author: HILL, J.,

text:
    Connor v. Catagnus

      C.P. of Philadelphia County,
    July Term,
    no. 3247.

      Thomas J. Bass, for plaintiff.

      Michael J. Stack, Jr., for defendant.
    June 12, 1997
   HILL, J.,

— Plaintiff Cathleen Connor brought this action for negligence against Phil Catagnus, individually and as owner of Phil’s Bar, for injuries suffered while she was a patron at the bar. The case was tried without a jury. After hearing the testimony and reviewing the memoranda of law submitted by both parties, the court finds in favor of defendants Phil Catagnus and Phil’s Bar and against plaintiff Cathleen Connor.

II. FINDINGS OF FACT

(1) Plaintiff Cathleen Connor was 19 years old at the time of her injury on April 17, 1996.

(2) Defendant Catagnus is the owner of Phil’s Bar, at the comer of Second and Godfrey Streets, Philadelphia, Pennsylvania.

(3) Plaintiff, a day care worker, left work on April 17, 1996, the date of her injury, between 2 and 3 p.m.

(4) Defendant has owned Phil’s Bar for 11 years and has an additional 10 years of prior experience in the bar business.

(5) Christopher Felix had previously patronized Phil’s Bar, but had been “flagged” and ejected from the establishment when he had attempted to start a fight there two. weeks prior to the date of plaintiff’s injury.

(6) Joseph Ryan, a nephew of Felix, was not a regular customer at Phil’s Bar. In fact, defendant did not know him well enough to recall his last name.

(7) Jennifer Waering was a bartender on the evening of plaintiff’s injury.

(8) James Bailey and Jennifer Jericho were additional patrons of Phil’s Bar at that time who testified on plaintiff’s behalf. Mr. Bailey was very intoxicated on the night in question, and testified that he remembered very little of what happened that evening.

Phil’s Bar

(9) Phil’s Bar is located on the first floor of a 40' x 11' row house located at Second and Godfrey Streets.

(10) An oval bar fills most of the area of the one large room. Twenty five stools partially ring the bar.

(11) There is a space of about three feet between the outer edge of the bar and the 2 side walls of the building.

(12) There is one entrance at the front corner of the building and one side entrance.

(13) The seats which plaintiff and her companions occupied were located approximately three feet from the side door.

(14) The front entrance is usually locked at about 9 or 10 p.m. each evening, leaving the side door as the sole entrance and exit from the bar. It was the practice of defendant to keep a close watch over the door.

(15) The telephone located behind the bar is a receiving device only, and is essentially an extension to the pay phone located in the seating area of the bar. There is also an alarm system in the bar.

(16) A bartender had been shot in Phil’s Bar one year prior to the incident in question. The shooting prompted defendant to adopt the policy of closing the front entrance at 9 or 10 p.m. each evening.

(17) Defendant has over 20 years of experience in the bar business. Defendant was aware that on occasions ejected patrons return to “settle a score.” The testimony supports a finding that an ejected patron has never returned to any establishment owned by defendant for that purpose, except in the case at bar.

(18) Most of the regular patrons of Phil’s Bar are individuals who live in the neighborhood and are known by defendant.

Events of April 17, 1996

(19) The court finds that plaintiff arrived at Phil’s Bar around 10 or 10:30 p.m.

(20) Plaintiff was intoxicated when she arrived at Phil’s Bar and was intoxicated at the time she was injured.

(21) Christopher Felix arrived at Phil’s Bar for the first time at approximately 11 p.m.

(22) When Felix entered the taproom defendant was standing behind the bar.

(23) Defendant recognized that Felix was intoxicated as soon as he entered through the side door.

(24) Defendant notified bartender Waering that Felix was “flagged” from the bar, that he was not to be served and that Felix had to leave.

(25) It was defendant’s experience that patrons who were refused service left the bar. It was defendant’s expectation that Felix would behave similarly.

(26) Bartender Waering told Felix he would not be served and had to leave.

(27) Instead of leaving, Felix approached James Bailey, who was sitting in immediate proximity to the side entrance Felix had used.

(28) After exchanging a few words with Bailey, Felix struck the latter twice with his fists.

(29) Bailey struck Felix once in return. Felix staggered to the end of the bar, where he was then struck by Matt Waering, brother of the bartender, and fell to the floor. Bailey, who was wearing sneakers, then kicked Felix in the face.

(30) Defendant then instructed Bailey and Matt Waering to get Felix out of the bar.

(31) Bailey and Matt Waering lifted Felix by the shoulders and pushed him out the side door of the building.

(32) Defendant did not expect that Felix would turn and strike Bailey.

(33) Defendant made sure Felix had gone and then stationed himself in the general area of the side door.

(34) Defendant did not believe that Felix would return later that evening, either alone or with friends.

(35) Plaintiff shared defendant’s belief that the altercation with Felix was “all over.”

(36) Plaintiff shared defendant’s belief that Felix would not return later that evening to “settle the score.”

(37) Witness Jennifer Jericho testified that she had some concern that Felix might return later that evening to “settle the score,” but did not act on her concerns at that time.

(38) Approximately five to 10 minutes after being ejected from Phil’s Bar, Felix returned with a baseball bat.

(39) When Felix returned he was accompanied by three other individuals including Ryan.

(40) Felix entered the door with the baseball bat. Defendant and Bailey immediately wrestled him to the floor and grabbed the bat from him. Ryan and the two other individuals accompanying him did not enter the bar beyond the threshold.

(41) As Felix, Bailey and defendant were grappling on the floor, Ryan threw a 40-ounce beer bottle into the bar from where he was standing at the threshold of the building.

(42) The beer bottle thrown by Ryan struck plaintiff in the face, causing severe injuries to her mouth and teeth.

III. CONCLUSIONS OF LAW

Plaintiff argues that the defendant was negligent in the exercise of his duty of care toward her as a patron in his establishment. Plaintiff contends that defendant was negligent when he failed to immediately eject Felix from the bar the first time he arrived that evening, plaintiff’s memorandum of law, p. 4.; also, counsel for plaintiff stated in his closing argument, “if Felix isn’t allowed in the bar the first time, the second incident never occurs.” The court finds defendant acted reasonably when he instructed the bartender not to serve Felix in lieu of immediately confronting him with physical ejectment. As noted, Ms. Waering, the bartender, did tell Felix to leave. Plaintiff also contends defendant negligently failed to take “the reasonable steps that a reasonable person under these circumstances should have taken.” (Plaintiff’s closing argument.)

The mere happening of an injury does not raise a presumption of negligence on the part of a defendant. Moultrey v. Great A & P Tea Co., 281 Pa. Super. 525, 530, 442 A.2d 593, 595 (1980). Additionally, “[t]he burden of proving the existence of negligence rests upon the party who has asserted it.” Schmoyer v. Mexico Forge Inc., 437 Pa. Super. 159, 163, 649 A.2d 705, 707 (1994).

It is certainly true that intoxicated persons frequently act in unpredictable ways. Nonetheless, the court cannot find that defendant was negligent for failing to anticipate that Ryan, a third party not involved in the earlier incident, might return as a reinforcement and throw a bottle in the direction of plaintiff, a bystander.

A. Plaintiff Failed to Show by a Preponderance of the Evidence that Defendant was Negligent in his Failure to Foresee Felix’s Return, or Ryan’s Return with Felix

The court finds that it is more likely than not that Felix’s return to Phil’s Bar after his ejectment and, more importantly, Ryan’s return with Felix, was not an event reasonably foreseeable by defendant. The court bases this finding on the following facts:

(a) Defendant followed his normal procedure of refusing to serve Felix, a former patron who had been “flagged” for previously causing trouble in the bar. (F.F. 5, 24.)

(b) Defendant has over 20 years in the bar business, and it is his experience that patrons who are refused service invariably leave. (F.F. 4, 25.)

(c) It was defendant’s expectation that Felix would leave the bar once he was denied service. (F.F. 25.)

(d) Although he has seen it occur in other places, defendant has never had an ejected patron return to his bar seeking to “settle a score.” (F.F. 17.)

(e) Defendant did not believe that Felix would return later that evening to “settle a score,” either alone or with friends. (F.F. 34.)

(f) Plaintiff herself believed that the incident was finished with Felix’s initial ejection, (F.F. 35) and did not believe that Felix would return to “settle a score.” (F.F. 36.)

(g) Only one witness to the initial altercation, Jennifer Jericho, testified that she had some concern that Felix might return; however, her concern was not strong enough to prompt her to action or to even voice concern. (F.F. 37.)

(h) There is no evidence that Ryan was present when Felix had been “flagged” two weeks earlier or when Felix was initially ejected on April 17, 1996. Furthermore, Ryan was not a regular customer, and defendant had no knowledge of Ryan except for his first name. (F.F. 6.)

(i) One year prior to the incident, a bartender was injured during a shooting incident at Phil’s Bar. The shooting incident prompted defendant to begin closing the front door to the bar at 9 or 10 p.m. each evening. (F.F. 16.)

In Pennsylvania, a tavern owner has a duty to protect his patrons from reasonably foreseeable harm caused by third parties. Corcoran v. McNeal, 400 Pa. 14, 18, 161 A.2d 367, 370 (1960); Ash v. 627 Bar Inc., 197 Pa. Super. 39, 42, 176 A.2d 137, 139 (1961). It is also axiomatic that the danger to patrons must be reasonably foreseen before a duty attaches. Plaintiff argues that the fact that Felix had to be ejected should have alerted defendant to the possibility that Felix would return and endanger persons at the bar.

In Mathis v. United Engineers and Constructors Inc., 381 Pa. Super. 466, 544 A.2d 96 (1989), the Pennsylvania Superior Court stated: “[T]he wrongful actions of a third party are not deemed to be foreseeable simply because the defendant could have speculated that they might conceivably occur. ‘Want of ordinary care consists in failure to anticipate what is reasonably probable — not what is remotely possible.’ ” Id. at 474, 544 A.2d at 100. (citations omitted)

Cases dealing with a tavern owner’s duty of care, presented by plaintiff in support of her position, address foreseeable situations dissimilar to those in the case at bar.

In Corcoran, the tavern had served the plaintiff’s assailant while he was visibly intoxicated and after he had exhibited aggressive and violent behavior in the bar. Id. at 19, 161 A.2d at 370. The Corcoran court relied on the 1887 case of Rommel v. Schambacher, 120 Pa. 579, 11 A. 779 (1887), quoting the following statement from that case: “[wjhere one enters a saloon or tavern ... the proprietor is bound to see that he is properly protected from the assaults or insults ... of the drunken and vicious men . whom he may choose to harbor.” Id. at 20, 161 A.2d at 371. The Corcoran court further stated:

“An intoxicated person amid a group of people is a constant source of danger and hurt to those about him. He is the proverbial bull in china shop . . . [the owner] is liable for allowing the bull to be abroad unrestrained, unfettered and uncontrolled. The proprietor of an establishment whose employees pour inflammable liquid into a vessel already too full cannot plead ignorance of results when the vessel explodes from contact with the slightest spark.” Id. at 19, 161 A.2d at 370.

In fact, plaintiff’s assailant, Ryan, had not been present when Felix had been ejected from the bar earlier in the evening. Also at that time the bar had refused to serve Felix and he had been treated in a manner which would have discouraged most people from returning.

More to the point, Corcoran does not set forth guidelines as to how a barkeep could foresee that an individual patron who had been ejected following a brawl would later return with an accomplice who would then assault a different patron who had not been involved in the earlier incident. There is no evidence that Felix deliberately solicited Ryan as opposed to the happenstance of simply running into him after his ejectment. Foreseeability, as expounded in Corcoran, revolved around a tavern owner’s liability for the action of a drunken patron he permitted to remain in his establishment, a scenario not present instantly.

On the other hand, in Ash, the defendant was charged with negligence in failing to foresee an assault on a patron by a bartender because of the general atmosphere of “disorder, gaming, petty theft and threat” prevailing in the bar. Id. at 42, 176 A.2d at 139. The Ash court found that the bartender’s encouragement of shuffleboard gambling, coin tossing, and threats of violence for alleged failure to pay for drinks created the general atmosphere complained of above. Id. at 41, 176 A.2d at 138. In the case at bar, plaintiff contends in his closing argument that the court must consider the likelihood of past criminal behavior having occurred on the premises, and argued that the defendant’s bar is located “not [at] Gladwyne, . . . not [at] Ardmore, [but at] Second and Godfrey where shootings take place, where people use drugs, where people drink to excess, where they start fights in bars and even though they have been flagged they come back in and start more fights in bars.”

Along this line the record does establish that a shooting in Phil’s Bar injured a bartender a year prior to the incident in question and that defendant regularly violated, the law by selling liquor to minors. In fact plaintiff, a minor, was intoxicated when she was hit by the bottle. Also, the extent to which defendant would sell liquor to inebriates is not clear. Certainly, he did sell liquor to inebriates on the date of the incident.

There is, however, no evidence concerning the details of the shooting or that any failure by defendant to maintain order at the time brought it about. Similarly, there is no evidence that defendant’s failure to enforce the liquor laws brought about the prior shooting; one can only speculate. While the facts indicate that liquor was sold to minors — an inexcusable transgression of the law — there is nothing in the record to support a finding that the “disorder,” “theft” or “threat” referred to in Ash, supra, prevailed in Phil’s Bar.

Furthermore, except for the fact that Felix had been “flagged” two weeks before the April 17,1996 incident for trying to start a fight, there is no evidence that the “fights” referred to by counsel for plaintiff in his closing speech had, in fact, taken place. Similarly, there is no evidence that the “drugs” referred to in counsel’s speech were part of the scene.

What the evidence does indicate is that defendant did “flag” Felix on an earlier occasion, did refuse to sell him liquor on April 17, 1996, stationed himself in the area of the door after Felix had been ejected and took immediate action together with Bailey to neutralize Felix when he returned. Defendant did not anticipate that Felix would be accompanied by another who would hurl a bottle into the bar from the doorway.

This is a close case. In its final analysis, the court finds that plaintiff failed to meet the burden imposed on her of proving by a fair preponderance of the evidence that a reasonable person in defendant’s position would have foreseen the incident complained of by plaintiff.

The uncontroverted testimony of defendant Catagnus, who was called as on cross-examination, was that in his experience as a bartender and an owner, no customer who had been flagged had ever returned to “settle a score.” When a party is called as on cross-examination, the other party is bound by his testimony unless it is rebutted or inherently incredible. Gaul v. Consolidated Rail Corp., 383 Pa. Super. 250, 261 n.3, 556 A.2d 892, 897 n.3 (1989). In short, this is not the Ash case, where the atmosphere was charged with a high level of criminal behavior and threat, according to the description in the opinion.

On these facts, the court is unable to conclude that defendant acted unreasonably in failing to anticipate that Felix would return after being once ejected from the bar, and beyond that, bring along an accomplice who would injure a bystander such as plaintiff. Significantly, plaintiff herself considered such a possibility remote.

B. Plaintiff Failed to Show by a Preponderance of the Evidence that Defendant was Negligent in the Actions he Took to Protect his Patrons after the Initial Ejectment of Felix

The court bases this conclusion on the following facts:

(a) Phil’s Bar is a small, neighborhood corner bar, with occupancy limited to approximately 25. (F.F. 9-11.)

(b) Defendant regularly closes the front entrance to his establishment at 9 or 10 p.m., allowing only the side door for access in and out, which defendant watches regularly. (F.F. 14.)

(c) Although defendant conceded the possibility that Felix might have hung around the entrance after being ejected, defendant checked the street outside to make certain Felix had gone. (F.F. 33.)

(d) Defendant remained near the side door, in the area between the side door and the bar, after Felix was ejected. (F.F. 33.)

(e) Defendant and plaintiff both considered the incident with Felix over, and expected no further trouble from him that evening. (F.F. 34-36.)

(f) Witness Jennifer Jericho evidenced no action at the time which would express her alleged concern over the possibility Felix might return. (F.F. 37.)

(g) When Felix returned with a baseball bat, defendant immediately subdued him. (F.F. 38, 40.)

(h) The 40-ounce bottle that injured plaintiff was thrown by Ryan, who was not within the bar proper at any time relevant to this incident. (F.F. 41.)

(i) Most of the patrons of Phil’s Bar were neighborhood people, well-known to defendant. (F.F. 18.)

As a result of the shooting a year prior to the incident in question, defendant closed the front entrance to his bar every night, leaving only one side entrance where he could more closely scrutinize the comings and goings of his clientele. Because of the size of Phil’s Bar, and the fact that most of the regular customers were neighborhood people, defendant saw no need for tighter security.

Relevant to this inquiry, however, was defendant’s call to exercise his duty the instant Felix entered Phil’s Bar with a baseball bat. Obviously, Felix was intent on exacting revenge for the drubbing he had previously received at Bailey’s hands. Defendant’s response to this situation was swift. Together with Bailey, he subdued Felix and relieved him of his bat. Such a response was inarguably a reasonable response to that particular threat. Additionally, there is no evidence that while defendant was grappling with Felix over the bat on the floor, he was even aware of Ryan’s presence outside the entrance. Defendant’s failure to focus his concern on Ryan, plaintiff’s actual assailant, rather than Felix, a clear and present danger to his patrons, was not negligence.

Plaintiff suggests alternative steps defendant might have taken to protect his patrons from harm. Among these are the suggestions that defendant could have closed his bar early that night, that he could have told his patrons to leave, he could have locked the door and admitted patrons only after observing them through the window, or he could have called the police. In the court’s opinion, a reasonable person in defendant’s position would have been required to take these steps had it been foreseeable to that person that a patron in the bar would be injured had such steps not been taken. As previously noted, the court has found that plaintiff failed to prove that what happened to her would have been foreseen by a reasonable person in the position of defendant.

Accordingly, the court finds in favor of defendants Phil Catagnus and Phil’s Bar, and against plaintiff Cathleen Connor. In reaching this decision, the court, while recognizing that plaintiff was severely injured, is required to decide this case on the facts and not on sympathy.

ORDER

And now, to wit, June 12, 1997, after a non-jury trial held in this matter, the court finds in favor of defendants Phil Catagnus and Phil’s Bar, against plaintiff Cathleen Connor.


source: Caselaw Access Project

author: PRATT, J.,

license: Public Domain

text:
    Med/Aid Inc. v. State Farm Insurance Co.

      C.P. of Lawrence County,
    nos. 10471 of 1995, C.A. and 10714 of 1995, C.A.

      Edward Leymarie Jr., for plaintiff.

      William R. Shaffer, for defendant.
    June 30, 1997
   PRATT, J.,

— The above-captioned cases were consolidated by this court’s order, issued August 19, 1995, as they share a common factual basis and legal issues.

Plaintiff Med/Aid Inc. brought this action against defendant State Farm Insurance Company seeking payments for medical services, which payments were unpaid, overdue, as well as interest and attorney’s fees pursuant to 75 Pa.C.S. 1716. A nonjury trial was conducted on December 6, 1996.

The underlying facts are not in dispute. Med/Aid provided outpatient rehabilitation services following automobile accidents to Eugene Gabriel, Erik Bunnell, Debra L. Carr, Kiley Cozza, Alex Haswell, Brady Hilke, Mariam Monsour, Carl Omer, Diana Robinson, Dorjoyre Waters, and William Cosgrove, all of whom were covered by auto insurance policies issued by State Farm. Med/Aid originally billed these services to State Farm using HCFA Form 1500, an approved form under 31 Pa. Code §69.25(a), designed for use in non-Medicare payment situations. Relying on the submitted billing information, State Farm paid Med/Aid at 80 percent of the usual and customary charge.

In August 1994, Med/Aid determined that they had been billing State Farm incorrectly. For purposes of Medicare, Med/Aid is classified as a cost-to-charge facility. Following the Act 6 amendments to section 1797 of the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. 1797, in 1990, the Pennsylvania Insurance Department promulgated regulations applying the billing procedures and payment limitations of the Medicare system to the payment of all medical services provided under the MVFRL, regardless of the insured individual’s eligibility for Medicare. See 31 Pa. Code §§69.1-69.55.

Under section 69.43(b) of the insurance department’s regulations, outpatient rehabilitation services, such as those provided to the insured individuals by Med/Aid, are to be reimbursed at “110 percent of the actual cost based upon the cost-to-charge ratios” of the facility. 31 Pa. Code §69.43(b). The cost-to-charge ratio is based on figures derived from the latest audit of the facility by Medicare. Med/Aid’s cost-to-charge ratio following its audit for the period of April 1, 1992 — March 31, 1993 was 0.856576.

In addition to using the incorrect form, neither Med/Aid nor its payment intermediary, Veritas, had provided State Farm with the cost-to-charge ratio. Consequently, State Farm was unable to calculate payment based on the cost-to-charge ratio. Med/Aid began billing under the 110 percent of the cost-to-charge ratio method in August 1994. Veritas subsequently provided the cost-to-charge ratio information and State Farm has reimbursed Med/Aid for newly billed services at 110 percent of the cost-to-charge ratio since September 1994.

The dispute between the parties centers around payment for the balance due when Med/Aid submitted corrected bills for previously reimbursed services. Under the cost-to-charge method, Med/Aid’s charges exceeded the previously reimbursed amounts calculated under the 80 percent of the usual and customary rate, UCR, method, and Med/Aid now seeks payment for the difference as reflected by its corrected bills. State Farm refuses to pay these further charges contending that they are not obligated to pay, as State Farm has already been billed once and paid what it believes is the authorized fee schedule, which Med/Aid had previously accepted as full payment.

State Farm points to portions of two other Act 6 regulations, sections 69.21 and 69.43(c), in support of their position that the UCR rate is the appropriate reimbursement. Section 69.21 states, “if no Medicare payment has been calculated, payment shall be at 80 percent of the provider’s usual customary charges.” 31 Pa. Code §69.21. Section 69.43(c) amplifies this:

“An insurer shall pay 80 percent of the provider’s usual and customary charge for services rendered if no Medicare payment exists. In calculating the usual and customary charge, an insurer may utilize the requested payment amount on the provider’s bills for services or data collected by the carrier or intermediators to the extent that the data is made available.” 31 Pa. Code §69.43(c).

Pursuant to these regulations, State Farm clearly acted reasonably in paying Med/Aid the UCR, given the information was provided on HCFAForm 1500. However, the appropriateness of State Farm’s previous payments is not the issue before the court; rather, the court must determine whether Med/Aid is entitled to payment at the cost-to-charge rate once State Farm was rebilled and provided with the cost-to-charge ratio in order to calculate the proper payment amount.

The law is explicitly clear regarding the proper rate of reimbursement for outpatient rehabilitation services under the MVFRL. See 31 Pa. Code §69.43(b) and discussion, supra. Ironically, when it was first proposed, section 69.43(b) was opposed by rehabilitation service providers who, fearing that the legal reimbursement rate would be insufficient, challenged the legality of the regulation in Commonwealth Court, seeking a declaratory judgment invalidating the regulation. The ensuing, case, Pennsylvania Association of Rehabilitation Facilities v. Foster, infra, is the subject of three published opinions. Initially, the Pennsylvania Insurance Department’s preliminary objections were considered and dismissed. Pennsylvania Association of Rehabilitation Facilities v. Foster, 147 Pa. Commw. 487, 608 A.2d 613 (1992) (Foster I). Following this, the association filed a motion for summary judgment, which was denied. Pennsylvania Association of Rehabilitation Facilities v. Foster, 154 Pa. Commw. 555, 624 A.2d 270 (1993) (Foster II). Based on the court’s reasoning in denying the association’s summary judgment motion, the insurance department filed its own motion for summary judgment, which was granted, thereby upholding the legality of the regulation. Pennsylvania Association of Rehabilitation Facilities v. Foster, 159 Pa. Commw. 428, 633 A.2d 1248 (1993) (Foster III).

By challenging the regulation, rehabilitation service providers, through their association, specifically requested a declaration that the law permits rehabilitation facilities to receive reimbursement for services at 80 percent of the UCR. If it had been unclear before, the Commonwealth Court clearly explained the import of section 69.43(b) when, on two occasions, it stated:

“Through promulgation of this regulation, payment for rehabilitation services was to be paid at 110 percent of actual cost rather than 80 percent of the provider’s usual and customary charge.” Foster I at 491, 608 A.2d at 615; Foster II at 561, 624 A.2d at 273. Subsequently, the association’s petition was dismissed, and the declaratory judgment was consequently never issued. Foster III, supra. Thus, the clear implication arises that, following the enactment of section 69.43(b), rehabilitation facilities were no longer eligible to be reimbursed at 80 percent of UCR, as Med/Aid has been in the instant case.

Should State Farm’s position prevail, it essentially would permit insurers and providers to select which of the two payment systems they prefer. Such an arrangement would subject reimbursement policy under the MVFRL to numerous variables, among them the type of form used when submitting billing statements. This would effectively undermine the authority of the Pennsylvania Insurance Commissioner, whose decision requiring the Medicare cost-to-charge billing rate for rehabilitation services has been upheld by the Commonwealth Court.

Therefore, the court concludes that, since the UCR payments made by State Farm were not authorized under the law, Med/Aid is entitled to payment at the cost-to-charge rate. Once State Farm received the updated billing information, corroborated by Med/Aid’s cost-to-charge ratio, it had the obligation to make payment, since the updated bills reflect the only rate authorized under the law for the rehabilitation services provided by Med/Aid.

Payment of benefits is due within 30 days after the insurer receives reasonable proof of the amount of the benefits. 75 Pa.C.S §1716. Thus, State Farm, remitted the previously paid benefits in a timely manner, as they had not yet received reasonable proof as to the proper amount of the benefits. However, once the bills were resubmitted and the cost-to-charge ratio was provided, State Farm received reasonable proof as to the correct amount of the benefits due. Consequently, State Farm had 30 days after receipt of Med/Aid’s cost-to-charge ratio to make payment of the balance due. State Farm failed to do so.

The MVFRL provides that overdue benefits, those not paid within 30 days after the proof is received by the insurer, bear interest at the annual rate of 12 percent. Id. The statute applies regardless of the insurer’s good faith or the reasonableness of the delay. Steppling v. Pennsylvania Manufacturers’ Association Insurance Co., 328 Pa. Super. 419, 477 A.2d 515 (1984). Hence, State Farm will be required to pay interest on all the outstanding balances beginning 30 days from the time they received Med/Aid’s revised bills and cost-to-charge ratio. Med/Aid began billing of the cost-to-charge rate in August 1994; however, State Farm produced evidence showing that it did not receive Med/Aid’s cost-to-charge ratio until September 1994. Therefore, the court concludes that interest cannot accrue prior to October 1, 1994.

Lastly, Med/Aid seeks reasonable attorney’s fees as authorized under the MVFRL. Attorney’s fees are payable when the insurer is found to have acted in an unreasonable manner in refusing to pay the benefits when due. Id. An unreasonable act is one clearly contrary to terms of the policy and to state law. Rimpa v. Erie Insurance Exchange, 404 Pa. Super. 287, 590 A.2d 784 (1991); DeMichele v. Erie Insurance Exchange, 385 Pa. Super. 634, 561 A.2d 1271 (1989). State Farm cited no terms of the policy supporting its position; it relied solely on its interpretation of the applicable insurance regulations. Given the plain language of section 69.43(b) and particularly in light of the three published decisions of the Commonwealth Court, all issued prior to Med/Aid’s resubmission of corrected billing information, clearly stating that the cost-to-charge rate shall be the level of payment, this court has little choice but to conclude that State Farm’s refusal to pay Med/Aid was unreasonable. Therefore, State Farm will be held liable to Med/Aid for reasonable attorney’s fees.

ORDER

In accordance with the appended opinion, the court renders a verdict in favor of the plaintiff, Med/Aid Inc., and against the defendant, State Farm Insurance Company. The court awards the following damages to the plaintiff:

(1) The sum of $6,834.77 based on the following service accounts:

Eugene Gabriel $908.32
Erik Bunnell 313.20
Debra L. Carr 255.91
Kiley Cozza 407.72
Alex Haswell 582.73
Brady Hilke 47.22
Mariam Monsour 710.01
Carl Omer 85.33
Diana Robinson 2,308.20
Dorjoyre Waters 114.50
William Cosgrove 1,101.63

(2) Interest on the damages at the statutory rate of 12 percent per annum, commencing October 1, 1994, until July 1, 1997, in the amount of $2,255.47.

(3) Reasonable attorney’s fees, in the amount of $2,145.00.


author: STENGEL, /.,

text:
    Moyer v. Musser

      C.P. of Lancaster County,
    no. 356-1996.

      James D. Hagelgans, for plaintiffs.

      Mark T. Riley, for defendant.
    June 30, 1997
   STENGEL, /.,

— This matter is before the court on cross-motions for summary judgment. Specifically, defendant Wendy Musser contends that there is no genuine issue of any material fact and that, as a matter of law, plaintiffs’ claim for noneconomic damages should be dismissed because plaintiff Sally Moyer has not met the serious injury threshold that is required by the limited tort provision of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq. Plaintiff counters that she was covered by the full tort option at the time of the accident. In the alternative, plaintiff claims she has indeed met the serious injury threshold because she has sufficiently demonstrated a serious impairment of body function.

Plaintiffs Mr. and Mrs. Moyer initiated this action to recover damages for injuries allegedly sustained in a motor vehicle accident on April 20, 1994. In addition to seeking damages for economic loss, plaintiffs are seeking damages for pain and suffering, which is a form of noneconomic loss defined by section 1702 of the MVFRL. Plaintiffs averred in their complaint that at the time of the accident they were covered by the full tort option. Defendant filed an answer to the complaint denying plaintiffs’ contention and averring that plaintiffs were covered by only a limited tort option at the time of the accident. In her new matter, defendant raised all defenses available to her under the MVFRL, which includes the defense of the limited tort election.

Pennsylvania Rules of Civil Procedure 1035.1 through 1035.5 govern the summary judgment motions in this matter. Under Rule 1035.2:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, a party may move for summary judgment in whole or in part as a matter of law (1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.”

Therefore, a motion for summary judgment is based upon an evidentiary record which entitles the moving party to judgment as a matter of law, and which is one of two types: (1) the record shows the material facts are undisputed, and hence, no issue exists to be submitted to the jury; or (2) the record contains insufficient evidence of facts to make out a prima facie cause of action or defense and hence, there is no issue to submit to the jury. In the latter instance, the motion for summary judgment is made by a party who does not have the burden of proof at trial and who does not have access to the evidence to make a record which affirmatively supports the motion.

The burden of responding to a motion for summary judgment is set forth in Pa.R.C.P. 1035.3:

“(a) The adverse party may not rest upon the mere allegations or denials of the pleadings but must file a response within 30 days after service of the motion identifying

“(1) one or more issues of fact arising from the evidence in the record controverting the evidence cited in support of the motion or from a challenge to the credibility of one or more witnesses testifying in support of the motion, or

“(2) evidence in the record establishing the facts essential to the cause of action or defense which the motion cites as not having been produced.”

In responding to a motion for summary judgment, an adverse party under Rule 1035.2(b) “may supplement the record or set forth the reasons why the party cannot present evidence essential to justify opposition to the motion and any action proposed to be taken by the party to present such evidence.”

In ruling upon a summary judgment motion, the record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. The Patriot-News Co., 544 Pa. 93, 101, 674 A.2d 1038, 1042 (1996).

When the motion for summary judgment is based upon the contention that the plaintiff has failed to meet the serious injury threshold, the court, as a matter of law, must initially determine whether the plaintiff has met the serious injury threshold by determination of sufficient evidence of record. Only in cases in which there is a substantial dispute of fact regarding the nature and extent of the injury is the threshold question for the jury. Dodson v. Elvey, 445 Pa. Super. 479, 494, 665 A.2d 1223, 1231 (1995), allocatur granted, 544 Pa. 608, 674 A.2d 1072 (1996), citing Curran v. Children’s Service Center Inc., 396 Pa. Super. 29, 578 A.2d 8 (1990).

As her first issue, defendant claims that she is entitled to summary judgment because there is no genuine issue of material fact as to plaintiffs’ election of the limited tort option. Plaintiffs claim in their motion for summary judgment that there is no genuine issue of material fact as to their election of the full tort option. It appears to me that there are disputed issues of fact as to the tort election and, therefore, I must deny both motions for summary judgment.

In order to lower insurance rates, the MVFRL enacted a two-tier recovery system which offers insureds different levels of protection based upon the premium paid. Dodson, supra at 484, 665 A.2d at 1231. The limited tort alternative provides as follows:

“Limited tort alternative.— Each person who elects the limited tort alternative remains eligible to seek compensation for economic loss sustained in a motor vehicle accident as the consequence of the fault of another person pursuant to applicable tort law. Unless the injury sustained is a serious injury, each person who is bound by the limited tort election shall be precluded from maintaining an action for any noneconomic loss. . . .” 75 Pa.C.S. § 1705(d).

Defendant claims that plaintiffs selected this limited tort option when they initially purchased their automobile insurance policy in 1990 and that it was still in effect at the time of the accident in question.

Defendant offers the following account of plaintiffs’ insurance history. Plaintiffs were originally insured with Federal Kemper prior to the date of this accident. The Moyers elected a limited tort option with Federal Kemper in 1990. (See a copy of the May 29, 1990 limited tort election form attached to defendant’s sur-reply as exhibit “A.”) The declaration page attached to the Federal Kemper policy reflects a limited tort election for the policy period January 5,1994 through July 5,1994. (See a copy of the declaration page attached to defendant’s sur-reply as exhibit “B.”) This accident occurred on April 20, 1994.

On May 16,1994, plaintiffs’insurance agent, pursuant to plaintiffs’ request, effectuated a change of insurance carriers, a change in coverage, and a change in tort election. Specifically, (1) the automobile insurance coverage changed from Federal Kemper to Anthem Insurance, (2) one vehicle was deleted from coverage and another added to the Anthem policy, and (3) a limited tort election on the Federal Kemper policy was changed to a full tort election on the new Anthem policy. (See a copy of the full tort election with Anthem Insurance Company attached to defendant’s sur-reply as exhibit “C.”) The effective date of these changes was May 16,1994, approximately one month after plaintiff’s accident with defendant. (See a copy of the Anthem declaration page reflecting these changes, attached to defendant’s sur-reply as exhibit “D.”)

What is confusing about this last Anthem Insurance document and not explained by defendant is why, if it was issued May 16, 1994, does it have an issue date of December 11, 1993, with a policy period of January 5, 1994 through July 5, 1994. This is identical to the issue date and policy period on the Federal Kemper declaration page identified as exhibit “B.” Not surprisingly, plaintiffs challenge the authenticity of the Federal Kemper declaration page identified above as exhibit “B” as it was not identified or attached to defendant’s response to plaintiffs’ request for production of documents nor in the subpoenaed records from Anthem Insurance Company or its predecessor Federal Kemper.

Plaintiffs rely upon the Anthem declaration sheet for the period of January 5, 1994 through July 5, 1994, in claiming to have been covered by the full tort option on the date of the accident. (See a copy of the Anthem declaration page attached to plaintiffs’ brief as exhibit “B” and to defendant’s sur-reply as exhibit “D.”) (See also, the affidavit of Sally Moyer.) Plaintiffs argue that unless defendant is able to produce a section 1705 limited tort selection form signed by plaintiffs after January 5, 1994 and before or on April 20, 1994, plaintiffs are deemed to have full tort coverage.

Significantly, plaintiffs do not contest the authenticity of the limited tort election form signed by them in 1990 or the full tort election form signed by them in May 1994, just days after the accident. They have not produced any other tort selection forms to rebut the 1990 and 1994 forms produced by defendant. Instead, plaintiffs rely solely on the Anthem declaration sheet which indicates full tort coverage for the period in question. Admittedly, a fair reading of the Anthem declaration sheet is that for a duration of six months, January 5, 1994 through July 5, 1994, plaintiffs had full tort coverage.

However, relying solely on the tort election forms, it would appear that plaintiffs had only limited tort coverage at the time of the accident. The second tort election form establishes May 13, 1994 (the date plaintiffs signed the document) as the earliest possible date of the coverage change. The puzzling question is why the Anthem declaration page had an issue date of December 1993 and a policy period of January 5, 1994 through July 5, 1994, if the change in policy, coverage and tort election was effective May 16, 1994. The Anthem declaration sheet reflects the higher premium for full tort coverage, a difference of approximately $160. However, there is no indication if the whole amount was paid or if the difference in the premiums was prorated over the six-month period and only a portion paid for the remaining seven weeks of the policy period. If, in fact, the entire difference was paid in May 1994, would that render the full tort coverage retroactive? Would plaintiffs have had a reasonable expectation that the insurer intended to give retroactive full tort coverage? This would be highly unlikely given the fact that the insurance company already had knowledge of a claim by Mrs. Moyer for an automobile accident in April. If only a prorated amount was paid for the change in tort coverage, could plaintiffs have expected anything but prorated full tort coverage for the remainder of the policy, that is, from the effective change date of May 16, 1994 through July 5, 1994?

In ruling on a motion for summary judgment, the court’s function under Rules 1035.1 through 1035.5 is not to decide any issues of disputed fact, or resolve conflicting inferences which may be drawn from such facts, but solely to determine whether there is an issue of fact to be tried. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 176, 553 A.2d 900, 903 (1989). Moreover, the court is not permitted to determine issues of credibility. Thompson v. Nason Hospital, 370 Pa. Super. 115, 535 A.2d 1177 (1988).

Given the discrepancy on the record as to the tort election, it is premature at this time to grant summary judgment to either party. Further, this court will not issue an advisory decision on whether plaintiff has sustained a “serious injury” under the MVFRL when tort election remains in doubt.

Accordingly, we enter the following:

ORDER

And now, June 30, 1997, upon consideration of the cross-motions for summary judgment filed by plaintiffs Sally and Larry Moyer and defendant Wendy Musser, the briefs filed by the parties and oral argument of counsel, it is hereby ordered that both motions are denied.

      . Where, in answer to or in support of a motion for summary judgment, a party files a brief or memorandum with attached exhibits, without the exhibits being sworn to or otherwise complying with Rule 1035.4, the exhibits should be excluded from consideration as part of the record. See Irrera v. SEPTA, 231 Pa. Super. 508, 514, 331 A.2d 705, 707 (1974). However, in Irrera, the Superior Court expressly declined to rest on the procedural ground, and instead went on to determine that summary judgment was proper even if the improper exhibits were considered. Id. at 514,331 A.2d at 707-708. Likewise, despite the absence of a proper affidavit in Kerns v. Methodist Hospital, 393 Pa. Super. 533, 548, 574 A.2d 1068, 1071-72 (1990), the court addressed the merits of the motion for summary judgment as if the exhibit, i.e., the plaintiff’s expert report, had been presented in a proper affidavit. I will follow this example.

      . The court will deny the motions without prejudice to renewing the motions at a later time subsequent to the completion of further discovery, but prior to trial.


author: ROOF, P.J.,

text:
    Garvelli v. St. Ann’s Roman Catholic Church

      C.P. of Elk County,
    no. 94-118.

      George Daghir, for plaintiff.

      Heather Williams, for defendant.
    July 1, 1997
   ROOF, P.J.,

— Presently before the court is plaintiff’s objection to dismissal of his case for inactivity pursuant to Pennsylvania Rule of Judicial Administration no. 1901(c) and Local Rule of Court of the Fifty-Ninth Judicial District no. 101(c). For the following reasons, plaintiff’s case is dismissed for inactivity.

STATEMENT OF FACTS/ PROCEDURAL HISTORY

On February 18,1994, the plaintiff initiated this action by summons. On March 17, 1994, the sheriff filed a return of service. No other docket entry was made until April 21, 1997, when plaintiff filed the objection now before us. Both parties submitted briefs, and argument was held June 20, 1997.

In his brief and at oral argument, the plaintiff presented the following reasons for the lack of docket activity:

(1) Plaintiff’s decedent was initially treated by Dr. Robert Perneski and referred to Dr. Pirone to perform hip surgery. Dr. Pirone left the area in 1994, and his whereabouts have been unknown to plaintiff. Prior to leaving Elk County, Dr. Pirone issued a written report to plaintiff but has not responded to a further request for a more detailed report.

(2) Decedent underwent rehabilitation at Nittany Valley Rehabilitation Center, where her physician was Dr. Leiber. In June of 1992, Dr. Leiber left the facility offering to refer decedent to another physiotherapist which he never did.

(3) In late 1993, decedent underwent further hip surgery by Dr. Yohe, who cannot offer an explanation as to the pain she was experiencing.

(4) Decedent developed a brain tumor which resulted in her death on February 2, 1994. Attempts were made by plaintiff during 1994 to determine whether the tumor was related to the March 5, 1992 accident. Medical reports received in late 1994 indicated no connection between the two.

(5) Plaintiff’s counsel had by-pass surgery resulting in a loss of work for eight weeks and only part-time work for another eight weeks.

(6) Defendants never responded to the writ of summons and no attorney entered an appearance for the defendants until plaintiff filed his objection.

DISCUSSION

Rule of Judicial Administration no. 1901 is entitled “Prompt disposition of matter; termination of inactive cases” and states under subsection (a) that “[w]here a matter has been inactive for an unreasonable period of time, the tribunal, on its own motion, shall enter an appropriate order terminating the matter.” Rule 1901 goes on to add under subsection (b)(1) that “Each court of common pleas is primarily responsible for the implementation of the policy expressed in subsection (a) of this rule and is directed to make local rules of court for such purposes . . . .” Subsection (c) of Pa.R.J.A. no. 1901 provides that 30 days written notice of opportunity for a hearing on the termination be given prior to entering an order terminating a case for inactivity.

Pursuant to the directive of Pa.R.J.A. no. 1901(b)(1), the Fifty-Ninth Judicial District adopted Local Rule no. 101(c) which provides that

“The prothonotary shall list for general call at the first civil argument court held after September 1, of each year all civil matters in which no steps or proceedings have been taken for two years or more prior thereto and shall give notice to counsel of record and to the parties for whom no appearance has been entered, as provided in Pa.R.J.A. no. 1901(c). If no action is taken or no written objection is docketed in such a matter prior to the commencement of the general call, the prothonotary shall strike the matter from the list and enter an order as of course dismissing the matter with prejudice for failure to prosecute, under the provisions of this rule. If no good cause for continuing a matter is shown at the general call, an order shall be entered forthwith by the court for dismissal.”

We first distinguish this proceeding from that where a judgment of non pros is sought. Although the effect of a judgment of non pros and an order terminating under Pa.R.J.A. no. 1901 and our local rule are virtually identical, each serves a slightly different purpose and entails different procedures. See Pilon v. Bally Engineering Structures, 435 Pa. Super. 227, 230 n.1, 645 A.2d 282, 283 n.1 (1995), where the court stated:

“A judgment of non pros . . . should not be entered unless delay has caused prejudice. . . . An order terminating an action for inactivity, however, is intended to permit a trial court to rid its docket of stale cases. Such an order may be entered by a court sua sponte after an unreasonable period of inactivity even though there may be no prejudice to the defendant.” (citations omitted)

See also, Penn Piping Inc. v. Insurance Co. of North America, 529 Pa. 350, 603 A.2d 1006 (1992) and State of the Art Medical Products Inc. v. Aries Medical Inc., 456 Pa. Super. 148, 689 A.2d 957 (1997), where it was held that a court may enter a judgment of non pros where (1) a party to the proceedings has shown a lack of due diligence by failing to proceed with reasonable promptitude; (2) there has been no compelling reason for the delay; and (3) the delay has caused some prejudice to the adverse party. Penn Piping also stands for the proposition that a delay by plaintiff of more than two years will be presumed to be prejudicial to a defendant.

The case sub judice, however, is not presently before the court on a motion for judgment of non pros, and therefore, we need not find any prejudice to defendant from the delay in prosecution. Rather, pursuant to Pa.R.J.A. no. 1901 and Local Rule no. 101(c), we need only determine whether (1) plaintiff has failed to prosecute the action within a reasonable time and (2) there was a compelling reason for the delay.

The law is settled that plaintiff, not defendant, bears the risk of not acting within a reasonable time to move a case along. Pennridge Electric Inc. v. Souderton Area Joint School Authority, 419 Pa. Super. 201, 615 A.2d 95 (1992); Pilon, supra. The period of inactivity in this case lasted for three years and two months. We have reviewed the plaintiff’s explanation for this delay and find none of the reasons compelling so as to justify the lack of activity. While Dr. Pirone may not be available to plaintiff, decedent’s other treating physicians are. Further, plaintiff has had over two years to determine Dr. Pirone’s whereabouts. Decedent also had ample opportunity to consult another physiotherapist on her own after Dr. Leiber left the Nittany Valley Rehabilitation Facility without the promised referral.

The fact that Dr. Yohe cannot explain the cause of decedent’s pain does not excuse plaintiff’s delay in moving this matter forward nor does the fact that decedent developed a brain tumor which resulted in her death where medical reports concerning any possible link between the tumor and decedent’s accident were received in 1994.

In addition, plaintiff’s counsel’s inability to work for approximately 16 weeks out of a three-year, two-month time period does not constitute a compelling reason for lack of docket activity.

We also note that there has been no significant non-docket activity which one lower court has determined may constitute “compelling reasons” for a delay where a judgment of non pros is sought. See Davis v. Lexeen Inc. (C.P. Dauphin, March 17, 1997).

Although pursuant to Pa.R.J.A. no. 1901 and Local Rule no. 101(c), there need not be a finding of prejudice to dismiss a case for lack of docket activity, we mention Streidl v. Community General Hospital, 529 Pa. 360, 603 A.2d 1011 (1992), where the court, in determining whether a case should be dismissed for inactivity pursuant to a local rule, stated that “[i]t does not matter whether the prothonotary notifies the parties of its intent to terminate the case, or whether the non-delaying party petitions for dismissal; the same standards apply.” Id. at 362 n.2, 603 A.2d at 1012 n.2. The court held that the matter was governed by Penn Piping and prejudice would be presumed since a delay of two years or longer existed.

In State of the Art Medical Products, however, the court stated the following with respect to Streidl and the element of prejudice:

“Streidl directs that no additional proof of prejudice is required in those matters initiated by the prothonotary under the local rules, where a two or more year delay is evidenced by the docket.” State of the Art Medical Products, supra at 154, 689 A.2d at 961.

Therefore, to the extent that prejudice must be shown under Streidl, actual prejudice to defendant need not be established since the docket and non-docket inactivity sub judice for a period in excess of three years presumes prejudice. Further, since plaintiff has not offered any compelling reasons for the three-year, two-month period of inactivity or that significant non-docket activity was occurring, he has failed to establish the necessary elements to avoid termination of this action under the applicable rules. Finally, we do not consider Galbraith v. Gahagen, 415 Pa. 500, 204 A.2d 251 (1964), cited by plaintiff, as we find the facts distinguishable from the instant matter.

Based on the foregoing, we enter the following:

ORDER

And now, July 1, 1997, upon consideration of plaintiff’s objection to dismissal of his case for docket inactivity, argument and briefs, and consistent with the accompanying memorandum opinion, it is ordered and decreed that this action is dismissed with prejudice pursuant to Pa.R.J.A. 1901 and Local Rule no. 101(c).


author: LOUGHRAN, J.,

text:
    Smalich v. PennDOT
    C.P. of Westmoreland County,
    no. 3253 of 1996.

      Michael J. Macho, for plaintiff Smalich.

      John W. Pollins III, for plaintiff Suhan.

      Brian H. Baxter, for defendant PennDOT.

      Timothy J. Burdette, for defendant Mt. Pleasant.

      Jon M. Lewis, for defendants William B. and Irene Uschock.

      July 2, 1997
   LOUGHRAN, J.,

— The instant case arises from a one-vehicle accident that occurred on Pennsylvania State Route 981 on February 10, 1996 in Mount Pleasant Township, Westmoreland County, Pennsylvania. The plaintiff’s decedent, Mary K. Smalich, allegedly lost control of her vehicle on an ice patch, resulting in an accident in which she died. PennDOT, as well as the adjoining property owner, have been sued allegedly due to a drainage problem which created the ice patch, which in turn caused the accident. Plaintiff has also alleged in the second amended complaint that PennDOT was negligent in failing to construct and maintain guiderail on S.R. 981 thereby creating a dangerous condition.

PennDOT has filed preliminary objections as to the guiderail negligence paragraphs and as to certain items of damages. Specifically, in addition to a claim filed by the administrator of the estate, a separate and distinct claim in the caption of the amended complaint has been filed by Jessica Suhan, a minor, by Jeremy Suhan, her father and natural guardian. These claims are set forth with more particularity in paragraphs 22 through 26 of the plaintiffs’ amended complaint.

In the plaintiffs’ amended complaint, it is asserted that it is proper to have claims by two plaintiffs, since PennDOT can be sued in both a wrongful death and survival cause of action. It is PennDOT’s position that while both a survival and wrongful death cause of action may be asserted, these claims must be asserted by one plaintiff and that the proper plaintiff would be the administrator of the estate.

The plaintiffs have filed preliminary objections to PennDOT’s preliminary objections pertaining to the guiderails. The plaintiffs contend that PennDOT should have raised the guiderail matter raising sovereign immunity by new matter in accordance with Rule 1030 of the Rules of Civil Procedure.

While the plaintiffs are technically correct, it is obvious to this court that the guiderail issue is clearly governed by Rothermel v. PennDOT, 672 A.2d 837 (Pa. Commw. 1996), which holds that an action for failure to provide or maintain guiderails does not fall within the real property exception to sovereign immunity. Accordingly, paragraphs 10.6, 10.6(1) and 10.6(2) of plaintiffs’ complaint will be ordered stricken as they pertain to the guiderails. To require PennDOT to file an answer and new matter, and again come before the court upon a pleading motion would be a complete waste of judicial time, in this particular case.

As to the preliminary objections concerning damages and who may claim them, damages which may be recovered against a state agency are set forth at 42 Pa.C.S. §8528 permitting wrongful death and survival actions. However, this statutory grant does not convey upon persons entitled by law to recover damages for wrongful death to maintain separate actions as co-parties. Tulewicz v. SEPTA, 529 Pa. 588, 597 n.9, 606 A.2d 427, 431 n.9 (1992). The action for the benefit of these parties must be brought by the personal representative of an estate. Claims for loss of service and society of a parent cannot be brought individually by a child, as the plaintiff’s attorney has done in this complaint. These claims are the type of claims that are brought in a wrongful death action according to the statutory procedures. Steiner by Steiner v. Bell Telephone Co., 358 Pa. Super. 505, 517 A.2d 1348 (1986).

In the instant case, there is no basis under Pennsylvania law for the separate claims brought by Jessica Suhan, a minor, by Jeremy Suhan, her father and natural guardian. These claims must be deleted from the caption of the case as well as from paragraphs 22 through 26 of the complaint.

Pennsylvania Rule of Civil Procedure 2202 sets forth the parties entitled to bring an action in wrongful death. The rule clearly provides that only the personal representative of the decedent may bring an action in wrongful death within six months following the death of the decedent. After that, only the personal representative or any person entitled by law to recover damages may bring an action as trustee ad litem on behalf of those persons entitled to recover pursuant to 42 Pa.C.S. §8301.

Only when the fiduciary (personal representative) is derelict in his duty does the beneficial owner obtain a right of action. Suders v. Campbell, 73 F. Supp. 122 (M.D. Pa. 1947). Here, the personal representative has brought an action; therefore, all other actions or counts brought by anyone else as plaintiff are barred.

In Beascoechean v. Sverdrup and Parcel and Assoc. Inc., 486 F. Supp. 169 (1980), the plaintiff, administratrix of her husband’s estate, brought suit under the Wrongful Death and Survival Acts. Subsequently, she sought to amend her complaint by adding her minor son, represented by the plaintiff as his mother and guardian, as a party plaintiff to the complaint. The district court denied the petition with a discussion of the Pennsylvania Wrongful Death and Survival Acts, that summarizes the objection before this court at p. 173 as follows:

“[3, 4] Pennsylvania law provides that ‘an action for wrongful death shall be brought only by the personal representative of the decedent for the benefit of those persons entitled by law to recover damages for such wrongful death.’ Pa.R.C.P. 2202(a). (emphasis added) Only if the personal representative fails to institute suit within six months of the decedent’s death may any person entitled by law to recover damages therefor sue on his own behalf. Pa.R.C.P. 2202(b). A survival action, on the other hand, is not a new cause of action at all, but ‘merely continues in [the decedent’s] personal representatives the right of action which accrued to the deceased at common law because of the tort. ’ Pezzulli v. D’Ambrosia, 344 Pa. 643, 26 A.2d 659 (1942). Only when the fiduciary is derelict in his duty does the beneficial owner obtain a right of action. Suders v. Campbell, 73 F. Supp. 112 (M.D. Pa. 1947). See also, Finn v. Dugan, 260 Pa. Super. 367, 394 A.2d 595 (1978) (‘[a]ll actions that survive a decedent must be brought by ... a personal representative’). In the case at bar plaintiff, as administratrix of her husband’s estate, has already brought suit under the wrongful death and survival acts. 20 Pa.C.S. §3373 (Purdon) and 42 Pa.C.S. §8301 (Purdon). Consequently, her son may not bring suit under either of these provisions.”

The rule makes it clear that the individual beneficiaries should only be parties if the personal representative fails to file suit, which has obviously not occurred here. Since Mark Smalich, administrator of the estate of Mary Kay Smalich, deceased, has already filed a claim, there is no basis for a separate death case to be filed by Jessica Suhan, a minor, by Jeremy Suhan, her father and natural guardian, and accordingly, this claim must be stricken.

The plaintiffs are correct in their position that PennDOT can be sued both for wrongful death and survival. The plaintiffs’ position is incorrect, however, in asserting that one plaintiff can file the wrongful death cause of action and one plaintiff can file the survival cause of action. To the contrary, there must only be one plaintiff who brings both the wrongful death and survival causes of action.

Accordingly, the following order will be entered:

ORDER

And now, to wit, July 2,1997, after review and careful consideration of the within matter, it is hereby ordered, adjudged and decreed that the preliminary objections of PennDOT are granted and paragraphs 10.6, 10.6(1), 10.6(2), and paragraphs 22 through 26 are stricken and captioned parties “Jessica Suhan, a minor, by Jeremy Suhan, her father and natural guardian,” are dismissed as captioned parties. Further, the preliminary objections of the plaintiff are denied.


author: ALEXANDER, RJ.,

text:
    In re Public Information Concerning the Death of Jack Fuellhart

      C.P. of Clarion County,
    no. 331 CR 1997.

      William E. Hager III, for Commonwealth.

      William R. Strong, for movant.
    July 3, 1997
   ALEXANDER, RJ.,

— On June 27,1997, following an in camera proceeding, this court ruled in open court that two affidavits of probable cause and two arrest warrants in magisterial court no. 18-3-02 remain sealed until the two defendants are arrested or until further order of this court. The purpose of this opinion is to aid the appellate court in the event an appeal is taken, and to explain this court’s decision so that a precedent for this county for obtaining public access to arrest warrant information prior to an arrest is established and utilized until the Pennsylvania appellate courts have ruled on the issue.

FACTS AND PROCEDURAL HISTORY

On June 23, 1997, Jack W. Fuellhart was found dead in his residence in Farmington Township, Clarion County, under circumstances which brought about a police investigation. The following day the police filed two affidavits of probable cause in the office of Magistrate Norman Heasley. (Magisterial district 18-3-02.) When the affidavits of probable cause were filed, a decision was made to seal those documents until the defendants were arrested.

On June 25, 1997, a representative of Clarion News, a local newspaper published twice each week, called the undersigned judge from Magistrate Heasley’s office and complained that the documents were not being made available to her. A telephone conference was held with the Clarion News representative and Magistrate Heasley on separate telephones in the magistrate’s office, and with the district attorney and his assistant in the judge’s chambers utilizing a speaker telephone. During that telephone conference, the undersigned judge informed all parties that he would not order Magistrate Heasley to make the records available, but that he would hold a proceeding that day, or the following morning, for the purpose of making an independent determination if the Commonwealth’s need for secrecy outweighed the right of the public to have access. At that time, the undersigned judge did not request the district attorney to explain the reasons for his request, but explained to all parties that it was the opinion of this court that the Commonwealth did not have the burden of taking its request to the court of common pleas as that burden was described by the Supreme Court in Commonwealth v. Fenstermaker, 515 Pa. 501, 530 A.2d 414 (1987), because this court believes that Fenstermaker does not apply to public access prior to the arrest, as will be explained in this opinion.

The representative from the Clarion News, during that telephone conference, informed the undersigned judge that it would be necessary for her to consult with her superior to decide if the invitation of the judge to consider the matter would be accepted. Soon after this telephone conference, the same Clarion News representative called the court administrator and told her that no proceeding would be necessary.

On the following day, June 26, 1997, the same representative of the Clarion News and her editor contacted the undersigned judge and requested that a proceeding be scheduled as soon as possible. Since the request came after normal business hours, the proceeding was scheduled for the following day, Friday, June 27, 1997 at 1:30 p.m. The undersigned judge gave notice to the district attorney so that the Commonwealth would be available to present its reasons to the court why it wished the files to remain sealed until the arrests were made.

DISCUSSION

The only direct guidance that this court can find from the Pennsylvania appellate courts concerning the public’s right to access of arrest warrant affidavits is the opinion of the Pennsylvania Supreme Court in Commonwealth v. Fenstermaker, supra. In Fenstermaker, a newspaper filed a motion in the court of common pleas for leave to intervene when it was denied access to arrest warrant affidavits by a magistrate after the arrest had been made. The lower court held that a magistrate must permit inspection of affidavits of probable cause unless there has been filed by the district attorney, or defense counsel, a certified statement setting forth the reasons that public inspection should not be allowed. The lower court further held that if the requisite certified statement was filed, the magistrate should seal the file and that any interested person could then appeal to the court of common pleas. The newspaper, the Commonwealth and one defendant appealed to the Superior Court and it affirmed the decision of the lower court. An appeal was then taken to the Pennsylvania Supreme Court and that court reversed, holding that arrest warrant affidavits did constitute public judicial documents and that the public had a common-law right of access to those documents. The court held, however, that this common-law right was not absolute and that “[ejvery court has supervisory power over its own records and files . . . .” Fenstermaker, supra at 512, 530 A.2d at 420, quoting the United States Supreme Court in Nixon v. Warner Communications Inc., 435 U.S. 589, 597 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570, 579 (1978).

The court in Fenstermaker found that the lower court had not adequately protected the public’s right to access by permitting the files to be sealed by the magistrate “upon the mere request of a district attorney or defense counsel.” Id. at 513, 530 A.2d at 420. (emphasis in original)

The court in Fenstermaker stated that: “supporting affidavits must be deemed open to public inspection until such times as district attorneys or defense counsel have obtained court orders that the affidavits be sealed from public access. This places upon those wishing to seal affidavits a burden of moving swiftly to obtain the necessary court orders, but it is a burden that is necessary in order to accord due recognition to the common-law right of the public to secure access to such documents. The decision of the trial court shall be appealable and shall be rendered following a hearing, and the record shall contain an articulation of the factors taken into consideration in reaching a determination as to sealing of the affidavits.” Id. at 514, 530 A.2d at 420-21.

The attorney for Clarion News contends that Fenstermaker is authority for his argument that the arrest affidavits in this case are open to public access because the district attorney failed to carry his “burden of moving swiftly to obtain the necessary court orders.” It is the contention of the attorney for Clarion News that, since the files were sealed by Magistrate Heasley without an order of the court of common pleas, the Commonwealth now has no recourse to maintain their confidentiality.

It is this court’s opinion that Fenstermaker is not precedent for the contention of Clarion News, because the defendant in Fenstermaker had already been arrested when the issue of public access arose. Before the Supreme Court in Fenstermaker explained the procedure for the post-arrest denial of public access to arrest affidavits, it made the following observation:

“It is to be noted at the outset that there has been no assertion in the instant case that arrest warrant affidavits should be open to public inspection prior to an actual arrest having been made. The issue presented, therefore, concerns only access to affidavits supporting arrest warrants that have already been executed.” Id. at 505, 530 A.2d at 416.

Furthermore, the portion of the opinion in Fenstermaker which is quoted on page 5, supra, stating that arrest affidavits “must be deemed open to public inspection until such times as district attorneys or defense counsel have obtained court orders that the affidavits be sealed from public access,” begins with the following phrase: “When arrests have been made pursuant to warrants . . . Id. at 513-14, 530 A.2d at 420-21.

It is patently clear to this court that the Supreme Court did not intend its ruling in Fenstermaker to apply to public access to arrest warrant affidavits before the arrest is made. Unfortunately, this court can find no specific guidance from the Pennsylvania appellate courts on what procedure should be followed before the arrest is made, and therefore this court must speculate what that guidance will be when the issue is addressed.

Additional indirect guidance may be gleaned, however, from the opinion of the Pennsylvania Supreme Court in PG Publishing Company v. Commonwealth, 532 Pa. 1, 614 A.2d 1106 (1992). In that case the court considered the question of the right of public access to search warrant affidavits as opposed to arrest warrant affidavits. The court recognized that the purpose of arrest warrants and search warrants differ, but it applied the reasoning of Fenstermaker and held that search warrant affidavits are also public records “once the warrants have been executed.” See PG Publishing Company, supra at 6, 614 A.2d at 1108. The court noted in a footnote that “[n]o argument has been made that search warrants and affidavits should be available for public inspection prior to the execution of the warrants.” Id. at 6 n.2, 614 A.2d at 1108 n.2.

The court in PG Publishing Company also stated:

“The ex parte application for the issuance of a search warrant and the issuing authority’s consideration of the application are not subject to public scrutiny. The need for secrecy will ordinarily expire once the search warrant has been executed.” Id. at 6, 614 A.2d at 1108.

This court believes that PG Publishing Company is, by analogy, support for denying the request of Clarion News to apply the Fenstermaker procedure to public access prior to an arrest.

The attorney for Clarion News has argued that there is no distinction between the public’s right to access prior to the arrest and the public’s right to access after the arrest. This court believes that the Supreme Court will not apply the procedure mandated in Fenstermaker to pre-arrest access to arrest warrant information. This opinion is not only based upon the recognition that the court in Fenstermaker took great pains to make certain that the case would not be relied upon by persons seeking information prior to the arrest, but because this court recognizes the great differences between the two situations. It is very infrequent that the Commonwealth has reason to request that the public be denied access to arrest affidavits following the arrest. On the other hand, public access to arrest information prior to the arrest can more often than not create problems for the Commonwealth. When post-arrest secrecy is desired it is usually based upon the contention that it is necessary to assure that the defendant is given a fair trial. On the other hand, pre-arrest secrecy is usually desired because the Commonwealth wishes to protect the safety of the police who will make the arrest, prevent the accused from being warned that he is going to be arrested, and to protect the safety of persons cooperating with the police.

This court believes that in many criminal cases the Commonwealth’s concern for compromising the apprehension of the defendant, the safety of the arresting officers, and the safety of informing witnesses, will cause it to wish to have arrest warrant affidavits remain confidential until the arrest is made. It would be totally impractical to ask the Commonwealth to present a petition to the court of common pleas in each such case in an attempt to assure this result. Not only is the procedure outlined in Fenstermaker too burdensome if imposed upon the police and district attorneys prior to the arrest, but it would create an unnecessary burden upon the courts of common pleas by causing many emergency procedures which would necessarily need to be held before an arrest warrant was obtained. When the Commonwealth is seeking post-arrest secrecy, there should be a heavy burden placed on it and it should be unable to prevail in but a few cases. On the other hand, since pre-arrest secrecy gives rise to completely different issues, the Commonwealth will be successful more often in cases where secrecy is requested prior to the arrest.

If the procedure of Fenstermaker is placed upon the Commonwealth for pre-arrest secrecy, it is the opinion of this court that the Commonwealth, as a practical matter, will not be able to comply with that demand and many arresting police officers will then be forced to engage in a race with the news media if they wish to make an arrest before the defendant has learned that he is about to be arrested and before he learns who gave the police the information. In a free society it is necessary that the courts place many obstacles in the path of the police in their apprehension of criminals, but this court does not believe that a reasonable public will demand that a defendant be forewarned of his arrest.

The evils which can be created by permitting public access to arrest warrant affidavits before the affidavits were recognized by the legislature of the State of Indiana when it adopted a statute attempting to punish by contempt anyone, including the press, who disclosed the name contained in a sealed information before the suspect is arrested. See Worrell Newspapers of Indiana Inc. v. Westhafer, (CA7 Ind.) 739 F.2d 1219 (1984), affirmed, 469 U.S. 1200, 84 L.Ed.2d 309, 105 S.Ct. 1155. While that Indiana statute was held by the federal court to be too broad to pass constitutional standards, its adoption accentuates the chasmic distinction between pre-arrest secrecy and post-arrest secrecy. It is unlikely that any legislature will ever adopt a similar statute attempting to discourage disclosure after the suspect is arrested.

This court does not believe that any Pennsylvania appellate court will rule that the procedure outlined in Fenstermaker be placed upon the Commonwealth for secrecy prior to the arrest. This court believes, however, that it is much more likely that the appellate courts of Pennsylvania will deny all public access to arrest warrant affidavits prior to the arrest, or at least for a reasonable time between the issuance of the warrant and the arrest.

It is very possible that if an error was made by this court, it was the Commonwealth that was aggrieved. It is a reasonable contention that this court should have concluded from an analysis of Fenstermaker and PG Publishing Company that the ex parte issuing of an arrest warrant is not “subject to public scrutiny” at least for a reasonable period of time prior to the arrest. Certainly the delay to arrest in this case, which was three days at the time of the proceeding before this court, was reasonable and unavoidable.

If the court would have made this conclusion, the Commonwealth would not have been placed in the position on June 27, 1997 of justifying something it may have an absolute right to do, i.e., obtain an arrest warrant and seek the suspect without public scrutiny. The Pennsylvania appellate courts may very well so hold, and a reasonable argument can be made, that the Pennsylvania Supreme Court has strongly indicated that result by dicta in both Fenstermaker and in PG Publishing Company.

An appellate court could, however, avoid accepting either extreme position and endorse a procedure which would permit the magistrate to seal the file prior to the arrest when he is requested to do so by the Commonwealth, but give the public an opportunity to challenge the need for secrecy in any particular case by asking the court of common pleas to compel the Commonwealth to convince the court that the need for secrecy in that case outweighs the right of the public to know. The only burden which this procedure would place upon the public, usually the news media, is the one of coming forward with the complaint. The burden of convincing the common pleas judge would still be upon the Commonwealth.

It was this procedure which was explained by the undersigned judge to the parties during the June 25, 1997 telephone conversation and it was this procedure which was followed in this case. The burden of bringing the problem to the common pleas court was placed upon Clarion News', it carried that burden by asking the judge to hold the proceeding on June 27, 1997; and the Commonwealth was then forced to appear before this court and convince it that the reasons for secrecy in this case outweighed the public’s right to access. This court did not require Clarion News to file a motion to intervene, which would have been the appropriate method and should have been imposed upon Clarion News (see footnote 1, supra, for reasons why this informal shortcut was taken), but in the event that any case arises in this county in the future, while the procedure herein outlined has not been altered by an appellate decision, the entity complaining on behalf of the public will be required to file a motion for leave to intervene.

If the appellate courts adopt a pro se rule that arrest warrant affidavits are never subject to public scrutiny until the arrest is made, the public will be denied access to the court in the exceptional case where the public’s right to know outweighs the reasons for secrecy even prior to an arrest. The procedure used in this case for pre-arrest secrecy, however, is symmetrical with the Fenstermaker procedure for post-arrest secrecy, which gives the Commonwealth access to the court in the exceptional case where secrecy should be maintained even after the arrest.

If this court is wrong, however, and the Pennsylvania appellate courts do apply the procedure outlined in Fenstermaker to pre-arrest cases, Clarion News has not been aggrieved by the procedure used in this case. By placing the burden upon Clarion News to request the review of Magistrate Heasley’s decision, the ultimate decision by this court was not changed. Had the issue been placed before this court by the Commonwealth’s filing the petition mandated by Fenstermaker, the same result would have been reached. In either instance, this court believes that the burden must be placed upon the Commonwealth to prove, in the in camera session, that the files should remain sealed. What took place in the in camera session would have been no different regardless of how the matter came before the court.

The attorney for Clarion News has complained that the evidence and argument was presented to this court in his absence, and that the normal features of an adversarial procedure were absent. This court empathizes with the frustration experienced by the attorney for Clarion News since ex parte proceedings are usually avoided in any court. This court believes, however, that it is totally inconsistent with denying public access to any document to permit the attorney representing the entity requesting access to hear what it is that his client is not being permitted to hear.

While the right of Clarion News in this case is based upon the common-law right to access of judicial records and not upon any federal or state freedom of information statute or right to know statute, a general description of the proceedings under those statutes is applicable to the in camera proceeding held before this court. The following is a description of such a proceeding:

“In camera proceedings, particularly in FOIA cases involving classified documents, are usually nonadversarial and ex parte, with the requester denied even this limited access to the documents which he or she desired to obtain. As a general rule, counsel for the plaintiff may not be present when the judge reviews the documents in camera . . . .” 37A Am.Jur.2d, Freedom of Information Acts §564.

This court does not intend, in this opinion, to discuss specifically what was presented to it in camera to cause its ruling. A complete record was made of the in camera proceeding and an appellate court may review that record to determine if this court abused its discretion in permitting the magistrate’s decision to seal the documents to continue until the arrest was made. As the undersigned judge announced in open court, following the in camera proceeding, the general reasons for the decision were (1) to avoid obstructing the apprehension of the defendants; (2) to assure the safety of the police; and (3) to assure the safety of the persons cooperating with the police in apprehending the defendants. The specific concerns which were voiced by the Commonwealth, and accepted by this court, appear in the sealed transcript.

This court recognizes that the Commonwealth’s case for secrecy was stronger on June 24, 1997 when the magistrate first sealed the file than the case it presented to this court on June 27,1997. This court also recognizes that the Commonwealth had a stronger case on June 25,1997 when the representative of Clarion News asked this court to reverse the magistrate’s ruling. The reason that the Commonwealth’s case was not as strong on June 27, 1997 as it had been on the earlier dates was that some of the information which the police and the district attorney did not want to be divulged had been obtained by a daily newspaper, published in an adjoining county, through its own investigation. This information was published by that newspaper on June 25, June 26, and June 27, 1997. These publications served to strengthen the case of Clarion News and this court took judicial notice of those newspaper articles prior to the beginning of the in camera proceeding. This court found, however, during the in camera proceeding that there still remained some facts to which the public should not have access until the defendants were apprehended, and that the known facts and the unknown facts were so intertwined that reasonable redaction was not possible.

This court also recognizes that the totality of the circumstances surrounding this case is constantly evolving and that that evolution may at some point cause the contentions of Clarion News to outweigh those of the Commonwealth. This shift in the scales could take place by the continued independent discovery of additional facts or by the mere lapse of time. It is therefore not intended by the following order that Clarion News, or any other entity representing the public, is precluded from returning to this court if it believes that the circumstances have changed from those which existed on June 27, 1997 when the decision was made.

The following order is intended to prevent public access to the files in the magistrate court until the arrests are made. The order is not intended in any way to attempt to prohibit, or even discourage, public dissemination of facts concerning this case. If any entity can obtain those facts without having access to the judicial file, they need only be guided by their own standards in determining what to publish. Hence, the following order, which order was entered orally in open court on June 27, 1997:

ORDER

Now, July 3, 1997, for the reasons expressed in open court on June 27, 1997, and later expressed in the foregoing opinion, the records of magisterial court 18-3-02 in the cases at docket no. CR-82 & 83-97 and OTN no. E 612096-2 & E 612097-3 shall remain sealed until the arrests of the defendants in those cases have been made or until further order of this court.

      . This court is aware that the appropriate means of raising an assertion of public right of access to information regarding criminal proceedings is a motion to intervene filed by the entity asserting that right. See Fenstermaker, supra at 504 n.1, 530 A.2d at 416 n. 1. This burden was not placed upon Clarion News, however, because the undersigned judge believed that it should be handled immediately and because the editor of the Clarion News informed the judge during the June 26, 1997 telephone conversation that he was having trouble finding an attorney to represent the newspaper, and that he may appear at the proceedings unrepresented. This court, therefore, accommodated Clarion News by orally requesting the Commonwealth to be prepared the following day to justify their request for secrecy.

      . This case was referred to by this court during the June 27, 1997 proceeding as the “Copenhefer case,” because that was the name of the criminal defendant in that case.

      . The procedure for sealing search warrant affidavits was made the subject of a rule of criminal procedure shortly after PG Publishing Company was decided. See Pa.R.Crim.P. no. 2011 (sealing search warrant affidavits), adopted September 3, 1993, effective January 1, 1994. A review of that rule makes it apparent that the procedure outlined is intended for preserving secrecy in some cases after the warrant has been executed, and that secrecy before execution, the need for which was acknowledged by the court in PG Publishing Company, was not changed by Rule 2011.

      . Judicial cases considering the public right of access to criminal court records are almost exclusively limited to post-arrest secrecy. See e.g., Public Access to State Courts Records, 84 ALR3d 598, 639-44. It is reasonable to assume that the sparsity of pre-arrest judicial decisions is, in part, caused by two factors. First, the news media is often unaware that an arrest warrant has been issued until an arrest has been made, and, secondly, the issue becomes moot when the arrest is made making it difficult for the aggrieved party to obtain appellate review.

      . After dictating this opinion on June 29, 1997, the undersigned judge learned that the defendants had been arrested, thereby causing the files to be automatically open to public access and causing the issue of their disclosure to be moot. The Clarion News and/or the Commonwealth may nevertheless wish to appeal this decision in hope that the appellate courts will view this case as one of the “rare instances where exceptional circumstances exist or where questions of great public importance are involved” and make a determination of the issue of pre-arrest public access to arrest affidavits despite the mootness of the issue of disclosure in this case. See Ridley Park Shopping Center Inc. v. Sun Ray Drug Co., 407 Pa. 230, 232, 180 A.2d 1, 3 (1962).