author: GEORGE, J,

text:
    Liberty Development Company LLC v. Board of Supervisors of Liberty Township

      James M. Strong, for plaintiff.

      Walton Davis, for defendant.

      June 24, 2005
   GEORGE, J,

This matter comes before the court on an appeal filed by Liberty Development LLC from a decision rendered by the Board of Supervisors of Liberty Township, which denied the approval of a residential development plan. By order of court dated June 20, 2004, permission to intervene was granted to a number of neighboring landowners (intervenors). Currently, Liberty Development requests to present additional evidence to the court. Both the board and intervenors oppose the request. For the reasons set forth hereafter, the request to present additional evidence is granted in part and denied in part.

Liberty Development’s request to present additional evidence is authorized by section 1005-A of the Municipal Planning Code (MPC), 53 P.S. §11005-A. This section provides that the court may hold a hearing to receive additional evidence if “it is shown that proper consideration of the land use appeal requires the presentation of additional evidence....” 53 P.S. §11005-A. Liberty Development suggests that appellate cases interpreting this section have instructed that the court of common pleas is vested with wide discretion to permit additional evidence without a threshold showing by the moving party. On the other hand, the board and intervenors interpret this same appellate authority as requiring the moving party to fulfill either one of two requirements before additional evidence may be accepted by the court. They argue that additional evidence is permitted only where the party seeking to introduce the additional evidence demonstrates that the record is incomplete because the party was denied an opportunity to be fully heard, or because relevant testimony was offered and excluded. It appears that this divergence in interpretation finds its genesis in the language of a number of appellate court opinions.

Appellate court opinions commenting on the admissibility of additional evidence in a land use appeal commonly recognize that the “question of whether presentation of additional evidence is to be permitted is a matter within the sound discretion of the trial court.” Caln Nether Co. v. Board of Supervisors of Thornbury Township, 840 A.2d 484, 498 (Pa. Commw. 2004), citing Eastern Consolidation and Distribution Services Inc. v. Board of Commissioners of Hampden Township, 701 A.2d 621 (Pa. Commw. 1997). Often, appellate opinions further clarify this general rule by noting that a trial court “faces compulsion to hear additional evidence in a zoning case only where the party seeking the hearing demonstrates that the record is incomplete because the party was denied an opportunity to be heard fully, or because relevant testimony was offered and excluded.” Eastern Consolidation, 701 A.2d at 624 (quoting In re Appeal of Little Britain Township, 651 A.2d 606, 613 (Pa. Commw. 1994)). (emphasis in original) Because the majority of appellate opinions on this issue consider challenges to the trial court’s denial of the admission of additional evidence, there is limited guidance on whether a minimum standard exists before the trial court may grant a motion to admit additional evidence. Liberty Development suggests, in light of the lack of clear authority, that appellate cases discussing when a court must accept additional evidence implicitly indicate that the court of common pleas has the right, in the exercise of the court’s discretion, to accept additional testimony regardless of the circumstances. Although the language of some appellate authority may suggest such a conclusion, a careful review of the evolution of the appellate authority interpreting the statutory authorization leads me to a different conclusion.

The cornerstone of Liberty Development’s argument is the appellate language concerning the circumstances under which a court is under “compulsion” to accept additional evidence. Liberty Development suggests that the use of the word “compulsion” implies that there are other times when a court is free to exercise its discretion in “permitting” the admission of additional evidence. Review of appellate opinions on this subject reveals that the “compulsion” language first appeared in Danwell Corp. v. Zoning Hearing Board of Plymouth Township, 115 Pa. Commw. 174, 178, 540 A.2d 588, 590 (1988). In Danwell, the court addressed the issue of whether a trial judge abused his discretion by refusing to accept additional evidence at an appeal hearing. Id. at 177, 540 A.2d at 589. In affirming the trial court’s decision, the Commonwealth Court opined that a “court of common pleas faces compulsion to hear additional evidence . . . only where ... the record is incomplete because [the] party was denied the opportunity to be heard fully, or because relevant testimony was offered and excluded.” Id. at 178, 540 A.2d at 590. (emphasis added) In support of this rule of law, the Danville court cited Borough Council of Churchill Borough v. Pagal Inc., 74 Pa. Commw. 601, 460 A.2d 1214 (1983). While the language used by the Commonwealth Court in Danville is understandable in light of the issue presented, the unfortunate use of the word “compulsion” is an extension of the rule cited by that opinion as having been enunciated in Pagal.

In Pagal, the Commonwealth Court addressed the identical issue of whether the trial court erred in refusing to grant a de novo hearing on appeal for the acceptance of additional evidence. Pagal, 74 Pa. Commw. at 607, 460 A. 2d at 1218. After upholding the court of common pleas’ refusal to accept additional evidence, the Commonwealth Court unequivocally stated: “In order for a de novo hearing to be warranted, the party seeking such hearing must generally demonstrate that the record is incomplete because it was denied the opportunity to be fully heard, or because relevant testimony it offered was excluded.” Id. There is no mistaking the Pagal court’s intent to set forth the standard which must be satisfied before the court of common pleas may accept additional testimony.

Importantly, the Commonwealth’s opinion in Pagal cites Boron Oil Co. v. City of Franklin, 2 Pa. Commw. 152, 277 A.2d 364 (1971) as precedent. A meticulous search of case law reveals that Boron Oil Co. appears to be the first Commonwealth Court opinion on this subject. In Boron Oil Co., the trial court refused to accept additional testimony from witnesses who would testify on matters dealing with the safety and the welfare of the community, including fire and traffic hazards in connection with service stations. Boron Oil Co., 2 Pa. Commw. at 156, 277 A.2d at 366. In an issue of first impression, the Commonwealth Court upheld the court of common pleas’ refusal to accept this additional evidence. In considering the relevant portion of the MPC, the Commonwealth Court opined:

“This provision does not mean, as the appellant suggests, that the court must receive additional evidence provided only that it is relevant. Such interpretation would not only nullify the discretion plainly conferred on the court, it would effectually remove from the zoning hearing board the fact-finding function entrusted to it by the legislature. It would further render meaningless the requirement that the proposed additional evidence be shown to be necessary for proper consideration of the appeal. The appellant was required to demonstrate that the record was incomplete either because it was refused the opportunity to be fully heard, or that relevant testimony offered by it was excluded. Udylite Corp. v. Philadelphia Zoning Board, 16 D.&C.2d [346] ([Philadelphia Cty.] 1958), affirmed, 394 Pa. 645, 148 A.2d 916 (1959).” Id. at 157, 277 A.2d at 366. (footnote omitted)

Further search for the origin of this rule led me to Udylite Corp. v. Philadelphia Board of Adjustment, an opinion written by Judge Sporkin from the Philadelphia Court of Common Pleas. After recognizing that the “primary purpose and intent of the legislature in authorizing the creation of the Philadelphia Zoning Board of Adjustments was so [the] board should hear all testimony and engage its acquired expertise in the formulation of its decision,” Judge Sporkin held that “only in extraordinary cases, such as where the board refuses to permit the parties to be fully heard, or misinterprets the relevancy of the proffered testimony, thus effectuating an incomplete record, the parties should be permitted to introduce additional testimony in the common pleas courts.” Udylite Corp., 16 D.&C.2d at 356.

After reviewing the evolution of the rule at issue, I am led to conclude that a court of common pleas may accept additional testimony when reviewing a land use appeal only when the moving party is able to establish that the record before the hearing board is incomplete because the moving party was refused the opportunity to be fully heard, or relevant testimony was excluded. This conclusion is in accord with a number of recent Commonwealth Court opinions. See Reformed Seventh Day Adventist Church Inc. v. Philadelphia Zoning Board of Adjustment, 127 Pa. Commw. 445, 451, 561 A.2d 1324, 1327 (1989) (the court of common pleas is only warranted in taking additional testimony at a de novo hearing when the party seeking it demonstrates that the record is incomplete because it was denied an opportunity to be fully heard, or when the board excluded relevant testimony that was offered); Lower Allen Citizens Action Group Inc. v. Lower Allen Township Zoning Hearing Board, 93 Pa. Commw. 96, 106, 500 A.2d 1253, 1259 (1985) (in order to be entitled to present additional evidence, the moving party must demonstrate that the record before the board is incomplete either because appellant was refused the opportunity to be fully heard or relevant testimony was excluded); In re Appeal of Little Britain Township, 651 A.2d at 616 (the court of common pleas committed error in permitting the presentation of additional evidence in land use appeal where evidence is irrelevant).

Based on the foregoing, I decline Liberty Development’s invitation to usurp the role of the board absent a showing that the record is incomplete because Liberty Development was either denied an opportunity to be heard fully, or because relevant testimony was offered and excluded. With this standard in mind, I will now turn to the proffered additional evidence which Liberty Development seeks to introduce.

First, Liberty Development seeks the opportunity to present additional testimony claiming that the chairman of the board of supervisors exhibited a bias during proceedings before the board. Liberty Development points out that they requested, by letter addressed to the chairman, that the chairman recuse himself. Liberty Development further claims that the issue was properly preserved by filing a copy of the letter as an exhibit during the hearing before the board. Despite the request contained in the letter, Liberty Development notes that the chairman continued presiding over the proceedings, effectively denying its request for recusal by continuing to participate in the proceedings.

The board and intervenors oppose the presentation of additional evidence concerning bias on the basis that Liberty Development waived all claims of bias when they failed to properly raise the issues before the board. They argue that Liberty Development had the full opportunity, at the hearing before the board, to present facts in support of their claim of bias. The board also suggests that, even if the chairman improperly failed to recuse himself, the proposed additional evidence is irrelevant since the remaining vote of the board would have been a tie. See Kuszyk v. Zoning Hearing Board of Amity Township, 834 A.2d 661, 665 (Pa. Commw. 2003) (a tie vote at the agency level acts as a denial of the relief requested). Therefore, they conclude that the chairman’s actual bias, or lack thereof, is immaterial in light of the fact that the result would have remained the same if the chairman chose not to participate. I will address each of these arguments separately.

Although it is premature to consider the merits of Liberty Development’s claim of bias, a review of the applicable law in this area is helpful. Pennsylvania courts have long recognized the importance of independent and impartial tribunals in resolving legal controversies.

“A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness. To this end, no man can be a judge in his own case and no man is permitted to try cases where he has an interest in the outcome____This court has said... that ‘every procedure which would offer a possible temptation to the average man as a judge ... not to hold the balance nice, clear and true between [a] state and the accused, denies the latter due process of law.’ ” Schlesinger Appeal, 404 Pa. 584, 598, 172 A.2d 835, 840-41 (1961) (quoting Tumey v. Ohio, 273 U.S. 510, 532, 47 S.Ct. 437, 444 (1927)). In this regard, those serving in a judicial capacity must be sensitive, not only to actual bias, but also should avoid even the appearance of bias. Courts have recognized that “the mere potential for bias or the appearance of non-objectivity may be sufficient to constitute a violation” of due process. Kuszyk, 834 A.2d at 665. However, if a tribunal member believes that he or she is capable of hearing the case fairly, his or her decision not to withdraw will ordinarily be upheld on appeal absent a demonstration of actual “bias, prejudice, capricious disbelief or prejudgment.” Christman v. Zoning Hearing Board of the Township of Windsor, 854 A.2d 629, 633 (Pa. Commw. 2004).

Generally, “a municipal officer should disqualify himself [or herself] from any proceeding in which he [or she] has a personal or pecuniaiy interest that is immediate or direct.” Amerikohl Mining Inc. v. Zoning Hearing Board of Wharton Township, 142 Pa. Commw. 249, 257, 597 A.2d 219, 222 (1991). Appellate opinions have found recusal warranted when a member of the hearing board participates as an advocate or witness, publicly expresses predisposition, or has a fiduciary relationship with a party in interest. Based on the foregoing authority, it is clear that a claim of bias against a member of a board, if properly raised, is an appropriate area of inquiry for consideration by the court of common pleas on an appeal of the board’s decision. I must, therefore, address the issue of waiver raised by the board and intervenors.

The issue of waiver raised by the board and intervenors is not waiver in its purest sense. It is undeniable that Liberty Development requested the chairman to recuse himself prior to consummation of the evidentiary record. A copy of the letter forwarded to the chairman by Liberty Development was made part of the record in this matter, without objection, as applicant’s exhibit no. 12. The letter is rather thorough and outlines a number of potential issues which might, depending on the evidentiaiy record, require recusal. Accordingly, I find that the issue was properly raised before the board.

The board and intervenors do not strenuously oppose this conclusion; rather, they argue that Liberty Development failed to develop the evidentiary record despite having the opportunity to do so. They suggest that Liberty Development cannot attempt to supplement the record for the first time while on appeal to this court since Liberty Development was given the opportunity before the board to be fully heard and offer whatever testimony they deemed appropriate on this issue. They reason that the failure to develop an evidentiary record before the board has, in essence, resulted in a waiver of the claim of bias. Liberty Development counters this argument by asserting that, once the chairman chose to participate in the hearing despite Liberty Development’s request for recusal, it would have been a fruitless exercise to develop the facts concerning recusal before that same board. The question before the court, therefore, is to what extent must a complaining party develop the issue of bias, before the tribunal where recusal is sought, in order to preserve the issue for appeal.

The precise procedure for seeking the recusal of a board member in a land use proceeding has not been specifically delineated by our appellate courts. Guidance on this issue, however, is available in appellate decisions discussing the recusal of a trial judge in court proceedings. Applicable law in this area was first enunciated by our Supreme Court in Reilly by Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985):

“The proper practice on a plea of prejudice is to address an application by petition to the judge before whom the proceedings are being tried. He may determine the question in the first instance, and ordinarily his disposition of it will not be disturbed unless there is an abuse of discretion.
“Due consideration should be given by him to the fact that the administration of justice should be beyond the appearance of unfairness____If the judge feels that he can hear and dispose of the case fairly and without prejudice, his decision will be final unless there is an abuse of discretion.” Reilly, 507 Pa. at 220-21, 489 A.2d at 1299 (quoting Crawford’s Estate, 307 Pa. 102, 108, 160 A. 585, 587 (1932)). Later in its opinion, the Reilly court clarified the procedure a party should follow to raise recusal:
“It is incumbent upon the proponent of a disqualification motion to allege facts tending to show bias, interest or other disqualifying events, and it is the duty of the judge to decide whether he feels he can hear and dispose of the case fairly and without prejudice because we recognize that our judges are honorable, fair and competent. Once this decision is made, it is final and the cause must proceed. The propriety of this decision is grounded in abuse of discretion and is preserved as any other assignment of error, should the objecting party find it necessary to appeal following the conclusion of the cause.” Id at 221-22, 489 A.2d at 1300.

On the same day that the Supreme Court issued the Reilly decision, they elaborated on the issue of recusal in Municipal Publications Inc. v. Court of Common Pleas of Philadelphia County, 507 Pa. 194, 489 A.2d 1286 (1985). Municipal Publications Inc., 507 Pa. at 202, 489 A.2d at 1290. While Reilly set forth the procedure to initiate an issue of recusal, Municipal Publications Inc. set forth the test for determining when an evidentiary hearing is necessary:

“[W]here fabricated, frivolous or scurrilous charges are raised against the presiding judge during the course of the proceeding, the court may summarily dismiss those objections without hearing where the judge is satisfied that the complaint is wholly without foundation. In such case, the complaining party may assign the accusation as a basis for post-trial relief and, if necessary, a record can be developed at that stage and in that context. Where, as here, a judge concludes that the allegations justify an evidentiary hearing in which he will testify, it then becomes incumbent upon that judge to step aside for the appointment of another judge to hear and rule upon the issue of disqualification.” Id.

Finally, it is important to note that the Reilly court, recognizing that “[wjaiver is indispensable to the orderly functioning of our judicial process,” concluded that issues relating to recusal are waived, absent a showing of after-discovered evidence, if not raised prior to the entry of a verdict. Reilly, 507 Pa. at 223, 489 A.2d at 1300.

A reading of these cases, as well as subsequent case law interpreting these opinions, indicates that the Supreme Court has mandated a number of rules concerning recusal matters:

(1) The issue of recusal must be raised to the tribunal hearing the matter by petition prior to the resolution of the issue at controversy;

(2) The petition must contain sufficient factual allegations so that the tribunal may intelligently consider the issue;

(3) If the allegations in the petition are facially insufficient or if the judge feels he can hear and dispose of the case fairly, he may deny the petition without a hearing. In such case, the issue may be explored on appeal subject to an abuse of discretion standard;

(4) If the tribunal concludes, after considering the allegations in the petition, that an evidentiary hearing is necessary, the tribunal should step aside so that another tribunal may be appointed to rule upon the issue of disqualification; and

(5) If the allegations justifying recusal are not raised prior to the disposition of the underlying dispute, the recusal claim is waived, absent the application of the after-discovered evidence rule.

It is noteworthy that I have failed to find any appellate authority requiring the factual record to be fully developed in order to preserve recusal issues for appellate review.

The procedure enunciated by the Supreme Court concerning recusal does not conflict with appellate authority regarding opening the record for the presentation of additional evidence in a land use appeal. Rather, both exist to present an orderly and judicially economic procedural structure. For example, if a decision to deny recusal is entered by the tribunal, the issue is decided and properly preserved for appeal. Under such circumstances, the tribunal has determined that the allegations are insufficient to justify recusal and, therefore, further presentation of evidence on the matter is unnecessary. The denial of a motion to recuse operates, in effect, as a denial of the opportunity to further develop the evidentiary record. To hold otherwise would lead to a number of absurd results.

For instance, requiring a moving party to develop an evidentiary record in support of allegations, which the tribunal has facially determined to be insufficient to justify recusal, results in nothing more than a waste of judicial resources. Additionally, since the board of supervisors, in a land use matter, is the fact-finder with exclusive province over matters of credibility and weight to be afforded the evidence, Heritage Building Group Inc. v. Bedminster Township Board of Supervisors, 742 A.2d 708, 710 (Pa. Commw. 1999), the development of an evidentiary record before the board places the member whose recusal is sought in the position of making factual determinations concerning his own alleged bias. It takes little imagination to envision the futility of such a process. This futility is only magnified in circumstances where the development of the factual record requires calling the allegedly-biased member of the tribunal as a witness. In such a circumstance, the person whose recusal is sought not only has personal knowledge of the disputed facts, but is put in a position to rule on objections to his own testimony and assess his own credibility in light of conflicting evidence. It is precisely this danger that the Supreme Court recognized in requiring that credible allegations of bias be heard in an evidentiary hearing before a different body. See Municipal Publications Inc., 507 Pa. at 202, 489 A.2d at 1290.

The board and intervenors suggest, contrary to our Supreme Court’s instruction, that the chairman should have been called as a witness in order to preserve the recusal issue. However, I have been unable to find any such requirement in any statute or opinion. While it is true that a number of Commonwealth Court cases have included a factual record wherein examination of the party for whom recusal was sought occurred at the time of the land use hearing, those cases neither expressed an opinion as to the propriety of such a procedure nor imposed such a requirement.

In Caln Nether Co., cited above, the Commonwealth considered the propriety of two township supervisors who refused to recuse themselves from a land use hearing because they resided in a residential development close to the property at issue. Caln Nether Co., 840 A.2d at 496-97. Apparently, the factual issue before the Commonwealth Court was developed through questions asked to each supervisor prior to the commencement of the hearings. Id. at 496. Without commenting on the procedure before the board, the Commonwealth Court relied on prior case law to conclude that the landowner failed to produce evidence that the supervisors exhibited bias. Id. at 497.

Similarly, in Christman v. Zoning Hearing Bd., 854 A.2d 629 (Pa. Commw. 2004), the Commonwealth Court upheld the decision of zoning hearing board members not to recuse themselves even though they owned property in an area affected by a zoning amendment. Christman, 854 A.2d at 634. Once again, the factual record revealed that the zoning hearing board members were questioned concerning their bias at the time of the zoning board hearing. Id. However, the Commonwealth Court expressed no opinion as to whether such a procedure is acceptable.

Significantly, both Caln Nether Co., cited above, and Christman involved tangential relationships between the tribunal member and the litigation, without evidence of bias, prejudice, capricious disbelief, or prejudgment. I find this significant because the factual matters at issue involved facts that were readily ascertainable, i.e., the ownership and location of property. As explained below, the current allegations in support of the recusal are not based upon tangential relationships, but rather are claims of actual bias and prejudgment. Under these circumstances, much more substantive testimony by the respective board member is necessary. I conclude, therefore, that the cases cited by the board and intervenors neither require nor suggest that the only way that Liberty Development may avoid waiver is by conducting a full evidentiary hearing on the issue of bias before the very person whose recusal is sought.

Support for this interpretation is found in the recent Superior Court case of Rohm & Haas Co. v. Continental Casualty Co., 732 A.2d 1236 (Pa. Super. 1999). In Rohm & Haas Co., the Superior Court considered whether a judge’s recusal was necessary based upon post-trial remarks made to a jury. Rohm, 732 A.2d at 1247. An evidentiary hearing was not conducted before the lower court because the trial judge indicated that he was “able to proceed with the litigation in a fair and unbiased manner.” Id. at 1260. After reviewing the allegations in the motion to recuse, the Superior Court found that,

“[I]t [was] obvious that the court should have provided the parties with a hearing on the recusal motion so that the facts could be explored and an informed decision made. The recusal motion clearly stated facts which would, if proven, call into question the impartiality of the court to continue in the proceeding.” Id. at 1261.

The Superior Court further recognized that the trial judge “would, under the proffered facts, have almost certainly been a witness himself.” Id. at 1262. (emphasis added) Moreover, the Rohm court noted that “it would be appropriate for the trial judge to step aside for the appointment of another judge to conduct the hearing.” Id. (footnote omitted) This opinion exemplifies that appellate review is triggered where allegations of bias are alleged in petitions seeking recusal regardless of whether a factual hearing is held before the tribunal in question.

I recognize that the authority cited above has arisen in judicial proceedings where the matter may be readily assigned to another judge for consideration of the bias issue. I also recognize the threshold, which I discussed above, that must be established prior to a court’s acceptance of additional testimony on appeal in a land use matter. I find, however, that those distinctions are immaterial in light of the procedures mandated by the Supreme Court. If a petition for recusal is filed and the tribunal reasonably determines that the request for recusal was fabricated, frivolous or scurrilous, the petition may be summarily dismissed and the issue is thereafter preserved for appellate consideration. Municipal Publications Inc., 507 Pa. at 202, 489 A.2d at 1290. If the petition has merit, recusal is the appropriate response. If the petition is of arguable merit and additional testimony is necessary, including the testimony of the member or members at issue, the testimony may be presented, upon petition of either party, before another tribunal. In land use appeals, that tribunal is the court of common pleas.

Interestingly, appellate courts have instructed that the court of common pleas’ acceptance of additional evidence related solely to the issue of a board member’s bias “is not the type of additional evidence that requires the trial court under... the MPC to make its own findings of fact on the underlying merits.” See Amerikhol Mining Inc., 142 Pa. Commw. at 256, 597 A.2d at 222. This ruling, in essence, provides aggrieved parties with a procedural vehicle to explore and develop factual issues concerning recusal before the court of common pleas without usurping the role of the board in considering the merits of the land use matters.

In reaching this conclusion, it is important to focus on the issue before the court. It is neither this court’s right, nor its obligation, to set forth the appropriate procedure when addressing issues of recusal before an agency board. That issue is properly left to the state legislature and appellate courts. Rather, I am concerned only with the issue of what satisfies the minimal threshold to preserve an issue of bias for appellate consideration. In this regard, I find that Liberty Development has satisfied the minimum requirements enunciated by our Supreme Court in order to preserve the issue for appellate review.

Before resolving the issue of whether the presentation of additional evidence is appropriate, I will conduct a cursory review of the bias allegations, as raised before the board, in order to determine whether the chairman’s decision not to recuse himself constituted an abuse of discretion. If the allegations raised by Liberty Development are insufficient or frivolous, they may be summarily dismissed by the chairman. See Municipal Publications cited above. In such an instance, opening the record to present additional evidence is unnecessary.

Liberty Development, in its request for recusal, raised several circumstances which it believes indicates actual bias on the part of the chairman. Liberty Development notes that its application for approval of a planned residential development (PRD) was initially considered during an election year in which board membership was open to election. While the application was pending, the composition of the board changed because a new member, who subsequently became chairman of the board, defeated an incumbent. All of Liberty Development’s allegations of bias relate to the new member’s (chairman) actions during the course of the election which Liberty Development suggests indicate prejudgment of its tentative plan. The allegations raised by Liberty Development consist of the following:

(1) The chairman was a founding member of the organization “Save Ouir Liberty,” which ultimately was granted party status before the board and actively opposed the tentative plan application;

(2) At a citizens meeting held on August 27,2003, the chairman presented himself as representing “Save Our Liberty,” and solicited memberships and donations for the payment of legal fees and other expenses to oppose Liberty Development’s application. Additionally, Liberty Development claims that the chairman is listed on the agenda under the heading “Call to Action” and that, during the meeting, he expressed his personal view that Liberty Development’s PRD would be detrimental to the quality of life in Liberty Township and that all citizens should oppose the plan;

(3) The chairman, on election day, solicited voters to support his write-in candidacy by claiming that he would vote to reject Liberty Development’s application; and

(4) At a public meeting on November 5, 2003, after the chairman had won the election, but prior to becoming a board member, the chairman indicated that the reason he won the election was his position against “the PRD.” When asked for clarification as to whether the chairman was against PRDs, or against the Wormald plan, it is alleged that the chairman stated “PRDs and PRDs similar to the Wormald plan and including the Wormald plan.”

As indicated above, Pennsylvania appellate courts have found recusal to be necessary in circumstances where a member of the tribunal publicly expressed a predisposition against a project or took an advocacy role against the matter at issue. See Prin, cited above, and Thornbury Township Board of Supervisors, cited above. Under the proffered facts, it appears that there is a substantial issue as to the chairman’s ability to preside impartially. It is equally clear that the chairman will almost certainly be a witness. It would appear, therefore, that an evidentiary hearing on this issue is necessary. However, before granting Liberty Development’s request to present additional testimony, I must consider the township’s argument that an additional evidentiary hearing is unnecessary since, even if bias is found, the results of the board’s action remain the same.

In support of their argument, the board cites Kuszyk, cited above. In Kuszyk, the Commonwealth Court was faced with the issue of whether a zoning board member who was the husband of a township supervisor was required to recuse himself in considering the validity of a cease-and-desist order issued against a landowner by decision of the supervisors. Kuszyk, 834 A.2d at 662. Failing to find any evidence of actual bias, the Commonwealth Court held that the tangential evidence of the marital relationship was insufficient to justify recusal. Id. at 665. In dicta, the Commonwealth panel noted that, even assuming recusal was appropriate, removal of the disqualified member’s vote would still have resulted in a 2-2 decision. Id. The court concluded that, since a tie vote acts as a denial of the requested relief, error in resolving the recusal petition, if any, was harmless. Id.

In reading the line of cases cited as authority, it is interesting to note that Kuszyk is the first case where a court applied this rule of law to an appeal from a land use decision by an agency board. While it is true that earlier cases have concluded that a tie vote by an administrative body equates to a denial, the issue in those cases was presented in the context of whether a tie vote constituted a lack of action for a “deemed approval” in a writ of mandamus action. I find the history of this legal proposition intriguing in light of another opinion from the Commonwealth Court which seems to indicate a contrary result. In Borough of Youngsville, cited above, the Commonwealth Court found that a zoning hearing board member improperly failed to disqualify himself in a circumstance where the board member, as an employee of the applicant, participated in earlier proceedings involving the land use application. Borough of Youngsville, 69 Pa. Commw. at 289, 450 A.2d at 1091. After noting that the board would have produced a 1-1 vote if the board member had not participated in the hearing, the Commonwealth Court directed the court of common pleas to “take such evidence as the parties wish to introduce and make findings of fact and conclusions of law” in consideration of the application. Id. at 292, 450 A.2d at 1092. In light of these contrary events, I will defer the resolution of this issue unless and until there is a finding of actual bias following the presentation of additional evidence.

Because the integrity of our legal process is at issue, I grant Liberty Development’s request to present additional testimony on the important issue of bias. In reaching this decision, I am mindful of the eloquent words of Justice Papadakos in Reilly, cited above:

“Questions concerning the fairness, impartiality, or bias of the [tribunal] always affect the administration of justice and can cloak the whole system of judicature with suspicion and distrust. Because recusal requests call into question our ability to mediate fairly, they raise important issues in which the public is concerned. If our [tribunals] are perceived to be unfair and biased, our future ability to adjudicate the public’s grievances and wrongs will be threatened, because we all lose the one thing that brings litigants into our halls of justice — their trust. Without the people’s trust that our decisions are made without malice, ill will, bias, personal interest or motive for or against those submitting to our jurisdiction, our whole system of judicature will crumble. Accordingly, when challenges are made concerning the necessity for the recusal of a [member of a tribunal], an important public question is being addressed which we, as responsible representatives of the people, must resolve.” Reilly, 507 Pa. at 224-25, 489 A.2d at 1301.

Liberty Development also seeks to present additional evidence regarding the legal effect of the 1985 amendment to the Liberty Township Zoning Ordinance. In denying Liberty Development’s application for tentative approval, the board concluded that PRDs are not permitted under the Liberty Township Zoning Ordinance. In reviewing the original Liberty Township Zoning Ordinance, adopted on April 3, 1984, the board found that PRDs were permitted only as “special uses.” Since a 1985 amendment to the zoning ordinance repealed “all special uses under the zoning ordinance . . . ,” the board concluded that this language effectively eliminated PRDs from the township’s zoning scheme and, thus, eliminated authorization for PRDs within the boundaries of Liberty Township.

Liberty Development seeks to present additional evidence claiming that, since the 1985 amendment issue was not raised by the township until after the hearings were concluded and the record was closed, they were denied the opportunity to address this issue. Liberty Development further argues that the township’s acceptance of their PRD application led them to believe that the 1985 amendment was not at issue. Because the record before the court indicates that Liberty Development had sufficient notice of this issue and was provided ample opportunity to present evidence, I deny the request to open the record for this purpose.

A painstaking review of the record indicates that correspondence from the Adams County Office of Planning and Development to the parties, dated December 3,2003, recommended the denial of Liberty Development’s PRD on four different bases. Significantly, the first basis listed by the Adams County Office of Planning and Development is that PRDs are not permitted in the zoning districts affecting the property. Later in the correspondence, the author, Richard Schmoyer, devotes three paragraphs in support of his conclusion that PRDs are not permitted under the ordinance due to the 1985 amendment.

At the December 22, 2003 hearing, Richard Schmoyer was called to testify as a witness. During his testimony, he indicated that the Adams County Office of Planning and Development recommended the denial of the application based upon, among other things, “some issues that we thought we saw relative to the applicability of the ordinance itself and on completeness of the ordinance itself....” Hearing transcript, p. 600. Later in his testimony, in response to questions concerning the issue of whether PRDs are permitted under the ordinance, Mr. Schmoyer indicated:

“We write zoning ordinances as planners, and we did look at other zoning ordinances in Adams County to see how PRDs were treated. In the other cases where they are permitted, they are permitted in specific districts. In this case, after that amendment eliminated them, we felt based on what we read, it was a question in the minds of the entire staff of whether or not, and I think we did suggest the Township take a serious legal look at this issue.” Hearing transcript, p. 678.

The significance of this issue was not lost on the appellant, as evidenced by counsel’s attempt during cross-examination to cast doubt on the credibility of Mr. Schmoyer concerning this issue. See Hearing transcript, p. 686,11. 3-9.

The issue concerning the 1985 amendment was revisited in the January 19, 2004 recommendation from the Liberty Township Planning Commission. In summarizing the planning commission’s three-one vote in favor of the denial of the application, the commission noted “review of the zoning ordinance shows no basis for a PRD to be allowed in the zones proposed or any zone in Liberty Township....” Save Our Liberty exhibit 30, p. 4. This comment from the planning commission references the 1985 amendment and states that the commission believed that PRDs were repealed by the 1985 amendment. Counsel for Liberty Development indicated receipt of the report at the January 19,2004 hearing and, significantly, perhaps in recognition of the substance of the report, called a number of witnesses in order to establish a bias claim against planning commission members. See generally, transcript, pp. 1062-75.

Perhaps the clearest indication of Liberty Development’s awareness of this issue is found in the testimony of its expert, Richard N. Coch. In response to questions posed by Liberty Development’s counsel, the following exchange occurred:

“Q: Please refer to part IV(B) of the Adams County comments (at page 10) where it is suggested that PRDs are not permitted uses under the township’s zoning ordinance. Please state your view concerning these comments.
“A: Adams County planning, in their previous comments applicable to the Community of Liberty PRD, were unaware of the May 1985 amendments to the zoning ordinance. Those amendments eliminated special uses, including the PRD special use within the GU district. Adams County planning now suggests that this amendment eliminated PRDs as a permitted use within any district in the township. Based upon our experience in dealing with zoning ordinances, including those with PRD provisions, we do not think this to be a reasonable or proper interpretation. Otherwise the entirety of article V of the zoning ordinance setting forth the PRD standards and requirements Would be a nullity. It appears to us that, if the township had intended to eliminate PRDs as a permitted use within the township, it would have repealed article V as apart of the 1985 amendment. It is our view that PRDs are allowed within any district of the township so long as the standards and requirements of article V are satisfied, in order to provide innovative design alternatives and to allow for flexible community mixed use development.” Exhibit A-7, p. 10.

This exchange reveals not only that Liberty Development was aware of the comments of the Adams County Planning Department, but also that the 1985 amendments, and their effect, were an issue before the board. Liberty Development’s argument that it was denied the opportunity to present evidence on this critical issue is not supported by the record. In fact, Liberty Development presented evidence in support of its position that the 1985 amendments did not affect the viability of PRDs in Liberty Township.

The suggestion that Liberty Development was led to believe that the 1985 amendment was not an issue is simply not credible in light of the record. Rather, Liberty Development’s actions and arguments following the close of the evidentiary record clearly reveal its awareness of this issue. Following the close of testimony on January 21,2004, Liberty Development granted the township an extension in rendering a decision so that each party would have the opportunity to file proposed findings of fact and briefs. The next activity of record occurs on February 23,2004, when both Liberty Development and Save Our Liberty submitted briefs to the township for consideration. Liberty Development’s brief is accompanied by proposed findings of fact and conclusions of law. Since the lengthy briefs of both parties were submitted to the township on the same day, neither Liberty Development nor Save Our Liberty had the benefit of seeing its adversary’s arguments. Yet, the second conclusion of law suggested by Liberty Development addresses the issue of whether PRDs are permitted in the township. Liberty Development supports this proposed conclusion of law with its brief, which sets forth argument and supporting case law concerning the effect of the 1985 amendment. In light of this record, it cannot be credibly argued that the viability of PRDs in Liberty Township was a non-issue. Although Liberty Development may have miscalculated the significance of the issue, its argument claiming that it was surprised is meritless.

Throughout the various pleadings in this matter, Liberty Development proffers a number of items which it seeks to present as additional evidence. After reviewing each of those items, it is apparent that practically all of those items were known and available to Liberty Development prior to the close of the evidentiary record before the board. Under these circumstances, I am unable to find that Liberty Development was refused the opportunity to be fully heard or that relevant testimony was excluded. See Caln Nether Co., cited above. The record itself leads to a contrary conclusion. Testimony was presented over eight different days involving more than 20 different witnesses. Additionally, the board took comment from a number of citizens. There is no indication that relevant testimony from any witness was excluded by the board. Although public comment was limited, the parties to the application were granted unlimited time to present testimony and other evidence. I agree with the township; if error occurred, it was the result of the township permitting too much testimony.

In reaching this conclusion, I am mindful that the denial of Liberty Development’s petition to submit additional evidence on this issue may very well preclude, or substantially hinder, its ability to pursue theories challenging the board’s finding that PRDs are not permitted under the Liberty Township Zoning Ordinance. However, the litigants have been given their opportunity to present their cause. Where there is an opportunity to raise an issue or to present evidence before a municipal body, and a party fails to do so, that party has waived the right to do so at a later date. Mack v. Zoning Hearing Board of Plainfield Township, 126 Pa. Commw. 80, 85, 558 A.2d 616, 618 (1989). Permitting the presentation of new theories or additional evidence following the entry of a decision by a municipal body exposes litigants to the uncertainty of collateral attack and is contrary to the successful administration of justice.

For the foregoing reasons, the attached order is entered.

ORDER

And now, June 24, 2005, the plaintiff’s motion to present additional evidence concerning the legal effect of the 1985 amendment to the zoning ordinance is denied. The plaintiff’s motion to present additional evidence concerning bias is granted. Pursuant to Amerikohl Mining Inc. v. Zoning Hearing Board of Wharton Township, 142 Pa. Commw. 249, 597 A.2d 219 (1991), this court’s decision to accept additional evidence of bias will not, in and of itself, change the standard of review of the board of supervisors’ decision. An evidentiary hearing for the admission of testimony permitted, by this order will be scheduled upon praecipe of any party.

      . The Boron court interpreted former section 1009 of the MPC; although this section has been repealed, it is substantially identical to current section 1009.

      . Liberty Development’s application for a planned residential development was denied by a 2-1 vote, with the chairman and another board member voting against the application and one board member voting in favor of the application.

      . Thornbury Township Board of Supervisors v. W.D.D. Inc., 119 Pa. Commw. 74, 79, 546 A.2d 744, 747 (1988) (recusal necessary on applications before the board of supervisors where supervisor appeared before township zoning hearing board as a private citizen and advocated against application).

      . Prin v. The Council of the Municipality of Monroeville, 165 Pa. Commw. 519, 523, 645 A.2d 450, 452 (1994) (council member is disqualified after publicly expressing his predisposition against the project).

      . Borough of Youngsville v. Zoning Hearing Board, 69 Pa. Commw. 282, 289, 450 A.2d 1086, 1091 (1982) (board member improperly failed to recuse himself despite the fact that he was employed by the applicant and presented testimony on the applicant’s behali).

      . The board cites Amerikohl, cited above, for the proposition that Liberty Development’s failure to develop a factual record before the board constitutes waiver. I do not read Amerikohl as support for that proposition. In Amerikohl, the landowner not only failed to establish a factual record before the board, but, importantly, it appears from a reading of the opinion that the issue of recusal was never raised in any manner before the board. Accordingly, Amerikohl actually supports the reasoning in this opinion, and that of the Supreme Court, which mandates that specific allegations of a bias claim must be raised before the tribunal at issue or waiver results.

      . The record indicates that Liberty Development’s application for tentative review of their plan was filed on September 29,2003. A hearing on the application commenced on November 24,2003, and spanned eight different days through January 14,2004. A final decision by the board was entered on March 16, 2004. The record further indicates that board membership consisted of Leonard Sites, chairman, Charles Alexander and John Miller through December 31, 2003. Five of the eight hearing dates were held prior to December 31,2003. During the three remaining hearing dates, the board consisted of Paul Harner, chairman, Leonard Sites and John Miller. The board’s decision denying the PRD tentative plan consisted of votes in favor of the denial by Chairman Hamer and Supervisor Miller. Supervisor Sites voted for approval of the plan.

      . The organization, “Save Our Liberty,” also petitioned this court to be granted intervenor status. The petition was denied by order of court dated September 27, 2004.

      . Liberty Development’s application for tentative approval has been referred to consistently by the parties as the Wormald plan, apparently in reference to Edward E. Wormald, general manager of Liberty Development Company LLC, and signatory on the application.

      . It is well settled in this state that a municipality’s failure to comply with the time provisions set forth in the MPC will result in a deemed approval of a land use application. Coretsky v. Board of Commissioners of Butler Township, 520 Pa. 513, 517, 555 A.2d 72, 74 (1993).

      . The board cites 53 P.S. §65603 which reads that “A member of the board shall not be disqualified from voting on any issue before the board solely because the member has previously expressed an opinion on the issue in either an officiai or unofficial capacity.” 53 P.S. §65603. The board concludes that the chairman’s actions, even if true, are not a basis for recusal under the protections of this section. On the other hand, Liberty Development suggests that, in considering its application for tentative approval of the PRO, the board was acting in its adjudicative capacity and is, thus, subject to greater scrutiny. See North Point Breeze Coalition v. Pittsburgh, 60 Pa. Commw. 298, 304, 431 A.2d 398, 401 (1981). I will defer the resolution of this specific issue until additional testimony is taken.

      . Richard H. Schmoyer is director of the Adams County Department of Planning and Development.

      . In its brief, Liberty Development suggests that the 1985 amendment did not become an issue until after Chairman Hamer took office. Once again, this claim is not supported by the record. The above-referenced testimony of Richard Coch was presented to the board in a hearing held on December 15, 2003, which precedes Mr. Harner’s ascension to the board. Interestingly, Mr. Coch’s testimony was submitted in a pre-prepared question and answer form, which apparently was taken from a previous application filed, and subsequently withdrawn, by Liberty Development. See transcript, p. 390. Although the record is unclear, the initial application for a tentative plan, called the Community of Liberty, was formally withdrawn sometime prior to November 24, 2003. See transcript, p. 3.

      . Liberty Development’s proposed findings of fact and conclusion of law no. 2 reads: “At the time the Liberty Valley PRD application was filed with the township, article V of the zoning ordinance permitted planned residential developments in all zoning districts in the township.”

      . Liberty Development has filed a notice of appeal, with 13 exhibits attached; a motion to present additional evidence; and a brief in support of motion to present additional evidence.

      . Liberty Development also suggests that a resolution passed by the board in another land use matter on March 2,2004, and comments in a local newspaper concerning that resolution and attributed to members of the board, occurred subsequent to closure of the record. Although interesting, they provide little insight to the issues before the court. Obviously, they are not indicative of actions by township officials which may have misled, or caused reliance on the part of Liberty Development, since the comments post-date all application proceedings before the board. Moreover, the evidence does not indicate inconsistent results concerning the same issue. Rather, this evidence appears to reflect the board’s struggle with complicated legal issues concerning two separate large-scale land development plans. Although not part of the record in this matter, there are various references throughout this proceeding to another PRD plan in Liberty Township submitted by Roy and Edith Crum. After the board rendered a decision on the Crum application, the matter was appealed to the Adams County Court of Common Pleas, 04-S-352. By order of court dated June 29, 2004, all parties to this litigation were permitted to intervene in the Crum appeal.

      . At the conclusion of the final hearing on January 19,2004, the township solicitor, Walton Davis, Esquire, leaves the applicants the option of closing the record or presenting additional evidence, as indicated by the following exchange:
      “Mr. Davis: Anything else or close these proceedings out?
      “Mr. Zwally: I think it appropriate to close the proceedings. I would like to have a brief off-the-record discussion before we do.” Transcript, p. 1220.

      . Liberty Development argues in its brief that the township should be estopped from concluding that PRDs are not authorized under the township ordinance. Its motion to present additional evidence seeks to admit testimony and evidence in support of this claim.


source: Caselaw Access Project

author: CULLEN, J,

license: Public Domain

text:
    Rush v. Westfield Insurance Company

      Leonard G. Brown III, for plaintiffs.

      Robert M. Runyon III, for defendants.

      June 13, 2005
   CULLEN, J,

Pending before the court is the motion for judgment on the pleadings filed by defendants, Westfield Insurance Company, Westfield Group and Old Guard Insurance Company, as well as the cross motion for judgment on the pleadings filed by plaintiffs, Robert C. Rush II and Marie Rush. The issue to be resolved is whether plaintiffs are entitled to be compensated for the loss of livestock under the farmowners’ insurance policy purchased by them from defendants. The court concludes that whether plaintiffs have sustained a loss covered by the policy presents a factual issue which must be resolved at trial. Further, on the limited record before it, the court cannot determine whether defendants have acted in bad faith in the handling of plaintiffs’ claim. Accordingly, both defendants’ motion for judgment on the pleadings and plaintiffs’ cross motion for judgment on the pleadings will be denied.

PROCEDURAL AND FACTUAL BACKGROUND

Plaintiffs own and operate a dairy farm in Strasburg, Lancaster County, Pennsylvania. In order to maintain a relatively uniform temperature in the barn for their dairy cows, plaintiffs use a “tunnel ventilation system.” This system, which is powered by electricity, consists of large fans on one side of the bam which blow air through the structure and maintain a constant temperature.

On September 19,2003, during a storm, electric power to the farm was interrupted when a tree fell on a power line located on the property.

Plaintiffs allege their bam was without electricity for two days, as a result of which the cows suffered from hypothermia due to lack of ventilation. According to the complaint, plaintiffs lost 56 cows and 14 calves and incurred other related financial losses.

When the loss occurred, plaintiffs were insured under a policy of insurance, policy number ** ******** issued by defendants. On or before September 25, 2003, plaintiffs notified defendants of their claim. The claim was denied on September 26, 2003.

Following the denial of their claim, plaintiffs instituted this action by filing a complaint on November 14, 2003, alleging, inter alia, causes of action for breach of contract (Count I) and bad faith in violation of 42 Pa.C.S. §8371 (Count II).

On December 10, 2003, defendants filed preliminary objections which were denied in part and sustained in part by order of June 2, 2004.

On August 18, 2004, defendants filed an answer and new matter. In their answer, defendants admitted that the falling tree resulted in an interruption of electric service to plaintiffs’ farm but denied that the insurance policy in effect covered the loss of plaintiffs’ livestock, and denied also that the claims adjuster had failed to properly evaluate the information pertinent to the claim or had acted in bad faith when he denied the claim.

Plaintiffs filed their answer to defendants’ new matter on September 9, 2004.

On October 18, 2004, defendants filed a motion for judgment on the pleadings together with a supporting memorandum. On November 4,2004, plaintiffs filed an answer to the motion and a brief. On December 2,2004, plaintiffs filed a cross motion for judgment on the pleadings and a brief. Defendants filed their response on December 22, 2004. Both matters were thereafter assigned to the court for disposition.

DISCUSSION

Rule 1034 of the Pennsylvania Rules of Civil Procedure permits any party to move for judgment on the pleadings after the pleadings are closed but within such time as not to unreasonably delay trial. Pa.R.C.P. 1034. A motion for judgment on the pleadings is similar to a demurrer and may be entered where there are no disputed issues of fact and the moving party is entitled to judgment as a matter of law. Booher v. Olczak, 797 A.2d 342 (Pa. Super. 2002); Mellon Bank N.A. v. National Union Insurance Company of Pittsburgh, 768 A.2d 865 (Pa. Super. 2001). Judgment on the pleadings should be granted only in cases where the moving party’s right to relief is certain. Pilotti v. Mobil Oil Corporation, 388 Pa. Super. 514, 565 A.2d 1227 (1989).

In deciding a motion for judgment on the pleadings,

“A trial court must confine its consideration to the pleadings and relevant documents. The court must accept as true all well pleaded statements of fact, admissions, and any documents properly attached to the pleadings presented by the party against whom the motion is filed, considering only those facts which were specifically admitted.” Steiner v. Bell of Pennsylvania, 426 Pa. Super. 84, 88, 626 A.2d 584, 586 (1993). (citation and footnote omitted)

In Neuhard v. Travelers Insurance Co., 831 A.2d 602 (Pa. Super. 2003), the Superior Court explained that the interpretation of an insurance contract is generally a matter of law which requires a trial court to ascertain the intent of the parties as manifested by the language of the provisions in the written instrument.

“The task of interpreting an insurance contract is generally performed by a court rather than by a jury. The goal of that task is, of course, to ascertain the intent of the parties as manifested by the language of the written instrument. Where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement. Where, however, the language of the contract is clear and unambiguous, a court is required to give effect to that language. Contractual language is ambiguous if it is reasonably susceptible of different constructions and capable of being understood in more than one sense. This is not a question to be resolved in a vacuum. Rather, contractual terms are ambiguous if they are subject to more than one reasonable interpretation when applied to a particular set of facts. We will not, however, distort the meaning of the language or resort to a strained contrivance in order to find an ambiguity. The polestar of our inquiry, therefore, is the language of the insurance policy.” Id. at 604-605.

Defendants argue that their motion for judgment on the pleadings should be granted because the insurance policy does not provide coverage for the loss sustained by plaintiffs. Specifically, defendants contend that the policy’s coverage is limited to the perils listed under endorsement FO-356 of the policy. Because the loss was not caused by one of the perils enumerated in endorsement FO-356, defendants assert that plaintiffs are not entitled to compensation for loss of the livestock. Defendants also argue that plaintiffs cannot recover under the policy because they did not maintain an auxiliaiy power generator as required as a condition precedent for coverage under the policy.

Plaintiffs contend that their cross motion for judgment on the pleadings should be granted because the basic policy insured plaintiffs against direct physical loss to the livestock due to a windstorm which caused a power outage on the property. Plaintiffs dispute defendants’ assertion that the language of the policy required a backup generator as a condition precedent to basic coverage. Plaintiffs claim that a back-up generator was only required as a condition precedent for the additional coverage which they had purchased.

The court must determine whether the language of the policy in question is clear and unambiguous as to leave no doubt as to the rights and obligations of the parties.

Although the parties agree on the number of the insurance policy purchased by plaintiffs, ** ********, they disagree on its contents and each has submitted its own version. (Complaint, exhibits 1-24; answer, exhibit A.) Flowever, it appears from the briefs that the relevant portions are included in both versions of the policy.

Initially, it is necessary to determine whether plaintiffs’ policy provides any coverage for loss of livestock.

The basic farm property coverage is set forth in section FO-6 of the policy. (Complaint, exhibit 6; answer, exhibit A (AAIS, FO-6, Ed. 1.0, pp. 1-14).) Coverage F, scheduled farm personal property, is one of the principal property coverages described in the policy. Coverage F provides in pertinent part:

“Coverage F — Scheduled farm personal property
“ ‘ We’ cover the classes or items of farm personal property for which a ‘limit’ is shown on the ‘declarations.’ Coverage applies while property is on the ‘ insured premises.’ ...
“(4) Livestock[] — ‘We’ cover specifically scheduled ‘livestock’ for which a ‘limit’ is shown on the ‘declarations.’ ‘We’ also cover classes of livestock for which a ‘limit’ is shown on the ‘declarations.’ The ‘limits’ shown on the ‘declarations’ apply to covered ‘livestock’ while on or away from the ‘insured premises.’
“The most ‘we’ pay for loss to any one head of ‘livestock,’ other than ‘livestock’ specifically scheduled on the ‘declarations,’ is the smallest of the following amounts:
“(a) 120 percent of the amount obtained by dividing the ‘limit’ for the affected class of‘livestock’ by the number of head in that class owned by ‘you’ at the time of loss;
“(b) the actual cash value of the ‘livestock’ damaged or destroyed; or
“(c) $2,500.” (Complaint, exhibit 6; answer, exhibit A (AAIS, FO-6, Ed. 1.0, pp. 3, 5).)

The declarations portion of the policy lists “livestock” with a liability limit of $200,000. (Complaint, exhibit 1; answer, exhibit A (ML300-10-79).)

Defendants contend that the loss of plaintiffs’ livestock was not covered because the livestock was not specifically scheduled under the policy. Section 4 of coverage F distinguishes between livestock that is specifically scheduled and livestock that is covered as a class. In this case, the policy is iimited to $200,000 in coverage for the direct physical loss to plaintiffs’ unscheduled class of livestock.

Since the policy includes coverage for plaintiffs’ livestock as a class, the next issue is whether the loss occurred as a result of one of the perils for which coverage is provided.

Section FO-6 of the policy provides protection for the direct physical loss to property caused by the enumerated perils listed in the policy unless the loss is excluded under the general exclusions. (Complaint, exhibit 6; answer, exhibit A (AAIS, FO-6, Ed. 1.0, pp. 10-13).) Despite this language in the basic policy, defendants contend that the language of the declarations page, ML300-10-79, identifying coverage for livestock “per FO-356” limits coverage only to the perils identified in that endorsement.

Endorsement FO-356 states:

“Added Animal Perils ..,
“The coverage that applies to ‘livestock’ described above is extended by the following:
“ ‘We’ pay for loss resulting from the death of ‘livestock’ described above caused by:
“(1) accidental shooting except by an ‘insured,’ members of an ‘insured’s’ family, employees of an ‘insured,’ or persons residing on the ‘insured premises’;
“(2) drowning, excluding ‘livestock’ less than 30 days of age;
“(3) attack by dogs or wild animals except by a dog or wild animal owned by an ‘insured,’ members of an ‘insured’s’ family, employees of an ‘insured,’ or persons residing on the ‘insured premises’; and
“(4) collapse of a building.
“All other ‘terms’ of the policy apply.” (Complaint, exhibit 22; answer, exhibit A (AAIS, FO-356, Ed. 1.0, p.1).)

Plaintiffs contend that endorsement FO-356 is an extended coverage provision which adds additional perils to the basic policy and, therefore, is not the exclusive list of animal perils covered under the policy. The court concurs with this interpretation. Endorsement FO-356 specifically provides that coverage that applies to “livestock” under the policy is extended by the endorsement’s provisions and that all other terms of the policy apply. In the absence of any language limiting this provision, endorsement FO-356 is reasonably interpreted to add the additional listed animal perils to the basic policy coverage.

Defendants also argue that plaintiffs are not entitled to coverage for loss of livestock under section G of the Additional Farmowners’ Incidental Coverage. (Complaint, exhibit 15; answer, exhibit A (OGF-411-11/01).) This provision provides extended coverage for the death of poultry or livestock caused by the mechanical breakdown or the interruption of power to the equipment controlling the temperature, atmosphere or movement of air within the building confining the covered poultry or livestock. Id. Defendants contend plaintiffs are ineligible for this coverage because they failed to maintain auxiliary power generating equipment as required by the policy.

Plaintiffs do not dispute defendants’ position and concede they are not entitled to coverage under this endorsement.

Plaintiffs may have a valid claim only if the loss of livestock can be attributed to one of the enumerated perils contained in the basic policy, FO-6.

Plaintiffs have the burden to show that a peril insured against was the direct cause of the loss. Marks v. Lumbermen’s Insurance Co. of Philadelphia, 160 Pa. Super. 66, 49 A.2d 855 (1946) (peril insured against must be proximate cause of insured’s loss to recover on policy). Where clear language of the contract specifies the risk, only losses due to the risk insured against are compensable under the policy. Cleland Simpson Co. v. Firemen’s Insurance Co., 392 Pa. 67, 140 A.2d 41 (1958).

Plaintiffs argue that the windstorm peril provision, interpreted in conjunction with the provision dealing with the “disruption of power” under the general exclusions section, provides coverage for their loss.

The windstorm provision provides in pertinent part:

“Perils Section — Coverages E, F, and G
“ ‘We’ insure against direct physical loss to property covered under coverages E, F, and G caused by the following perils, unless the loss is excluded under the general exclusions:...
“(2) Windstorm or hail — However, ‘we’ do not pay for loss:...
“(c) to ‘livestock’ or poultry caused by:
“(1) running into streams or ditches or against fences or other objects;
“(2) smothering;
“(3) fright; or
“(4) freezing in blizzards or snowstorms;..(Complaint, exhibit 6; answer, exhibit A (AAIS, FO-6, Ed. 1.0, p. 10).)

The windstorm peril would be applicable in this instance if the storm directly caused the physical loss of the livestock. The exclusion in the windstorm provision would not operate to preclude coverage since the loss did not occur as a result of any of these events.

The additional policy conditions and property coverage terms portion of the policy, FO-20, Ed. 1.0, contains general exclusions including one relating to the “disruption of power.”

“Additional Policy Terms Applicable To All Property Coverages
“General Exclusions
“ ‘We’ do not pay for loss if one or more of the following exclusions apply to the loss, regardless of other causes or events that contribute to or aggravate the loss, whether such causes or events act to produce the loss before, at the same time as, or after the excluded causes or events....
“(8) Power disruption — ‘We’ do not pay for loss which results from the disruption of power or other utility service, whether or not it is caused by a peril insured against, if the cause of the disruption is not on the ‘insured premises.’
“ ‘We’ do pay for direct loss by a peril insured against which occurs on the ‘insured premises’ as a result of the disruption of power.” (Complaint, exhibit 5; answer, exhibit A (AAIS, FO-20, Ed. 1.0, pp. 2-3).)

Plaintiffs allege that the loss of the livestock was caused by a windstorm that knocked over a tree on the insured property which fell on the power line causing a disruption of electric power. The disruption of electric power rendered plaintiffs’ ventilation system inoperable which in turn caused the livestock to suffer from hypothermia.

Whether the windstorm peril provision, read in light of the power disruption provision of the general exclusions, operates to bring plaintiffs’ loss within the coverage provided by the policy depends on the interpretation of the clause: “ ‘We’ do pay for direct loss by a peril insured against which occurs on the ‘insured premises’ as a result of the ‘ disruption of power ’.” Since this phrase is ambiguous, it is to be interpreted to mean that the insurer will pay for the loss of livestock as a result of the disruption of power on the insured premises if the loss is a direct loss by a windstorm. Neuhard v. Travelers Insuance Co., 831 A.2d 602 (Pa. Super. 2003) (where a provision of a policy is ambiguous, the policy provision is to be construed in favor of the insured and against the insurer, the drafter of the agreement).

Direct loss is not defined in the policy. However, there is guidance as to the meaning of this term in the decision of the Superior Court in Marks v. Lumbermen’s Insurance Co. of Philadelphia, 160 Pa. Super. 66, 49 A.2d 855 (1946). In Marks, the Superior Court interpreted an insurance policy provision insuring the plaintiff against “direct loss and damage by windstorm” to mean that the risk insured against, a windstorm, was the proximate cause of the loss. The Superior Court stated that, while the peril insured against must be the proximate cause of the loss, it need not be the sole cause. Id. The plaintiff may recover even though a peril excluded from the policy may have remotely or incidentally contributed to the loss. Id. Plaintiffs, therefore, may be entitled to recover under the policy for the loss of livestock if the loss was proximately caused by a peril insured against, the windstorm.

Whether the loss was proximately caused by the windstorm presents a question of fact to be resolved at trial based upon all of the relevant evidence. Accordingly, defendants’ motion for judgment on the pleadings and plaintiffs’ cross motion for judgment on the pleadings will be denied.

With respect to plaintiffs’ bad faith claim, the current record is inadequate to permit the court to conclude, in light of the applicable law, that defendants have engaged in bad faith in addressing plaintiffs’ underlying insurance claim. This issue too must await resolution at trial or by means of a properly supported motion for summary judgment.

For the reasons stated above, the court enters the following:

ORDER

And now, June 13, 2005, upon consideration of defendants’ motion for judgment on the pleadings and plaintiffs’ cross motion for judgment on the pleadings, it is ordered that defendants’ motion is denied and plaintiffs’ cross motion is denied.

      . Plaintiffs allege that all three defendants are liable under the policy while defendants contend the policy in question was issued solely by Old Guard Insurance Company. It is not necessary to resolve this dispute in order to address the coverage issue presented.

      . In its order, the court dismissed Count III of the complaint which alleged a breach of fiduciary duty on the part of defendants. The court also struck plaintiffs’ demand for attorney’s fees and punitive damages with respect to the breach of contract claim. Defendants’ remaining objections were overruled.

      . “Livestock” is defined to include cattle. (Complaint, exhibit 6; answer, exhibit A (AAIS, FO-6, Ed. 1.0, p. 2).)

      . Defendants point to this endorsement, which appears to address the precise type of loss suffered by plaintiffs, as evidence that the basic policy does not provide coverage for the loss of the livestock in this case. However, the issue before the court at this point is only whether it can be said as a matter of law that, on the limited record presented, there can be no coverage for plaintiffs’ loss under the basic policy.

      . Discovery may result in the disclosure of information which demonstrates that there is no genuine issue of fact which would have to be resolved at trial. If such is the case, this matter may be disposed of by means of a properly supported motion for summary judgment.


author: NICKLEACH, J,

text:
    Bracken v. Malik

      Douglas L. Price, for plaintiff.

      James W Kraus, for defendants.
    April 19, 2005
   NICKLEACH, J,

This is a medical malpractice action brought on behalf of James Morvik, now deceased, against Khalid Malik M.D. and Malik Medical Associates. The case was commenced by Jeffrey Bracken, attomey-in-fact for Morvik. After Morvik died on September 21, 2000, Bracken became special executor of the estate of James Morvik. By court order, he was substituted for the original plaintiff as executor of Morvik’s estate. After a jury trial on September 21, 2004, the jury returned a verdict in favor of plaintiff and against defendants in the amount of $250,000. Presently before this court for disposition is defendants’ motion for post-trial relief, new trial and/or entry of judgment.

The essence of plaintiff’s case was that defendants failed to properly treat and monitor Morvik’s condition, including stenosis of his left and right carotid artery, resulting in total occlusion of Morvik’s left carotid artery. Defendants’ failure to properly treat and monitor the stenosis in Morvik’s arteries ultimately resulted in Morvik suffering a debilitating stroke (a left cerebral vascular accident) on August 29, 1997. As a result of this stroke, Morvik was unable to walk, dress, bathe, toilet, eat or undertake other activities of daily living without assistance and required round-the-clock supervision and care. He was essentially confined to his house for the remainder of his life.

The trial of this case began on September 21, 2004. Just before opening arguments, defendants decided to admit liability and try the case solely on the issue of plaintiff’s damages. The parties entered into a stipulation of liability. Among other things, the stipulation stated, “[Pjlaintiff will not have to prove that Dr. Malik was negligent and that such negligence was the cause of Mr. Morvik’s stroke.” Stipulation, paragraph 5. The stipulation also stated that “[tjhe parties will present evidence regarding Mr. Morvik’s condition before and after sustaining the stroke, as well as the effect that it had on his life.” Id. at para. 8. (emphasis added)

Plaintiff presented just five witnesses at trial: Alan Lerner M.D. (a neurologist); Jeffrey Bracken (Morvik’s friend, housemate and caretaker); Wendell Morvik (Morvik’s brother); Rose Virostek (Morvik’s sister); and Mindy Bracken (Bracken’s wife and Morvik’s friend, housemate and caretaker).

Defendants complain that several errors occurred at trial. First, defendants argue that Dr. Lemer was erroneously permitted to testify outside the scope of his expert report in violation of Pa.R.C.P. 212.2(a)(5) and Pa.R.C.P. 4003.5(c). Defendants also argue that the testimony of Dr. Lerner was unnecessary and duplicative.

In addition, defendants claim that the court erred by allowing photographs of Morvik taken six or seven years prior to his stroke to be admitted at trial. Defendants further argue that the court gave insufficient curative instructions to the jury regarding various statements in plaintiff’s closing argument about the value of Morvik’s life. Finally, defendants seek remittitur of the jury’s $250,000 award, arguing that it was excessive, was not supported by the evidence and was the result of various alleged errors outlined above which fatally prejudiced the jury. Alternatively, defendants seek a new trial.

We will first address defendants’ claim that the court erred by allowing Dr. Lemer to testily. The main thrust of defendants’ argument is that Dr. Lemer’s testimony went outside the scope of his expert report in violation of Pa.R.C.P. 212.2(a)(5) and Pa.R.C.P. 4003.5(c). The court does not agree.

Dr. Lerner’s written report, which took the form of a letter addressed to plaintiff’s attorney, admittedly was quite short and largely directed to the issue of defendants’ negligence. However, the report made it plain that Dr. Lerner had reviewed certain medical records of Morvik and was familiar with the nature and effects of the stroke suffered by Morvik. Specifically, the report said:

“I have reviewed Dr. Khalid’s office records, the inpatient records of Mr. Morvik and depositions of Dr. Khalid and Louann Heilman. As the details of the case are familiar to you, I will only briefly summarize them. Mr. James Morvik had an incapacitating stroke involving the left middle cerebral artery distribution on August 30, 1997. The patient eventually died due to complications of his stroke.”

The above-quoted language put defendants on notice that Dr. Lerner would testify concerning the information contained in Morvik’s medical records and his “incapacitating stroke involving the left middle cerebral artery.” Given this specific language, as well as the fact that defendants decided only at the last minute to admit liability, the court did not err when it allowed Dr. Lerner to testify about the nature and the effects of Morvik’s stroke and to opine that the physical and mental difficulties suffered by Morvik were the consequences of that stroke.

Defendants themselves note that other witnesses testified to the difficulties Morvik had with such things as speaking, dressing, walking and so on. These other witnesses, like Dr. Lerner, further testified that Morvik was depressed and frustrated with his inability to communicate. Defendants do not deny these damages nor do they deny that they were a direct result of the stroke. Although defendants conceded liability, plaintiff was still entitled to educate the jury about the mechanics of Morvik’s stroke, and to have his expert explain that Morvik’s subsequent physical and mental difficulties were a direct result of that stroke.

Furthermore, even if Dr. Lerner’s testimony did exceed the scope of his expert report, the court clearly had the discretion and authority to limit his testimony rather than to totally preclude Dr. Lerner from testifying. The court instructed counsel in chambers that Dr. Lerner’s testimony was to be short and limited to explaining what happened when a person, and in particular, Morvik, suffered the type of stroke which befell Morvik. Transcript of proceeding in chambers September 21, 2004, pp. 16-19. Dr. Lemer’s testimony was brief and focused on the particular kind of stroke Morvik suffered, and, additionally, on how the stroke affected Morvik’s speech, movement, body functions and mental health.

“The question of whether the permissible limits of testimony under the rule have been violated is to be determined on a case-by-case basis, and the essence of the inquiry is fairness. .. . The fairness of the court’s decision is gauged by whether the opposing party has sufficient notice of the expert’s opinion to fashion a meaningful response.” Burton-Lister v. Siegel, Sivitz and Lebed Associates, 798 A.2d 231, 241 (Pa. Super. 2002), appeal denied, 570 Pa. 680, 808 A.2d 568 (2002). (citations omitted) Defendants did not present any witnesses themselves at trial. In light of this, the court fails to comprehend what “meaningful response” defendants might have made to Dr. Temer’s testimony had they known he would testify.

In the same vein, defendants have failed to explain how they were unfairly prejudiced or unfairly surprised by Dr. Lerner’s brief testimony. As the Superior Court noted in Burton-Lister, “We will not find error in the admission of testimony that the opposing party had notice of or was not prejudiced by.” Id. at 242. (citations and quotations omitted) For all these reasons, the court finds defendants’ claim that the court erred in allowing Dr. Lemer to testify to be without merit. Defendants’ request for post-trial relief on that basis is denied.

We next address the issue of certain remarks made by plaintiff’s counsel in closing arguments referring to the value of Morvik’s life. According to defendants, these remarks suggested that plaintiff was entitled to Wrongful Death Act damages and unfairly prejudiced defendants. Viewing the closing arguments and the court’s subsequent charge to the jury in their totality, the court finds defendants’ claim of error to be without merit.

First, defendants’ counsel clearly stated in his closing, “There is no claim for wrongful death or that anything that Dr. Malik did caused the death of Mr. Morvik.” T.T. at 91. Defendants’ counsel also stated, “[W]e respect the law, which in this case says that Mr. Morvik’s pain and suffering should be compensated, and, while he was living, his loss of enjoyment of life should be compensated, but those other things should not. And it’s part of your duty to divide those out....” Id. at 92.

After plaintiff’s closing argument, defendants objected to plaintiff’s remarks about the value of Morvik’s life and sought a curative instruction from the court. In response to defendants’ request, this court instructed the jury as follows:

“Ladies and gentlemen, there was some mention in Mr. Price’s closing arguments that you have to decide what his life was worth. I want to point out, and you to bear in mind, Mr. Morvik’s death is not an item of damages in this case. There is no allegation that Dr. Malik caused Mr. Morvik’s death, nor is that admitted here.
“What is at issue are the noneconomic damages that Mr. Morvik has from the date of his stroke until the date of his death, and I will define those and clarify those later on. But the death itself is not an item for you... to consider as far as damages.” Id. at 106.

Later on in the jury charge, the court explained the nature of the damages the jury could award at great length:

“The plaintiff, Mr. Bracken, as a special executor of Mr. Morvik’s estate, claims damages under Pennsylvania Survival Act. Under this act, Mr. Bracken, on behalf of Mr. Morvik’s estate, is entitled to be awarded an amount that you believe will fairly and adequately compensate for the noneconomic loss Mr. Morvik sustained from the moment of his stroke on August 29,1997, until his death on September 21, 2000.
“Bear in mind, as I said earlier, Mr. Morvik’s death is not an item of damage here. There is no allegation that Dr. Malik caused Mr. Morvik’s death, nor is that fact admitted in this case. There are three items that make up a damage award for noneconomic loss in this case: First, is pain and suffering; second, is embarrassment and humiliation; and third, is the loss of ability to enjoy the pleasures of life.
“The first item to be considered in plaintiff’s claim for damages for the noneconomic loss is pain and suffering. You are instructed that the plaintiff is entitled to be fairly and adequately compensated for all physical pain, mental anguish, discomfort, inconvenience, and distress that you find Mr. Morvik endured from the time of his stroke on August 29, 1997, until his death on September 21,2000.
“The second item that goes to make up noneconomic loss is embarrassment and humiliation. The plaintiff is entitled to fairly and adequately be compensated for such embarrassment and humiliation as you believe Mr. Morvik endured, again from the time of his stroke until the time of his death.
“The third item is loss of enjoyment of life. Plaintiff is entitled to be fairly and adequately compensated for the loss of Mr. Morvik’s ability to enjoy any of the pleasures of life as a result of his stroke from the time of his stroke until his death.” Id. at 119-21.

Given the above instructions, the court does not see how the nature of damages awardable in this case could have been made more clear. Moreover, after the court gave its curative remarks and its jury charge, the court asked counsel if there were any objections, modifications or additions to them. Id. at 127. Defendants’ counsel failed to object to the court’s curative instructions or charge regarding damages. As such, any such claim of error has now been waived.

Finally, the court will address defendants’ claim that the court erred in allowing certain photographs of Morvik to be admitted into evidence to demonstrate what Morvik looked like prior to his stroke. Defendants argue that because the photographs were taken six or seven years before Morvik suffered his stroke, the photographic evidence was unreliable and misleading, and should not have been admitted.

The photographs in question were introduced during the testimony of Jeffrey Bracken, Morvik’s nephew, caretaker and housemate. On cross-examination of Bracken, defendants’ counsel elicited testimony that the photographs had been taken about six or seven years before Morvik suffered his stroke. Bracken also admitted during cross-examination that between 1990 and 1997, Morvik suffered a heart attack, underwent medical procedures for the heart attack, and became unable to work as a result of his heart and back problems. Defendants thus had ample opportunity to suggest to the jury that the photographs might not represent the way Morvik looked just prior to his stroke.

On the other hand, Bracken testified on redirect that Morvik’s heart and back problems did not prevent Morvik from hunting, fishing, cutting grass or doing things for his neighbors prior to his stroke. The jury could reasonably infer from that testimony that Morvik’s appearance had not changed any more than might normally be expected over a passage of six or seven years, and that Morvik continued to be a vital and active person until the stroke occurred.

Generally, it is within the sound discretion of the court to determine whether or not photographs will be admitted into evidence. DiBuono v. A. Barletta & Sons Inc., 127 Pa. Commw. 1, 6, 560 A.2d 893, 896 (1989). Pa.R.E. 403 does state that otherwise relevant “evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury____” Pa.R.E.403. However, the court did not find that to be necessary in this case.

The jury heard testimony which emphasized that the photographs portraying Morvik in the years preceding his stroke had been taken six and seven years before the stroke. They were also informed of the back and heart problems suffered by Morvik between 1990 and 1997. This information helped the jury decide what weight they wished to give those photographs. That does not mean the photographs were not properly admissible As the Supreme Court noted in Beardslee v. Columbia Township, 188 Pa. 496, 502, 41 A. 617, 618 (1898):

“[Pjhotographs... taken at or near to the time, are not always obtainable, and, bearing in mind the object sought, — the assisting of the jury,... to judge the conduct of the parties with reference to the issue raised,— the only practicable rule would seem to be that the changes must not be such as to destroy the substantial identity, and that the changes, whatever they are, must be carefully pointed out and brought to the jury’s attention. . .. With these safeguards the subject must be left largely to the discretion of the trial judge.” Id.

Given the above reasoning, the court finds defendants’ claim that the photographs were erroneously admitted to have no merit.

Finally, the court addresses defendants’ claim that the jury’s verdict of $250,000 was excessive and warrants the granting of remittitur. The court does not find the jury award to be excessive at all. The evidence adduced at trial showed that prior to suffering a stroke, Morvik was an active, vital person who traveled, hunted, and fished as often as he could. Following the stroke, Morvik became virtually housebound, required 24-hour a day supervision and assistance with all his daily activities, could hardly communicate with others, and was extremely frustrated and depressed by his stroke-induced limitations. Fie lived this way for three years. Given these facts, the jury’s verdict was entirely appropriate, and the court will not grant remittitur or a new trial. Defendants’ motion for post-trial relief is denied, in its entirety.

An appropriate order will be entered.

ORDER

And now, April 19,2005, it is hereby ordered, adjudged and decreed that defendants’ motion for post-trial relief be denied.

      . There was no Wrongful Death Act claim, so plaintiff was limited to recovering damages suffered by Morvik during the three years he lived following the stroke.

      . Pa. R.C.P. 212.2(a)(5) requires that a party’s pretrial statement contain “a copy of the written report, or answer to written interrogatory consistent with Rule 4003.5, containing the opinion and the basis for the opinion of any person who may be called as an expert witness.” Pa.R.C.P. 212.2(a)(5).

      . Pa.R.C.P. 4003.5(c) states, “To the extent that the facts known or opinions held by an expert have been developed in discovery proceedings under subdivision (a)(1) or (2) of this rule, the direct testi

        mony of the expert at the trial may not be inconsistent with or go beyond the fair scope of his or her testimony in the discovery proceedings as set forth in the .. . separate report or supplement thereto. However, the expert shall not be prevented from testifying as to the facts or opinions on matters which the expert has not been interrogated in the discovery proceedings.” Pa.R.C.P. 4003.5(c). (emphasis added)

      . The only thing defendants did contest was Dr. Lerner’s and Jeffrey Bracken’s testimony that Morvik was incontinent, and defendants’ counsel grilled both Dr. Lerner and Bracken quite effectively on that issue.

      . Pa.R.C.P. 212(c) states, “Where the trial judge determines that unfair prejudice shall occur as the result of noncompliance with subdivisions (a) and (b), the trialjudge shall grant appropriate relief which may include (1) the preclusion or limitation of the testimony o/(ii) any witness whose identity is not disclosed in the pretrial statement or (ii) any expert witness whose opinions have not been set forth in the report submitted with the pretrial statement or otherwise specifically referred to in the pretrial statement, consistent with Rule 4003.5----”

      . As to the defendants’ claim that the testimony was unnecessary, irrelevant and duplicative of other witnesses’ testimony, the court ruled at trial, and again finds here, that this argument is without merit.

      . Some of the remarks objected to were: “Is it ever enough time to judge what the value of life of a person is? Trial transcript, p. 93; “This is a case of Jim Morvik’s life.” Id. at 96; “you are the ones who have to judge what is the value of Jim Morvik’s life.” Id. at 97; “That’s what a life is worth.” Id. at 98; “It’s whatever the 12 of you put together and come up with and come out here and say, in Armstrong County a life is worth this much.” Id. at 100; “Because that life was taken away, you are going to have to tell what his life was worth.” Id. at 101.

      . The three photographs at issue, plaintiff’s exhibits 1,2 and 3, all showed Morvik at home with his dog. Exhibit 1 was taken in 1990, and exhibits 2 and 3 approximately a year after that.