm as a result of his actions in the [A] case. (N.T. 62, 63.) These costs included not only the disgorgement of fees already paid to the law firm and denial of fees and expenses, but the costs of hiring representation for the firm.

(35) Respondent’s firm had basically stopped representing debtors and respondent himself has not been involved in debtor bankruptcy. (N.T. 63, 64.)

(36) Respondent is involved in discovery and motion practice, as well as settlements, but he does not try cases. (N.T. 64.)

(37) Respondent testified that the case of [Respondent’s firm] P.C. v. [A], [ ], is well-known among the bankruptcy bar and is referred to frequently by competitors of respondent’s firm. (N.T. 65.)

(38) A malpractice suit was filed against respondent’s firm and respondent personally by the bankruptcy trustee of [A]. This suit is pending. (N.T. 65-66.)

(39) Respondent testified that he has learned from his experience. He makes certain that information he tells a judge is absolutely correct, and if it is not, he makes sure the judge knows. (N.T. 66.)

(40) Respondent has changed his practice so that if he ever is involved in a Chapter 11 action, he will make certain that the principal and the corporation have separate representation, even though bankruptcy rules do not require this. (N.T. 68-69.)

(41) Respondent gave up all of his management responsibilities except on a consulting basis. (N.T. 74.)

(42) Respondent expressed remorse for filing the complaint against Attorney [D] and the [E] firm, and personally apologized to Attorney [D]. (N.T. 71, 80.)

(43) Respondent has no record of prior discipline.

III. CONCLUSIONS OF LAW

Respondent violated the following Rules of Professional Conduct:

(1) R.P.C. 1.7(b) — Representing a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests;

(2) R.P.C. 3.1 — A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law;

(3) R.P.C. 3.3(a)(1) — Knowingly making a false statement of material fact or law to a tribunal;

(4) R.P.C. 3.3(b) — The duties in paragraph (a) of Rule 3.3 continue to the conclusion of the proceedings, and apply even if compliance requires disclosure of information otherwise protected by Rule 1.6;

(5) R.P.C. 5.1(c)(1) — A lawyer shall be responsible for another lawyer’s violation of the Rules of Professional Conduct if the lawyer orders or, with knowledge of the specific conduct, ratifies the conduct involved;

(6) R.P.C. 5.1(c)(2) — A lawyer shall be responsible for another lawyer’s violation of the rules if the lawyer is a partner in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows in either case of the conduct at a time when the consequences can be avoided or mitigated but fails to take reasonable remedial action;

(7) R.P.C. 8.4(a) — Violating or attempting to violate the Rules of Professional Conduct;

(8) R.P.C. 8.4(c) — Engaging in conduct involving dishonesty, fraud, deceit or misrepresentation;

(9) R.P.C. 8.4(d) — Engaging in conduct that is prejudicial to the administration of justice.

IV. DISCUSSION

This matter was initiated by a petition for discipline filed against respondent on July 15, 1997. The petition alleged misconduct by respondent in connection with his representation of [A], a debtor in a Chapter 11 bankruptcy action filed in the United States Bankruptcy Court for the [ ] District of Pennsylvania. The petition alleged that respondent engaged in a conflict of interest by advocating on behalf of the principal of the debtor, rather than the corporate debtor, that respondent filed or authorized frivolous and false pleadings in furtherance of the interests of the principal, that respondent delayed an adversary matter in order to gain advantage for the principal, and that respondent failed to correct a material misrepresentation to the bankruptcy court.

The Disciplinary Board conducts a de novo review of all disciplinary matters that come before it upon recommendation by a Hearing Committee. Office of Disciplinary Counsel v. Duffield, 537 Pa. 485, 644 A.2d 1186 (1994). The board must first determine whether petitioner has proven by clear and satisfactory evidence that petitioner violated the Rules of Professional Conduct. If a violation is found, the board next determines the appropriate disciplinary sanction, based on the nature and gravity of the misconduct, and the aggravating and mitigating factors present.

This disciplinary case was heard on November 18, 1997, at which time petitioner and respondent presented a stipulation of facts which included an admission that respondent violated at least one Rule of Professional Conduct. Respondent offered his own testimony on the issue of discipline to be imposed.

The bankruptcy court characterized the respondent’s conduct as follows:

“In short, [respondent] filed a lawsuit against the attorneys for the creditors’ Committee seeking $4.25 million in damages for the sole purpose of protecting his real client, [C], from the legitimate actions of the creditors’ Committee in opposing [C’s] management of the debtor’s business. It may be that the defendants, the [E] firm and [D], recognized the allegations as being without a factual foundation and therefore the lawsuit was not a cause of concern other than the extensive amount of investigation and trial work necessary in order to make sure that all the facts were before the court. However, we might conjecture that some lawyers, upon being named a defendant in a $4.25 million lawsuit brought by an impressive [ ] law firm, might not have had the intestinal fortitude to fight it out — they might have yielded and compromised with the illegitimate purposes sought to be obtained by [respondent]. Viewed in this light, the actions of [respondent] as an officer of the court in violating his fiduciary duties and in bringing such an action are absolutely not to be condoned. We view it as a disgrace to the legal community which we otherwise hold in high regard.
“We further conclude that [respondent] never had any intent to proceed with a trial on the merits of this complaint. He knew when he filed the complaint that the allegations were unsupported. His scheme was to file the complaint, demand the $4.25 million from the creditors’ Committee counsel, and then delay a hearing on the merits while he used the lawsuit as a wedge to intimidate the creditors’ Committee and its counsel in his negotiations with it for the benefit of [C]. This explains [respondent’s] untruthful statements to this court’s clerk on July 6 that [C] was out of the country and would not be available for the evidentiary hearing scheduled for July 8. When [respondent’s] complaint was filed, it was accompanied by a motion for preliminary injunction bringing it to the attention of the court. The court immediately saw it as a deadlock to any further negotiations on a plan of reorganization. The court also considered that if there were any factual support for the serious allegations of the complaint, the creditors’ Committee counsel should be removed and that if there were any such factual support, a prima facie case could be quickly made out by the plaintiff. Thus, we attempted to schedule a quick evidentiary hearing. [Respondent’s] purpose was to the contrary. His effort was to stall the evidentiary hearing, to keep the complaint alive and use it as leverage for his own improper purposes in representing [C] individually. That illicit purpose plus the total lack of any evidentiary basis for the serious accusations made in the complaint cry out for judicial recognition and appropriate sanctions.” In re [A], [ ] at 931-32.

We believe that in light of the egregious conduct of the respondent, that the appropriate sanction is public censure. Respondent’s conduct was much worse than his characterization of it “as overzealously crossing the line in representing the interest of a client.” (Respondent’s brief at p. 5.) It amounted to a clear abuse of the legal system. The board cautions counsel that the board’s recommendation in this matter should not be used as an opportunity to generate a disciplinary complaint every time a zealous advocate’s complaint is dismissed. The board does, however, want to make it clear that practitioners should carefully study Rule 3.1 before pressing claims with no basis in fact particularly where those claims are made against opposing counsel.

V. RECOMMENDATION

The Disciplinary Board of the Supreme Court of Pennsylvania recommends that the respondent, [ ], be subjected to a public censure by the Supreme Court of Pennsylvania.

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

Vice-Chair Caroselli did not participate in the consideration and disposition of this matter.

Board Member Schultz did not participate in the October 5, 1998 adjudication.

ORDER

And now, March 15, 1999, upon consideration of the report and recommendations of the Disciplinary Board dated January 18,1999, it is hereby ordered that [respondent] be subjected to public censure by the Supreme Court.

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


text:
    Sprankle v. Brown

      C.P. of Indiana County,
    no. 10619 CD 1996.

      Thomas Kaujfman, for plaintiff.

      Dennis J. Stoffco, for defendants.
    June 16, 1999
   MARTIN, P.J.,

— This matter comes before the court for resolution of defendants’ motion for summary judgment. For the reasons discussed herein, the motion is granted.

FACTS

On April 4, 1996, Kathleen Sprankle instituted this action against James Brown and Marilyn Brown. This suit arose out of a motor vehicle accident which occurred on April 19, 1994.

Plaintiff claims that as a result of the accident she suffered the following injuries:

“(a) Fractured rib;
“(b) Cervical sprain/strain;
“(c) Whiplash;
“(d) Lumbar sprain/strain;
“(e) Thoracic sprain/strain;
“(f) Neck sprain/strain;
“(g) Weakness of upper extremities;
“(h) Chronic fatigue;
“(i) Neck and back pain;
“(j) Stiffness of upper back and neck;
“(k) Minor facial pain, shoulder and neck;
“(1) Chronic pain;
“(m) Swelling of the back and neck;
“(n) Discomfort in back/neck;
“(o) Decreased/restricted ability to concentrate;
“(p) Severe headaches; and
“(q) Blurred vision.” (Pl.’s brief in opposition, p. 3.)

Following the accident, plaintiff underwent physical therapy three times per week for seven to eight months and is under prescription for pain medication for an indefinite period of time. Also, plaintiff asserts that the severe neck pain she suffered caused an inability to concentrate and/or read and as a result, she was forced to request an extension of time to complete her correspondence course to obtain a diploma as a medical/dental assistant. (Pl.’s brief in opposition, p. 3.) She has since completed the course and received her diploma, but she had to postpone the course for 16 months due to her injuries. Plaintiff is still unable to read or concentrate for more than half an hour at a time. Additionally, plaintiff alleges that she is no longer able to do any heavy lifting, perform certain household tasks or take long walks. (Pl.’s brief in opposition, p. 3.)

Defendants argue that plaintiff has recovered from all the injuries that were a result of the motor vehicle accident. She now only has subjective complaints of continued pain and plaintiff’s own treating physician has indicated that plaintiff has been suffering from a chronic discomfort in her back and neck due to a preexisting condition.

Defendants are presently moving for summary judgment and argue that plaintiff has not suffered a “serious injury” which would permit her to recover noneconomic damages pursuant to 75 Pa.C.S. §1705 because plaintiff elected the “limited tort” insurance option.

APPLICABLE LEGAL STANDARD

Summary judgment is appropriate only where it is clear and free from doubt that “the pleadings, depositions, answers to interrogatories, admissions and affidavits demonstrate that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” Rickman v. Mosites, 704 A.2d 655, 657 (Pa. Super. 1997) (citing Albright v. Abington Memorial Hospital, 548 Pa. 268, 696 A.2d 1159 (1997)).

When determining whether summary judgment is proper the court “must view the record in the light most favorable to the non-moving party, and all doubt as to the existence of a genuine issue of material fact must be resolved against the moving party.” State Farm Automobile Insurance Co. v. Universal Underwriters Insurance Co., 549 Pa. 518, 521, 701 A.2d 1330, 1331 (1997). The moving party has the burden of proving that no genuine issue of material fact exists. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 684 A.2d 137 (1996). Finally, because summary judgment will bring an end to a cause of action, it is appropriate in only the clearest of cases. Leonelli v. McMullen, 700 A.2d 525 (Pa. Super 1997).

DISCUSSION

Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., requires automobile insurers to offer both limited tort and full tort options to its customers. The limited tort option, 75 Pa.C.S. § 1705(d), provides as follows:

“Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as a consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss....” (emphasis added)

75 Pa.C.S. §1702 defines “serious injury” as a personal injury resulting in death, serious impairment of body function or permanent serious disfigurement. The limited tort option allows insurers to offer coverage at reduced premium rates in exchange for the insured waiving his or her right to sue for noneconomic damages, such as pain and suffering, unless he or she suffers a “serious injury” in an automobile accident. Dodson v. Elvey, 445 Pa. Super. 479, 484, 665 A.2d 1223, 1226 (1995), rev’d, 554 Pa. 245, 720 A.2d 1050 (1998).

Until recently, the leading case on this issue was Dodson, supra, where the Superior Court of Pennsylvania held that the trial judge must make the threshold determination of whether there has been a “serious injury” in all cases where the parties agree on the objective evidence relating to the nature and extent of the injuries suffered by the plaintiff. Id.

However, recently the Supreme Court of Pennsylvania rejected the reasoning of Dodson in Washington v. Baxter, 553 Pa. 434, 719 A.2d 733 (1998), and held that in order to stay true to the legislative intent in creating the limited tort statute, the traditional summary judgment standard is to be followed. Thus, the threshold determination is not to be made routinely by a trial court judge in determining if the injury is “serious,” but rather the decision is to be left to a jury unless reasonable minds could not differ on the issue of whether a serious injury has been sustained.

The Supreme Court of Pennsylvania went on to hold as follows:

“The ‘serious impairment of body function’ threshold contains two inquiries:
“(a) What body function, if any, was impaired because of injuries sustained in a motor vehicle accident?
“(b) Was the impairment of the body function serious? The focus of these inquiries is not on the injuries themselves, but on how the injuries affected a particular body function. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment,... the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. An impairment need not be permanent to be serious.” Washington, 553 Pa. at 447-48, 719 A.2d at 740, citing DiFranco v. Pickard, 427 Mich. 32, 39-40, 398 N.W.2d 896, 900 (1986).

The court applied this test in Washington and found that appellant’s right foot was impaired as the result of the motor vehicle accident in question. However, they did not find that this impairment was “serious.” Appellant was immediately treated in a hospital and discharged within a few hours. He missed four or five days of work at his full-time job, and missed approximately four of his weekly shifts at his part-time job. Treatment for his injuries was not extensive and although some type of arthritis or coalition continued to affect one of the joints in appellant’s right foot, it seemed to have had little or no impact on his performance at work or on his personal activities. Id. Although appellant had pain in his ankle approximately every other week, he was still able to perform his work duties and, aside from having to use a riding lawn mower instead of a manual mower, he engaged in normal daily activities. The court therefore found that reasonable minds could not differ on the determination that this impairment did not meet the serious injury threshold and they affirmed the grant of summary judgment in favor of appellees. Id.

Recently in Furman v. Shapiro, 721 A.2d 1125 (Pa. Super. 1998), the court applied the test as set out in Washington to determine if a genuine issue of material fact existed regarding the appellant’s injuries meeting the definition of serious impairment of a bodily function. Appellant was diagnosed with several back conditions, including a bulging disc, which prevented her from walking more than a block at a time, lifting heavy objects, and bathing her daughter. Appellant did continue to drive, perform household chores and work as a manicurist. However, she reduced her work hours from full-time to part-time because of her inability to remain in one position for an extended period of time. Id. at 1127.

Notably, appellant’s physician in Furman described her condition as permanent and her problems persisted at the time of her deposition taken over three years past the day of the accident. The Superior Court found that these injuries were sufficient to determine that reasonable minds could differ as to whether appellant suffered a “serious injury” for purposes of 75 Pa.C.S. §1702 and reversed the lower court’s grant of summary judgment in favor of appellees. Id.

In applying the same test to the facts of the case sub judice, this court must look at the facts in the light most favorable to the non-moving party and accept as true all well-pleaded facts. Banker v. Valley Forge Insurance Co., 401 Pa. Super. 367, 373, 585 A.2d 504, 507 (1992).

Initially, it is noted that plaintiff admitted to having fully recovered from the fractured rib, whiplash and swelling of her back and/or neck. (Defendant’s exhibit A.) Plaintiff claims that all other injuries, as set out above, are permanent.

The first question the court must address under the Washington test is what body function(s), if any, was impaired because of injuries sustained in a motor vehicle accident. Plaintiff alleges that her injuries have left her unable to read or concentrate for more than half an hour at a time and that this led to her 16 month postponement of obtaining her diploma as a medical/dental assistant. Plaintiff also alleges that she is unable to do any heavy lifting, perform certain household tasks or participate in some activities she once did, such as walking.

The next question under Washington is whether the impairment of the body functions was serious. As noted above, to determine if the injury was “serious,” the court must consider the extent of the impairment, the length of time the impairment lasted, the treatment required to correct the impairment, and any other relevant factors. Washington, 553 Pa. at 447-48, 719 A.2d at 740. Generally, medical testimony will be needed to establish the existence, extent, and permanency of the impairment although the injury need not be permanent to be serious. Id.

Accordingly, a review of the medical testimony revealed that plaintiff’s treating physician following the accident was Paul D. Burton D.O. In a letter to plaintiff’s counsel dated September 15, 1995, Dr. Burton stated the following:

“In summary, I do feel that this patient [plaintiff] sustained a cervical, thoracic, and lumbar strain and has had residual chronic pain which did appear to be a result from her motor vehicle accident on April 19, 1994. It is noted, however, that she has a history of underlying mild degenerative disc disease and spondylolysis in the low back, bursitis in the right hip, and has been diagnosed with ‘fibromyalgia.’ This may also be somewhat of a contributing factor. She may always have some discomfort in her back and neck areas from the preexisting problem with fibromyalgia. It becomes very difficult at times to separate a patient who has had a preexisting problem with an injury and how that is related. I do feel that all of her care with me was appropriate and necessary. With respect to further problems I think that a cervical and lumbar and thoracic strain should have resolved in the timeframe that I had seen her. That is why I sent her to Dr. Speezfor her physiatry care. I do not feel that she will have any significant increased problem from the motor vehicle accident itself in the future. ” (Defendants’ exhibit C.) (emphasis added)

Furthermore, in a more recent letter to plaintiff’s counsel dated April 25,1997, Dr. Burton reiterated his opinion as follows:

“It is my medical opinion that she [plaintiff] did sustain a cervical, thoracic, and lumbar strain from the motor vehicle accident of 19 April 1994. There are patients who have this type of injury who do have chronic pain. However, she had preexisting pain, and the extent that it was aggravated by the motor vehicle accident will be very difficult to ascertain. I think she will always have some chronic cervical, thoracic and lumbar pain and it may be impossible to relate that the motor vehicle accident triggered all of her symptoms. It may be that the motor vehicle accident was at least contributory to some of her chronic pain.” (Plaintiff’s exhibit A.)

Additionally, plaintiff’s deposition testimony, taken on November 12,1998, revealed that during the course of a day she typically does housework, laundry and grocery shopping for her family. She can no longer use a tractor to mow the six acres of lawn plaintiff and her husband own and she is unable to do any heavy lifting. However, plaintiff has no specific restrictions as to what amount she can lift and/or move.

Thus, considering plaintiff’s own testimony that she is able to perform most of her daily activities without complication, in conjunction with her treating physician’s remarks that plaintiff’s subjective complaints may all be due to a preexisting condition and that “it may be impossible to relate that the motor vehicle accident triggered all of her symptoms,” (plaintiff’s exhibit A), reasonable minds could not differ in the conclusion that plaintiff did not suffer a serious impairment of body function. There is no medical testimony to support a finding of a serious injury.

The court finds the case sub judice to be analogous with the facts of Washington, supra, where although the appellant had introduced evidence of some injury, including arthritis or coalition in his foot, the impact on him from the injury did not rise to the level of a “serious impairment of a body function.” Following his injury, appellant was able to perform his job functions and engage in personal activities, albeit he is no longer able to use a manual lawn mower. Thus, the Supreme Court of Pennsylvania affirmed summary judgment for appellees.

Similarly, in the instant matter, plaintiff’s injuries are not preventing her from performing her normal daily activities. She incurred some physical therapy and was prescribed pain medications. However, plaintiff did not undergo extensive medical treatment for her injuries. Furthermore, Dr. Burton’s treatment of plaintiff lasted approximately 14 months. At the end of the treatment, Dr. Burton related his medical opinion that her cervical, lumbar and thoracic strains should have resolved by then and that it was very difficult to separate her preexisting problems from possible injuries due to this motor vehicle accident. Thus,, even viewing the fact in the light most favorable to the plaintiff, reasonable minds could not differ in the conclusion that she did not suffer a “serious injury” under the definition in 75 Pa.C.S. §1702 and described more fully in Washington v. Baxter.

Wherefore, the court makes the following order.

ORDER

And now, June 16, 1999, after careful consideration of defendants’ motion for summary judgment, and following argument on the matter, it is hereby ordered and directed that motion is granted and plaintiff is precluded from recovering noneconomic losses from defendants in this matter.

      . Plaintiff’s injuries did not cause death. Nor does she allege permanent serious disfigurement. Thus, the only question for the court, under the definition of a “serious injury” set out at 75 Pa.C.S. §1702, is whether plaintiff suffered a serious impairment of body function.


author: WOELFEL JR., P.J.,

text:
    Debo v. Buckley

      C.P. of Snyder County,
    no. 192-1999.

      Edward D. Conway, for plaintiff.

      Martin A. Durkin, for defendant.
    October 18, 1999
   WOELFEL JR., P.J.,

— Plaintiff alleges that on July 4, 1997, he was an invited guest on defendant’s premises located on South Old Trail, Selinsgrove, Snyder County and that while the plaintiff was present the defendant negligently, carelessly, and recklessly detonated fireworks on his premises, resulting in severe and permanent injuries to plaintiff. Plaintiff avers that he suffered: multiple severe bums on his face, neck, hands and legs; skin discoloration and disfigurement; post-traumatic stress syndrome; past and future medical expenses; past and future pain and suffering; and impairment of his earning capacity.

Defendant has asserted preliminary objections to the complaint:

“(1) A motion to strike all references in the complaint to ‘recklessness’ or ‘reckless’ conduct to the extent that the facts averred do not support such allegations.
“(2) A motion to strike the ‘otherwise negligent’ and ‘negligent per se’ references in the complaint.
“(3) A demurrer claiming that plaintiff has not specifically pleaded his damage claims.”

For the reasons discussed below, defendant’s preliminary objections will be sustained in part.

Defendant seeks to strike all references to “reckless” conduct or “recklessness” in the complaint, asserting that plaintiff has not pleaded sufficient facts to support such a claim. Plaintiff argues in response that the mere fact that defendant detonated fireworks on his premises, in and of itself, demonstrates reckless conduct.

Our Supreme Court has previously determined that “a public fireworks’ display, handled by a competent operator in a reasonably safe area and properly supervised . . ., is not so dangerous an activity” as to constitute an ultra-hazardous activity giving rise to strict or absolute liability. Haddon v. Lotito, 399 Pa. 521, 523, 161 A.2d 160, 162 (1960). (emphasis added) Thereafter, in Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993), wherein plaintiff suffered injuries resulting from the explosion of a fireworks cannon on defendant’s property, the Supreme Court applied comparative negligence considerations in determining the proper application of the assumption of the risk defense. It is apparent from the court’s opinion that the detonation of fireworks was not viewed as an ultra-hazardous activity and that liability would rest on ordinary negligence considerations.

Finally, our Supreme Court opined that “this Commonwealth recognizes only one standard of care in negligence actions involving dangerous instrumentalities— the standard of reasonable care under the circumstances. It is well established by our case law that the reasonable man must exercise care in proportion to the danger involved in the act. . . . Thus, when a reasonable man is presented with circumstances involving the use of dangerous instrumentalities, he must necessarily exercise a ‘higher’ degree of care proportionate to the danger.” Stewart v. Motts, 539 Pa. 596, 605, 654 A.2d 535, 539-40 (1995). (citations omitted)

Thus, it would appear from the authority discussed above that the mere detonation of fireworks does not necessarily constitute reckless conduct, but may be viewed as negligent conduct depending on the circumstances involved. Plaintiff must then plead additional facts to support a claim of reckless conduct. We cannot discern any facts pleaded in this complaint that, if proven, would support a finding of reckless conduct. Thus, any references in the complaint to “reckless” conduct and its derivative must be stricken insofar as the references are conclusions unsupported by well-pleaded facts. However, plaintiff will be granted leave to amend his complaint to allege facts, if they exist, to support an allegation of reckless conduct.

Defendant also moves to strike paragraphs 5(e) and 5(f) of the complaint as violative of the requirement for fact pleading. “Catch-all” pleadings containing general allegations of negligence are viewed as violative of Rule 1019(a).

The specific language in the complaint to which defendant objects reads as follows:

“(5) The aforesaid conduct of defendant, Jeffrey Buckley, in detonating fireworks upon his premise's was negligent, careless and reckless conduct as follows:
“(e) negligence per se;
“(f) otherwise negligent, careless and reckless conduct as may be prohibited by state and local laws and ordinances and/or common law.”
“Under the Pennsylvania system of fact pleading, the pleader must define the issues; every act or performance essential to that end must be set forth in the complaint.” Miketic v. Baron, 450 Pa. Super. 91, 104, 675 A.2d 324, 330 (1996). It appears that paragraphs 5(e) and 5(f) do not describe an act or performance which support a claim of negligence, but merely constitute generalized and “boiler-plate” allegations of negligence. As such, paragraphs 5(e) and 5(f) do not comport with this Commonwealth’s pleading requirement, and accordingly, will be stricken from the complaint. However, plaintiff will be granted leave to amend the complaint to allege facts in support of a claim of negligence per se.

Finally, defendant has demurred to the complaint, claiming it is legally insufficient to the extent that plaintiff has not specifically, pleaded his damage claims as required by the procedural rules. Again, Rule 1019(f) states: “items of special damage shall be specifically stated.” However, damages such as past and future pain and suffering, past and future lost earning power, physical and mental shock constitute general damages which may be pleaded generally. See Magdule v. Feather, 44 D.&C.2d 192 (Lebanon Cty. 1968); Eby v. Sun Pipe Line Co., 21 D.&C.2d 190 (Lehigh Cty. 1960). We do agree that plaintiff’s assertion the he will probably sustain such damages is indeed inartful pleading and improper. Thus, any reference to “probable damages” must be stricken. However, we believe that defendant may reasonably discern from the pleadings the past and future damages for which plaintiff seeks recovery. Therefore, plaintiff’s complaint will not be stricken based upon insufficient damage claim.

SUMMARY

Defendant’s prehminary objections are granted in part. Defendant’s motion to strike all references to “recklessness,” “reckless conduct,” and/or “recklessly” is granted. Plaintiff will be granted leave to amend the complaint to plead facts in support of a claim for reckless conduct. Paragraphs 5(e) and 5(f) will be stricken. Plaintiff will be granted leave to amend his claim pursuant to a “negligence per se” theory. The demurrer to the complaint will be overruled.

ORDER

And now, October 18,1999, it is hereby ordered that:

(1) The defendant’s preliminary objection in the nature of a motion to strike all references in the plaintiff’s complaint that the defendant acted recklessly is granted.

(2) The defendant’s preliminary objection in the nature of a motion to strike paragraphs 5(e) and 5(f) is granted.

(3) The defendant’s demurrer to the complaint is overruled.

(4) The plaintiff is granted leave to file an amended complaint.

      . Pa.R.C.P. 1019(a) provides: “The material facts on which a cause of action ... is based shall be stated in a concise and summary form.”

      . In his brief, plaintiff asserts that the violation of a legislative enactment may constitute “negligence per se.” Plaintiff also specifically argues that defendant violated the Pennsylvania Fireworks Law, 35 Pa.C.S. § 1272. However, briefs are not pleadings. Thus, if plaintiff seeks a finding of “negligence per se” based upon a violation of the Pennsylvania Fireworks Law, he must so allege and not simply plead a global violation of some unidentified “state and local law and ordinance.”


author: MOTT, J.,

text:
    Allen v. Johnson

      C.P. of Bradford County,
    no. 99CV000076.

      Michael S. Levin, for plaintiffs.

      Raymond Ginn Jr., Darryl R. Wishard and Richard Gray, for defendants.
    June 25, 1999
   MOTT, J.,

— The plaintiff, Elden Allen Sr., alleges that he was injured when he was a passenger in a car driven by the defendant, Terry Sinsabaugh, and owned by the co-defendant, Beverly Sinsabaugh. According to Allen’s complaint, Terry Sinsabaugh collided with a vehicle driven by the defendant, Richard L. Johnson. Allen’s wife, the plaintiff, Margaret Allen, has filed a loss of consortium claim on her own behalf.

Johnson’s preliminary objections are identical to a portion of the Sinsabaughs’ preliminary objections. In those identical preliminary objections, it is asserted that several averments in the complaint do not have the factual specificity required by Pa.R.C.R 1019(a). The disputed averments read as follows:

“(8) The negligence, recklessness, and carelessness of the defendants, consisted of, but is not limited to, the following:
“(a) failing to properly operate and control their vehicles; ...
“(e) operating their motor vehicles without due regard for the health and safety of plaintiff;
“(f) failure to exercise due care under the circumstances;
“(g) violating the ordinances, statutes and regulations of the Commonwealth of Pennsylvania with respect to the proper operation of motor vehicles on public thoroughfares;
“(h) in being otherwise careless, reckless and negligent in fact and at law; and
“(i) such other negligence as may well be discovered during the pendency of this case.” Plaintiffs’ complaint, paragraph 8.

We find that the objections to the above averments are well-founded. The averments are vague, conclusory, and mere boilerplate. They give the defendant no notice as to what must be defended against. Accordingly, the preliminary objections to them will be sustained.

The Sinsabaughs have also made a preliminary objection in the nature of a demurrer to subparagraphs (a), (c), (d), and (e) of paragraph nine of the complaint. Those averments read as follows:

“(9) Furthermore, the negligence and carelessness of defendant, Beverly [Sinsabaugh], through the actions of defendant, Terry [Sinsabaugh,] consisted of, but is not limited to, the following:
“(a) [failing] to ascertain that defendant, Terry [Sinsabaugh], could safely operate a motor vehicle before entrusting said motor vehicle to defendant, Terry [Sinsabaugh];...
“(c) otherwise entrusting said motor vehicle to defendant, Terry [Sinsabaugh] in a negligent, reckless and careless manner under the circumstances without due regard for plaintiff;
“(d) in being otherwise negligent, reckless and careless in fact and as a matter of law; and
“(e) such other negligence and carelessness as may well be discovered during the pendency of this case.” Plaintiffs’ complaint, paragraph 9.

In determining whether to grant a demurrer, we must: “resolve the issues solely on the basis of the pleadings; no testimony or other evidence outside of the complaint may be considered to dispose of the legal issues presented by the demurrer. In order to sustain a demurrer, it is essential that the face of the complaint indicate that its claims may not be sustained and that the law will not permit a recovery.... If there is any doubt, it should be resolved by the overruling of the demurrer.” Mellon Bank N.A. v. Fabinyi, 437 Pa. Super. 559, 567-68, 650 A.2d 895, 899 (1994). (citations omitted)

Here, the Sinsabaughs assert that the contested averments fail because they are legally insufficient to support a claim of negligent entrustment against Beverly Sinsabaugh.

The tort of negligent entrustment exists when an actor permits another person to use a thing which is under the control of the actor, if that actor knows or should know that the other person intends or is likely to use the thing in such a manner as to create an unreasonable risk of harm to others. Ferry v. Fisher, 709 A.2d 399, 403 (Pa. Super. 1998). (citations omitted) Liability is imposed on the actor because of his own actions in relation to the instrumentality under his control. Id. (citing, Christiansen v. Silfies, 446 Pa. Super. 464, 472, 667 A.2d 396, 400 (1995)). Moreover, “[t]he entrustor’s liability is not dependent on, derivative of, or imputed from the entrustee’s actual Lability for damages.” Id.

It is clear from the above discussion that an action for negligent entrustment lies for the entrustor’s negligence, not the entrustee’s negligence. Here, the complaint alleges that Beverly Sinsabaugh was negligent “through the actions of defendant, Terry [Sinsabaugh].” Plaintiffs’ complaint, paragraph 9. (emphasis added) Even if we consider the averments without the “through the actions of Terry [Sinsabaugh]” language, the demurrer still must be sustained. Nothing in the objected-to averments supports a negligent entrustment theory, which depends on facts that establish the entrustor had knowledge, or should have had knowledge, of the risk caused to others by the entrustee’s use of the instrumentality. Accordingly, the demurrers to subparagraphs (a), (c), (d), and (e) of paragraph 9 of the complaint will be sustained. As a result of the foregoing, the Sinsabaughs’ preliminary objections that those same subparagraphs lack the specificity required by Pa.R.C.P. 1019(a), although also well-founded, are rendered moot.

The Sinsabaughs have filed another preliminary objection in which they request that the complaint be dismissed because it sets forth claims against all defendants without differentiating between individual defendants in separate counts. An examination of the complaint reveals that there are two counts to the complaint. Count I is captioned “Elden Allen Sr. v. Defendants” and it sounds generally in negligence. Count II is captioned “Margaret Allen v. Defendants” and it sets forth a loss of consortium claim. In support of their objection, the Sinsabaughs cite Pa.R.C.P. 1020, which requires that separate causes of action be pleaded in separate counts.

An analysis of this issue is illuminated by reference to the case of General State Authority v. Lawrie and Green and John McShain Inc., 24 Pa. Commw. 407, 356 A.2d 851 (1976). In that case, preliminary objections were filed to the complaint by a co-defendant, John McShain Inc. In those preliminary objections, McShain argued that the count of the complaint which asserted an assumpsit action failed to differentiate between the cause of action against him and the one against the other defendant. In fact, the court noted that half of the paragraphs of the disputed count detailed an alleged breach by McShain on its contract with the plaintiff, and the remaining paragraphs detailed the alleged breach by the other defendant on its separate contract with the plaintiff. In sustaining McShain’s objection, the court noted that the “ [p] laintiff ’ s averments make it clear that although the form of action may well be identical against both [defendants, it relies upon two separate and distinct contracts giving rise to the respective causes of action.” Id. at 410-11, 356 A.2d at 854.

Here, it is clear that the plaintiffs asserted causes of action against the defendants, Terry Sinsabaugh and Johnson, both sound in negligence. However, it is equally clear that those causes of action are separate and distinct from one another. The allegations are that each defendant was separately negligent in his own right. Certainly then, it would have been perfectly permissible for the plaintiffs to have filed two separate complaints to two separate docket numbers, one against each defendant. This illustrates that the negligence action against each of the defendants is, in fact, a separate cause of action, although both arise from the same accident. As to Beverly Sinsabaugh, the form of action alleged against her, negligent entrustment, is obviously separate from the causes of action alleged against Terry Sinsabaugh and Johnson.

In light of the above, it is clear that the complaint here is attempting to assert separate and distinct causes of action against each defendant, yet they have not been stated separately in the complaint. Accordingly, the motion to dismiss the complaint will be granted.

Accordingly, we enter the following:

ORDER

And now, June 25, 1999, the preliminary objections to the complaint filed by the defendant, Richard Johnson, are sustained. The preliminary objections to the complaint filed by the defendants, Terry Sinsabaugh and Beverly Sinsabaugh, are sustained in part, and denied in part, as indicated in the opinion filed this date. The plaintiffs’ preliminary objections to the defendants’ preliminary objections are overruled. As a result, the complaint is dismissed.

The plaintiffs shall have 20 days from the date of this order to file an amended complaint in accord with today’s opinion.

      . A demurrer is raised pursuant to Pa.R.C.P. 1028(a)(4).

      . We also point out that separately pleading counts against individual defendants makes a complaint far more coherent, logical, and easier to comprehend. That, in turn, serves to make the litigation run far more efficiently, smoothly, and understandably.


text:
    Scottsdale Insurance Company v. Grim

      C.P. of Monroe County,
    no. 360 Civil 1995.

      William K. Conkin, for Scottsdale Insurance Co.

      Howard Krug, for June Grim.

      Eugene D. Sperazza, for James Taylor, Pocono Neurology Assoc.

      Anthony Piazza Jr., for Fay’s Drugs.

      Jeffrey G. Velander, for Dr. Snayam Mahajan.

      Kathleen Quinn Depillis, for James Taylor, Ind.

      James Wilson, for G. Gupta M.D.

      Salvatore P.J. Vito, for Louis Bruno, Joan Fry, No Problem Management.

      Richard T. Curley, for Pocono Intermediate Care Center.
    November 8, 1999-
   WALLACH MILLER, J.,

FINDINGS OF FACT

(1) RBL of Pennsylvania is the local insurance brokerage firm involved in obtaining the insurance coverage at issue in this case through Scottsdale Insurance Company.

(2) Thomas Geffers is an independent contractor of RBL, who was directly involved with securing the information necessary to complete the commercial insurance application required to obtain liability and umbrella insurance through Scottsdale. (Plaintiff’s exhibit no. 8.)

(3) RBL and Geffers were also involved in assisting Louis Bruno’s financing of the above insurance through Imperial Premium Finance Inc.

(4) Geffers obtained the majority of the information contained on the commercial insurance application through discussions held from April 1992 through June 1992 with Louis Bruno, president of No Problem Management Co. Ltd., as well as with Dr. Shyam Mahajan, who was a partner of Chaitanya Associates; and agent of Peoples Personal Care Medical & Rehabilitation Center and the future medical director of peoples.

(5) Bruno represented to Geffers that No Problem was to be the primary insured and that Peoples, Chaitanya and the medical director were to be additional insureds or riders on the various policies.

(6) During the period when the information was being provided by Bruno and Mahajan, there was no formal written agreement between No Problem and Peoples regarding authorization for No Problem to negotiate or obtain any type of insurance on behalf of Peoples.

(7) Eventually, a management agreement dated July 25, 1992 was created, but the management agreement was not signed by Sarvesh Mahajan, the son of Dr. Mahajan and alleged president of Peoples, until November 28, 1992, or by Louis Bruno, the president of No Problem, until December 11, 1992.

(8) Peoples was not incorporated until November 30, 1992.

(9) No Problem and Peoples are two distinct business entities and have separate corporate officers.

(10) After the commercial insurance application was submitted, Scottsdale issued two insurance policies, a general liability policy, GLS 466888, and an umbrella liability policy, UMB 025971. (Plaintiff’s exhibits no. 2 & no. 3.)

(11) On the declaration pages of both Scottsdale policies, the named insured was identified as Peoples Personal Care Medical & Rehabilitation Center, located at 51 North Second Street, Stroudsburg, PA 18360. No Problem Management Co. Ltd., Chatanya Ltd. [sic], and the medical director were identified as additional insureds on both policies. (Plaintiff’s exhibits no. 2 & no. 3.)

(12) Concurrently with the issuance of the Scottsdale policies, RBL and Geffers also obtained automobile insurance coverage for the insureds through a separate policy with Travelers Insurance Company, TCMB 201T142892.

(13) On the commercial premium finance agreement with Imperial, the borrowers were identified as Peoples Personal Care Medical & Rehabilitation Center and/or No Problem Management Co. Ltd., with an address of 51N. Second Street, Stroudsburg, PA 18301. (Plaintiff’s exhibit no. 11.)

(14) In accordance with the commercial premium finance agreement, the borrowers identified on the front of the document irrevocably appointed Imperial as the borrowers’ attorney-in-fact, with authority to cancel any insurance policy identified on the front page for nonpayment. (Plaintiff’s exhibit no. 11, p. 2.)

(15) The commercial premium finance agreement identifies three specific insurance policies financed by Imperial. Travelers Insurance Company issued one policy and the two remaining policies were issued by Scottsdale Insurance Company. (Plaintiff’s exhibit no. 11, p. 1.)

(16) The additional insureds, Chaitanya and the medical director were not identified as borrowers on the commercial premium finance agreement and never gave Imperial a power of attorney to cancel the Scottsdale policies on their behalf. (Plaintiff’s exhibit no. 11, p. 1.)

(17) Under the commercial insurance application completed by Geffers, Chaitanya was required to be issued a certificate of insurance to insure that Chaitanya’s interest as an additional insured/third party would be protected, in the event of cancellation or lapse of coverage. (Plaintiff’s exhibit no. 8, p. 2.)

(18) The commercial insurance application identifies the nature of the business to be operated as including providing medication, monitoring and distribution services for its personal care residents. (Plaintiff’s exhibit no. 8.)

(19) The total premiums for the three insurance policies covered by the commercial premium finance agreement totaled $11,333, with an initial payment of $3,133, leaving an amount of $8,200 to be financed, payable in nine monthly installments of $953.85. (Plaintiff’s exhibit no. 11, p. 1.)

(20) According to the commercial premium finance agreement, the first installment was due July 26, 1992. (Plaintiff’s exhibit no. 11, p. 1.)

(21) According to the testimony of Carolyn Perkowski, Imperial’s employee, the first installment was due August 11, 1992.

(22) Whatever the actual due date of the first installment, the payment was not made in a timely fashion by either of the borrowers on the commercial premium finance agreement.

(23) Geffers testified that he was informed by an employee of RBL that the initial installment was not timely paid under Imperial’s commercial premium finance agreement.

(24) Geffers contacted Bruno, either by phone or in person, and discussed the delinquency.

(25) Subsequently, Bruno hand-delivered to RBL a check dated August 26,1992, made payable to Imperial Finance in the amount of $1,001.54. (Plaintiff’s exhibit no. 5.)

(26) The August 26, 1992 check was forwarded to Imperial.

(27) Neither Bruno nor Shyam Mahajan ever received a notice of intent to cancel in August of 1992 from Imperial.

(28) The second installment due under the commercial premium finance agreement in September of 1992 was also not timely paid.

(29) Imperial sent a notice of intent to cancel dated September 11,1992 to one of the insureds, Peoples Personal Care Medical & Rehabilitation Center, and to RBL of Pennsylvania. (Plaintiff’s exhibit no. 9, p. 18.)

(30) The only proof of Imperial’s mailing of the September 11, 1992 notice of intent to cancel is an unnotarized, general written statement from a California Imperial employee that he took the envelope with a notice of intent to cancel in it to a private presort service company, and the presort service company was then supposed to have taken the envelope to the United States Post Office for mailing. (Plaintiff’s exhibit no. 9, p. 19.)

(31) Imperial sent the identical September 11, 1992 notice of intent to cancel to the insured, Peoples and RBL. However, the notice of intent to cancel, located in Imperial’s business records, is not the same as the document located in the business records of RBL. (Comparing plaintiff’s exhibit no. 9, p. 19 to Geffers’ exhibit no. 1.)

(32) Bruno and Shyam Mahajan testified they did not receive a notice of intent to cancel.

(33) Imperial sent a notice of intent to cancel, addressed to “Peoples Personal Care Medical & Rehabilitation Center and” at 51 N. Second Street, Stroudsburg, PA 18601, but did not send a notice of intent to cancel to the other borrower under its premium finance agreement or the other insureds identified in Scottsdale’s policies.

(34) Imperial also sent a notice of cancellation dated September 28,1992 to the insured, Peoples Personal Care Medical & Rehabilitation Center, as well as to RBL. (Plaintiff’s exhibit no. 9, p. 20.)

(35) As with the notice of intent to cancel, Imperial’s only proof of mailing is an unnotarized and generic written statement by the same California employee that he took an envelope with a notice of cancellation to the private presort service company, which was to have subsequently taken the envelope to the United States Post Office for mailing. (Plaintiff’s exhibit no. 9, p. 21.)

(36) No evidence was presented at trial which would show a chain of custody between the delivery of the envelopes (containing the notices of intent to cancel and cancellation), to the presort service company and the actual mailing of the envelopes by placing them in the United States mail.

(37) As with the notice of intent to cancel, the September 28, 1992 notices of cancellation addressed to Peoples and to RBL were not identical documents, contrary to the testimony of Imperial. (Comparing plaintiff’s exhibit no. 9, p. 20 to Geffers’ exhibit no. 9.)

(38) Imperial sent written notice of cancellation to the insurer, Scottsdale, by separate notices dated September 28, 1992. (Plaintiff’s exhibit no. 9, p. 23.)

(39) The one notice of cancellation addressed to Scottsdale misidentified Scottsdale’s general liability policy information as being the automobile policy provided by Travelers Insurance Company, TCMB 201T14. (Plaintiff’s exhibit no. 9, p. 23.)

(40) According to the cancellation provisions set forth in Scottsdale’s GLS and UMB policies, in order for Scottsdale to properly cancel coverage for its insureds, Scottsdale is required to provide advanced written notice of both its intent to cancel and actual cancellation.

(41) Scottsdale presented no testimony at trial regarding any notices it may have sent to Chaitanya, the medical director, or to the other two insureds (Peoples and No Problem) regarding cancellation in compliance with the insurance policy provisions.

(42) The alleged date of cancellation by Imperial was a Sunday.

(43) Peoples began receiving residents in the personal care home in July of 1992.

(44) The defendant, June Grim, was admitted to Peoples on August 20,1992. (Plaintiff’s exhibit no. 10.)

(45) Scottsdale’s GLS and UMB policies were in effect between August 20,1992 and September 26, 1992.

(46) Dr. Mahajan was the medical director for Peoples from August 20, 1992 through November 1992. (Plaintiff’s exhibit no. 7.)

(47) Pursuant to the provisions of the GLS and UMB policies, coverage is triggered if bodily or personal injury occurs during the policy period, owing to continuous or repeated exposure to conditions. (Plaintiff’s exhibits no. 2 & no. 3.)

(48) On November 29, 1992, June Grim suffered a massive stroke.

(49) On October 28, 1994, June Grim filed a complaint docketed to no. 2075 Civil 1994, seeking compensation for the injuries she alleges she suffered due to the negligent treatment and care provided by the various defendants associated with Peoples and Fay’s Drugstore. (Plaintiff’s exhibit no. 10.)

(50) The June Grim complaint, in addition to making claims of medical malpractice against Doctors Mahajan, Taylor and Gupta, also makes nonmedical malpractice claims for liability against No Problem, Peoples, Louis Bruno, Joan Frey a/k/a Joan Frey Bruno and Dr. Mahajan in his capacity as the medical director.

(51) On February 9,1995, Scottsdale filed a complaint for declaratory judgment, docketed to no. 360 Civil 1995, requesting the court to define and designate the scope and extent of the coverage under three insurance policies for its various insureds.

(52) Partial summary judgment was granted on April 26,1996 by this court, finding that Scottsdale was under no duty to indemnify or defend any of the defendants pursuant to a third policy, no. CLS 067641.

(53) A non-jury trial was held on September 30,1999 and October 1, 1999 before this court to determine the status of the remaining two policies.

DISCUSSION

Scottsdale Insurance Company has the burden of proof to establish that both of its insurance policies, GLS 466888 and UMB 025971, were cancelled effective September 27, 1992 as to all of the insureds in compliance with the provisions of the Insurance Premium Finance Company Act, 40 P.S. §3301 et seq. Section 3310 of the Act outlines the cancellation provisions to be followed when an insurance premium finance company is involved in securing insurance coverage.

Section 3310 provides as follows:

“Section 3310. Cancellation of insurance contract upon default
“(a) Procedure. When an insurance premium finance agreement contains a power of attorney enabling the insurance premium finance company to cancel any insurance contract or contracts listed in the agreement, the insurance contract or contracts shall not be canceled by the premium finance company unless the cancellation is effectuated in accordance with this section.
“(b) Written notice. Not less than 15 days’ written notice shall be mailed to the insured, at his last known address as shown on the records of the insurance premium finance company, of the intent of the insurance premium finance company to cancel the insurance contract or contracts unless the default is cured within such 15-day period.
“(c) Curing default. In the event that after- giving the prescribed notice, the default is not cured within the 15-day period, the insurance premium finance company may cancel the insurance contract or contracts by mailing a notice of cancellation to the insurer. The insurance contract shall be canceled as if the notice of cancellation had been submitted by the insured himself but without requiring the return of the insurance contract. The insurance premium finance company shall also mail a notice of cancellation to the insured at his last known address as shown on the records of the insurance premium finance company.
“(d) Statutory, regulatory and contractual restrictions. All statutory, regulatory and contractual restrictions providing that the insurance contract may not be canceled unless notice is given to a governmental agency, mortgagee or other third party shall apply where cancellation is effected under the provisions of this section. The insurer shall determine the effective date of cancellation taking into consideration the number of days’ notice required to complete the cancellation. The insurer shall not be required to send the insured any notice of cancellation when the insurance policy is canceled by an insurance premium finance company pursuant to the terms of this section.”

The crux of this case is whether Imperial properly followed the statutory requirements when they mailed the notices of cancellation.

An employee of Imperial from its New Jersey office testified as the custodian of the records for Imperial about these two insurance policies. The records, mailed to her from Imperial’s California home office, evidenced that notices of cancellation were delivered to a private presort company under contract to Imperial. Scottsdale argues this is sufficient to satisfy the “mailbox” rule.

The mailbox rule recognized in Pennsylvania stands for the proposition that proof that a letter was properly mailed raises a rebuttable presumption that the letter was received. Donegal Mutual Insurance Co. v. Insurance Department, 719 A.2d 825 (Pa. Commw. 1998). Unfortunately, the mailbox rule does not apply to the facts of this case because Scottsdale, through the Imperial witness, failed to present evidence that the envelopes containing the notice of intent to cancel or the notice of cancellation were actually mailed by the United States Postal Service. PennDOT v. Brayman Construction Corp.-Bracken Construction Co., 99 Pa. Commw. 373, 513 A.2d 562 (1986). Even if the mailbox rule applied, Scottsdale failed to show Imperial’s compliance with subsection 3310(b)’s mail requirement because Imperial delivered the letters of intent to cancel and cancellation at a private presort company and not directly to the United States Post Office. See Lin v. Unemployment Compensation Board of Review, Pa. Law Weekly, Sept. 6, 1999 (Pa. Aug. 17, 1999) (holding only U.S. postmark is reliable enough to prove that a document has been mailed on time).

Plaintiff has also failed to show Imperial’s compliance with subsection 3310(c) which requires Imperial to send written notice to Scottsdale of Imperial’s cancellation of the two policies, effective September 27,1992. The Imperial September 28,1992 notice of cancellation sent to Scottsdale incorrectly named the Travelers Insurance Company policy information regarding automobile insurance, as opposed to the proper GLS policy information pertaining to Scottsdale’s policy. Chaitanya Associates, along with the medical director, are third parties under the terms of subsection 3310(d), which requires the contractual provisions of insurance contracts to be followed when a third party is affected by cancellation of insurance completed under the provisions of the Insurance Premium Finance Company Act.

Since Chaitanya and the medical director are additional insureds identified on both the GLS and UMB policies, in order for coverage to be canceled, Scottsdale would have had to comply with the cancellation provisions contained in its own insurance contracts. Scottsdale presented no evidence that it complied with the cancellation provisions under its two insurance policies with regard to Chaitanya Associates, the medical director or the other two insureds. It is incumbent upon an insurance company to comply strictly with the conditions of cancellation and to give the prescribed notice. Schock v. Penn Township Mutual First Insurance Association of Lancaster County, 150 Pa. Super. 77, 24 A.2d 741 (1942). When notice of cancellation is required by statute or policy, an insurer’s failure to follow such requirement results in the continuation of coverage. Royal Indemnity Company v. Adams, 309 Pa. Super. 233, 455 A.2d 135 (1983).

CONCLUSIONS OF LAW

(1) Imperial Premium Finance Inc. did not comply with the Insurance Premium Finance Company Act, 40 P.S. §3301 et seq.

(2) Both Scottsdale policies were not effectively canceled and were in effect between August 20, 1992 and September 26, 1992.

(3) Scottsdale has a duty to defend and indemnify the insureds under its GLS and UMB policies.

ORDER

And now, November 8, 1999, plaintiff’s motion for declaratory judgment is denied.