author: CARPENTER, J.,

text:
    Greater Altoona Career and Technology Center Education Association v. Greater Altoona Career and Technology Center

      C.P. of Blair County,
    no. 99 GN 3181.

      Randall C. Rodkey, for petitioner.

      David P. Andrews, for respondent.
    March 9, 2000
   CARPENTER, J.,

This matter comes before the court on petition for review and application to vacate and/or modify award of arbitrator. Briefs have been filed and reviewed by this court. We have researched the applicable case law. Finally, we have allowed some several weeks to pass from the date of oral argument on January 6, 2000, to afford the parties an opportunity to supplement the record and/or stipulate to the same. We have not heard the record is incomplete and conclude the matter is ready for decision.

Procedurally, this case comes before the court as a result of a grievance filed January 19,1999, challenging a November 18, 1998 suspension of diesel mechanics instructor, Kenneth Frederick. Subsequently, Frederick was notified by letter on January 26, 1999, that the joint operating committee by unanimous vote had converted his suspension to termination. The parties agreed to proceed directly to arbitration.

At the March 10, 1999 arbitration hearing before Arbitrator Kathleen Miller, the parties stipulated the issue to be decided was: Was there just cause for Mr. Frederick’s termination, and if not, what is the appropriate remedy? The arbitrator entered her award on May 28,1999, with the grievance being denied. This affirmed the Technology Center’s position that good cause had been shown for Mr. Frederick’s termination. Following the arbitrator’s decision, a timely petition was filed requesting further review and oral argument before this court.

Our review of this matter is governed by section 7302(d)(2) of the Uniform Arbitration Act, 42 Pa.C.S. §7302(d)(2) which provides as follows:

“(2) Where this paragraph is applicable, a court in reviewing an arbitration award pursuant to this subchapter shall, notwithstanding any other provision of the sub-chapter, modify or correct the award where the award is contrary to law and is such that had it been a verdict of a jury, the court would have entered a different judgment or a judgment notwithstanding the verdict. ”

Under the standard enumerated above, our first inquiry is whether the award was contrary to law. We are satisfied it was. The arbitrator failed to apply the applicable legal standard defining “good cause” when that term is not defined in the parties’ collective bargaining agreement. Since that is true, the arbitrator’s award cannot possibly be rationally related to the underlying collective bargaining agreement so that the essence test (agreed to by the parties as the applicable standard) is clearly violated. As such, this court is empowered to modify or correct the award under section 7302(d)(2) enunciated above.

In so holding, we do not deny the arbitrator’s inherent authority under long-established Pennsylvania case law to determine the issue of good cause where it is not defined under the collective bargaining agreement. However, that ability is necessarily limited to the applicable legal standard. In this case, that applicable legal standard is enunciated in the case of International Brotherhood of Firemen and Oilers, Local 59 v. Township of Falls, 688 A.2d 269 (Pa. Commw. 1997). In Falls, discussing the proper definition of just cause where the collective bargaining agreement does not address that definition, the court stated the proper test as follows:

“As to the merits of the grievance, the issues presented by the parties for the arbitrator’s consideration are: (1) whether Brown was ‘disciplined for proper cause’; and (2) if not, what the remedy should be. Arbitrator’s decision, p. 2. Because the agreement itself does not define the term ‘proper cause’ or ‘just cause,’ it-was within the arbitrator’s province to interpret that term. McKeesport Area School Dist. v. McKeesport School Service Personnel Assn, PSSPA/PSEA, 137 Pa. Commw. 28, 585 A.2d 544 (1990).
“In American Federation of State, County and Municipal Employees, District Council 88 v. City of Reading, 130 Pa. Commw. 575, 568 A.2d 1352 (1990), this court set forth seven factors to be considered in determining the existence of ‘just cause’ for discipline: (1) Did the employer give the employee forewarning of the possible disciplinary consequences of his or her conduct?; (2) Was the employer’s rule or order reasonably related to the orderly, efficient and safer operation of its business and the performance that the employer might properly expect of the employee?; (3) did the employer make an effort to determine whether the employee in fact violated its rule or order?; (4) Was the employer’s investigation conducted fairly and objectively?; (5) Did the employer obtain substantial evidence of the employee’s violation?; (6) Has the employer applied its rules and penalties evenhandedly to all employees?; and (7) Was the degree of imposed discipline reasonably related to the seriousness of the offense and the employee’s work record? Where any one of the above factors is not satisfied, just cause for discipline does not exist. Id. ” International Brotherhood v. Falls at 271. (emphasis added)

We have carefully considered the case law both prior and subsequent to Falls in reaching our belief that the standard set forth above is the law of the Commonwealth of Pennsylvania.

The earliest reference which we are able to find to the seven factor test enunciated in the 1997 Falls opinion is contained in the case of AFSCME, Council 88 v. City of Reading, 130 Pa. Commw. 575, 568 A.2d 1352 (1990) cited in Falls. In that opinion, the seven factor test is referenced in both the body of the opinion and by footnote. We cite to the body of the opinion as follows:

“The issue before the arbitrator in this case was whether the grievant was discharged without just cause. The agreement itself, as in other collective bargaining agreements, does not give a definition of ‘just cause.’ As noted by the highly respected arbitrator Carroll R. Daugherty, opinions of arbitrators over the years have developed a sort of ‘common-law’ definition of just cause. In his arbitration decision of Enterprise Wire Co., 46 LA 359 (Daugherty, 1966), he set forth seven tests to be applied in determining ‘just cause.’ [See footnote 2.] A ‘no’ answer to any of the seven questions normally would signify that just cause did not exist. [See footnote 3.]
“In Whirlpool Corp., 58 LA 421, 427 (Daugherty, 1972), Arbitrator Daugherty summarized, after eight years of experience with the application of the seven tests for just cause he noted:
“Labor and human relations circumstances vary widely from case to case, and no formula can be developed whereunder the facts can be fed into a ‘computer’ that spews out the inevitably correct answer on a sheet of paper. There is no substitute for sound human judgment. The [qjuestions and [njotes do represent an effort to minimize an arbitrator’s consideration of irrelevant facts and his possible human tendency to let himself be blown by the variable winds of sentiment on to an uncharted and unchartable sea of ‘equity.’ ” AFSCME v. City of Reading at 582-83, 568 A.2d at 1355-56.

In the interest of a complete history, we quote the footnotes as follows:

“2. Mr. Daughtery received the American Arbitration Association Lifetime Achievement Award in 1986 for his development of the seven tests of just cause.
“3. The seven questions to be asked are:
“(1) Did the company give to the employee forewarning or foreknowledge of the possible or probable disciplinary consequences of the employee’s conduct? ...
“(2) Was the company’s rule or managerial order reasonably related to (a) the orderly, efficient, and safe operation of the company’s business and (b) the performance that the company might properly expect of the employee? ...
“(3) Did the company, before administering discipline to an employee, make an effort to discover whether the employee did in fact violate or disobey a rule or order of management? ...
“(4) Was the company’s investigation conducted fairly and objectively? ...
“(5) At the investigation, did the ‘judge’ obtain substantial evidence or proof that the employee was guilty as charged? ...
“(6) Has the company applied its rules, orders, and penalties evenhandedly and without discrimination to all employees? ...
“(7) Was the degree of discipline administered by the company in a particular case reasonably related to (a) the seriousness of the employees’ proven offense and (b) the record of the employer in his service with the company? Enterprise Wire Co., 46 LA 363-64.”

Although Mr. Daugherty’s test was referenced in AFSCME v. City of Reading it is not stated unequivocally that it was adopted as the law of the Commonwealth of Pennsylvania. However, in Falls that status was clarified. The citation to the seven-factor Daugherty test in Falls is in the body of the opinion. It is not dicta. It clearly directs the seven Daugherty factors are to be considered in determining “just cause.” As such, the panel in Falls removed any question the court adopted this standard. There is nothing precatory or optional in its application. Further, the arbitrator in Falls clearly used the tests as the following indicates:

“Applying the above tests to the facts presented at the hearing, the arbitrator found, inter alia, that Brown was at fault in causing the accident; although Brown had no forewarning of possible discipline for negligently causing an accident, any professional driver would expect some kind of discipline for such accident; and the forfeiture of earned vacation, however, was too severe, considering his overall employment record showing no previous disciplinary action taken against him and the fact that the April 6,1994 accident was his first accident during his 22 years of employment.” Falls, 271-72. (emphasis added)

We cite this to illustrate the panel of the Commonwealth Court had before it the very test (Daugherty) which they adopted in AFSCME and Falls. There can be no mistaking their intention.

We have researched the case law searching for any indications to the contrary. We find none. What we find are cases such as School District of Springfield Township v. Springfield Township Educational Support Personnel Association, 711 A.2d 602 (Pa. Commw. 1998) and Greene County and Greene County Children and Youth Services v. District 2, United Mine Workers of America and Local Union 9999, United Mine Workers of America, 736 A.2d 52 (Pa. Commw. 1999). Both of these cases speak to an arbitrator’s authority to determine “just cause” where it is not otherwise defined in a collective bargaining agreement. However, neither case discusses the standard to be applied by an arbitrator in determining what constitutes just cause. In Springfield, the focus is on the trial court’s discretion to substitute its opinion for the arbitrator’s as to what constitutes good cause. There is no discussion of what standard is properly applied. This is true notwithstanding the fact Senior Judge Mirarchi Jr. (who authored the Falls opinion) was also on the panel in Springfield. Similarly, the Greene County opinion focuses almost exclusively on the arbitrator’s discretion to modify the award once just cause has been found. This, notwithstanding its author, Senior Judge Narick, also authored AFSCME v. City of Reading when the seven-part standard was first enunciated/ adopted. Accordingly, while the later cases (Springfield and Greene County) affirm the arbitrator’s sole discretion to determine what constitutes just cause, they do not disturb the applicable legal standard as enunciated in AFSCME and Falls.

Having established the applicable standard, there is no question it was almost completely ignored in Arbitrator Miller’s decision. Indeed, the arbitrator discusses several of the applicable factors not at all. For example, there is no discussion whether or not the employer applied its rules and penalties evenhandedly to all employees. There is also no discussion of whether the degree of imposed discipline reasonably related to the seriousness of the offense and the employee’s work record. Additionally, issues such as whether the employer’s investigation was conducted fairly and objectively and whether the employer obtained substantial evidence of the employee’s violation are discussed only peripherally outside the context of the applicable standard. Finally, while the arbitrator’s decision does discuss the existence of certain policies which the arbitrator concluded were applicable, the opinion is silent on whether or not forewarning an employee as to the consequences of a violation actually occurred. As such, the arbitrator’s decision is violative of law and cannot support her factual findings. Accordingly, this court is required to undertake the process of modification and correction of the award provided for in 42 Pa.C.S. §7302(d)(2).

Our task is to correct the arbitrator’s failure to apply the applicable test. Since the association concedes factors two and three we will confine our discussion to the remaining five factors numbered one, four, five, six and seven. We conduct this inquiry to determine if any of the above factors are not satisfied so that just cause does not exist under AFSCMEv. Reading, (supra) and Falls, (supra). We will discuss them seriatim.

“(1) Did the employer give the employee forewarning of the possible disciplinary consequences of his or her conduct?

“We have reviewed the record in this case. We have reviewed the arbitrator’s decision. There is absolutely no evidence in the record indicating what the possible disciplinary consequences of Mr. Frederick’s conduct were let alone that he was forewarned of them. The cited portions to the rules and regulations in the record deal entirely with the treatment of what constitutes school property. To make matters worse, none of the cited regulations deals with property solicited by teachers for use in their classrooms. This absence of regulation exists notwithstanding uncontradicted testimony these items constituted approximately 3/4 of the inventory with which the teachers had to work given the school district parts budget of only $4,000 per year. As such, the school district is left to make this case by inference (without specific regulation) and/or by elevating to regulation what the front office ‘perceived’ the regulation of school property to require.

“The record clearly reflects the reality of what has been going on in the shops for the last 30 years. That reality is either totally contrary to or not addressed by the regulations. The failure to communicate clearly what constitutes ‘school property’ literally precludes forewarning. Further, even if school property were involved, the regulations are silent as to what would constitute appropriate discipline.

“(4) Was the employer’s investigation conducted fairly and objectively?

“This criteria is much more difficult to evaluate. Undoubtedly, there are facts known to Dr. Ross which are not part of this record. However, even conceding that likely truth, we are concerned what we do have appears tainted by something of a police state mentality. One might reasonably expect in an employer/employee relationship where there had been no incidents with an employee over the tenure of his entire career this matter would have been dealt with in a fashion as open as Mr. Frederick’s installation of the engines in question. We ask ourselves whether this employee was entitled to be confronted directly (fairly and objectively) in this situation. We believe he was, and that, for whatever reason, it did not occur.

“(5) Did the employer obtain substantial evidence of the employee’s violation?

“There is no question the school district legitimately attempted to obtain substantial evidence. They were unable to do so because they were unable to demonstrate the engines in question were covered under any clearly defined regulation. As to the ‘400’ engine, one reviewing this record has no idea where it came from. Simply put, no one knows. As to the ‘305’ engine, according to the school district policy relating to products donated by GM, this engine should have been crushed at the same time the remainder of the car was disposed of. That did not occur. Once you take the engine away from the otherwise crushed vehicle, the policy of the school district is already violated and no adequate notice is afforded to a subsequent teacher using the engine as to whether or not the property was originally donated by GM.

“(6) Has the employer applied its rules and penalties evenhandedly to all employees?

“One need only examine the testimony of any of the former teachers of the school district (and even the school district’s own witness, Mr. Gibbons) to demonstrate any existing policy has been violated routinely for at least 28 years. Given the absence of clear regulation or notice of a policy/consequences one could hardly expect otherwise. This is especially true where the teachers obviously spend considerable energy bartering, soliciting the materials on which their classes depend (often from former students). The long-term non-enforcement of any policies (real or perceived) ensured even with the best intentioned faculty chaos would result.

“(7) Was the degree of imposed discipline reasonably related to the seriousness of the offense and the employee’s work record?

“Clearly, it was not. On the contrary, a teacher lost his job who had never been subject to reprimand. A teacher who had received accolades and who, just months prior to this suspension, had been requested to increase his diesel instruction certification to include auto mechanics was afforded no consideration. Instead, what was at most a tenuous violation under the time-honored practices of the shop became subject to the death penalty. As such, the discipline related not at all to the gravity of the offense or the employee’s work record.”

There can be only one result. The finding of just cause must be set aside and reversed and the district ordered to reinstate Mr. Frederick with full back pay with interest, retirement for lost benefits, and that he be otherwise made whole.

In closing, we concede our opinion is predicated on the Daugherty test representing the state of the law in Pennsylvania and the arbitrator’s failure to apply. Absent that, the result should be reversed and the arbitrator affirmed.

In reaching our decision, we have exercised no arbitrary authority. Indeed, we have not addressed the actual findings of the arbitrator at all. This restraint on our part is required by law. As cited in AFSCME, citing the Supreme Court in United Paperworkers International Union v. Misco Inc., 484 U.S. 29, 108 S.Ct. 364, 98 L.Ed.2d 286 (1987), “[Cjourts ... are prohibited from second-guessing the arbitrator’s fact finding and contract interpretation as long as the arbitrator is even arguably construing or applying the contract and acting within the scope of his authority, rather than simply applying his own brand of industrial justice.” (AFSCME, 130 Pa. Commw. at 584, 568 A.2d at 1356.) Consistent with that limitation on our authority, we have developed only those portions of the record which either establish or fail to establish the factors which the arbitrator never addressed as required under existing Pennsylvania law.

We have concluded the arbitrator’s award is contrary to law. We also conclude the arbitrator’s award is subject to our grant of judgment n.o.v. for the failure to apply the applicable standard. Accordingly, both prongs of the standard for review established in title 42 Pa.C.S. §7302(d)(c) have been met.

We believe we have applied the law correctly. However, we urge adoption of the Daugherty test if, in fact, the court concludes it has not already done so. We see nothing but positives from its application in these situations. All fact-finders, irrespective of their discretion as provided by law, benefit from a set standard guiding that discretion. The Daugherty test controls what might otherwise become a “sea of equity” by establishing fair and measurable criteria by which one may view the factual scenario weighed against the employer’s policies and the employee’s record. It constrains the considerable discretion afforded arbitrators as fact-finders not at all — rather, it properly defines it. Notwithstanding our belief the Commonwealth Court has already adopted the test, we urge its adoption should they conclude otherwise.

We are similarly satisfied the application of the Daugherty test assists a common pleas court in its appropriate review under title 42. In deciding whether or not an award is contrary to law, the test provides a legal standard for the reviewing court. At the same time, it leaves intact the broad discretion afforded to arbitrators given the high standard required for reversal by the common pleas court. For all these reasons, we see arbitrators and reviewing courts benefiting from adoption of the Daugherty test. Accordingly, and consistent with the discussions above, we enter the following:

ORDER

And now, March 9, 2000, the decision of the arbitrator is set aside and reversed and the district (Greater Altoona Career and Technology Center) shall reinstate Mr. Kenneth C. Frederick with full back pay, interest, reimbursement for lost benefits, and otherwise made whole, consistent with his employment as a school teacher in the Altoona Area School District. This relief is fashioned to be compensatory rather than punitive. We find in this case a failure to establish good cause under the applicable legal standard. As such, plaintiff’s request for compensatory damages is appropriate.


source: Caselaw Access Project

author: BIESTER, J.,

license: Public Domain

text:
    Haupt v. Commonwealth, Department of Public Welfare
    C.P. of Bucks County,
    no. 95005348-14-2.

      Edwin L. Stock, for plaintiffs.

      Allan E. Ells, for defendant Department of Public Welfare.

      Joseph M. Walker, for defendants St. Mary Medical Center and Hannah.
    May 10, 2000
   BIESTER, J.,

The plaintiffs, Gary L. Haupt and Jody Zimmerman, administrators of the estate of Gary J. Haupt, the decedent, commenced this lawsuit by filing a complaint in the Court of Common Pleas of Bucks County in July of 1995.. The plaintiffs are the natural parents of decedent who was born on October 14,1977. The complaint named the Department of Public Welfare of the Commonwealth of Pennsylvania, St. Mary Medical Center and Dr. Brian Hannah as defendants. In 1998, St. Mary Medical Center was released as a defendant pursuant to a stipulation signed by the parties to this suit. Dr. Brian Hannah entered into a settlement with plaintiffs during the trial and is no longer a defendant in this case. The Department of Public Welfare operated a psychiatric school and hospital known as Eastern State School and Hospital. The plaintiffs’ claims were for the wrongful death of Gary J. Haupt, and a survival action on behalf of the estate of Gary J. Haupt.

Following a six-day jury trial in November 1999, the jury was charged with determining whether the Department of Public Welfare, acting through Eastern State School and Hospital and its personnel, was grossly negligent in this case. The jury determined that the Department of Public Welfare was not grossly negligent, and, accordingly, entered a verdict in favor of the defendant. Instantly, plaintiffs move for entry of judgment n.o.v., or, in the alternative, for a new trial.

In a light most favorable to the Department of Public Welfare, as verdict winner, the facts adduced at trial are the following: ■

The decedent, Gary J. Haupt, obtained morphine sulfate pills which were smuggled into Eastern State School and Hospital by another student returning from a weekend home visit who had put the pills into a plastic bag inside of a plastic bottle of hair conditioner. That student’s personal effects were examined by Eastern State staff member Peggy Perkins, whose inspection revealed that the bottle was about one-quarter full, the contents of which did not appear to be the normal consistency of hair conditioner. She subsequently confiscated the bottle, and placed it to the side to later dispose of it due.to her suspicions about its contents.

After Ms. Perkins .completed her inspection, another student arrived back from a weekend pass, and Ms. Perkins received a report of a different student who had run away from home. Due to her attention to these other students, and because of an ensuing shift change, Ms. Perkins forgot about the confiscated conditioner bottle which she left in the trash can in the office. Such was the testimony as stipulated by the parties.

Shortly after this time, the student whose pills had been confiscated, with the aid of another student, retrieved the confiscated bottle from the trash can. Later that night, Ms. Perkins witnessed another staff member remove trash bags from the cottage, and she had assumed that the confiscated bottle was removed and taken out to the trash. That was the evidence offered.

On March 2,1995, decedent went to the school’s canteen. ín response to rumors that drugs had been passed around there, the staff spoke with him, and he eventually stated that he had taken “a handful,” between 15 and 22 of the morphine sulfate pills. He then turned over eight pills to the staff, and his room was searched.

Eastern State was a psychiatric facility which treated children who had behavioral problems. It had a pediatric clinic that could handle simple minor medical problems such as colds or the flu. Dr. Ordentlich, the psychiatrist on call that evening, was notified, and she came to the cottage, saw the decedent and completed the paperwork to send him to St. Mary’s Hospital for treatment for an overdose and observation. Before sending decedent to St. Mary’s, Dr. Ordentlich called St. Mary’s and informed them that he was to be treated for an overdose of morphine sulfate.

At St. Mary’s, Dr. Hannah, the emergency room physician, ordered Narcan, an antidote to the morphine sulfate, to be administered, and had blood drawn for analysis. Although Dr. Hannah only ordered one dose of Narcan to be administered, due to a misunderstanding, the decedent actually received two doses.

After several hours of observation, decedent was medically cleared from St. Mary’s at about 3:15 a.m. Upon the suggestion of Ms. Mentzor, the discharge nurse at St. Mary’s, Dr. Hannah agreed that decedent should be checked every 30 minutes after being returned to Eastern State. Consequently, those instructions were verbally given to the person who had accompanied the decedent to the hospital, but Ms. Mentzor did not know if she said he should be aroused when doing so, and except for “boilerplate” printed instructions which made no reference to any 30-minute checks, no other instructions were given. Dr. Hannah’s reason for the 30-minute checks was his concern that the decedent might be able to gain access to more morphine sulfate pills, and not because of any concern about lingering effects from the morphine sulfate.

At decedent’s cottage at Eastern State in New Hope, staff member Helen Cimino checked decedent’s respiration, because morphine is a respiratory depressant, and it was fine. Ms. Cimino discussed with another staff member, Arthur Woods, instructions that decedent was to be checked and aroused every half-hour in addition to the required 15-minute checks for all students at Eastern State. Mr. Woods was instructed to elicit a response from decedent. Ms. Cimino personally checked decedent at 4:30 a.m. and easily aroused him from his sleep. She called Mr. Woods every 30 minutes to be sure that he had aroused him, and she last spoke with Mr. Woods at 6:30 a.m.

According to Ms, Cimino, she did not believe that decedent required additional medical care beyond the instructions that were provided to her. Eastern State is a psychiatric hospital, and is not equipped for medical emergencies. If a medically-cleared student returns, she believed that that meant that the student is fine. Ms. Cimino testified that she did not leave the New Hope cottage until 7:10 a.m. on March 3, 1995, and that she had received no call concerning the decedent.

Ms. Cimino spoke to Dr. Ordentlich upon decedent’s return to Eastern State. After being apprised of decedent’s condition, no additional instructions were given to Ms. Cimino by Dr. Ordentlich.

Mr. Woods, the aide assigned to the New Hope cottage in which decedent stayed, told the state police that he had checked on him every half-hour, during which he went into the room to check and shake him to arouse him. Decedent would say “something ... other times he would just make a noise like when you first get up.” (R. 11/23/99, p. 93.)

At the time around Mr. Haupt’s death, Ed Pacini, was the aide who worked the 7 a.m. to 3:30 p.m. shift. He arrived at work at approximately 7 a.m. Upon his arrival, Mr. Woods apprised him of the situation with decedent. From 7:10 to 7:15 a.m., Mr. Pacini began to awaken the other patients, starting at the opposite end of the hall, so that decedent would be aroused last. Mr. Pacini got no response when attempting to arouse decedent. Decedent did not appear normal, and Mr. Pacini ran to the cottage office and telephoned the nurses.

After receiving the call from Mr. Pacini, Nurse Dono-hue came to the cottage, found decedent cyanotic, without pulse or respiration, but sweating, and the body was warm. She began CPR, and Dr. Ordentlich was called, as was an ambulance. Decedent was pronounced dead at 8:45 a.m. by the deputy coroner. The autopsy and toxicology study indicated that the cause of death was an overdose of morphine sulfate.

Medical evidence adduced at trial established that Narcan, the antidote to morphine sulfate, when administered intramuscularly, which was done in this case,1 will have a significantly longer half-life and provide protective effects shielding someone from the effects of morphine sulfate longer, compared to Narcan administered intravenously. Once the Narcan wears off, and the peristaltic action resumes, a large volume of toxic morphine would be released into the bloodstream, and a patient can rapidly develop respiratory distress and die in a very short period of time.

Defendant presented medical testimony to the effect that one who ingested a large dose of morphine sulfate should be admitted to an intensive care unit for electrical and clinical monitoring. The patient should not be sent to an ordinary medical surgical floor, let alone a facility where it was unknown if there even was such a unit. Further, people coming under narcotic effects may well emit a nonverbal response which may be construed as being aroused. As was done with the decedent, when Narcan is administered in two different modes of treatment of long-acting morphine sulfate, the body may not be subjected to fatal morphine levels for as long as 12 hours. However, once the Narcan wears off, there can be a rapid deterioration and cessation of respiration. These are essentially the relevant facts adduced at trial.

Instantly, we must consider plaintiffs’ first motion which comes in the form of a judgment n.o.v. In reviewing this motion, we are bound to consider the evidence in a light most favorable to the verdict winner, who is given the benefit of every favorable inference which may be reasonably drawn from the evidence, while rejecting all unfavorable testimony and inferences. Rowinsky v. Sperling, 452 Pa. Super. 215, 220, 681 A.2d 785, 788 (1996) (citing Scott v. Southwestern Mutual Fire Association, 436 Pa. Super. 242, 647 A.2d 587 (1994)). Judgment n.o.v. must not invade the province of the fact-finder; the jury must resolve questions of fact. Furthermore, questions of credibility and conflicts in evidence are for the jury to resolve. Foflygen v. Allegheny General Hospital, 723 A.2d 705, 711 (Pa. Super. 1999). Also, it is well settled that the trial judge must not reach his decision on how he would have voted as a juror, but on the facts as they present themselves through the sieve of the jury’s deliberations. Jones v. Constantino, 429 Pa. Super. 73, 81, 631 A.2d 1289, 1293 (1993).

Pursuant to statute and prior precedent, in order to hold defendant liable for the death of decedent, gross negligence must first be found. This court charged the jury with the applicable standard of gross negligence as the following: “a form of negligence where the facts support substantially more than ordinary carelessness, inadvertence, laxity or indifference. The behavior of the defendant through its agents and servants would have to be flagrant, grossly deviating from the ordinary standard of care.” (R. 11/24/99, p. 66.)

Under this requisite standard of care, we cannot find that this case is so clear as to establish gross negligence such that no two reasonable minds could fail to agree that the verdict was improper.

The first alleged incidence of gross negligence by plaintiffs involves the circumstances in which the morphine sulfate pills came into the facility. At that time, the staff member did confiscate the bottle containing the pills because she was suspicious as to its contents. No evidence adduced at trial demonstrated that she was sure that the contents of the bottle were contraband. Moreover, it is reasonable for the jury to have believed that considering the circumstances, the staff member’s actions did not constitute gross negligence. At the time, the staff member received a new report concerning a different student who had run away from home. Also, the scene may have been somewhat more chaotic because of a shift change. Although the staff member’s unguarded placement of the bottle of pills can be viewed as negligent, it is quite reasonable for the jury to believe, considering the circumstances, that these actions did not amount to gross negligence. The existence of negligence must be determined on facts as they appeared at the time of the alleged negligence, and not just a judgment based on consequences.

Next, plaintiffs argue that “the clearest example of gross negligence in this case concerns psychiatric aide Arthur Woods and the checks he was supposed to make of Gary following Gary’s return to ESSH.” (Brief in support of plaintiffs’ motion for post-trial relief, p. 20.) Mr. Woods was supposed to check and arouse the decedent every half-hour. Mr. Woods did testify that he did indeed make these checks on time. Furthermore, the flow sheet, signed by Mr. Woods, indicates that decedent was checked and aroused every half-hour from 4 a.m. to 7 a.m. Plaintiffs, however, point to some inconsistencies in Mr. Woods’ testimony with statements he made to police, and also with statements by Ms. Cimino. Mr. Woods stated that he checked and aroused decedent at 4 a.m. and 4:30 a.m., as per instructions. However, Nurse Cimino stated that decedent was in bed, but not asleep when she left his cottage at 4:30 or 4:45 a.m. Plaintiffs point to this inconsistency and question why decedent had to be checked and aroused at 4 a.m. and 4:30 a.m., when he was not yet asleep. The obvious suggestion asserted by plaintiffs is that Mr. Woods falsified these records in an attempt to protect himself from any potential liability. However, the jury heard this evidence, and was entitled as the fact-finder to give conflicting testimony as significant or as little weight as it chose. Mr. Woods testified that he checked and aroused decedent every half-hour from 4 a.m. to 7 a.m., and the jury was entitled to accept his testimony and not find gross negligence in this conduct. Undoubtedly, there are some possible inconsistencies in the testimony of certain Eastern State staff members. However, the jury was entitled to find any inconsistency in favor of the defendant.

Plaintiffs also point to evidence offered by their medical experts, which indicates that decedent was not appropriately monitored or cared for by Eastern State. While experts can testify regarding deviations from the standard of care, it is for a jury to determine if those deviations rise to the level of gross negligence. Dr. Kmszewski, plaintiffs’ medical expert, testified that Dr. Ordentlich should have told Nurse Cimino that decedent needed to be observed on a one-to-one basis. Further, Dr. Krus-zewski testified that Dr. Ordentlich should have called Dr. Hannah at St. Mary’s and asked him what happened, and otherwise been more proactive in her care for decedent.

However, Dr. Kruszewski did not causally relate these alleged instances of negligence to the death of Haupt. It is reasonable to believe that the level of monitoring of decedent was not grossly negligent, despite Dr. Krus-zewski’s testimony that one-to-one monitoring was needed. Further, the jury could reasonably have believed that Mr. Haupt would have died despite these precautions. Also, it is not clear what Dr. Ordentlich would have learned that could have saved decedent’s life by calling Dr. Hannah, especially since Dr. Hannah had just medically cleared decedent from St. Mary’s Hospital.

It is quite possible that the jury believed that St. Mary’s was negligent in medically clearing decedent in the first place, especially considering the fact that Eastern State was not equipped to handle properly emergency situations. However, in analyzing all of the evidence and circumstances of the case, we cannot grant plaintiffs’ motion for judgment n.o.v.

It is difficult enough to set aside a jury determination as to simple negligence. That burden becomes enormous when dealing with gross negligence. The plaintiffs have simply not met those standards in this case.

Similarly, we cannot find that the jury’s verdict so shocks one’s sense of justice, so as to require anew trial. While many of defendant’s actions seemed negligent, we cannot say that any of these actions, or the aggregate of these actions, rose to the high level required for gross negligence. As such, plaintiffs’ motion for a new trial will be denied. For the aforementioned reasons, we enter the following order.

ORDER

And now, May 10, 2000, it is hereby ordered and decreed that plaintiffs’ motion for judgment n.o.v. and motion for new trial are denied, and the jury’s verdict in this case is affirmed.


author: TURGEON, J.,

text:
    Action Management Inc. v. Fratello

      C.P. of Dauphin County,
    no. 743 S 1999.

      Anthony DeLuca, for plaintiff.

      Mark W. Allshouse, for defendant.
    June 2, 2000
   TURGEON, J.,

The issue before the court is what statute of limitations period applies to a creditor’s action to recover a deficiency balance after repossession following the debtor’s breach of a motor vehicle installment sales contract, signed under seal. For the reasons set forth below, we find that a. four-year statute of limitations period applies and thus grant defendant’s motion for judgment on the pleadings.

FACTS

In November 1987, defendant David Fratello entered into a motor vehicle installment sales contract with a car dealership wherein defendant borrowed $10,683 to finance the purchase of a 1985 Pontiac Trans Am. The contract required defendant to pay the dealership’s as-signee, Meridian Bank, $14,090 over 48 months beginning in January 1988. In July 1988, after defendant defaulted on his payments, Meridian repossessed the vehicle which it sold in August 1988. The sale proceeds were applied to the outstanding balance, resulting in a deficiency balance of $8,286. Eleven years later, in February 1999, Meridian’s assignee, plaintiff Action Management Inc., commenced this action to recover the deficiency plus interest at 14 percent per annum — or $17,319. Plaintiff asserts in its complaint that the contract was signed under seal.

LEGAL DISCUSSION

Defendant has filed a motion for judgment on the pleadings, arguing plaintiff’s action is barred by a four-year statute of limitations, and not, as plaintiff argues, a 20-year limitations period which applies to contracts signed under seal. Since we agree with defendant, we grant judgment on the pleadings in his favor, since there are no disputed issues of fact and the defendant is entitled to a favorable decision as a matter of law. In ruling on defendant’s motion, we have considered only the pleadings and relevant documents. Vetter v. Fun Footwear Co., 447 Pa. Super. 84, 87, 668 A.2d 529, 530-31 (1995).

The statute of limitations for actions on contracts under seal, subject to certain exceptions, is 20 years as set forth in the Judicial Code:

“Section 5529. Twenty-year limitation . . .
“(b) Instruments under seal.—
“(1) Notwithstanding section 5525(7) (relating to four-year limitation), an action upon an instrument in writing under seal must be commenced within 20 years.” 42 Pa.C.S. §5529(b)(1). See Packer Society Hill Travel Agency Inc. v. Presbyterian University of Pennsylvania Medical Center, 430 Pa. Super. 625, 629-30, 635 A.2d 649, 652 (1993).

The statute of limitations for actions on contracts not under seal, subject to certain exceptions, is four years, as set forth in section 2725 of the Pennsylvania Uniform Commercial Code article 2, sales, as well as in Judicial Code section 5525:

“Section 2725. Statute of limitations in contracts for sale. [UCC]
“(a) General rule. — An action for breach of any contract for sale must be commenced within four years after the cause of action has accrued. By the original agreement the parties may reduce the period of limitation to not less than one year but may not extend it.”
“Section 5525. Four-year limitation. [Judicial Code]
“The following actions and proceedings must be commenced within four years:
“(1) An action upon a contract, under seal or otherwise, for the sale, construction or furnishing of tangible personal property or fixtures.
“(2) Any action subject to 13 Pa.C.S. §2725 (relating to statute of limitations in contracts for sale).
“(3) An action upon an express contract not founded upon an instrument in writing.
“(4) An action upon a contract implied in law, except an action subject to another limitation specified in this subchapter.
“(5) An action upon a judgment or decree of any court of the United States or of any state.
“(6) An action upon any official bond of a public official, officer or employee.
“(7) An action upon a negotiable or nonnegotiable bond, note or other similar instrument in writing. Where such an instrument is payable upon demand, the time within which an action on it must be commenced shall be computed from the later of either demand or any payment of principal of or interest on the instrument.
“(8) An action upon a contract, obligation or liability founded upon a writing not specified in paragraph (7), under seal or otherwise, except an action subject to another limitation specified in this subchapter.” 13 Pa.C.S. §2725 and42Pa.C.S. §5525. See Packer Society, supra.

In deciding which statute of limitations to apply, we note that the contract upon which plaintiff has brought this action is a hybrid, constituting both a contract for the sale of goods as well as a secured transaction. Defendant argues the deficiency action arises from the sale of goods portion of the contract and is thus subject to UCC article 2’s four-year statute of limitations, set forth in section 2725. 13 Pa.C.S. §2725. Plaintiff counters that its action does not involve the sale of goods, since the goods have been eliminated from the picture. Instead, plaintiff argues the action is based upon defendant’s loan default which relates directly to the financing aspect of the contract. Accordingly, plaintiff submits that the Judicial Code’s 20-year time limitation involving sealed instruments applies. 42 Pa.C.S. §5529(b)(1).

To the extent plaintiff’s deficiency action arises from the sale of goods portion of the contract, we agree with defendant it would be subject to UCC article 2’s four-year statute of limitations, set forth in section 2725, 13 Pa.C.S. §2725. Furthermore, the 20-year statute of limitations for sealed instruments would not apply since UCC section 2203 specifically renders seals on contracts for sale of goods inoperative, as follows:

“Section 2203. Seals inoperative.
“The affixing of a seal to a writing evidencing a contract for sale or an offer to buy or sell goods does not constitute the writing a sealed instrument and the law with respect to sealed instruments does not apply to such a contract or offer.” 13 Pa.C.S. §2203.

We further note that where inconsistencies exist between the Judicial Code’s time limitations provisions and those in the UCC, the UCC prevails. 42 Pa.C.S. §5201(b). Therefore, the applicable statute of limitations for an action under a sealed contract for the sale of goods is four years under UCC article 2. 13 Pa.C.S. §2725. See also, 42 Pa.C.S. §5525(2).

We likewise agree with plaintiff that if its deficiency action arises under the secured transaction portion of the contract under seal, the 20-year limitation would apply. 42 Pa.C.S. §5529(b)(l). The starting point in determining the applicable statute of limitations for an action arising from a secured transaction involving an automobile sale is the Pennsylvania Motor Vehicle Sales Financing Act. 69 P.S. §§601-637. The MVSFA governs motor vehicle installment sales contracts, specifically recognizing a seller/holder’s right to bring a deficiency action. 69 P.S. §627. However, the MVSFA does not include a statute of limitations. UCC article 9, secured transactions, also applies to the security agreement portion of the motor vehicle installment sales contract. 13 Pa.C.S. §9101 et seq. See Industrial Valley Bank & Trust Co. v. Nash, 349 Pa. Super. 27, 45, 502 A.2d 1254, 1264 (1985). Article 9 recognizes that the debtor remains liable for the deficiency upon a default and subsequent sale of collateral, but it too contains no statute of limitations. 13 Pa.C.S. §9504(b).

Accordingly, we look to the Judicial Code, which provides a four-year statute of limitations for “action[s] upon a negotiable or nonnegotiable bond, note or other similar instrument in writing.” 42 Pa.C.S. §5525(7). This section applies to the secured transaction portion of an installment sales contract. Since the language in this section does not explicitly extend its applicability to sealed instruments (as do sections 5527(1) and (8)), the six-year statute of limitations would be modified by the 20-year period for sealed instruments. 42 Pa.C.S. §5529(b)(l).

Plaintiff, in support of its argument for a 20-year limitations period, has relied solely upon Beneficial Consumer Discount v. Dailey, 434 Pa. Super. 636, 644 A.2d 789 (1994), allocatur denied, 540 Pa. 48, 655 A.2d 505 (1995). There, the Superior Court applied the 20-year statute of limitations to an action for breach of a consumer loan which had been entered under seal. That case is easily distinguishable, however, since the contract there did not involve a sale of goods, and article 2 was thus irrelevant to the action.

Here, we agree with defendant that article 2 does govern this action and that its four-year statute of limitations applies to this deficiency action. 13 Pa.C.S. §2725. While no Pennsylvania appellate court has addressed this issue, we are persuaded by a New Jersey Supreme Court decision which applied Pennsylvania law in a case remarkably similar to ours. Associates Discount Corporation v. Palmer, 219 A.2d 858 (N.J. 1966).

In Palmer, a New Jersey resident purchased a car from a Pennsylvania dealer. The parties entered into a “bailment lease,” under seal, which was a combination installment sale contract and security agreement. After the buyer defaulted, the seller’s assignee repossessed the vehicle and sold it for less than the loan amount. Seven years later, the assignee initiated a deficiency action. The court dismissed the action, holding that the four-year statute of limitations under article 2 applied, and rejected the argument that a longer statute of limitations for sealed instruments applied. In deciding that the action arose under article 2, and not as a secured transaction under article 9, the court stated as follows:

“[A deficiency] suit is nothing but a simple in per-sonam action for that part of the sales price which remains unpaid after the seller has exhausted his rights under article 9 by selling the collateral; it is an action to enforce the obligation of the buyer to pay the full sale price to the seller, an obligation which is an essential element of all sales and which exists whether or not the sale is accompanied by a security arrangement. Thus, because of the absence of a contrary indication anywhere in the [UCC], a deficiency action must be considered more closely related to the sales aspect of a combination sales-security agreement rather than to its security aspect and be controlled by the four-year limitation in ... section 2-725.” Id. at 861.

Further bolstering the court’s holding was the article 2 scope provision which states:

“Section 2102. Scope; certain security and other transactions excluded from division.
“Unless the context otherwise requires, this division applies to transactions in goods; it does not apply to any transaction which although in the form of an unconditional contract to sell or present sale is intended to operate only as a security transaction,_” 13 Pa.C.S. §2102. (emphasis added)

The court noted that transactions which operate only as security transactions are excluded from article 2, a point emphasized in the official comments to Pennsylvania UCC section 2102, as follows:

“Since transactions intended to operate ‘only’ as security transactions are excluded, actual sales are subject to this article of the code, although a security interest is retained by the seller.” Id. (citing 13 Pa.C.S. §2102, PBA notes (1953).)

Palmer has since been relied upon by numerous Pennsylvania common pleas courts — many involving the current plaintiff — all holding that article 2’s four-year statute of limitations applies to a creditor’s deficiency action following repossession and resale of secured goods. Action Management Inc. v. Birch, 20 Lycoming Rep. 377 (1998); Industrial Valley Bank v. Sharpe, 15 D.&C.3d 506 (Phila. Cty. 1980); and Action Management Inc. v. Deleo, no. SC: 97-09-22-02391 (C.P., Phila. 1997) (as cited in Action Management Inc. v. Birch). See also, Action Management Inc. v. Murphy, no. 317 of 1999 (C.P., Juniata Nov. 23,1999) (applying the four-year statute of limitations set forth in Judicial Code section 5525(1) to an action upon a sealed instrument). Palmer has also been relied upon for the same proposition in all but one foreign jurisdiction which have considered it. Scott v Ford Motor Credit, 691 A.2d 1320 (Md. 1997); First National Bank v. Chase, 887 P.2d 1250 (N.M. 1994); Worrel v. Farmers Bank of Delaware, 430 A.2d 469 (Del. 1981); Citizens National Bank v. Farmer, 395 N.E.2d 1121 (Ill. App. 1979); Massey-Ferguson Credit Corp. v. Casaulong, 133 Cal. Rptr. 497 (Cal. App. 1976). See also, 49 ALR5th 1, § 16(a), “Causes of Action Governed by Limitations Period in UCC §2-275” (1997). Compare, National Bank v. Holshouser, 247 S.E.2d 645 (N.C. App. 1978) (court distinguished itself from Palmer based upon North Carolina’s legislative intent, which it found to be opposite of Pennsylvania’s regarding article 2’s scope). Under the great weight of this persuasive authority we hold that the four-year statute of limitations found in article 2 governs.

Accordingly, because plaintiff’s action was commenced well beyond the applicable four-year statute of limitations, we enter the following:

ORDER

And now, June 2, 2000, defendant’s motion for judgment on the pleadings is hereby granted and plaintiff’s action is dismissed.

      . For a discussion of contracts under seal, see John E. Murray Jr., Murray on Contracts, §53 (3d ed. 1990).

      . Defendant does dispute that the contract was in fact entered under seal and the contract copy attached to plaintiff’s complaint is unsigned. However, for the purpose of resolving defendant’s judgment on the pleadings motion, we assume that the contract was signed under seal, as plaintiff has alleged in its complaint.

      . This order does not address defendant’s counterclaim for attorney’s fees.


author: PRATT, J.,

text:
    Patterson v. DeCarbo

      C.P. of Lawrence County,
    no. 40017 of 2000, EQ.

      Charles W Garbett, for plaintiffs.

      John W Hodge, for defendants.
    March 24, 2000
   PRATT, J.,

The plaintiffs, Keith Patterson and The Housing Authority of Lawrence County, have filed a complaint in equity (amended) and a petition for injunctive relief, raising the issue of whether defendants Roger DeCarbo, Edward Fosnaught, and Brian Burick, sitting and acting as the Lawrence County Board of Commissioners, violated the Pennsylvania Sunshine Act and the Pennsylvania Housing Authorities Law. The focus of the plaintiffs’ cause of action regards the action taken by defendants at the January 13, 2000 public meeting of the Lawrence County Board of Commissioners, when the county commissioners voted to remove plaintiff Keith Patterson as a member of the housing authority and appointed defendant Robert Heath as his replacement.

After a hearing of plaintiffs’ petition for injunctive relief, the court, pending the filing of briefs and plaintiffs’ amended complaint in equity and amended petition for injunctive relief, and a possible further hearing, issued a temporary order staying defendants’ action and reinstating plaintiff Keith Patterson as a voting member of the housing authority.

Plaintiffs are seeking preliminary and permanent in-junctive relief to enjoin the defendants from removing plaintiff Keith Patterson from his appointed term as a member of the housing authority. Plaintiffs are also seeking attorney’s fees and costs.

DISCUSSION

Plaintiffs, in this cause of action, contend that:

(1) Defendants, by their actions on January 13, 2000, violated sections 704 and 708 of the Sunshine Act (65 Pa.C.S. §704 and §708) by, (a) not announcing the purpose of the executive session at which the replacement of Keith Patterson as a member of the housing authority was discussed and deliberated upon in violation of section 708(b) of the Sunshine Act, 65 Pa.C.S. §708(b), and not providing plaintiff Keith Patterson notice of his possible replacement as a member of the housing authority as required under section 708(a)(1) of the Sunshine Act, 65 Pa.C.S. §708(a)(l), and (b) if the matter was not a personnel issue, but rather was a matter concerning amending the agenda for the commissioners’ meeting, then defendants violated section 704 of the Sunshine Act, 65 Pa.C.S. §704, by not deliberating and acting upon amending the meeting’s agenda during the open session of the January 13, 2000 commissioners’ meeting.

(2) Notwithstanding the violation of the Sunshine Act, defendants violated section 1546 of the Housing Authorities Law, 35 P.S. §1546, by removing the plaintiff, Keith Patterson, as an appointed member of the housing authority prior to the expiration of his term without just cause, notice, and authority of the court of common pleas after a full hearing.

This court agrees with plaintiffs’ assertions and will grant appropriate relief as discussed below.

HH

Injunctive Relief

Under Pa.R.C.P. 1531, the court may grant injunctive relief in the form of a preliminary or special injunction pending adjudication, decree nisi, and final determination of the pending complaint in equity. The party seeking the injunctive relief, however, must meet the following criteria in order to qualify for a preliminary injunction:

(1) the relief which the party requests is necessary to prevent immediate and irreparable harm which cannot be compensated by damages at law,

(2) greater injury will result by refusing the preliminary injunction request than by granting it,

(3) the preliminary injunction will restore the party to the status quo as it existed immediately prior to the alleged wrong,

(4) the alleged wrong is manifest, and the preliminary injunction is reasonably suited to abate it, and

(5) the right to relief is clear, that is, substantial legal questions have been raised which must be resolved to determine the respective rights of the parties, thus making the conduct sought to be enjoined actionable. T.W. Phillips Gas and Oil Co. v. People’s Natural Gas Co., 89 Pa. Commw. 377, 492 A.2d 776 (1985); Schaeffer v. Frey, 403 Pa. Super. 560, 589 A.2d 752 (1991); Gwynedd Properties v. Lower Gwynedd Township, 150 Pa. Commw. 124, 615 A.2d 836 (1992); and Anglo-American Insurance Co. v. Molin, 547 Pa. 504, 691 A.2d 929 (1997).

In reviewing the evidence presented during the hearing of the instant petition, as well as the complete record in this case, the court is not able to find where the plaintiffs have met their burden of proof in establishing that the relief which the plaintiffs request in the form of a preliminary injunction is necessary to prevent immediate and irreparable harm which cannot be compensated by damages, and that greater injury will result by refusing the preliminary injunction than by granting it. Consequently, under general equity standards and Pa.R.C.P. 1531, the request for a preliminary injunction by the plaintiffs may not be granted.

Notwithstanding, however, section 713 of the Sunshine Act, 65 Pa.C.S. §713, which provides, in part, “the court may enjoin any challenged action until a judicial determination of the legality of the meeting at which the action was adopted is reached.” Thus, when equitable relief is requested because of an alleged violation of the Sunshine Act, this court has authority to grant preliminary injunctive relief without addressing the elements necessary for a preliminary injunction under the usual equity standards and Pa.R.C.P. 1531, pending the court’s final determination as to whether the action taken at a meeting by a public agency was proper and in accordance with the various provisions of the Sunshine Act. A review of the evidence presented during the January 18,2000 hearing of this case, as well as the record, shows that the plaintiffs have established, prima facie, that defendants violated portions of the Sunshine Act and, therefore, the court is authorized and justified in granting a preliminary injunction enjoining defendants from replacing plaintiff Keith Patterson as a member of the housing authority pending final disposition of plaintiffs’ complaint in equity.

II.

Sunshine Act

The language of section 708(a)(1) of the Sunshine Act is clear and provides, in part, that an agency may hold an executive session: “to discuss any matter involving the employment, appointment, termination of employment, terms and conditions of employment, evaluation of performance, promotion, or disciplining of any specific prospective public officer or employee or current public officer or employee employed or appointed by the agency, or former public officer or employee, provided, however, that the individual employees or appointees whose rights could be adversely affected may request, in writing, that the matter or matters be discussed at an open meeting. The agency’s decision to discuss such matters in executive session shall not serve to adversely affect the due process rights granted by law ....” 65 Pa.C.S. §708(a)(1).

Section 708(b) sets forth the procedure that must be followed when holding an executive session:

“The executive session may be held during an open meeting or at the conclusion of an open meeting or may be announced for a future time, The reason for holding the executive session must be announced at the open meeting occurring immediately prior or subsequent to the executive session. If the executive session is not announced for a future specific time, members of the agency shall be notified 24 hours in advance of the time of the convening of the meeting specifying the date, time, location and purpose of the executive session.” 65 Pa.C.S. §708(b). (footnotes omitted) (emphasis added)

The instant record indicates that the subject matter of the executive session was “the creation of the environmental services department” and the “housing authority appointed and dismissal issue.” See hearing transcript, January 18,2000, p. 26. According to the evidence, however, this was not announced prior to, or subsequent to, the executive session held by defendants at the January 13,2000 public meeting. After the executive session, by resolution and motion, defendants voted to remove plaintiff Keith Patterson from The Housing Authority of Lawrence County and replaced him with defendant Robert Heath. Furthermore, the record indicates that defendants failed to provide plaintiff Keith Patterson notice of his possible removal and the opportunity to request, in writing, that the matter of his removal be discussed at an open meeting. By this action, defendants clearly violated sections 708(a)(1) and 708(b) of the Sunshine Act. This conclusion rests upon the determination that the subject matter of plaintiff Keith Patterson’s replacement was a personnel matter rather than an amendment of the agenda of the meeting as testified by defendant Roger DeCarbo. This determination is based on the statements and argument of counsel for defendants, who insisted during the hearing that the matters taken up by defendants during the executive session were personnel matters.

Even if the court determines that the issues discussed during the executive session of January 13, 2000 were not personnel matters, the results would not be different. Section 704 of the Sunshine Act, 65 Pa.C.S. §704, requires that all official actions and deliberations by members of a public agency, such as the Lawrence County Board of Commissioners, shall take place at a meeting open to the public unless closed pursuant to certain exceptions, including executive sessions. So, if the matters discussed by defendants during the executive session were not personnel issues, and there being no other exceptions offered by defendants, the matters that were discussed during the executive session by defendants were required to be discussed and acted upon during the open session of the public meeting. Thus, if the court determines that the testimony of defendant Roger DeCarbo was accurate and that the only matters defendants discussed during the executive session were amending the agenda of the public meeting to add the items of creating the environmental services department and the appointment and dismissal issue regarding the housing authority, then these matters should have been discussed and acted upon during the open meeting of defendants. According to counsel for defendants, proper procedure would have been for defendants by motion and vote to amend the agenda. This was not done. Rather, defendants addressed the matter during the closed executive session according to the testimony of defendant Roger DeCarbo. As such, in the alternative, defendants violated section 704 of the Sunshine Act.

In conclusion, defendants by their executive session and action during the open session of the January 13, 2000 public meeting in removing and replacing plaintiff Keith Patterson as a member of the housing authority, violated sections 704 and 708 of the Sunshine Act. Under section 713 of the Act, 65 Pa.C.S. §713, such action by defendants at the public meeting conducted on January 13, 2000 was invalid and must be declared void. As such, plaintiff Keith Patterson must remain an official member of the housing authority, with all rights and privileges attendant thereto.

III.

Housing Authorities Law

By stipulation of the parties through counsel, it was agreed that the court should dispose of the plaintiffs' complaint in equity based upon the record established thus far, including the pleadings, evidence presented, briefs, and arguments of counsel and that there would be no need for a trial or further hearing of the case.

In that regard, plaintiffs argue that defendants have no authority to replace an appointed member of the housing authority prior to the expiration of the appointed member's term without just cause and notice. Plaintiffs base their argument on section 1546 of the Housing Authorities Law, 35 P.S. § 1546, as well as cited cases in their brief. On the other hand, defendants argue that Article 6, Section 7 of the Pennsylvania Constitution authorizes defendants to remove, at their pleasure, any civil officer which they have appointed, citing in support thereof, Mitchell v. Chester Housing Authority, 389 Pa. 314, 132 A.2d 873 (1957) and Pievski v. Ridge, 98 F.3d 730 (3d Cir. 1996).

Initially, the court finds that there is no dispute that a member of a housing authority created under the provisions of the Pennsylvania Housing Authorities Law is a legislatively created office and not one created by or contained in the Pennsylvania Constitution. Similarly, there should not be any dispute that the legislature, by virtue of Article VI, Section 1 of the Pennsylvania Constitution, formerly Article XII, Section 1, is constitutionally authorized to create such offices. (See also, Weiss v. Ziegler, 327 Pa. 100, 193 A. 642 (1937).)

Relevant to this case, the Pennsylvania Housing Authorities Law provides, among other things, for five-year fixed terms for appointed members of housing authorities. The terms, however, are staggered, so that only one member’s term expires at any time. 35 PS. §1546. The law also provides a method for removing members. It states, “a member may be removed for cause by the court of quarter sessions of the county in which the authority is located after having been provided with a copy of the charges against him for at least 10 days and full hearing by the court.” 35 PS. §1546 (courts of quarter sessions were abolished by the constitution convention of 1968 and approved by the electorate April 23, 1968; their jurisdiction was incorporated into the court of common pleas).

Here, plaintiff Keith Patterson’s term as an appointed member of the housing authority had not expired at the time the defendants took their action to remove and replace him during their January 13,2000 meeting, and he received no prior notice of his removal of any charges against him. A hearing was not conducted before any court regarding his removal.

Thus, the sole issue in disposing of the Housing Authorities Law question currently before this court is whether plaintiff Keith Patterson may be removed as an appointed member of the housing authority at the pleasure of the appointing power, the Lawrence County Board of Commissioners, under Article VI, Section 7 of the Pennsylvania Constitution, or whether section 6 of the Housing Authorities Law, 35 P.S. §1546, controls and makes Article VI, Section 7 inapplicable.

In Weiss v. Ziegler, supra, the Pennsylvania Supreme Court determined that an elected district superintendent of schools could not be removed by the board of school directors at their pleasure, where the Pennsylvania School Code, which provided for the election of the superintendent and fixed the term of office at four years, also provided for the superintendent’s removal by the school directors for neglect of duty, incompetency, intemperance, or immorality.

The Weiss court held that Article VI, Section 4 of the Pennsylvania Constitution (now Article VI, Section 7), which provides for the removal of officers at the pleasure of the appointed power, must be read in connection with Article XII, Section 1 (now Article VI, Section 1), which provides that all officers, where their selection is not provided for in the constitution, shall be elected or appointed as may be directed by law. The court went on to hold that the legislature, under Article XII, Section 1, may annex certain conditions to the appointed officers’ tenure, citing Milford Township Supervisors’ Removal, 291 Pa. 46, 139 A. 623 (1927). The court ruled Article VI, Section 4 is not applicable when the legislature, in fixing the term of office of a legislatively created office, has made the term of office conditioned on contingencies other than the mere passage of time or at the pleasure of the appointed power. Weiss, supra.

In Watson v. Pennsylvania Turnpike Commission, 386 Pa. 117, 125 A.2d 354 (1956), our Supreme Court was in accord with Weiss, supra, in a case involving the re7 moval of an appointed member of the Pennsylvania Turnpike Commission by the governor before the expiration of his term. The court made it manifestly clear that, where the legislature creates a public office, it may impose such terms and limitations as to the length of service of the person appointed and/or the method of removing the appointed official in creating the office, which may be determined by the legislative intent as ascertained from the language of the statute. (See Milford, supra and Weiss, supra.) The court held that, where the statute creating the legislative office provides for fixed terms with staggered expiration dates or it specifically provides for a method of removing the official prior to the expiration of his term of office, Article VI, Section 4 does not apply, and the appointed official is not subject to removal at the pleasure of the appointing power.

The Pennsylvania Supreme Court in Bowers v. Pennsylvania Labor Relations Board, 402 Pa. 542, 167 A.2d 480 (1961) held that “[t]he legislature has shown that, when it creates an administrative agency and provides that its members shall be appointed for fixed terms with staggered expiration dates, the intent thereby evidenced is that such members are not removable by the appointor at his pleasure.” Id. at 551, 167 A.2d at 484. The Bowers court added, “whether the legislature, in creating an appointive office, has evidenced by its enactment an intention that the tenure of the appointee shall not be subject to termination at the pleasure of the appointing power presents a pure question of statutory construction which is peculiarly and exclusively the function of the judiciary to resolve.” Id. at 548, 167 A.2d at 482. (See also, Commonwealth ex rel. Sortino v. Singley, 481 Pa. 367, 392 A.2d 1337 (1978).)

In Mitchell, supra, relied upon by defendants, the Supreme Court, in deciding that case one year after the Watson case, decided to ignore Watson, Weiss and Milford and instead preferred to follow Commonwealth ex rel. Reinhardt v. Randall, 356 Pa. 302, 51 A.2d 751 (1947), holding that the governor of the Commonwealth of Pennsylvania had the authority to remove a majority of the members of the Chester Housing Authority by virtue of Article VI, Section 4 of the Pennsylvania Constitution. In Reinhardt, the Supreme Court was called upon to reconcile section 6 of the Pennsylvania Housing Authorities Law, 35 P.S. § 1546, with Article VI, Section 4 of the Pennsylvania Constitution (now Article VI, Section 7). Like the instant case, the dispute in Reinhardt involved the removal of an appointed member of the Philadelphia Housing Authority prior to the expiration of the member’s term. There, the court held that Article VI, Section 4 of the constitution prevailed and found that the appointing authority clearly had complete authority to remove the housing authority member prior to the expiration of his term. It should be noted that in Reinhardt, section 6 of the Housing Authorities Law at that time provided no method of removal of appointed members. A specific method of removal prior to the member’s term expiring was added by legislative amendment in Act no. 163 of 1968, effective January 1, 1969.

In citing and arguing Pievski, supra, defendants’ counsel’s reliance thereon is grossly inaccurate and tends to mislead the court, although unintentionally. Pievski involved the Delaware River Port Authority, created by an interstate compact agreement between the Commonwealth of Pennsylvania and the State of New Jersey pursuant to federal law. Max Pievski, the plaintiff, was appointed by Governor Robert Casey in 1994 as a member of the DRPA and removed by Governor Casey’s successor, Governor Tom Ridge. The Third Circuit United States Court of Appeals applied federal law in disposing of the case in which the plaintiff challenged Governor Ridge’s authority to remove him as a member of the DRPA before the expiration of his term. The court, noting that the gist of the dispute turned on the court’s interpretation of the terms and provisions of the interstate compact agreement, ruled that federal law must apply in construing the compact agreement. The court went on to state, however, “[t]hough state law is not binding, federal courts show deference to prior state adjudications and rulings in construing an interstate compact.” Pievski, supra at 738. (citation omitted) In showing its deference to Pennsylvania state court decisions, the federal court of appeals stated:

“The Pennsylvania Supreme Court has held that where a statute provides for fixed terms with staggered expiration dates, the legislature intended that those appointed shall not be removable at the will of the appointed authority. ... However, the mere fixing of a definite term does not override the dictates of Article VI, Section 7 of the constitution which gives removal power to the appointing authority. . . . Pennsylvania case law provides that the staggering of terms, not the mere fixing of a definite term in office bars the governor from removing an appointed official at will.” Pievski, supra at 738, 739. (citations omitted)

The court concluded that, although the interstate compact agreement provided for fixed definite terms for DRPA commissioners, the terms were not staggered, and there was no language in the agreement providing for any method of removing commissioners and, therefore, the Pennsylvania Constitution, as interpreted by the Pennsylvania Supreme Court, does not prohibit the governor from removing the plaintiff prior to his expiration of his designated term. Pievski, supra at 739.

In conclusion, the standard for removing an appointed official from a legislatively created public office, as it evolved from a long history of Pennsylvania Supreme Court case law, is that the inclusion of a method of removal of the appointed officer in the pertinent legislation, by either providing for staggered fixed terms of appointment or a specific mode of removing the official prior to the expiration of his term, indicates a legislative intent that Article VI, Section 7 of the Pennsylvania Constitution does not apply, and the official may not be removed at the pleasure of the appointing authority.

Applying that standard to this case, dictates that section 6 of the Housing Authorities Law, 35 P.S. §1546, rather than Article VI, Section 7 of the Pennsylvania Constitution, applies in addressing the removal of appointed members of The Housing Authority of Lawrence County. The defendants, therefore, have no authority under Article VI, Section 7 of the Pennsylvania Constitution to remove appointed members of the housing authority, including plaintiff Keith Patterson, at their pleasure prior to the expiration of their appointed term of office, unless removed by the court upon cause being shown with prior notice to the appointed member. Consequently, the defendants, in removing plaintiff Keith Patterson prior to the expiration of his term, during the defendants’ meeting on January 13, 2000, and without “cause” as determined by the court with prior notice, as prescribed by section 6 of the Housing Authorities Law, 35 P.S. § 1546, was unauthorized and must be declared invalid and voided.

For the reasons set forth above, this court, by separate order, shall void the defendants’ action during the public meeting on January 13, 2000 in removing plaintiff Keith Patterson from The Housing Authority of Lawrence County.

ORDER

Based upon the supporting opinion, the court orders as follows in the above captioned case:

(1) The defendants violated the Sunshine Act in removing plaintiff Keith Patterson from The Housing Authority of Lawrence County and replacing him with defendant Robert Heath by their actions on January 13,2000 and that action by resolution is declared invalid and is voided.

(2) Section 6 of the Pennsylvania Housing Authorities Law, 35 P.S. § 1546, governs the removal of appointed members of The Housing Authority of Lawrence County and not Article VI, Section 7 of the Pennsylvania Constitution. Under section 6 of the Housing Authorities Law, 35 P.S. §1546, the defendants had no authority to remove plaintiff Keith Patterson as a member of The Housing Authority of Lawrence County during the pendency of his unexpired appointed term of office without cause, notice and court approval. Therefore, the action taken by the defendants during the January 13, 2000 public meeting was invalid and is voided.

(3) Plaintiff Keith Patterson is reinstated with all attendant rights and privileges as an appointed member of The Housing Authority of Lawrence County retroactive to January 13, 2000.

(4) As the plaintiffs failed to show that the actions taken by defendants during the January 13, 2000 public meeting were willful or with wanton disregard, plaintiffs’ request for attorney’s fees and costs is denied.


author: NEALON, J.,

text:
    Boyanoski v. Gould Inc.

      C.P. of Lackawanna County,
    no. 93-CV-2077.

      John Barry Beemer, for plaintiff.

      Mark A. Lockett, for defendant Gould Inc.

      David R. Beane, for defendant NTH Consultants Ltd.

      Leigh Bechtle, for additional defendant Synergist Inc.
    September 27, 1999
   NEALON, J.,

Additional defendant, Synergist Inc., has filed a motion for summary judgment with respect to the third party complaint filed against it by defendant NTH Consultants Ltd., and the cross-claims for contribution and indemnity presented against it by defendant, Gould Inc. For the reasons set forth below, the motion for summary judgment will be denied.

I. FACTUAL BACKGROUND

Plaintiff, Paula Boyanoski, has filed a wrongful death and survival action in her capacity as the executrix of the estate of her brother, Patrick Kane. In this toxic tort litigation, Boyanoski maintains that Kane was exposed to lead and other hazardous substances while employed as a landscaper at the Marjol Battery & Equipment Company Superfund Site in Throop between April 1989 and November 1989, as a result of which Kane was diagnosed with myelodysplastic syndrome and sideroblastic anemia on April 17, 1991, and eventually died on August 10, 1992.

By way of brief background, defendant, Gould Electronics Inc., is the current owner of the Superfund Site, having purchased the 43-acre site from the now defunct Marjol Battery & Equipment Company in May 1980. On April 11, 1988, Gould entered into an emergency consent agreement and order with the Environmental Protection Agency by virtue of which Gould agreed to stabilize contaminated soils on site and to remediate off-site residential properties. The consent order also required Gould to develop a site health and environmental response plan to protect all subcontractors and employees working on the project from exposure to hazardous substances. The SHERP allegedly mandated certain OSHA training for all site employees regarding safety and health hazards that were present, the use of protective equipment and clothing, and the need for and availability of certain medical surveillance.

Gould hired NTH Consultants Ltd. as the environmental engineering firm to develop a plan for on-site stabilization and off-site soil remediation and further retained Gilarde Environmental Management Inc. to implement the work plan. Gilarde subcontracted with Ernie Weston Landscaping Inc. to seed contaminated soil on site and to plant trees and shrubbery on nearby residential properties that had been designated for soil removal. In that regard, Kane was employed by Weston as a landscaper at the Superfund Site between April 1989 and November 1989.

Boyanoski contends that Gould, NTH and Gilarde are liable for Kane’s wrongful death caused by his exposure to lead and other hazardous substances at the Superfund Site. Specifically, Boyanoski asserts that Kane was never provided with the required OSHA training, nor was he furnished with the mandated protective clothing and blood screenings or medical surveillance. Boyanoski maintains that as a consequence, Kane simply wore a T-shirt, shorts and sneakers while working with toxic soil. NTH has joined Synergist Inc. as an additional defendant on the grounds that NTH had retained Synergist as a subcontractor to draft and prepare the SHERP required by the consent order.

The SHERP that was prepared by Synergist in May 1988 creates a “health and safety committee” comprised of personnel from NTH, Gilarde and Synergist. (See Synergist’s exhibit “A,” §1.2.1, pp. 1-2.) Section 1.2.1 of the SHERP distinctly provides that the health and safety committee “is responsible for the development, amendment, and implementation of the SHERP for all remedial activities conducted at the Marjol Battery site.” (Id.) Section 1.2.5 identifies the specific responsibilities of Synergist in its capacity as the “project health and safety coordinator” and states:

“The primary responsibilities of the Synergist project health and safety coordinator are to help develop and revise the SHERP and to oversee the implementation of the SHERP on the site. Specific duties of the project safety coordinator are:
“ — Work directly to develop and revise the SHERP;
“ — Perform a pre-investigation health and safety inspection of the site;
“ — Ensure that the SHERP addresses site-specific hazards and contains a safety plan;
“ — Establish the appropriate level of protection required by personnel working on the site;
“ — Ensure that the field team is trained in the site-specific health and safety procedures;
“ — Review the health and safety training and medical monitoring records of subcontractor personnel;
“ — Ensure that [Gilarde] is properly trained and thoroughly versed in the SHERP;
“ — Ensure that [Gilarde] is properly trained in the use and selection of field monitoring and personal protective equipment;
“ — Monitor records of worker exposure to toxics (if materials on the site are known, or suspected, to produce exposure);
“ — Ensure proper site safety record keeping and accident reporting;
“ — Maintain the health and safety equipment inventory;
“ — Supervise health and safety performance of the staff and maintain site safety records;
“ — Arrange medical attention in the event of an accident;
“ — With the project engineer, correct work errors and conditions that may result in injury or exposure to hazardous substances;
“ — With the project engineer, ensure that at least one person trained in basic first-aid and cardiopulmonary resuscitation is present on the site during all field activities.” (Id., pp. 1-4 to 1-5.)

The first, second, third, sixth, ninth, tenth and eleventh duties delineated in section 1.2.5 relate to the formulation of the SHERP and the subsequent monitoring of records and inventory by Synergist. The fourth, fifth, seventh, eighth, twelfth, thirteenth, fourteenth and fifteenth duties concern Synergist’s obligation to establish and ensure certain safety training, protective equipment, work site precautions, and remedial measures to avoid toxic exposure.

The deposition testimony of Synergist’s president, Terrence Shannon, reflects that Synergist maintained an active role in assuring work site safety pursuant to section 1.2.5 of the SHERP. Specifically, Mr. Shannon attested:

“I would visit the site approximately once a week, and walk around and inspect the site and operations going on on the site for purposes of noting any issues that were not consistent with the items specified in the SHERP. And I would then prepare a report based upon my observations, and I would submit that to the on-site health and safety officer and the project engineer.” (See Terrence A. Shannon deposition dated December 19,1997, p. 13.)

Mr. Shannon’s account was corroborated by the deposition testimony of the project manager, Ms. Barbara Forslund, who confirmed that Synergist personnel would visit the Marjol site on a weekly basis to determine whether the activities were being conducted in accordance with the SHERP and to review any instances of noncompliance with Gilarde. (See Barbara Forslund deposition dated December 19, 1997, p. 54.)

Synergist has filed a motion for summary judgment seeking the dismissal of all claims for contribution and indemnity on the grounds that “there is an absence of duty, as a matter of law, as to Synergist due to the contractual terms and provisions of the safety, health and emergency response plan.” (See Synergist motion for summary judgment, p. 2.) Synergist posits that it merely maintained a passive, records auditing role which cannot serve as a basis for a legal duty in a negligence case. Gould and NTH counter that Synergist’s “involvement with respect to safety issues was of a direct sort which required Synergist to be on-site and perform weekly safety audits.” (See e.g., Gould’s brief in opposition, p. 10.) The parties have briefed their respective positions, and following the completion of oral argument on September 21, 1999, this issue became ripe for disposition.

n. DISCUSSION

(A) Standard of Review

Under Pa.R.C.P. 1035.2, a party may move for summary judgment after the relevant pleadings are closed whenever there is no genuine issue of any material fact which could be established by additional discovery or if, after the completion of discovery, an adverse party who bears the burden of proof has failed to produce evidence of essential facts so as to warrant the submission of the issue to a jury. Fazio v. Fegley Oil Co. Inc., 714 A.2d 510, 512 (Pa. Commw. 1998); Rivera v. Barone, 99 Lacka. Jur. 130, 133 (1998). In determining whether to grant summary judgment pursuant to Pa.R.C.P. 1035.1-1035.4, a trial court must resolve all doubts against the moving party and examine the record in a light most favorable to the non-moving party. McCarthy v. Dan Lepore & Sons Co. Inc., 724 A.2d 938, 940 (Pa. Super. 1998); Harman on behalf of Harman v. Borah, 720 A.2d 1058, 1061 (Pa. Super. 1998). Even under the revised rules, a court may grant summary judgment only in those cases where it is clear and free from doubt that the moving party is entitled to judgment as a matter of law. Boyer v. Walker, 714 A.2d 458, 459 (Pa. Super. 1998); Cappelli v. York Operating Co. Inc., 711 A.2d 481, 483 (Pa. Super. 1998) (en banc).

(B) Legal Duty

In order to state a cause of action in negligence, a plaintiff must demonstrate (1) a duty of care owed by the defendant, (2) a breach of that duty, (3) a causal connection between the defendant’s conduct and the plaintiff’s resulting injury, and (4) actual harm or damage suffered by the plaintiff. Martin v. Evans, 551 Pa. 496, 502, 711 A.2d 458, 461 (1998); Trischetta v. Walters, no. 95-CV-3660, Nealon, J., at p. 12 (Lacka. Cty. September 25, 1998). A contract may create a duty which requires a party to the agreement to use due care in performing a contract for the benefit of the other party to the agreement, as well as for third parties who are strangers to the contract. See e.g., Gilbert v. Korvette’s Inc., 457 Pa. 602, 616-17, 327 A.2d 94, 102 (1974) (under an agreement with a building owner, an escalator company owed a duty of care to all persons using the escalator); Heath v. Huth Engineers Inc., 279 Pa. Super. 90, 92, 420 A.2d 758, 759 (1980) (based upon its contract with a sewer authority to supervise and inspect work and to assist in safeguarding the authority against potential hazards, an engineering company owed a duty to a contractor’s employee who was killed as result of the collapse of a trench). The duty does not arise directly from the contract itself, but, rather, is imposed by law as a result of the nature of the undertaking in the contract. Cantwell v. Allegheny County, 506 Pa. 35, 40, 483 A.2d 1350, 1353 (1984); Hawthorne v. Dravo Corp., Keystone Division, 313 Pa. Super. 436, 442, 460 A.2d 266, 269 (1983). If a duty to third persons arises from a contract, the defendant is not relieved of liability to those third parties merely because the defendant has satisfied its obligation to the original party with whom it had contracted, nor is the defendant exculpated by the fact that the other contracting party was also negligent toward the third person. St. Clair v. B & L Paving Co., 270 Pa. Super. 277, 280, 411 A.2d 525, 527 (1979).

Moreover, irrespective of the presence or absence of a contractual duty, a defendant may assume a duty by a course of conduct. For example, Pennsylvania has adopted the Restatement (Second) of Torts §323 which provides that “[o]ne who undertakes, ... for consideration, to render services to another which he . . . recognize^] as necessary for the protection of the other’s persons or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) the harm is suffered because of the other’s reliance upon the undertaking.” Riddle Memorial Hospital v. Dohan, 504 Pa. 571, 576-77, 475 A.2d 1314, 1316 (1984); Glick v. Martin and Mohler Inc., 369 Pa. Super. 428, 433-34, 535 A.2d 626, 628 (1987). Several Pennsylvania courts have construed section 323 as creating a legal duty where none would otherwise exist. See Henry v. First Federal Savings & Loan Association, 313 Pa. Super. 128, 134 n.3, 459 A.2d 772, 775 n.3 (1983). Pennsylvania has likewise adopted section 324A of the Restatement (Second) of Torts, see Cantwell v. Allegheny County, 506 Pa. 35, 483 A.2d 1350 (1984), which contains language identical to section 323 except that it extends the negligent actor’s potential liability to third persons. See Heath, supra at 92, 420 A.2d at 759.

Under the express terms of the agreement that was drafted by it, Synergist assumed the duty to ensure “that the field team [was] trained in the site-specific health and safety procedures,” “that [Gilarde was] properly trained and thoroughly versed in the SHERP,” and “that [Gilarde was] properly trained in the use and selection of field monitoring and personal protective equipment.” Synergist also agreed to “supervise health and safety performance of the staff,” and, most importantly, to “correct work errors and conditions that may result in injury or exposure to hazardous substances.”

In the case at bar, Boyanoski asserts that the decedent was never furnished with the required safety training, nor was he supplied with appropriate protective clothing while he was working with toxic soil and allegedly contracting myelodysplastic syndrome. Boyanoski further contends that the decedent was never provided with the requisite medical surveillance, and in that regard, the SHERP specifically imposed a duty upon Synergist to “review the health and safety training and medical monitoring records of subcontractor personnel,” to “monitor records of worker exposure to toxics” and to “arrange medical attention in the event of an accident.” Consequently, the duties that Synergist distinctly assumed under the SHERP correlate directly to the allegations of liability in this matter.

Synergist contends that it played a quiescent role in the Marjol project and that it did not owe a duty to the decedent as matter of law. According to Synergist, it merely assumed the responsibility to review and audit records and was not obligated to take any affirmative action to protect workers at the Marjol site. See e.g., Frampton v. Dauphin Distribution Services Co., 436 Pa. Super. 486, 487, 648 A.2d 326, 327 (1994) (architect had no duty to warn construction workers of the existence of a visible overhead power line since “[ajccording to the express terms of the agreement, the architect was not to be responsible for and was not to have control over construction activities or safety measures.”); Young v. Eastern Engineering and Elevator Co. Inc., 381 Pa. Super. 428, 437, 554 A.2d 77, 81 (1989) (“[w]e therefore hold that absent an undertaking by an architect, by contract or conduct, of the responsibilities of the supervision of construction and the maintenance of safe conditions on a construction project, an architect is not under a duty to notify workers or employees of the contractor or subcontractors of hazardous conditions on the construction site.”).

In support of its argument, Synergist relies heavily upon the ruling of the Supreme Court of Pennsylvania in Marshall v. Port Authority of Allegheny County, 524 Pa. 1, 568 A.2d 931 (1990). In that case, the contract at issue initially required the engineer to review the “contractors’ practices and procedures to minimize hazards associated with construction operations.” Id. at 9, 568 A.2d at 935. However, that obligation was later “expressly eliminated in a subsequently entered agreement,” id., which merely required the engineer “to assure delivery of the specified systems and facilities in accordance with contract drawings and specifications. ” Id. at 9, 568 A.2d at 936. (emphasis in original) Pursuant to the contract specifications agreed to by the municipal authority and the general contractor, the engineer was permitted, but not required, to demand that remedial measures be effectuated in the event that the engineer discovered a work site safety hazard. Id. at 10, 568 A.2d at 936. Based upon the forgoing contractual language, the Marshall court concluded that the engineer’s “duties pertaining to jobsite safety were to be passive in nature, not involving a duty to continually oversee the jobsite and seek out safety hazards” since the engineer’s contractual obligations contemplated that its “involvement with safety concerns would be of an indirect sort, requiring contractors to furnish certain paperwork and forwarding that paperwork to [the municipal authority], rather than being an on-site inspector.” Id. at 11-12, 568 A.2d at 936-37.

The engineer’s duties in Marshall are anomalous to the obligations expressly assumed by Synergist in the SHERP. In contrast to the contract which required the Marshall engineer to simply monitor records, the SHERP imposed various obligations upon Synergist to “ensure” the provision of certain safety training and protective equipment and to “correct work errors and conditions” that could possibly result in hazardous exposure or injury. Unlike the detached involvement of the engineer in Marshall, Synergist personnel inspected the Marjol site operations on a weekly basis and would report any potential SHERP violations to the health and safety officer and the project engineer. Thus, both by contract and a course of conduct, Synergist assumed the duty to guarantee work site safety through appropriate training, equipment and corrective measures.

Synergist’s duties in this case are more analogous to those present in Heath, supra, where a consulting engineer contractually agreed “to supervise the work, periodically inspect it, and assist in safeguarding the owner against defects and deficiencies on the part of the contractors.” Heath, supra at 92, 420 A.2d at 759. In upholding a jury verdict rendered against the engineer, the Superior Court of Pennsylvania held that the engineer was property found liable under section 324A of the Restatement (Second) of Torts. Id. Based upon the reasoning in Heath, Synergist may likewise be held accountable in this case.

Accordingly, by virtue of the safety related duties assumed by Synergist in the SHERP that it prepared, the court cannot hold as a matter of law that Synergist owed no duty to the decedent in this litigation. Therefore, Synergist’s motion for summary judgment will be denied. An appropriate order follows.

ORDER

And now, September 27, 1999, upon consideration of the motion for summary judgment of additional defendant, Synergist Inc., and based upon the reasoning set forth in foregoing memorandum, it is hereby ordered and decreed that the motion for summary judgment of additional defendant, Synergist Inc., is denied.