author: BIESTER, Jr., J.,

text:
    Prudential Property and Casualty Insurance Company v. Wilkenson

      John I. Gordon, for plaintiff.

      Harold D. Borek, for defendant.
    December 21, 1990
   BIESTER, Jr., J.,

On October 10, 1990, we granted Prudential Property and Casualty Insurance Company’s motion to compel a medical examination of Linda Brozyno Wilkenson by a plastic surgeon and a psychiatrist. Ms. Wilkenson appealed our order to the Superior Court on November 9, 1990. We make the following findings of fact and conclusions of law stating the reasons why we so ordered.

(1) On or about February 5, 1983, Linda Brozyno Wilkenson was involved in a motor vehicle accident. Prudential is the insurer of Ms. Wilkenson.

(2) Ms. Wilkenson was injured in the accident and began receiving medical treatment for her injuries, which included plastic surgery and psychiatric counseling, beginning in 1984.

(3) Ms. Wilkenson has had several dermabrasions performed since the accident and on March 7, 1990, Prudential moved to have her medical condition evaluated by an independent medical examiner.

(4) Prudential contends in its petition that Ms. Wilkenson continues to receive psychiatric care while her treating physician contends that only approximately 50 percent of her psychiatric illnesses are accident-related. (See Prudential exhibit A.)

(5) Prudential contends that it has been more than seven years since Ms. Wilkenson’s accident and as her insurer they have paid over $75,000 on Ms. Wilkenson’s claims. In this seven-year period, Prudential avers that Ms. Wilkenson has not been subjected to an independent medical examination.

(6) Prudential avers that such an independent medical examination will substantially assist them in evaluating her medical claim.

(7) Counsel for Ms. Wilkenson contends that (a) Prudential has not illustrated a “need” to conduct the exam, and, (b) that at the very least Prudential must take a medical expert’s deposition to establish the need for further medical evaluation.

DISCUSSION

Title 75 Pa.C.S. §1796 authorizes a court to require a claimant to submit to a mental or physical examination by a physician upon a showing of good cause whenever the medical or physical condition of the claimant is relevant to the claim. Specially, the statute states:

“(a) General Rule — Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court. . . may order the person to submit to a mental or physical exam by a physician. The order may only be made upon motion for good cause shown.” Id.

Good cause entails more than relevancy. It means that the reasons alleged in a petition must rise to a level of specificity which will insure that a claimant will not be forced to submit to unnecessary examinations in bad faith. State Farm Insurance Companies v. Hunt, 390 Pa. Super. 620, 569 A.2d 365 (1990). (citations omitted) The existence of good cause will vary from case to case according to the nature of the alleged injury and the type of examination requested. Id. Whether good cause has been shown must depend upon the exercise of sound discretion by the trial court, and the exercise of such discretion will not be reversed absent a palpable abuse thereof. Hunt, supra.

In the instant case, Ms. Wilkenson was injured in a motor vehicle accident on or about February 5, 1983. Since that time she has received over $75,000 in medical coverage from Prudential. Prudential has paid her claims over this seven-year period without reservation until receiving a copy of the letter from Elizabeth A. Reynolds, Psy.D. to Mr. Harold D. Borek, Esq., Ms. Wilkenson’s attorney. The letter informed Mr. Borek that approximately only 50 percent of Ms. Wilkenson’s “psychological treatment is directly related to the accident.” (Prudential exhibit A.) Ms. Reynolds sent a copy of this letter to Prudential. It was this letter that caused such an obvious and bona fide need for Prudential to have Ms. Wilkenson subjected to an independent medical examination. It was for this substantial reason that we ordered Ms. Wilkenson to submit to the medical examination.


source: Caselaw Access Project

author: SPICER, P.J.,

license: Public Domain

text:
    Strevig v. Seibert

      Gary E. Hartman, for plaintiffs.

      Michael M. Badowski, for defendant.
    December 18, 1990
   SPICER, P.J.,

In this medical malpractice suit, we are asked to preliminarily determine the admissibility of evidence relating to the doctor’s prior treatment of plaintiff. Following a pretrial conference in which the evidence was discussed, plaintiff filed a formal offer of proof and defendant entered a motion in limine to exclude the evidence.

For purposes of this rule, the court accepts as true assertions made both in the offer and in plaintiff’s brief. For example, we assume that plaintiff will be able to prove that certain side effects of medicines involved in this case were known by members of the medical profession generally, and were or should have been known by defendant.

We deal with two drugs, hydrochlorothiazide and capoten. We will refer to them as medicine A and medicine B. When we refer to plaintiff, we mean Craig Strevig.

Defendant treated plaintiff for hypertension during the period beginning October 17, 1983, and ending October 8, 1984. During this time defendant prescribed medicine A, a known side effect of which involves the loss of potassium, which can result in a condition called hypokalemia. Defendant did not monitor plaintiff’s condition by use of blood analy-ses. On the last mentioned date, plaintiff was admitted into the Hanover General Hospital and diagnosed as suffering from this disorder.

There is no mention of any medicine being prescribed until March 10, 1986. From that date until November 30, 1987, defendant treated plaintiff with a more potent drug, medicine B.

After plaintiff complained of vertigo, bruising, palpitations after light exercise, minor bleeding and headaches, a blood analysis was ordered. It was then determined that plaintiff suffered from pancy-topenia, which was caused by medicine B. This condition is a form of aplastic anemia and treatment required a marrow transplant.

Plaintiff argues that his treatment involving medicine A and the resulting hypokalemia is both relevant and admissible. He contends that his adverse reaction to medicine A placed defendant on notice that blood monitoring was required for medicine B. He also argues that the treatment is part of a general course of conduct which is relevant on the issue of negligence.

Defendant, on the other hand, argues that (1) the two periods of treatment are not causally, logically or temporally connected, (2) medicine A is of entirely a different chemical composition than medicine B and (3) introduction of a collateral issue would confuse a jury and prejudice defendant.

Both parties agree that evidence of prior conduct is generally not admissible. There are some recognized exceptions, mainly dealing with notice, intent, conditions and the like. A good many have developed in the criminal field and, although the-degree of caution is not the same, similar principles are applied in civil cases. Relevance is always balanced against possible prejudice and confusion. Packel and Poulin, Pennsylvania Evidence, §405.3.

Cases are instructive concerning principles that when evidence relates to a particular purpose, the jury must be instructed accordingly. For example, in Carter by Carter v. U. S. Steel Corporation, 390 Pa. Super. 265, 568 A.2d 646 (1990), the court was required to inform the jury that evidence of a similar accident was to be considered only in determining if a dangerous condition existed.

Prior conduct is generally admissible to prove notice, as plaintiff contends. In Henderson v. National Drug Company, 343 Pa. 601, 23 A.2d 743 (1942), a number of patients developed abscesses after a doctor had given them shots. Evidence of problems caused by shots given to other patients was admissible to show that the doctor was placed on notice about the effects of the treatment. See also, Parrish v. Clark, 107 Fla. 598, 145 So. 848 (1933). Knowledge, which is quite akin to notice, can also be shown. A case cited by plaintiff, Adams v. Dunn, 283 Or. 33, 581 P.2d 939 (1978), is illustrative. A physician failed to diagnose appendicitis in a young patient. He testified at trial that he had never encountered symptoms such as those manifested by the decedent. Judgment was entered in his favor. Thereafter, another parent informed plaintiff that the doctor had been previously confronted with almost identical symptoms in another young patient and had missed appendicitis in his diagnosis. A new trial was ordered on the basis of after-discovered evidence.

On the other hand, the iule is often repeated that prior negligence does not prove negligence. The Supreme Court, in Henderson, supra, repeated the rule that proof that a surgeon previously left sponges in patients is not relevant to the issue of whether a sponge was left in a particular situation.

The issue involves a balancing of relevance against prejudice and confusion. We first consider relevance.

We agree with defendant that there is no causal or temporal connection between the two treatments. Plaintiff has not contended that medicine A contributed to pancytopenia. Use of medicine B requires no reference to medicine A. There is no suggestion that characteristics of and reaction to the medicines are similar. There was a hiatus of over a year when no medicine was prescribed.

The real question is whether there is a logical connection. One might think that lack of blood monitoring and bad side effects were common to both periods and that, since the same patient was involved, the jury should be given the details about the first treatment. On the other hand, a fact finder would have to determine that the first failure to monitor was negligent in order to make that treatment germane. Trial would then involve two issues of negligence.

We feel that one cannot logically assume that, since medicine A caused a side effect, medicine B would also, unless (1) there is a principle or rule commonly accepted in the medical profession that all medicines for hypertension cause deleterious side effects, or (2) there is a similar rule that a particular patient who suffers side effects from one medicine for hypertension is more likely than not to suffer side effects from another medicine for the same condition.

If there is a commonly accepted rule that any prudent physician will, for the benefit of his patient, monitor that patient’s condition through blood tests, the first treatment is superfluous. It would seem to make no difference whether the physician fails in the duty once, twice or more often.

Plaintiff has not brought to our attention any commonly accepted principles which would make the evidence relevant. We are not in a position to precisely determine prejudice and confusion at this stage. We assume it would be mild. However, another issue of negligence obviously would complicate the trial process. If the evidence were relevant, we would allow it. Since we determine it to be irrelevant, we rule that it is inadmissible.

ORDER OF COURT

And now, December 18, 1990, defendant’s motion in limine is granted.

      . This date is determined by reference to other parts of the record as are some of the facts hereafter recited.

      . The rule does not apply to strict liability where similar accidents can prove defectiveness of a product. Majdic v. Cincinnati Machine Company, 370 Pa. Super. 611, 537 A.2d 334 (1988).

      . We suppose if enough sponges were left, the practice may become admissible under a theory of habit.


author: KAYE, J.,

text:
    First National Bank of Greencastle v. Talhelm

      David C. Cleaver, for plaintiff.

      Gregory R. Reed, for defendants.
    June 21, 1990
   KAYE, J.,

This matter is before the court on a petition for leave of court to make written demand for jury trial which was filed by defendants, Gerald D. Talhelm, Gregory M. Tal-helm, and Harold E. Talhelm.

FACTS AND PROCEDURAL BACKGROUND

On September 27, 1989, plaintiff, First National Bank of Greencastle, filed a civil complaint in action of mortgage foreclosure against defendants. Defendants filed their original answer on October 31, 1989, and an amended answer on January 30, 1990, in response to plaintiff’s preliminary objections. Defendants asserted new matter and counterclaims against plaintiff in both of the answers. Plaintiff filed a reply to the new matter on February 15, 1990 which completed the pleadings in this case. Defendants caused a rule to show cause why they should not be granted leave to make a written demand for a jury trial in their counterclaims to be issued on plaintiff. Plaintiff filed its answer to the rule on May 7, 1990, and the matter was set for oral argument to be held June 7, 1990. Argument was held on that date and the matter is in a posture for decision.

DISCUSSION

We are asked to decide whether defendants should be granted leave to make a written demand for a jury trial. Plaintiff in this case is not entitled to a jury trial on the mortgage foreclosure action according to Pa.R.C.P. 1150. However, defendants have filed a counterclaim in trespass and are constitutionally entitled to demand a jury trial for those counterclaims. U.S. Const., amend. VII; Pa. Const., art. I, §6.

The Pennsylvania Rules of Civil Procedure provide the time limit in which a demand for a jury trial must be made.

“(a) In any action in which the right to jury trial exists, that right shall be deemed waived unless a party files and serves a written demand for a jury trial not later than 20 days after service of the last permissible pleading.” Pa.R.C.P. 1007.1

In the case at bar, the last pleading was filed on February 15, 1990, and defendants had 20 days from that date to make their demand for a jury trial. Defendants failed to make their demand within the time period allowed in the rules.

The Supreme Court in Jones v. Van Norman, 513 Pa. 572, 522 A.2d 503 (1987), clearly stated that Rule 1007.1 is to be enforced, and that prejudice to the other side is not to be considered where the provisions of Rule 1007.1(a) have not been satisfied. Therefore, we are compelled to find that defendants waived their right to a jury trial by not making their demand within the time period prescribed by the rule.

Defendants’ petition for leave of court to make a written demand for a jury trial is denied.

ORDER OF COURT

Now, June 21, 1990, defendants’ petition for leave to file a demand for jury trial is denied.


author: KUHN, J.,

text:
    Leonard v. Leonard

      William Gierasch, for plaintiff.

      Ellen Averett, for defendant.
    December 7, 1990
   KUHN, J.,

On November 19, 1990, husband filed a petition for equitable relief. Despite the heading of the petition, husband was really seeking to hold wife in contempt for failing to execute an income tax withholding (W-4P) form, to be sent to United Airlines Inc., so wife’s share ($168,000) of husband’s pension plan could be distributed to her pursuant to paragraph 7 of the parties’ marriage settlement agreement dated July 21. 1988.

There is no dispute that in September and October 1990, United Airlines tendered to wife the W-4P form for her to execute. Upon receipt of the form United Airlines will distribute the funds to her. It is also undisputed that wife has refused to return the form. Apparently, to the extent wife does not put these funds into another qualified retirement account, she will be taxed, and if she retains the entire amount, which she intends to do, that tax could be rather sizable (reportedly over $40,000). Wife claims she has been advised to defer all tax liability to 1991 by not returning the W-4P form until after January 1, 1991. Such logic may seem reasonable until placed in context of the parties’ situation.

As part of the marriage settlement agreement husband retained the marital home. Wife was required to vacate the home within 30 days after receipt of her share of the pension account. Since 1988, both parties have occupied the home. As can be expected the atmosphere has been less than pleasant and a protective order pursuant to the Protection From Abuse Act was entered on September 18, 1990. No divorce decree has been entered and husband is paying wife $200 per week as support. Husband wants wife out of the house immediately while wife wants to remain until 30 days after actual receipt of the pension funds. She claims she needs the money in order to move and that her daughter is about to have a baby and she needs access to the marital home to care for her daughter’s other children.

The central issue for resolution is whether to issue an order directing wife to execute the W-4P form or to find her in contempt. The latter requires existence of an order, the willful violation of which would expose wife to a finding of contempt.

The matter is complicated because the parties are in Bankruptcy Court (no. 1-88-00187) pursuant to a petition filed in March 1988 under Chapter 11. The marriage settlement agreement dated July 21, 1988, was approved as part of the bankruptcy plan by order of the Bankruptcy Court dated April 9, 1990. By order dated September 6, 1990, the Bankruptcy Court incorporated the marriage settlement agreement, ordered that wife receive the $168,000 share of husband’s pension, and execute such documents as are necessary and required by the pension plan administrator. The parties filed a joint motion to lift automatic stay which was granted by the Bankruptcy Court dated October 15, 1990. That order gave this court jurisdiction “to enforce the terms and provisions of the marriage settlement agreement” as to certain enumerated items, including the provisions of paragraphs 6(h), 7, and 16.

Title 23 P.S. §401(k) provides:

“If, at any time, a party has failed to comply . . . with the terms of an agreement as entered into between the parties, after hearing the court may, in addition to any other remedy available under this act, in order to effect compliance with its order:

“(9) find the party in contempt.”

The dilemma therefore facing the court is (1) whether the October 15, 1990 order lifting the stay and giving this court jurisdiction “to enforce the terms and provisions of the marriage settlement agreement” also included the right to enforce by our contempt powers the order of September 6, 1990, directing wife to execute the necessary documents or (2) whether under 23 P.S. §401(k) the contempt powers granted a court “to effect compliance with its order” contemplates under the circumstances of this case, the power to effect compliance with the Bankruptcy Court’s order.

As a general rule one court does not have contempt power to enforce the orders of another court. The October 15, 1990 bankruptcy order authorized this court to enforce certain provisions of the agreement but the Bankruptcy Court did not give the undersigned express authority to enforce its orders. Furthermore, it is this court’s opinion that 23 P.S. §401(k) limits use of contempt powers to effect compliance with orders of this court.

Therefore, we conclude that we cannot find wife in contempt on the basis of the November 19, 1990 petition for equitable relief. Rather, we will treat that petition as requesting the court to direct wife to execute such documents as are necessaiy and required by the pension plan administrator, including form W-4P. Implicit in the agreement was the obligation on the part of both parties to execute documents necessary to carry out the terms of the agreement. Wife has breached that obligation. We are not unsympathetic to wife’s tax concerns; however, husband should not be “held hostage” until wife decides it will be in her best interest to execute the tax form. She has been expressly advised of her obligation to do so since September 1990. Therefore, we will direct wife to execute form W-4P and deliver it to husband’s counsel within seven days to be forwarded to the pension plan administrator. We do not believe wife should be rewarded for her willful delay. Therefore, we will direct wife to remove herself from the marital home within 20 days after this date if she fails to return form W-4P in a timely fashion or 30 days after husband’s counsel forwards the form to the plan administrator if wife returns the form in a timely manner.

ORDER OF COURT

And now, December 7, 1990, in consideration of the petition for equitable relief filed November 19, 1990, and hearing held thereon, the authority of this court under Bankruptcy Court order dated October 15, 1990 (1-88-00187), to enforce certain terms and provisions of the parties’ marriage settlement agreement dated July 21, 1988, and the equitable powers of this court as set forth in the Divorce Code, 23 P.S. §101 et seq., the court does hereby find that respondent, Jane C. Leonard, has breached the implied terms of said agreement to execute all documents necessary to effectuate the terms thereof, specifically, her failure to execute income tax withholding form W-4P and return it to the United Airlines Inc. pension plan administrator.

It is hereby ordered and directed that respondent, Jane C. Leonard, shall execute all documents necessary to effectuate transfer of her share of petitioner’s pension to her as set forth in paragraph 7 of the marriage settlement agreement including tax form W-4P, and return the same to petitioner’s counsel within seven days of the date of mailing of this order. If wife fails to submit the document as directed herein she shall remove herself from the marital residence within 20 days of the date of mailing of this order. If respondent returns said documentation as directed herein, she shall remove herself within 30 days after petitioner’s counsel forwards the documentation to the pension plan administrator. Petitioner’s counsel shall promptly serve upon respondent and her counsel written notice of mailing to the plan administrator. Respondent may date form W-4P in a manner which delays receipt of her share of the pension, and the tax ramifications arising therefrom, until after December 31, 1990, however, such election shall not delay the provisions of this order to vacate the marital residence.

Pursuant to paragraph 23 of the marriage settlement agreement a breaching party is responsible for legal expenses incurred by the other in enforcing the agreement. Petitioner has 10 days from the date of this order to submit a statement of such expenses, if any is being requested, together with an itemized billing to the court and respondent’s counsel, whereupon the court shall enter an appropriate order.

      . Wife receives, inter alia, a 70-acre farm in Randolph County, North Carolina, and $200 per week as support until a divorce decree is entered and then alimony for life in the amount of $1,000 per month.

      . Paragraph 6(h) reads:
      “Wife shall immediately upon execution of this agreement sign over all of her right, title, stock and interest to the following corporations and the assets of these corporations in favor of Husband, or sign a power of attorney in favor of Husband which allows him to accomplish this conversion, as well as her interest in all other marital assets [with the exception of household goods and other marital assets, which will be dealt with in subsequent paragraphs of this agreement, and as listed below], including, but not limited to, the following:. . .
      “h. United Airlines pension plan and directed accounts.”
      Paragraph 7 reads:
      “From the United Airlines directed account, Husband shall give to Wife the sum of $168,000 and shall immediately apply to transfer to Wife said sum and shall cooperate with Wife in obtaining such court order as may be necessary.”

        Paragraph 16 reads:
      “It is further agreed that Wife shall vacate the marital home within 30 days of the date she receives the $168,000 as set forth previously.”


author: WOOD, J.,

text:
    White v. Hertzler

      Wayne C. Buckwalter, for plaintiff.

      Arsen Kashkashian Jr., for defendant.
    November 14, 1990
   WOOD, J.,

I heard testimony and argument in the above matter on October 17, 1990. I now make the following

FINDINGS OF FACT

(1) Plaintiff and defendant are the owners as tenants in common of real estate known as 403 Brookfield Way, Willistown Woods, West Chester, Chester County, Pennsylvania 19380.

(2) Prior to the purchase of the real estate, plaintiff and defendant had planned to be married. They purchased the subject real estate pursuant to that intention, anticipating that following marriage they would own the premises as tenants by the entireties.

(3) In anticipation of the purchase, they entered into a rental agreement for the premises, and defendant, and one or perhaps both of her children moved into the premises prior to settlement date. The evidence is not clear, but it appears that each paid a portion of the rent on the premises prior to settlement.

(4) Settlement was held on October 18, 1985, and the deed produced by that settlement was recorded in the Office of the Recorder of Deeds of Chester County in Record Book 113, page 310 et seq.

(5) The parties committed themselves to a mortgage of $53,000; the balance of the purchase price and settlement costs, which came to $46,692.88, was paid as follows: $11,500 by defendant, and $35,192.88 by plaintiff. 1

(6) Following settlement, the parties bore the mortgage and carrying expenses of the premises equally.

(7) Also following settlement defendant’s sons, who lived at the premises off and on, paid her occasional amounts of money. These amounts appear not to have been rent so much as reimbursement for expenses.

(8) Over the months following settlement, differences developed between the parties, and they terminated their plans for marriage.

(9) Plaintiff now seeks partition of the premises.

DISCUSSION

The issue in this case is not so much whether partition should be ordered, but what should be done with the proceeds of a partition sale of the premises. Plaintiff’s view appears to be that any proceeds should be divided up according to the ratio of their respective investments in the property, which he computes at approximately 75/25 in his favor. Defendant suggests that any proceeds should be divided between the parties 50/50, but also suggests as a feasible alternative that each get back the amount of their investment and then share any excess equally between themselves.

This third alternative appeals to me. I have read a number of cases on the subject, including Preshner v. Goodman, 83 D.&C. 387 (1952), which was cited by counsel; Rankin v. LaFountain, 36 Chester L. Rep. 299 (1988), which I myself decided sometime back; and Semenza v. Alfano, 443 Pa. 201, 279 A.2d 29 (1971), which I cited in the Rankin case. None of them are terribly helpful. Preshner discusses the issue of fault in breaking an engagement, and I cannot say in this case that either party was clearly at fault. Both Rankin and Semenza start with the premise that the prospective bridegroom paid virtually all the purchase price, and although plaintiff paid the bulk of the purchase price in this case, I think it would be inequitable not to recognize that both contributed substantial funds towards this purchase.

Since there appears to be no firm precedent covering this situation, I am inclined to believe that I should first order that each party gets back his or her investment, as gifts made in contemplation of marriage, and that anything over and above that should be divided equally between them, because they themselves were and have been paying the carrying charges equally since settlement. It is unclear in my mind whether I should tack interest on top of the return of the gifts paid in contemplation of marriage, but since we are talking about return of gifts rather than the normal legal obligation, I will not award interest.

CONCLUSIONS OF LAW

(1) The court has jurisdiction.

(2) The real estate in question cannot be divided between the parties without prejudice to or the spoiling of the whole.

(3) Partition is an appropriate remedy in this case, and will be awarded, and from the proceeds of any public sale of the premises, plaintiff will receive $35,192.88 and defendant will receive $11,500, and the parties will thereafter share equally any net proceeds over and above that amount.

DECREE

And now, November 14, 1990, I direct that the parties arrange for public or private sale of the premises by whatever means they can agree upon, the proceeds of such sale to be divided as set forth above. If the parties cannot, within 30 days of the date of this decree, agree on a means of public or private sale, I will on motion of either party to these proceedings appoint a master in partition, who will proceed to sell the property as provided by law.


author: RUFE, J.,

text:
    Commonwealth v. Mabrey

      Lindsay S. Maider, assistant district attorney, for the Commonwealth.

      Mel D. Kardos, for defendant.
    December 20, 1990
   RUFE, J.,

This opinion is written pursuant to an appeal by the Commonwealth to the Superior Court as a result of the finding at a suppression hearing on August 21, 1990. At the hearing in question, this court found that certain breathalyzer test results were inadmissible based on the Commonwealth’s failure to recalibrate the breathalyzer or remove it from service as required by 67 Pa. Code §77.24.

The Pennsylvania Code, 67 Pa. Code §77.24, provides, in pertinent part, as follows:

“(b) Procedures. Alcohol breath tests shall be conducted by a certified breath test operator. Accuracy inspection tests and calibrations conducted using breath test equipment shall be performed by a certified breath test operator, the manufacturer or its authorized representative or a person who has received comparable training or instruction. Alcohol breath tests, accuracy inspection tests and calibrations conducted using breath test equipment shall be performed in accordance with accepted standard procedures for operation specified by the manufacturer of the equipment or comparable procedures. The procedures for alcohol breath testing shall include, at a minimum:

“(2) One simulator test using a simulator solution designed to give a reading of 0.10 percent, to be conducted immediately after the second actual alcohol breath test has been completed. The lower of the two actual breath test results will be the result used for prosecution. The test results will be disregarded, and the breath test device will be removed from service under section 77.25(b)(4) (relating to accuracy inspection tests for Type A equipment) if one of the following occurs:

“(i) If the difference between the results of the two actual alcohol breath tests is 0.02 or more, for machines read to the second decimal place, or 0.020 or more for machines read to the third decimal place.”

Defendant, George Mabrey, was pulled over at approximately 12:19 a.m. on February 23, 1990 in Bensalem, Bucks County, Pennsylvania. Officer Mark Blaszczyk, the patrolman on the scene, testified that defendant’s Lincoln Town car had swerved to the left several times and that defendant had a strong odor of alcohol on his breath, glassy eyes and slurred speech. The officer also testified that defendant failed some field sobriety tests and that he appeared to be under the influence of alcohol.

Defendant was transported to police headquarters and after consulting with his attorney, agreed to take a breathalyzer test. Officer Blaszczyk administered the test through use of the Intoximeter 3000. The test results were 0.16 percent blood alcohol content.

At the suppression hearing, the evidence showed that the breath-testing machine was given its last monthly accuracy test on February 9, 1990, approximately two weeks before defendant’s test. The evidence further indicated that the machine was calibrated in October 1989. The machine in question makes readings to the third decimal point. The evidence showed that there were at least seven known deviations greater than 0.020 on the machine from October 12, 1989 until the defendant was tested on February 23, 1990. These deviations occurred as follows.

On November 10, 1989, Officer Thomas Campel-lone had given a breathalyzer examination on the machine in question to a Mr. Bruce Vineland. The mouth alcohol readings were 0.221 and 0.245 percent, thus greater than the permissible 0.020 variation. Officer Campellone testified that he made a notation in the log book that the reason for this was that Vineland had given improper breath samples. The machine was not taken out of service or reca-librated. Instead, the subject was retested on the same machine and valid samples were received.

On December 7, 1989, Sergeant Jones administered a test on the same machine to a Mr. Decola. The first test showed a result of 0.212 percent but the second test was noted as “clear” in the log book. Officer Donald Schwab, the officer in charge of recalibration of the breathalyzer machines, stated that “clear” indicated that no second test result was obtained because the test aborted three times and the machine therefore shut down automatically. However, the same subject was retested after accuracy tests were performed on that machine and valid samples were received.

On December 18, 1989, Officer Schwab used the machine to test a Mr. Truex. In that test, there was a problem with the solution. While the first test registered correctly, the second test indicated a 0.090 percent. Officer Schwab testified that the jar in which the liquid was located was not screwed on tight. He took another set of tests which resulted in readings of 0.208 and 0.232 percent, once again yielding greater than the 0.020 variance. However, this was explained away by the officer who stated that Truex had given a poor sample by leaking air from the sides of his mouth. Officer Schwab did not recalibrate, but rather obtained two more samples which were valid.

On January 5, 1990, the machine was used again by Officer Campellone who tested a Mr. Gerald Kofoio. The results were a 0.155 and 0.132 percent. This 0.023 variance was explained by the officer on the assertion that the subject blew too softly on the machine. However, four tests taken after that were accurate.

On January 7, 1990, Officer Barry tested another subject, with results of a 0.245 and 0.223 percent. Poor samples were once again the basis upon which this deviation was explained away.

Officer Harran further utilized the machine on January 20, 1990 on a Mr. Sweeney. The test results of 0.239 and 0.262 percent were explained by the officer as being the result of a hard blow followed by a soft blow. However, no notation was made to this effect in the log book and the machine was not recalibrated.

Finally, on February 15, 1990, Officer Barry tested a Mr. Grow and obtained results of 0.272 and 0.228 percent, a variance of 0.044. Once again, no new calibration tests were performed.

Officer Schwab testified at trial that all of these deviations were satisfactorily explained and that therefore no reason existed to take the Intoximeter out of service. However, Dr. Richard Saferstein testified that the velocity of a breath sample should not yield a result greater than a 0.020 discrepancy.

Therefore, defendant argues that as a result of said deviations the machine should have been taken out of service until it was recalibrated or repaired as necessary. We agree.

As stated above, Pennsylvania law requires that a breath test operator must record two consecutive actual breath tests, the lower result of which may be used for prosecution. 67 Pa.C.S. §77.24(b)(1) to (2). The statute requires that the test results will be disregarded and the breathalyzer removed from service “[i]f the difference between the results of the two actual alcohol breath tests is 0.02 or more, for machines read to the second decimal place, or 0.020 or more for machines read to the third decimal place.” Id. at section 77.24(b)(2)(i).

The Commonwealth asserts that despite the statute, the test results should be admitted, and any evidence as to their accuracy should go to the weight of the testimony. The Commonwealth supports this assertion with several Pennsylvania cases. First, the Commonwealth states that a breathalyzer test should be admitted despite any malfunctions because a history of malfunctions goes to the weight of the test results rather than admissibility. Commonwealth v. Shiffler, 373 Pa. Super. 497, 503, 541 A.2d 780, 783 (1988). However, the Commonwealth’s reliance on this case is misplaced because of the facts. In Shiffler, the Superior Court held that malfunctions of the breathalyzer went only to reliability, as opposed to admissibility, because in that case the matter was not raised at a suppression hearing, but rather at trial. Id. at 502, 541 A.2d at 782. The threshold issue of admissibility was never raised at all. Therefore, Shiffler is not applicable.

The Commonwealth also relies on Commonwealth v. Sesler, 358 Pa. Super. 582, 518 A.2d 292 (1986) for the proposition that failure to calibrate should be a credibility issue at trial, not a ground for suppression. Id. at 586-7, 518 A.2d at 295. However, the regulations upon which Sesler was decided were different from the case at bar. In Sesler, the interim regulation did not require two consecutive breath tests nor did they mandate dismissal of the results based on a 0.02 deviance. Therefore, neither of these cases are in conflict with the statute upon which we rely.

Finally the Commonwealth relies on an opinion handed down by the Honorable Ward F. Clark in the Common Pleas Court of Bucks County in support of its contention that the breathalyzer did not malfunction. Commonwealth v. McMonagle, 58 Bucks L. Rep. 35 (1990). In that case the court found that no malfunction occurred thereby giving credence to a police officer’s testimony that an individual who tested about two weeks before the subject defendant “was too intoxicated to perform the test properly.” Id. at 36.

In the present case, there were at least seven deviations from the allowable 0.020 variance. Although an explanation that an improper breath sample was given might be credible in one or two instances, the fact that so many deviations occurred indicates that the machine should have been removed from service and fully checked and calibrated. Also, the fact that no notation was made as to the deviation in the test performed on Mr. Sweeney is a factor affecting the credibility of the Commonwealth’s case. Moreover, the test performed upon Mr. Grow which yielded a variance of 0.044 is the greatest indicia of machine malfunction. Despite the officer’s testimony that the subject performed an improper breath sample, this court was persuaded that serious questions about the accuracy of the machine were raised, and should have been a concern to the Bensalem Township Police Department under the circumstances. Therefore this court finds that the machine should have been taken out of service until it was recalibrated or repaired as required by the statute. Since the Commonwealth has offered no evidence that this was accomplished, we hold that this evidence should be suppressed under section 77.224 of Title 67.


author: GEORGELIS, J,

text:
    Congdon v. Lancaster General Hospital

      James R. Ronca, for plaintiffs.

      Christopher W. Mattson, for defendant Lancaster General Hospital.
    December 6, 1990
   GEORGELIS, J,

Before the court is plaintiffs’ motion to compel production of documents. Briefs having been filed and oral argument having been heard, the motion is ready for disposition. For the reasons stated below, it will be denied.

Plaintiffs’ amended complaint alleges a cause of action in medical malpractice arising out of a February 12, 1987 incident. Plaintiff, Paul D. Congdon Sr., had undergone, on February 10, 1987, two surgical procedures at the Lancaster General Hospital. During the course of his postoperative care, he attempted to get out of bed and he fell, sustaining the injuries which are the subject matter of this lawsuit.

During the course of the discovery, plaintiffs learned, through the hospital’s answers to their interrogatories, that the hospital possesses an incident report concerning Congdon’s fall. The hospital, asserting that the incident report was prepared for the benefit of its peer review committee and thereby believing that it is immune from discovery under the Peer Review Protection Act, 63 P.S. §425.1 et seq., refused to produce it, resulting in the motion which is before us.

The act’s section 425.4 provides as follows:

“The proceedings and records of a review committee shall be held in confidence and shall not be subject to discovery or introduction into evidence in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review of such committee . . . Provided, however, that information, documents or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such committee ...”

The hospital’s position is that: (1) the incident report was prepared at the direction of its Claims Review Committee for its exclusive use; (2) that committee is a review organization, which the act defines as “any committee engaging in peer review ... to gather and review information relating to the care and treatment of patients for the purposes of (i) evaluating and improving the quality of health care rendered; (ii) reducing morbidity or mortality; or (iii) establishing and enforcing guidelines designed to keep within reasonable bounds the cost of health care”; (3) the act grants immunity from disclosure of the records of a review organization for the purposes of encouraging increased peer review activity and of fostering free and frank discussion by review organizations, all intended to improve health care; and (4) the act, therefore, protects its disclosure. Plaintiffs’ position is that the incident report was prepared immediately after the discovery of Cong-don’s fall and that, as such, it is subject to the original-source exception to the confidentiality provided by section 425.4 of the act.

The hospital has provided a copy of the incident report for an in camera inspection, but we have not made it a part of the record. We have, however, reviewed it and find that it does not provide sufficient information for us to determine the purpose of its preparation and its uses.

Both parties refer to Sanderson v. Frank S. Bryan, M.D., Ltd., 361 Pa. Super. 491, 522 A.2d 1138 (1987). In Sanderson, Judge Rowley, in interpreting the confidentiality provision of section 424.4 of the act, provides a very helpful discussion of the purpose of the act by methodically analyzing what he ascertains to be our legislature’s intent in enacting it. However, the holding in Sanderson is not dispo-sitive of the issue before us.

In Sanderson, the plaintiffs requested that the defendant hospital produce all documents which any of its review organizations maintained to evaluate the defendant doctor, but which did not relate to their cause of action. The Superior Court held that the “in any civil action against a professional health care provider arising out of the matters which are the subject of evaluation and review” language of section 425.4 does not entitle a medical malpractice plaintiff to discover a hospital’s peer review matters which are not reasonably associated with a plaintiff’s cause of action, including complaints against a defendant doctor by other patients.

Both parties also refer us to Hanzsek v. McDonough, 44 D.&C. 3d 639 (1987), by which we are of course not bound but which we find helpful in analyzing the issue before us. In Hanzsek, the defendant hospital, in answering the plaintiffs’ interrogatories, disclosed that incident reports had been prepared, and it provided the names of the nurses who had prepared them and the dates on which they had been prepared. The hospital refused to disclose the contents of the reports and to provide copies of them. At their depositions, the nurses were instructed by the hospital’s counsel not to answer questions concerning how and for what purpose the reports had been prepared.

The Hanzsek court found the record devoid of information which would have assisted it in determining why the reports had been prepared and whether they would be protected by the act, but it overcame this void by the hospital’s counsel’s stipulation, at oral argument, that the hospital’s brief contained an accurate description of the preparation of the reports and of their use. With this information, the Hanzsek court determined that the incident reports had been prepared both for the patient’s medical records and for peer review. It held that the term “original sources” in section 425.4 means documents prepared in the ordinary course of the treatment of a patient and that, where an incident report is prepared both for the patient’s file and for peer review, it falls within the original-sources exception, precluding its confidentiality.

In the case before us, as we have already noted, the incident report does not provide the purpose of its preparation and its uses, and there is nothing in the record before us which provides this information. To decide whether the incident report is entitled to the confidentiality of section 425.4 or whether it is within that section’s original-sources exception, we must first know the purpose of its preparation and its uses and then interpret the term “original sources,” which the act fails to define.

Even though the hospital, in its brief, states that the report was prepared at the direction and for the exclusive use of its Claims Review Committee, we cannot be certain that plaintiffs are satisfied, with nothing further, with this statement. Because plaintiffs, whom we believe have the burden of assuring the record contains the information on the purpose and uses of the hospital’s incident reports, have not put that information before us by the time of the filing of their motion, we cannot determine that purpose and those uses, and we do not reach the question of the meaning of the term “original sources.”

Without addressing whether we agree with the Hanzsek court’s interpretation of the meaning of the term “original sources,” we believe that court’s efforts to discover the purpose of the preparation and the uses of the incident reports before it were appropriate, and we conclude that such information is essential to the disposition of the motion before us. Consequently, we must deny it.

Accordingly, we enter the following

ORDER

And now, December 6, 1990, for the reasons stated in the foregoing opinion, plaintiffs’ motion to compel production of documents is denied.

       Even though we are aware, through counsel’s statements at oral argument, of some of plaintiffs’ efforts to learn the contents of the incident report, we are not aware that they have made any effort to discover the purpose and the uses of the report. We believe this effort must be made and should not be thwarted by the hospital.


author: WILLIAMS, P.J.,

text:
    In re Bethlehem Township Annual Audit and Financial Report 1982

      George A. Heitczman, for movants.

      John Molnar, for special auditor.
    April 3, 1990
   WILLIAMS, P.J.,

The matter before the court is a motion to strike a surcharge assessed against the movants John Senick, John Senick Inc., J-Jems Corporation, and Edwards Equipment Service by the special auditor for Bethlehem Township. The issue is whether the movants are amenable to the assessment of a surcharge against them inasmuch as they are not officials, officers or employees of township, or persons who have control over township moneys. The issue appears to be one of first impression.

BACKGROUND

In June 1988, the Fifth Statewide Investigating Grand Jury issued a report concluding, inter alia, that unlawful activities had occurred in Bethlehem Township, and that the investigation of the township’s municipal finances by a special auditor was warranted. This court permitted township taxpayers to appeal nunc pro tunc the Bethlehem Township Annual Audit and Financial Reports for 1982, 1983 and 1984. The court appointed a special auditor to conduct a supplemental audit of the Recreation Park Fund and the Municipal Building Renovation Fund. The court also directed the auditor to assess surcharges where appropriate and to file amended audits and financial reports for these specific funds.

The special auditor filed a supplemental report in August 1989 and assessed surcharges against the movants as well as certain township officials.

DISCUSSION

The issue before us requires the interpretation of certain provisions of the First Class Township Code, 53 P.S. §55101 et seq. The pertinent provisions of the code are:

“§56001. Meetings; general duties; compensation

“The auditors of townships . . . shall audit, settle, and adjust the accounts of the township commissioners, township treasurer, tax collector, secretary, and other officers and persons receiving and disbursing or authorizing the disbursement of the moneys of the township. . . .

“§56003. Surcharges; auditors’ report; publication of financial statements

“. . . Any officer or person whose act or neglect has contributed to the financial loss of the township shall be surcharged by the auditors with the amount of such loss. . . .”

The movants argue that interpretation of the code cannot support a conclusion that auditors have the authority to impose a surcharge upon persons who are not officers or officials of the township or in some manner have dominion over the funds of the township. The special auditor contends that the only accurate interpretation of the code provisions supports a conclusion that an auditor may impose a surcharge upon “any person” whose acts or negligence contribute to the township’s financial loss.

Statutory words and phrases must be construed according to their plain meaning and common usage, especially where the language is free from all ambiguity. 1 Pa.C.S. §1903(a); Commonwealth v. Stanley, 498 Pa. 328, 446 A.2d 583 (1982). We assume that the legislature did not intend a result that was absurd or unreasonable, 1 Pa.C.S. §1922(1), or unconstitutional, 1 Pa.C.S. §1922(c). Statutes in pari materia must be construed together where possible. 1 Pa.C.S. §1932(b); Girard School District v. Pittenger, 481 Pa. 91, 392 A.2d 261 (1978).

In interpreting section 56001, the auditor contends that it is authorized to audit, settle and adjust the accounts of any person who receives township funds. We disagree. The statute provides for the audit of accounts of “officers and persons receiving and disbursing or authorizing the disbursement of the moneys of the township ...” (emphasis supplied) Thus, it is only where a person has power or control over township funds that his or her (or its) accounts are subject to review by the auditor.

The auditor also argues that the word “person” must be given its legal meaning under the Township Code, to include corporations, associations, and partnerships as well as all natural persons, and we agree. For example, a banking institution would be a “person” having some control over township funds, and its records relating to the township would be subject to examination by township auditors. However, the word “person” should not be read so expansively as to include any and all possible persons who do business with the township. Rather, “persons” whose accounts may be audited by the township are those officials, officers, employees and persons who have some control over township funds.

The term “surcharge” generally refers to the imposition of personal liability on a fiduciary for willful or negligent misconduct in the administration of his or her fiduciary duties. As used in the Municipalities Code, the word “surcharge” usually refers to charges assessed against municipal officers, officials, employees or other persons who have access to or control over funds in a municipality’s treasury.

Section 56003 states that “[a]ny officer or person whose act or neglect” contributes to a financial loss suffered by the township is amenable to a surcharge. Unless the word “person” is read restrictively in accordance with the previous discussion, this provision would lead to absurd or unreasonable interpretations, contrary to the results presumed to be contemplated by the legislature. 1 Pa.C.S. §1922(1); Zimmerman v. O’Bannon, 497 Pa. 551, 442 A.2d 674 (1982); Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d 1140 (1987).

We are loathe to believe that the legislature intended to give the auditor in first class townships the power to impose a surcharge as a substitute for initiating a civil lawsuit against parties who are not officers or agents of the municipality and in control of its funds. The interpretation urged by the auditor, that the power to impose a surcharge in section 56003 applies to any person who contributes to the township’s financial loss, if adopted, would create a plethora of constitutional challenges to this statute. Such an interpretation is prohibited. 1 Pa.C.S. §1922(c); Parker v. Children’s Hospital of Philadelphia, 483 Pa. 106, 394 A.2d 932 (1978).

Wherefore we enter the following

ORDER OF COURT

And now, April 3, 1990, in accordance with the foregoing opinion, the motion of John Senick, John Senick Inc., J-Jems Corporation and Edwards Equipment Service to strike the surcharge against them is hereby granted.

      . During the time covered by the audits (1982 through 1984), movants had performed construction at the township’s recreational park. Most of the construction was performed pursuant to a contractual arrangement with the township, although certain construction activities were performed before the commencement of the contract.

      . See, e.g., 53 P.S. §46041(c), which states in part that “[t]he amount of . . . any expenditure . . . prohibited or not authorized by statute, which causes a financial loss to the borough, shall be a surcharge against any officer against whom such balance or shortage shall appear, or who by vote, act, or neglect, has permitted or approved such expenditure. . . .” Thus, in the borough provisions, as well as in similar provisions for other municipal corporations, surcharges are assessed only against officers or officials or agents of the borough itself.


author: PRATT, J.,

text:
    Commonwealth v. Bartley

      Annette M. Hutchinson, assistant district attorney, for the Commonwealth.

      Donald E. Williams, for defendant.
    January 7, 1991
   PRATT, J.,

Defendant pled guilty, pursuant to an open plea, to two counts each of robbery and criminal conspiracy and was sentenced to two consecutive terms of five to 10 years imprisonment for each count of robbery (the two counts of criminal conspiracy merged into the robbery offenses for sentencing purposes). Defendant has now filed a post-verdict motion in arrest of judgment alleging that the court erroneously denied his pretrial omnibus motion.

Defendant’s post-verdict motion raises two issues: (1) whether the defendant’s guilty plea and subsequent sentencing constitutes a waiver of his right to file the post-verdict motion of a motion in arrest of judgment; and, (2) if not, whether the defendant’s guilty plea constitutes a waiver of his right to appeal his conviction on the basis that the court erroneously denied his pretrial omnibus motion.

The relevant procedural history of this case indicates that defendant, Frederick Bartley, was charged with robbery and criminal conspiracy, two counts each, arising from two separate incidents (18 Pa.C.S. §3701(a)(l)(ii); 18 Pa.C.S. §903(a)(l)(2)). Thereafter, on Januaiy 23, 1989 and November 9, 1989 respectively, defendant filed his pretrial omnibus motion and a motion to quash informations. Subsequently, on November 14, 1989, defendant entered his open guilty plea. Notwithstanding, the court conducted a hearing of the defendant’s pretrial omnibus motion on November 17, 1989. On December 11, 1989, the court denied both pretrial motions. After being sentenced on January 4, 1990, defendant filed a motion to modify sentence on January 14, 1990, which was summarily denied on January 19, 1990.

During the sentencing proceeding and prior to imposing sentence, the court advised defendant that, in the opinion of the court, should defendant proceed with his guilty plea and sentence be imposed accordingly, no case law precedent, statute or rule exists in the Commonwealth on the state level to support defendant’s post-sentencing request for relief on the basis of the court erroneously denying defendant’s pretrial motions. Defendant was also provided the opportunity to withdraw his guilty plea. Defendant acknowledged understanding the court’s cautionary remarks but neither requested to withdraw his plea nor objected to being sentenced. Sentencing transcript at 1-5.

In his post-verdict motion and accompanying brief, defendant argues that, while the traditional response of the courts has been to construe a guilty plea as a waiver on appeal of all but jurisdictional issues, a recently emerging trend holds otherwise. Specifically, defendant cites California, New York and Wisconsin, contending that these states have enacted statutes similar to Rule 11(a)(2) of the Federal Rules of Criminal Procedure, which provides for the defendant to enter a conditional plea of guilty.

Additionally, citing the United States Supreme Court decisions in Blackledge v. Perry, 417 U.S. 21, 94 S.Ct. 2098, 40 L.Ed.2d 628 (1974) (lack of jurisdiction of sentencing court to try defendant); Menna v. New York, 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195 (1975) (double jeopardy violation); and Haynes v. U.S., 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968) (defendant prosecuted under unconstitutional statute), defendant argues that an unqualified guilty plea does not waive appeal of jurisdictional defects.

We find defendant’s arguments and authorities unpersuasive.

Federal Rule of Criminal Procedure 11(a)(2) allows the defendant to be sentenced and to commence serving his sentence while preserving the right to appeal any specific adverse pretrial ruling by the trial court. Should defendant prevail on appeal, he is entitled to withdraw his guilty plea. F.R.Crim.P. 11(a)(2). The sister states cited by defendant may indeed recognize a similar right; Pennsylvania, however, does not and remains with the majority of jurisdictions which refuse to grant this same right. Additionally, the United States Supreme Court decisions cited by defendant are of no guidance or assistance. These cases involve the issues of jurisdiction, double jeopardy and the unconstitutionality of a statute, which survive a guilty plea on appeal. None of these issues, however, are applicable in this case.

A valid guilty plea is an admission of guilt and is a waiver of all non-jurisdictional defects and defenses. Commonwealth v. Pyle, 462 Pa. 613, 342 A.2d 101 (1975). The guilty plea renders any prior irregularity in the proceedings irrelevant except insofar as it may affect the voluntary nature of the plea itself. Commonwealth v. Allen, 443 Pa. 447, 277 A.2d 818 (1971). The only issues not waived by a defendant’s plea of guilty are subject-matter jurisdiction, Commonwealth v. Diaz, 235 Pa. Super. 352, 340 A.2d 559 (1975); legality of the sentence imposed, Commonwealth v. Jones, 450 Pa. 442, 299 A.2d 288 (1973); and effectiveness of trial counsel’s representation, Commonwealth v. Baldwin, 219 Pa. Super. 153, 280 A.2d 654 (1971).

Our research discloses no Pennsylvania authority, rule or case law supporting defendant’s exhortation that we recognize a right to appeal pretrial matters subsequent to a guilty plea, particularly utilizing a post-verdict motion such as a motion in arrest of judgment. Until such time as. our legislature or appellate courts deems otherwise, we hold in accordance with the current established rule in Pennsylvania disallowing the defendant’s right to appeal pretrial matters after pleading guilty and being sentenced.

In declining to review this court’s decision in denying defendant’s pretrial omnibus motion as discussed above, we are, in effect, summarily denying defendant’s motion in arrest of judgment. We do so by the following order.

We note that defendant’s brief in support of his motion in arrest of judgment is entitled “defendant’s brief on motion in arrest of judgment and motion for modification of sentence.” Defendant’s brief, however, contains no discussion or cited authority in support of his “motion for modification of sentence” but is, instead, devoted entirely to the motion in arrest of judgment. Moreover, this court, on January 19, 1990, summarily denied defendant’s “motion to modify sentence.” Defendant has filed no appeal from that order.

ORDER OF COURT

Now, January 7, 1991, defendant’s motion. in arrest of judgment is denied in accordance with the foregoing opinion.


author: SCOTT, J.,

text:
    Schweiss v. Pennsylvania Manufacturers’ Association Insurance Co.

      Edward T. Rostick, for plaintiff.

      Bruce S. Pando, for defendant.
    January 9, 1991
   SCOTT, J.,

Defendant, Pennsylvania Manufacturers Association Insurance Company, appeals our order of October 19, 1990 granting plaintiff’s cross-motion for summary judgment.

This action arose out of an automobile accident occurring on September 13, 1985, in which Robert Schweiss was killed. Frances M. Schweiss (Robert’s mother) filed the instant matter in the court of common pleas for determination of the status of the plaintiff in order to recover underinsured motorists benefits from the Pennsylvania Manufacturers Association Insurance Company. PMA issued a policy of insurance to Tastykake Inc., which policy provided coverage on a vehicle owned and operated by the decedent’s father in connection with his business.

Defendant answered the complaint asserting that the policy was issued to the corporation, Tastykake, and not the decedent’s father. Further, they assert that the uninsured motorist benefits do not extend to the decedent because neither he nor his father was a named insured, nor was he occupying a vehicle insured under the policy issued to Tastykake. Additionally, defendant asserts (only in its subsequent motion for summary judgment) that, by filing an action for underinsured motorist benefits in the court of common pleas, plaintiff violated the arbitration clause in the insurance policy and was, therefore, admitting that they were not parties to the contract of insurance. Based on these assertions defendant filed a motion for summary judgment, and plaintiff filed a corresponding cross-motion for summary judgment in its favor. Upon our granting of plaintiff’s cross-motion, defendants instituted this appeal.

The issue at bar is whether the decedent’s father is a class one insured under the instant policy such that his son, the decedent, as a family member residing with him, is encompassed by that coverage.

The PMA policy declarations reveal that the policy was issued in the name of “Tasty Baking Company, Tastykake Inc., Trustees of the Tasty Baking Pension Trust.” In addition, the policy also names those individuals who operated Tastykake vehicles, and identifies the vehicles involved. Among those identified is the father of the decedent, Francis F. Schweiss.

In the underinsured motorist coverage section of the policy, the first classification of insured is defined as: “You or any family member.” The first classification has come to be described as “class one.” Utica Mutual Insurance Co. v. Contriscane, 504 Pa. 328, 473 A.2d 1005 (1984). Utica is the first case in Pennsylvania in which the category of “insured” was designated as class one; even though the decedent was not claiming class one status in Utica and the majority did not have to address the issue of what constitutes class one status in an uninsured motorist context when a policy is issued to a corporation.

Justice Larsen did, however, address the issue of whether or not the decedent was covered when not an occupant of a covered vehicle. In that case, Justice Larsen recognized that the named insured was a corporation which cannot suffer bodily injury. He opines:

“The uninsured motorist coverage can only be applicable to human beings who suffer personal injuries at the hands of an uninsured motorist. A corporation can only act through its directors, officers, and agents and the decedent was an authorized agent of Future Cars Inc., the corporate named insured. It follows then that the directors, officers, and agents of the corporation were intended beneficiaries of the Utica policy and the decedent as an authorized agent was an intended beneficiary. To hold otherwise, is to say there are no intended beneficiaries of the uninsured motorist coverage in the Utica policy.” Utica Mutual Insurance Co. v. Contriscane, supra.

Subsequent to Utica, the Superior Court decided the question of status when the corporation is the named insured in Miller v. Royal Insurance Co., 354 Pa. Super. 20, 510 A.2d 1257 (1986), aff’d per curiam, 517 Pa. 306, 535 A.2d 1049 (1988). In Miller, the court determined that an officer of the corporation was, in fact, a class one insured. Additionally, PMA’s argument that such policies only cover occupants of covered vehicles was rejected in Lastooka v. Aetna Insurance Company, 380 Pa. Super. 408, 552 A.2d 254 (1988). In Lastooka the decedent was a passenger in an automobile owned and driven by a person who was uninsured. At the time of the accident, the decedent was the owner of a construction company. All of the vehicles associated with the business and all of the family-owned vehicles were insured under a policy written by Aetna. The court held in Lastooka that it was not necessary for the decedent to be the occupant of a covered vehicle and therefore entitled to uninsured motorist coverage. In a footnote the court made reference to Miller, reiterating that the standard qualifications necessary to confer class one status are (1) named insured or (2) family member of a named insured.

As previously mentioned, defendants contend that the PMA insurance policy is intended to provide class one coverage only to the corporate entity, despite the fact that the decedent’s father is specifically named in the policy. Defendants simply assert that the decedent’s father did not pay for the coverage and is not a “party” to the contract. We are not persuaded by this argument. The decedent’s father was named in the policy and we can find no language thereof to suggest that this was done for any reason other than to confer status as a class one insured. If only the entity to which the policy was insured was entitled to coverage, rather than individuals, then the policy would make no sense, since no one could ever recover as a class one insured.

With regard to the arbitration clause, we turn to the policy for an examination of the wording.

“Arbitration”

“(a) If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or driver of an uninsured motor vehicle or an underinsured motor vehicle or do not agree as to the amount of damages, either party may make a written demand for arbitration. Each party will select an arbitrator. The two arbitrators will select a third. If they cannot agree within 30 days, either may request that selection be made by a judge of a court having jurisdiction. Each party will pay the expenses it incurs and bear the expenses of the third arbitrator equally.

“(b) Arbitration shall be conducted in accordance with the Pennsylvania Uniform Arbitration Act. Unless both parties agree otherwise, arbitration will take place in the county in which the insured lives. Local rules of law as to arbitration procedure and evidence will apply. A decision agreed to by two of the arbitrators will be binding.”

The matter was initially brought before this court for a determination of whether or not plaintiffs are “insureds” for purposes of recovery under this policy.

It is clear that decedent’s father was to be afforded coverage under the policy. Once class status is conferred, then the plaintiff becomes an “insured” and the parties can now proceed to arbitration on the disputed claims. For the foregoing reasons we entered the order complained of on appeal.


author: FIKE, P.J.,

text:
    State Farm Insurance Co. v. Miller

      Walter F. Wahl, for plaintiff.

      James M. Jacobs Jr., for defendant.
    September 19, 1990
   FIKE, P.J.,

This case is before the court on the petition of State Farm Insurance Companies to compel physical examination of respondent, Shirley Miller.

In June 1986, Miller was injured in an automobile accident. At the time, Miller was insured under an automobile insurance policy issued by State Farm. Miller submitted a claim to State Farm for first-party benefits. State Farm honored the claim and continues to pay benefits as claims are submitted by Miller. State Farm now perceives a need for additional medical information, and has requested that Miller undergo an independent medical examination by a physician to be chosen by State Farm. Communications between the parties regarding the requested examination began in approximately October 1989. Since that time, despite several requests and scheduled appointments, the parties were unable to agree upon the mechanics of the examination. As a result, State Farm filed their petition to compel Miller to submit to the requested exam, pursuant to the Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. §1796.

Although Miller’s answer to State Farm’s petition denies that State Farm has shown a need for the requested examination, it appears that the main obstacle has been disagreement about Miller’s request to be accompanied by her counsel or a monitor, or to have the exam videotaped. We note an ambiguity in the brief filed on behalf of Miller. At one point the statement is made that Miller is willing to comply with the request for examination provided that the examinations either be monitored or videotaped. At another point in the brief, however, Miller’s counsel argues against petitioner’s claim that the requisite need has been shown.

After review of the briefs and arguments presented, we will grant State Farm’s petition for medical examination; we will deny Miller’s request that the exam be videotaped; and we will grant Miller’s request to be accompanied by her counsel or a monitor at the medical examination, subject to the conditions defined below.

The Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. §1796, provides in pertinent part:

“Whenever the mental or physical condition of a person is material to any claim for medical, income loss or catastrophic loss benefits, a court of competent jurisdiction or the administrator of the Catastrophic Loss Trust Fund for catastrophic loss claims may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown. ...”

Appellate authority holds that the petition requesting the examination must “illustrate a need, rather than a mere desire, for an independent medical examination.” State Farm Mutual Automobile Insurance Company v. Zachary, 370 Pa. Super. 386, 390, 536 A.2d 800, 801 (1987). In Zachary, the Superior Court panel adopted the “good cause” analysis of Nationwide Mutual Insurance Company v. Fandray, 12 D.&C. 3d 65 (1979), which required that the petition, at a minimum, aver facts showing that the evidence previously supplied to support the claim is inadequate, that the examination will substantially assist the insurer in evaluating the claim, and that the amount at issue justifies an order compelling the examination. Id. See also, State Farm Mutual Automobile Insurance Company v. Allen, 375 Pa. Super. 319, 544 A.2d 491 (1988).

We must look therefore, to the facts of record to determine whether these requirements are met.

Miller contends preliminarily that argument on the petition is premature and cites Keystone Insurance Company v. Caputo, 365 Pa. Super. 431, 529 A.2d 1134 (1987), for the proposition that under Pa.R.C.P. 209, State Farm must first take depositions to establish the facts upon which it relies. We disagree. Under Rule 209, the moving party is not compelled in every case to take depositions, but it is given the option to do so, if it desires. See State Farm Insurance Companies v. Hunt, 390 Pa. Super. 620, 569 A.2d 365 (1990). If the moving party chooses not to take depositions, he may schedule the case for argument on petition and answer. This course of action is not without risk, however. If the moving party lists the case for argument on petition and answer, without depositions, all averments of fact in the answer may be taken as admitted. See Rule 209(b). The moving party also takes the risk that the court will find that the petition provides insufficient facts upon which a decision in the case can be based. See, e.g., Zachary, supra, Allen, supra, and Caputo, supra.

We distinguish the instant case from Zachary, Allen, and Caputo, supra, however, since in our opinion the petition and answer at issue here provide sufficient facts upon which an informed decision can be based. We therefore will not require State Farm to supplement the record by deposition.

The averments of the petition and answer, which are uncontroverted, establish that on the date of the loss in 1986, following the accident, Miller received treatment at the emergency room at the Somerset Hospital and was diagnosed at that time as suffering from soft-tissue injury and was released. On the day following the loss, Miller returned to work in general housekeeping. In 1988, Miller was seen by a Dr. Cube, who diagnosed Miller as having a herniated disc. Miller received physical therapy treatment from January to March 1988. Except for the two-month period of physical therapy, Miller has remained employed. Medical records reflect that Miller has extensive pre-existing conditions, including disc surgery, spinal stenosis and degenerative changes. Miller has also been receiving chiropractic services for her injuries.

We agree with State Farm that under these circumstances, the requisite “good cause” for the examination has been shown.

Before filing its petition, State Farm first examined Miller’s medical records. Based upon those records a reasonable need for independent medical information is apparent since the records reveal conflicting diagnoses and the presence of pre-existing conditions. This case is similar to Donegal Mutual Insurance Company v. Wallace, supra, in which the court found good cause for independent examination based upon conflicting reports from the claimant’s treating physicians and continuing treatment for pre-existing conditions.

Although a specific dollar amount has not been presented, the facts now before us show that State Farm has been paying benefits since the date of the loss and that Miller’s claims are continuing.

Given Miller’s work history, the conflicting opinions in Miller’s medical records, the time which has elapsed since the accident, and the report of Miller’s pre-existing condition, we conclude that the examination will substantially assist State Farm in evaluating the claim. We will, therefore, grant State Farm’s petition for independent medical examination.

We deny Miller’s request for videotaping of the examination. Neither counsel has cited authority either permitting or prohibiting a filmed medical examination. We have concluded that videotaping presents an unreasonable intrusion into the examining room and unduly imposes upon the examining physician.

We treat Miller’s request to be accompanied by her attorney or a monitor differently, however. As the court said in State Farm Mutual Automobile Insurance Company v. Morris, 289 Pa. Super. 137, 142, 432 A.2d 1089, 1092 (1981):

“Whether a person who is to be examined may be accompanied by his or her attorney is also discre-tionaiy with the court. In many cases counsel will not be needed to protect the legal rights of the insured. The examination will be objective and the nature of the injuries readily diagnosed. . . . Other examinations, of course, may involve psychiatric ailments, or physical injuries not readily demonstrated by X-rays or other objective means. In such cases the attendance of counsel may be desired. Therefore, the court may, in its discretion, allow the insured’s attorney to be present during the examination. See and compare: 10 Goodrich-Amram Procedural Rules Service p. 273, §4010(a):9.”

In our analysis of Miller’s request, we have looked to the decisions of other courts for guidance. Counsel’s presence has been permitted when the injuries involved subjective analysis, when the examination required significant questioning, and for other good reasons. See, e.g., Machinski v. Schaaf, 35 D.&C. 3d 572 (1984); Koch v. Galardi, 11 D.&C. 3d 750 (1979). On the other hand, in Bewley v. Crouse, 4 D.&C. 4th 535 (1989), the court permitted counsel to be present only during the history-taking portion of the examination, and denied the request for counsel’s presence at the remaining portion of the examination because there was no showing that the examination would .be other than “objective.”

We also note the discussion of the respective burdens of the requesting party and the patient contained in Koch v. Galardi, supra, and Machinski v. Schaaf, supra. It is plaintiff’s burden to show the need for presence of counsel, and if such need is shown, it is then up to the requesting party to present evidence that counsel’s presence will interfere with the examination.

In the instant case, we have concluded that Miller has shown sufficient reason to be accompanied by her counsel or a monitor. It is likely that the examination will not be completely “objective” and that subjective analysis will be required. In addition, it can be anticipated that Miller’s recitation of her history will be significant. We will, therefore, grant Miller’s request that counsel or a monitor be present.

State Farm has not presented evidence that the presence of counsel or a monitor will interfere with the examination.

ORDER

Now, September 19, 1990, it is ordered that the petition of State Farm Insurance Companies to compel physical examination of respondent, Shirley Miller, is granted, and respondent, Shirley Miller, shall present herself for examination before a physician chosen by State Farm Insurance Companies, at a reasonable date and hour, and upon reasonable notice.

The request by respondent, Shirley Miller, for permission to videotape the examination is denied.

The request by respondent, Shirley Miller, to be accompanied to the examination by her counsel or a monitor, is granted.

      . The “good cause” requirement has been defined and applied with varying degrees of precision and uniformity depending upon the court and on the facts of the case. See, e.g., cases cited in this court’s memorandum in Allstate Insurance Company v. Robison, Somerset County, 80 Civil 1987, slip op., October 19, 1987, by Fike, P.J. See also, Light v. State Automobile Insurance Association, 1 D.&C. 4th 127 (1988); Keystone Insurance Company v. Chenowith, 3 D.&C. 4th 637 (1989); Allstate Insurance Company v. Painter, 47 D.&C. 3d 144 (1986); Donegal Mutual Insurance Company v. Wallace, 43 D.&C. 3d 135 (1986). In particular, see also Erie Insurance Exchange v. Dzandony, 39 D.&C. 3d 33 (1986), suggesting the necessity of an affidavit unless it is clear that the information from the treating physician is insufficient to support the claim, commented upon in Zachary, supra.

      . We note with interest Judge Wieand’s dissent in Allen, supra, arguing that the amount of the claim should be immaterial, and the majority’s comment at 375 Pa. Super, at 322 n.2, 544 A.2d at 492 n.2.


author: O’BRIEN, J.,

text:
    Monroe County Children and Youth Services v. Werkheiser

      Mark L. Newman, for plaintiff.

      Richard D. James, for defendant.
    January 15, 1991
   O’BRIEN, J.,

On January 28, 1987, this court entered an order directing defendant mother to pay $40 biweekly for the support of two children who were in foster care with plaintiff agency. On May 10, 1989, President Judge James R. Marsh filed a decree nisi granting plaintiff agency’s petition to terminate the parental rights of defendant mother to her children. Defendant filed exceptions to the decree nisi which were dismissed by the trial court on August 11, 1989. The mother filed a timely appeal and on July 27, 1990, the Superior Court affirmed the decision of the trial court terminating the mother’s parental rights (In re J.W., A.W., V. W, and J. W, Minor Children Appeal of Joanne Werkheiser, 396 Pa. Super. 379, 578 A.2d 952 (1990)). On October 30, 1990, this court approved the recommendation of the support master to suspend the mother’s support obligation effective July 27, 1990, the date of the Superior Court affirmance. Defendant mother has filed timely exceptions to this recommendation which are now before the court for disposition.

While the failure of counsel for defendant to file a petition to terminate the support order in a timely fashion may alone be a basis to deny the exceptions, the issue articulated is of such importance that a resolution on the merits is appropriate. Counsel for defendant argues that since the obligation of support is imposed solely on a parent (23 Pa.C.S. §4321), the entry of an order of termination of parental rights by a court of common pleas automatically terminates the obligation of the parent to pay support. While counsel for defendant erroneously alleges that this termination occurred on the date of the decree nisi (May 10, 1989), the argument does become pertinent upon the entry of the final decree by the trial court (August 11, 1989). Thus the question framed is whether mother’s appeal to the Superior Court effected a supersedeas of the trial court’s order terminating her parental rights. If a supersedeas was effected by the appeal, the obligation of support would continue until disposition by the appellate court. On the other hand, if a supersedeas was not effected, then the obligation of support would terminate on the date of the final decree by the trial court.

Neither counsel has presented any authority resolving this question and our research discloses that this may be an issue of first impression in this Commonwealth. Our inquiry must commence with consideration of the nature of .the proceeding adjudicated by the Orphans’ Court Division of this court. The involuntary termination of parental rights which was adjudicated by our Orphans’ Court Division at Orphans’ Court no. 10,970 is authorized by Subchapter B of the “Adoption Act.” 23 Pa.C.S. §2511. The Adoption Act provides in further pertinent part as follows:

“(a) Adoption proceeding rights extinguished — A decree terminating all rights of a parent or a decree terminating all rights and duties of a parent entered by a court of competent jurisdiction shall extinguish the power or the right of the parent to object to or receive notice of adoption proceedings.” 23 Pa.C.S. §2521.

Our Supreme Court has held In re Male Infant B.E., 474 Pa. 139, 377 A.2d 153 (1977), that a petition for termination of parental rights may only be brought when adoption is contemplated. Thus it is apparent that the involuntary termination proceeding is merely the initial phase of a two-step proceeding resulting in a decree of adoption by an Orphans’ Court. The sole purpose of this two-step proceeding is to effect the transfer of a dependent or neglected child to the loving care of adoptive parents.

The Judicial Code provides in pertinent part that “an appeal shall operate as a supersedeas to the extent and upon the conditions provided or prescribed by law.” 42 Pa.C.S. §5105(e). Chapter 17 of the Rules of Appellate Procedure also provides as follows:

“(a) General Rule. Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter.” Pa.R.A.P. 1701.

Since there is no other provision in the aforesaid rules dealing with the type of proceeding at issue, the mother’s action in filing an appeal from the decree of the trial court terminating her parental rights precluded the trial court from proceeding with the adoption proceedings which necessarily follow the termination proceeding. Therefore, we hold that an appeal from a decree of an Orphans’ Court Division terminating parental rights effects a super-sedeas of that decree and the status of parenthood continues until such time as the appeal is decided. It logically follows that the obligation of support also continues until the appeal has been finally adjudicated.

We believe that this ruling is consistent with the practical reality that the child must remain in foster care pending determination of the appellate issues and the parent should be liable to pay support during that period of time. This ruling is also consistent with the absolute finality accorded to adoption proceedings by our Supreme Court. In re Baby Boy Benjamin, 452 Pa. 149, 305 A.2d 360 (1973).

ORDER

And now, January 15, 1991, the exceptions of Phyllis J. Werkheiser to the recommendation of the support master are dismissed and the prior order of this court filed October 30, 1990 is affirmed as the final order in this proceeding.


text:
    Six v. Cole

      Robert L. McQuaide, for plaintiffs.

      Walton V. Davis, for defendants Charles and Sharnette Cole Jr.

      Charles F. McElwee, for defendants Connie Cole and Hanover Real Estate Co.

      Robert G. Teeter, for additional defendants.
    January 3, 1991
   SPICER, P.J.,

On May 31, 1990, the Honorable John D. Kuhn dismissed preliminary objections to that part of plaintiffs’ complaint based on The Unfair Trade Practices and Consumer Protection Law, 73 P.S. §201-1. In his opinion Judge Kuhn said, “Sellers argue that they are not engaged in trade or commerce which would bring them within the protection of the act.” (Opinion at 10.) Citing authority, Judge Kuhn held that real estate sales are subject to the act.

Notwithstanding this decision, defendants Charles and Sharnette Cole Jr. now move for summary judgment. Trying to avoid the consequences of the earlier ruling, they advance a new theory. Conceding, as they must, that the sale of a building lot falls within statutory coverage, the Coles argue that private, non-commercial sales are excluded. They cite Gatten v. Merzi, 379 Pa. Super. 148, 579 A.2d 974 (1990), to support their position that the UTPCPL is only meant “to prohibit unlawful practices relating to trade or commerce and of the type associated with business enterprises.” The record would seem to support the position that this sale was an isolated transaction and the Coles were not associated with a business enterprise relating to the sale of realty.

The undersigned’s assumption of responsibility for summary judgment was dictated by administrative reasons and press of time. We will accept the Coles’ assertion that their present attack has not previously been rejected despite language we quoted from Judge Kuhn’s opinion. The issue is not merely a matter of semantics. A great deal of our consumer protection law, such as products liability, excludes casual sellers. Nevertheless, because we can find no justification for distinguishing between private and business sales, we refuse the motion for summary judgment.

We say this despite Superior Court’s decision in Gatten v. Merzi, supra. The court premised its holding, that the act does not apply to treatment of patients by physicians, on several things. We have previously quoted that part of the opinion which lends support to Coles’ position that business enterprises, not infrequent sales by those not in the business, were the legislative target. However, there is nothing in the act which distinguishes between sales in the course of business and otherwise. The main thrust of Superior Court’s opinion, as we read it, is that it would be absurd to interpret the UTPCPL as changing the fundamental law of physicians’ liability. The court declined to equate an expression of medical opinion with misrepresentation. Unsuccessful treatment is not a breach of warranty. Professional negligence will still be required.

The situation at bar is hardly analogous. There is hardly comparable danger that a jury might disregard the need for proof of a misrepresentation simply because of the ultimate condition of a lot conveyed. We deal in everyday facts, not those which only experts might fully understand.

We must agree with plaintiffs that cases in other jurisdictions are based on statutory language. Some states specifically exclude sales such as the one with which we are now involved. Pennsylvania does not. The purpose of the act has been stated as balancing bargaining positions of buyers with those of sellers. Gabriel v. O’Hara, 368 Pa. Super. 383, 534 A.2d. 488 (1987). Although the act is sui generis, it passes on a variety of actions, such as fraud, breach of warranty and the like. Id. If consumer protection is the goal, one consumer should be as important as the next. It would matter little to the individual customer whether he or she had been wronged by another individual or a giant corporation. Were, however, the purpose to redress economic imbalances, transfer risk of loss or to spread the wealth, more attention must be devoted to the situation.

There is no indication that the legislature intended an inquiry into the commercial habits of defendants. Gatten v. Merzi, supra, involved a much more complex issue than telling someone a lot will qualify for on-lot sewage disposal. We can understand Superior Court’s concern for the potential for abuse in holding every medical opinion actionable if followed by unsuccessful treatment. If the potential extends further, it is for the legislature, or an appellate court, to place limits. The job of a trial court is to read statutes the way they are written.

ORDER OF COURT

And now, January 3, 1991, the motion for summary judgment is denied.

       “Them” obviously refers to plaintiffs, who were actually buyers.


author: GRIMES, P.J.,

text:
    Harry v. Brown

      Louis M. Tarasí Jr., for plaintiffs.

      Frederick N. Egler Jr., for defendant Tracy Brown.

      Mark K. Pruss, for defendant Jeff Rush.
    January 15, 1991
   GRIMES, P.J.,

On April 22, 1988, Jay S. Harry, 16 years of age, attended a birthday party and was served, in exchange for a “door fee,” an alcoholic beverage. Driving home after the party, Mr. Harry drove his automobile in such a manner that an accident occurred, fatally injuring Mr. Harry. The decedent’s parents, Nancy Harry and Allan Harry, now sue Tracy Brown, Jennie Coss, Barry Clark and Jeff Rush, whom they claim were sponsors of the party. Plaintiffs allege that the decedent was served alcohol to the point of intoxication and that this is the proximate and actual cause of the decedent’s death.

At this phase of the proceeding, defendants Tracy Brown and Jeff Rush file preliminary objections in the nature of demurrers, motions to strike and motions for more specific pleadings.

Defendants allege that plaintiffs can state, no claim upon which relief may be granted in that no duty existed which would apply to one minor supplying alcohol to another minor. Further, defendants allege that no civil liability arises from a violation of the Liquor Code except for entities required to be licensed under the Liquor Code.

An 18-year-old may, under 43 P.S. § 44, handle and serve alcoholic beverages to patrons in bars; therefore, a demurrer on this issue cannot succeed. The legislature could not have intended that an 18-year-old be legally entitled to work as a bartender and, at the same time, be too young to be held accountable for his or her actions as a bartender. In their demurrer, defendants do not set forth their ages so it is unclear if they were 18 or not at the time the alcohol was served. It is specifically not addressed here whether any duty attaches a minor under 18. Since there exists a question of fact, a demurrer may not be granted on that issue.

Defendants also demur to the allegation that they are per se negligent since they violated the provisions of the Liquor Code. The Liquor Code has been found to be inapplicable to the social host. Alumni Association v. Sullivan, 523 Pa. 356, 572 A.2d 1209 (1990); Manning v. Andy, 454 Pa. 237, 310 A.2d 75 (1973). Instead, the Liquor Code applies to licensees. Plaintiffs have not pled that defendants are licensees or agents of licensees and therefore the demurrer is granted.

Jeff Rush moves to strike paragraph 15(d) of plaintiffs’ complaint for violation of the Connor rule. Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983). Paragraph 15(d) is also the subject of a motion for a more specific pleading by Tracy Brown.

In Connor, the Pennsylvania Supreme Court noted that if a defendant:

“[D]id not know how it ‘otherwise fail[ed] to use due care and caution under the circumstances,’ it could have filed a preliminary objection in the nature of a request for a more specific pleading or it could have moved to strike that portion of appellants’ complaint.” Connor, supra.

In paragraph 15(d), plaintiffs allege that defendants were negligent:

“In otherwise failing to exercise the degree of caution and care required of them under the circumstances and in otherwise being negligent and careless and reckless under the circumstances.” Plaintiffs’ complaint, paragraph 15(d).

The pleading is vague and general. The expression “in otherwise being negligent and careless and reckless” could be redefined in numerous ways, any one of which might be unanticipated by defendants.

The motion to strike paragraph 15(d) by Jeff Rush is granted, and the motion for a more specific pleading by Tracy Brown is granted.

Jeff Rush moves to strike paragraph 15(e) which alleges a violation without specifying the specific law violated, as a Connor, supra, violation. Defendant’s motion is granted for the reasons set forth above. He also moves for a more specific pleading, claiming that paragraphs 13, 14 and 16 do not state an allegation against each defendant individually. A sufficient pleading is made accusing defendants of a joint enterprise.

Tracy Brown moves to strike 15(a) as confusing and at odds with other paragraphs in the complaint. This motion is denied for irrelevant information may simply be ignored.

ORDER

And now, January 15, 1991, after consideration of the pleadings and the argument of counsel, it is ordered that:

(1) The demurrer to the issue of liability to a minor in furnishing an alcoholic beverage to another minor is denied;

(2) The demurrer to the issue of per se negligence based on the violations of the Liquor Code is granted;

(3) The motions to strike by Jeff Rush are granted as to paragraph 15(d) and 15(e).

(4) The motions for a more specific pleading as to paragraphs 13, 14 and 16 are denied;

(5) The motion to strike paragraph 15(a) by Tracy Brown is denied; and

(6) The motion for a more specific pleading with regard to paragraph 15(d) by Tracy Brown is granted with plaintiffs to have 20 days from this date to amend their complaint.