author: VARDARO, J.,

text:
    Osborne v. Cambridge Twp.

      C.P. of Crawford County,
    no. A.D. 1995-642.

      Louis M. Tarasí Jr. and Christina K. Hurnyak, for plaintiff.

      John O. Dodick, for defendant.
    September 14, 1998
   VARDARO, J.,

The matter before this court arises from an action brought under provisions of Pennsylvania’s Wrongful Death and Survival Acts by the plaintiff, Jeanette M. Osborne, in her capacity as administratrix of her husband’s estate. The claims were brought against the defendant, Cambridge Township, as a result of a fatal motor vehicle accident which occurred on a township roadway. It was alleged at trial that the defendant was negligent in its failure to take measures to warn of a large tree which had fallen across one of its roads and for which the township had timely notice of. The decedent was killed instantly when the automobile he was driving struck the fallen tree. The plaintiff’s claims were tried before a jury which returned a verdict in her favor for an aggregate total of $3,892,243.20. Negligence was established at 25 percent for the decedent and 75 percent for the defendant. The defendant has filed motions for judgment n.o.v., new trial, remittitur, and a molding of the verdict. The plaintiff has filed a motion to mold verdict, award Rule 238 damages and post-verdict interest. We turn now to address these matters.

DISCUSSION

I. Motion for Judgment n.o.v.

A. Failure To Establish Care, Custody or Control

The defendant asserts that a compulsory nonsuit or a directed verdict should have been granted in favor of the defendant because the evidence set forth at trial failed to establish that the tree which had fallen across the roadway was within the right-of-way of Cambridge Township.

The general immunity of local agencies caused by acts or omissions of the agency or its employees is provided in 42 Pa.C.S. §8541. Exceptions to the general grant of immunity are provided in 42 Pa.C.S. §8542. The specific exception alleged at trial by the plaintiff to establish liability on behalf of the defendant provides the following:

“(4) Tree, traffic controls and street lighting. — A dangerous condition of trees, traffic signs, lights or other traffic controls, street lights or street lighting under care, custody or control of the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.” 42 Pa.C.S. §8542(b)(4).

The defendant first argues that the plaintiff failed to establish at trial that the tree which had fallen on the township’s roadway was under the care, custody or control of the local agency. The fact that the tree had fallen across and upon the township’s roadway, in and of itself, the defendant argues, does not establish that the tree was in the care, custody and control of the township. In primary support of this assertion, the defendant cites Marker v. PennDOT, 677 A.2d 345 (Pa. Commw. 1996) and Babcock v. PennDOT, 156 Pa. Commw. 69, 626 A.2d 672 (1993), alloc. denied, 536 Pa. 647, 639 A.2d 33 (1994). These cases, however, were decided under an entirely different statutory authority than that under which this action was brought and turn upon distinctions irrelevant to the plaintiff’s cause of action. These cases, therefore, fail to advance the defendant’s argument.

The plaintiff suggests that the issue of care, custody and control was conclusively established by the fact that the township went to the scene after the accident, stopped traffic and removed the tree. We find this argument unpersuasive as well. See e.g., Mylett v. Adamsky, 139 Pa. Commw. 637, 591 A.2d 341 (1991) (that township police placed flares and re-routed traffic around a tree which had fallen across a state roadway did not establish that township exercised care, custody and control of tree).

Evidence which the jury could consider, however, in concluding that the subject tree was in the care, custody and control of the township were two admissions of the defendant which were read to the jury. By the parties’ stipulation, the following were offered:

“(1) The cause of death of the plaintiff-decedent, Stephen K. Osborne, was the result of the vehicle he was operating striking a tree lying across Route T680/Center Road, Cambridge Township, Cambridge Springs, PA 16403 on July 28, 1993.
“(2) Route T680/Center Road, Cambridge Township, Cambridge Springs, PA 16403 is maintained by Cambridge Township.”

At trial, the plaintiff also offered evidence that the township maintained a right-of-way which extended 25 feet in both directions from the center of Route T680/Center Road. (Tr. at 50.) Therefore, at trial, evidence was provided to the jury that both the road and the right-of-way upon which the tree had fallen were maintained by the defendant. This is sufficient evidence from which the jury could reasonably conclude that the township was responsible for maintaining its roads and rights-of-way, the tree which had fallen across the township road was subject to this duty of maintenance and, therefore, the fallen tree was in the care, custody and control of the defendant.

A motion for compulsory nonsuit may only be granted where, viewing all of the evidence including all reasonable inferences which may be drawn from this evidence in the light most favorable to the plaintiff, it can only be concluded that the plaintiff has failed to establish a right to relief. 1 Goodrich-Amram 2d §230.1:4. On the evidence presented by the plaintiff, no such conclusion could reasonably be drawn. We find no case law which would require, as the defendant would suggest, that for the jury to find that the subject tree was under the care, custody and control of the township that the subject tree, before it came to rest on township property, must have first been located on property under the care, custody and control of the township.

B. Failure To Establish Sufficient Time To Take Preventative Measures

The defendant next argues that the evidence failed to establish that the township had actual or constructive notice of the fallen tree in sufficient time to have taken preventative measures. At trial, Mr. Styborski testified that after observing the fallen tree on the night in question, he asked his wife to call the township supervisor, Mr. Herman, to advise him of the fallen tree. (Tr. at 61.) Mrs. Styborski’s testimony confirmed her husband’s testimony that she had called Mr. Herman on the night in question at some time before 9 p.m. (Tr. at 84.) Mr. Styborski, however, had given a statement to an investigator, some time not long after the accident, in which he indicated that it was he who had called Mr. Herman a couple of hours before the accident had occurred. PI. ex. 1. At the time of trial, Mr. Styborski indicated that perhaps he had made such a statement, but he may have exaggerated the time frame. (Tr. at 70.) Mr. Herman testified at trial that the first time that he was aware of the fallen tree was when he awoke to get ready for work at approximately 9:50 p.m. It was at this time, he testified, that he was informed by a phone call from Mrs. Styborski that an accident had just occurred. (Tr. at 121.) Mrs. Herman, in her deposition, had indicated that she had received a phone call from Mr. Styborski earlier on the night in question to inform Mr. Herman of the fallen tree, and that she had told her husband of the call to which he responded, “Well okay.” (Tr. at 104, 107.) At trial, however, both Mr. and Mrs. Herman denied that such a discourse took place.

The question of whether the defendant had notice was central to the outcome of this action. It is undeniable that this issue was hotly disputed. It is a well-established principle, however, that “where there is any evidence which alone would justify an inference of disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof. . . .” Heffernan v. Rosser, 419 Pa. 550, 555, 215 A.2d 655, 657 (1966). (footnote omitted) (emphasis in original) Under Pennsylvania law, it is not required “that every fact or circumstance point unerringly to liability; it is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability. ...” Jones v. Treegoob, 433 Pa. 225, 230, 249 A.2d 352, 355 (1969). It is not the role of the court to “weigh the evidence and to determine the truth of the matter asserted, this issue should be properly left for the jury to decide.” Taylor v. Jackson, 164 Pa. Commw. 482,493, 643 A.2d 771, 776 (1994).

Whether or not the township had notice of the fallen tree in time to have taken preventative measures is a question of fact. Once there is sufficient testimony to establish that the township had notice of a dangerous condition on its road, the ultimate question of the township’s liability must be properly left to the jury. Although there was conflicting evidence as to the time of the notice given to Mr. Herman, it cannot be said that there was insufficient evidence from which to justify the jury’s conclusion that Mr. Herman had adequate notice to have taken measures to prevent the fatal accident. Connelly Containers Inc. v. Pennsylvania Railroad, 222 Pa. Super. 7, 292 A.2d 528 (1972) (where material facts are in dispute, the jury must determine which to believe); Morris v. Peckyno, 202 Pa. Super. 490, 198 A.2d 396 (1964) (the issue of the credibility of a witness is always a matter for the jury).

C. Verdict Against the Weight of Evidence

The defendant next argues that the jury verdict was against the weight of the evidence on the issues of negligence and comparative negligence. In effect, the defendant asks this court to again weigh the evidence which was presented at trial and reevaluate the jury’s factual findings. This we will not do. The traditional standard in Pennsylvania for purposes of a “weight of the evidence” inquiry is whether the “jury’s verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail.” Burrell v. Philadelphia Electric Co., 438 Pa. 286, 289, 265 A.2d 516, 517-18 (1970). In a case where the issue of the credibility of witnesses is present, as in the instant action, the weight to be assigned the testimony of various witnesses is within the exclusive province of the jury. Smith v. Shaffer, 511 Pa. 421, 515 A.2d 527 (1986). Moreover, the verdict of the jury will be determinative as long as it is based on substantial, albeit conflicting evidence. Standard Pipeline Coating Co. v. Solomon & Teslovich, 344 Pa. Super. 367, 496 A.2d 840 (1985).

Although the preponderance of the evidence which was presented at trial was in conflict and the credibility of the witnesses often placed in doubt, such is the case in most every trial to one degree or another. We do not find, however, with regard to issues of negligence, contributory negligence or the apportionment of liability that merely because the jury could have justifiably drawn different conclusions based upon the same evidence that the verdict was so utterly contrary to the evidence that “one’s sense of justice” is shocked. The test is not whether, on the same evidence, this court could have reached a different conclusion, but only whether the jury’s verdict was so contrary to the evidence that the justice demands this court provide the defendant with another opportunity to prevail. Such is not the case.

II. Motion for New Trial

D. Admissibility of Vicarious Admission

The defendant next argues that the admission of the testimony of Trace Fosberg regarding the vicarious admission of township supervisor Larry Tapper, was error. At trial, Mr. Fosberg, a former employee of the township, testified that one week after the accident, Mr. Tapper had told him that Mr. Herman, a township supervisor, had approximately one hour’s notice of the fallen tree and that Mr. Herman had done nothing in response to this notice. (Tr. at 165-66.) The defendant maintains that an objection was made regarding the admissibility of the conversation that Mr. Fosberg had with Mr. Tapper. This assessment is inaccurate. The defendant objected not to a question posed to Mr. Fosberg regarding a conversation with Mr. Tapper, but to a question regarding why the township had taken no action in response to a request by Mr. Styborski to address various tree problems. (Tr. at 158.) In response to this question, defendant’s counsel objected only that the witness was incompetent to testify as to why no action was taken by the township to address Mr. Styborski’s requests. (Tr. at 158.) This court sustained the objection. Contrary to the defendant’s assertion, there was no objection made to Mr. Fosberg testifying as to his conversation with Mr. Tapper, but only an objection to Mr. Fosberg’s competency to testify as to why the township did not respond to certain requests. In fact, a side-bar was held before Mr. Fosberg testified about his conversation with Mr. Tapper during which plaintiff’s counsel indicated that the statements made by Mr. Tapper were admissions against interest to which defendant’s counsel made no objection. (Tr. at 155.) As such, this matter was not objected to at trial and, therefore, this issue has been waived. Thompson v. Motch & Merryweather Machinery Co., 358 Pa. Super. 149, 516 A.2d 1226 (1986).

E. Admissibility of Township Procedure

The defendant next argues that the admission of testimony from Mr. Fosberg as to what procedure the township could have taken on the night of the accident was error. Specifically, the defendant argues that Mr. Fosberg’s testimony that other means were available to react to the notice which may have provided a quicker response, was prejudicial. The defendant maintains that this testimony was prejudicial because it was speculative in nature and potentially extended the time available to the defendant to have taken preventative measures.

Mr. Fosberg was asked what procedure the township would follow if a call came in that a tree was blocking a road and that barricading was necessary. (Tr. at 177.) Mr. Fosberg’s response to the question was in the first person as he explained what he believed the township’s procedure would have been under the circumstances. Mr. Fosberg, at the time in question, was a township laborer who had responded to situations similar to those posed in the plaintiff’s query. As such, he was qualified to respond to the question as to what means would have then been available to the township to provide a quicker response to the notice which was given. The fact that it was answered in the first person did not, by itself, cause the answer to be speculative. Although there was no written policy which reflected Mr. Fosberg’s testimony and Mr. Fosberg may have had a bias against a township supervisor, these issues go to the credibility and weight to be given to his testimony. They do not alone cause the evidence to be inadmissible or unduly prejudicial.

It is less than clear as to how the testimony of Mr. Fosberg could have extended the time available to the defendant to respond to the notice given. While the testimony of Mr. Fosberg may have established that another means of response which was available to the township could have been faster and more prudent, it certainly did not extend the time available for the township to respond.

F. Points for Charge

The defendant next maintains that it was error to fail to charge the jury on the defendant’s supplemental request for charge no. 1 regarding the unrebutted testimony of Trooper Falkenburg. The defendant’s supplemental request asked for a jury instruction that if the jury found that the trooper’s testimony that the decedent’s vehicle was traveling at 73 mph at the time of the accident was not contradicted by direct testimony of other witnesses, impeached by its own inconsistencies, or of such improbability to not be worthy of belief, then the plaintiff would be bound by this evidence. Trooper Falkenburg testified, however, that the needle of the speedometer in the decedent’s automobile may have jumped up to 73 mph upon impact. (Tr. at 42.) In addition, the defendant’s own expert witness, Mr. Aerni, testified that in his opinion, the decedent’s automobile, at the time of impact, was traveling between 57 mph and 87 mph. (Tr. at 395.) As such, the testimony of Trooper Falkenburg was not only internally inconsistent, but was contradicted by another defense witness.

The defendant next argues that it was error to refuse the defendant’s jury point for charge requests nos. 10 and 12, which represent proper legal conclusions which were supported by the evidence. As part of the requested charge at no. 10, the defendant requested that the court instruct the jury that the defendant was contributorily negligent for operating his automobile while under the influence of alcohol to a degree which rendered him incapable of safe driving and while his alcohol content was .10 percent or greater. At no. 12, the defendant requested that the court instruct the jury that any person who drives a vehicle in reckless disregard for the safety of persons or his own safety or property is guilty of careless driving under 75 Pa.C.S. §3714, as well as a charge that a person shall not drive, operate or be in actual physical control of the movement of any vehicle while under the influence of alcohol to a degree which renders the person incapable of safe driving or while the amount of alcohol by way of blood is .10 percent or greater as provided in 75 Pa.C.S. §3731. The use of the explicit language which the defendant requested was refused. A trial judge is not required to use the exact language of a requested point as long as the form of the charge given to the jury adequately and clearly covers the subject. 10 Standard Pa. Practice §59:9. As such, a court may properly refuse a requested point where it instructs the jury correctly and the substance of the charge covers the relevant rules of law proposed by the requesting party. Id. The substance of the defendant’s requested points were covered by charges which set forth the essence of the statutory language requested in broader terms. (Tr. at 284-86.) The defendant, therefore, suffered no prejudice. See Butler v. Kiwi S.A., 412 Pa. Super. 591, 604 A.2d 270 (1992), appeal denied, 531 Pa. 650, 613 A.2d 556 (1992) (requested charge may properly be refused where the substance of the request is given in either a general charge or another specific charge).

The defendant next asserts that the court erred in not charging the jury on the issue of assumption of the risk. The defendant, at point for charge no. 15, requested that the court instruct the jury on the doctrine of assumption of risk. This request was refused. In Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993), a plurality decision, assumption of risk as an affirmative defense to be decided by the jury was abolished by the Supreme Court. The court noted that “to the extent that an assumption of risk analysis is appropriate in any given case, it shall be applied by the court as part of the duty analysis, and not as part of the case to be decided by the jury.” Id. at 162, 620 A.2d at 1112-13. Accordingly, under this approach:

“[Tjhe court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately and with awareness of specific risks inherent in the activity nonetheless engaged in the activity that produced his injury.” Id. at 162, 620 A.2d at 1113. (emphasis added)

The court preserved the doctrine, however, “in cases involving express assumption of risk, or cases brought pursuant to 402(A) (strict liability theory), or cases in which assumption of risk is specifically preserved by statute. . . .” Id. at 162 n.10, 620 A.2d at 113 n.10. There was no evidence presented at trial which would lead reasonable minds to agree that the decedent engaged in the conduct alleged, deliberately and with an awareness of the specific risk which ultimately took his life. Nor was there evidence presented which indicated that the decedent expressly assumed the risk or that a statute has been implicated in which the doctrine has been preserved. As such, the defendant was not entitled to this requested charge and the case was properly submitted to the jury on a comparative negligence theory.

III. Motion for Remittitur

The defendant next maintains that the jury did not follow the court’s instructions or the law in offsetting damages under the Wrongful Death and Survival Acts. The jury awarded the following under the Wrongful Death and Survival actions:

WRONGFUL DEATH

(1)Compensation to family for loss of contributions for period from time of accident until date of verdict $200,317.00

(2)Compensations to family for loss of contributions for period from date of verdict until end of estimated life $1,387,458.80

(3) Compensation to family for pecuniary value of service, society and comfort had decedent lived $367,411.66

(4) Compensation for loss of services that decedent would have contributed to his children $500,000.00

Total Wrongful Death Award $ $2,455,187.46

SURVIVAL ACT

(1) Amount decedent would have earned between date of his death and date of verdict $200,317.00

(LESS) Amount decedent would have contributed to family during this same period (awarded above under Wrongful Death Act) $ -0-

(LESS) Amount decedent would have spent for personal maintenance during this same period ($16,000.00)

Total incremental contributions $184,317.00

(2) Amount decedent would have earned between date of verdict and the end of his natural life $1,387,458.80

(LESS) Amount of contributions decedent would have made from date of verdict until his natural death (awarded above under Wrongful Death Act) $ -0-

(LESS) Amount decedent would have spent for personal maintenance during same period ($134,720.00)

Total contributions until natural death $1,252,738.80

Total Survival Act Award $1,437,055.80

It was apparent from the jury’s queries that there was considerable confusion as to the manner in which the different awards under each Act were to be reconciled. As one juror explained, “[wje’re so confused it isn’t funny.” (Tr. at 334.) Specifically, there was an apparent problem understanding why an award given under the Wrongful Death Act would have to be subtracted in the calculation of an award under the Survival Act. As one juror stated during questions to the court, “[if] I give you two apples, you have two apples, but if I take two apples back from you, you have nothing . . . we’re giving somebody a dollar bill on the first phase ... on the second phase we’re taking it back.” (Tr. at 334-36.) The jury awarded the plaintiff $200,317 under the Wrongful Death Act for the decedent’s contributions during the period from his death until the date of the verdict, and $1,387,458.80 for the decedent’s contributions from the date of the verdict until his projected natural death. These amounts represented the decedent’s entire earnings for these periods. That is, the jury, under the Wrongful Death Act, awarded the plaintiff’s family the whole of the decedent’s estimated earnings for all relevant periods. At this point then, there were no further financial contributions which the decedent could have provided and, consequently, no further financial contributions which the jury could have provided to his estate on his behalf. Everything the decedent may have contributed financially at any time after his death was awarded to his family under the Wrongful Death Act. When the jury awarded damages under the Survival Act, however, they failed to deduct from the decedent’s projected earnings that which had been awarded under the Wrongful Death Act. As a result, the decedent’s total projected earnings were awarded first to the decedent’s family under the Wrongful Death Act and again, incorrectly, under the Survival Act. As such, the jury’s award under the Survival Act cannot stand.

It was apparent from the jury’s award under the Wrongful Death Act that the jury intended that the decedent’s family should receive all of his projected life earnings. With their award under that Wrongful Death Act, they accomplished this objective. We are well aware of our limited role in molding a jury’s verdict. Richards v. Dravo Corp., 249 Pa. Super. 47, 375 A.2d 750 (1977) (court must not invade the province of the jury). With the clear intent of the jury manifested in their award to the plaintiff’s family under the Wrongful Death Act, however, it is incumbent that we correct the jury’s mistake. See Krock v. Chroust, 330 Pa. Super. 108, 478 A.2d 1376 (1984) (where the intent of the jury is clear or obvious, the court has the power to mold the verdict); Maize v. Atlantic Refining Co., 352 Pa. 51, 41 A.2d 850 (1945) (court may mold a verdict for personal injuries where there is unfairness or mistake). Therefore, the jury’s award under the Survival Act will be molded to reflect a zero award. We will not, however, as the defendant suggests, offset the Wrongful Death Act award by the personal maintenance costs reflected in the Survival Act award.

The defendant next argues that the jury in calculating an offset for decedent’s personal maintenance was a product of passion, prejudice and partiality. In that the jury’s award under the Survival Act has been molded to reflect a zero award, we need not address this issue.

The defendant argues next that it was error to allow damages under the Wrongful Death Act for the loss of services that Stephen K. Osborne as a father would have contributed to his children, such as guidance, tutelage and moral upbringing since these are not a recognized item of damages against a local agency under 42 Pa.C.S. §8553(c). We find the defendant’s argument that this court should apply a common-law construction to the damages permitted under 42 Pa.C.S. §8553(d) and deny thereby the plaintiff’s recovery for the loss of consortium of the minor children unsupported by law. See Buchecker v. Reading Co., 271 Pa. Super. 35, 412 A.2d 147 (1979) (under Pennsylvania law, a child can recover in a wrongful death action for loss of companionship, comfort, society and guidance of a parent). The references which the defendant makes to cases which discuss a child’s right to recover for a loss of consortium outside of the Wrongful Death Act are irrelevant as to the error asserted, and altogether unpersuasive. As such, we find this assertion to be without merit.

IV. Motion To Mold Verdict, Award Rule 238 Delay Damages, and Post-Verdict Interest

The plaintiff requests that the court subtract the $5,000 first-party benefit which was received by the plaintiff from the jury’s award and not the statutory cap. We find the analysis provided in Fernandez v. City of Pittsburgh, 164 Pa. Commw. 662, 643 A.2d 1176 (1994), to be controlling. The court in Fernandez expressly overruled the holding of Giosa v. School District of Philadelphia, 157 Pa. Commw. 489, 630 A.2d 511 (1993), which had held that insurance benefits were to be deducted from the statutory cap on liability against a municipality and not the jury’s award of damages. As such, the $5,000 first-party insurance benefits paid to the plaintiff will be subtracted from the jury’s award and not the statutory cap.

The plaintiff next requests that the defendant pay delay damages, in accord with Pa.R.C.P. 238, for the period from June 29, 1996 through April 24, 1998. The defendant argues, however, that to award delay damages would result in an award which exceeds the statutory cap and would, therefore, be improper. We disagree. It is the well-settled law of this Commonwealth that delay damages are to be calculated upon a jury’s award and not the statutory cap. Woods v. PennDOT, 531 Pa. 295, 612 A.2d 970 (1992). To hold otherwise would frustrate the legislature’s goal of encouraging settlements, providing “no incentive for a Commonwealth agency to seek a settlement of a major suit. . . .” Id. at 300, 612 A.2d at 972. Moreover, “there would be a distinct disincentive since the delay damages would be based upon a predictable constant and there would then be no unknown which would motivate the Commonwealth to discuss settlement.” Id. As no distinctions are made in the award of delay damages between the Commonwealth and a local agency of government body, delay damages will be awarded on the jury’s verdict and not the statutory cap. See Robinson v Jackson, 145 Pa. Commw. 211, 602 A.2d 917 (1992) (delay damages can be assessed against a local agency or government body even where the verdict or modified verdict is for the statutory limits of damages).

The defendant asserts that the plaintiff is not entitled to delay damages, as provided by Pa.R.C.P. 238(b)(2), for the period from February 1998 to April 1998 because this period is attributable to the plaintiff’s motion for continuance. The plaintiff argues that the defendant’s request be denied because at the time of the request for continuance, the defendant had not complied with the plaintiff’s discovery demands. Our re-examination of the record, however, reveals that the request for a continuance which was filed by the plaintiff was in the nature of a stipulation for continuance that was signed by counsel for the defendant. As such, the defendant, by stipulation, has effectively waived the right to assert this issue.

Lastly, the plaintiff requests that this court apply separate liability limits for each award given by the jury under the Wrongful Death and Survival Acts. We need not address this issue, as the Survival Act award will be molded to reflect a zero recovery.

ORDER

And now, September 14,1998, the defendant’s request for post-trial relief is denied except that its motion for remittitur is granted with respect to the award under the Survival Act, which is hereby established at zero.

The jury’s wrongful death verdict is molded as follows:

The verdict of $2,455,187.46 is reduced by the comparative negligence of the decedent of 25 percent, resulting in an initial verdict of $1,841,390.60. From that amount is subtracted $5,000 for first-party insurance benefits paid.

Delay damages are calculated therefore on the sum of $1,836,390.60.

Those damages are calculated at 9 1/2 percent for 186 days from June 29, 1996, to December 31, 1996, for a total of $88,901.43 during that time period. In addition, there are delay damages calculated at 9.25 percent from January 1, 1997 through December 31, 1997, for a total of $169,866.13.

Finally, from the period from January 1,1998 through April 24, 1998, which is 114 days, the delay damages are calculated at 9.5 percent or $54,487.97.

The total delay damages therefore are $313,255.53 and the verdict is reduced to the statutory cap of $500,000 plus delay damages for a total verdict of $813,255.53, and the prothonotary is directed to enter judgment for this amount in favor of the individual plaintiff and against the defendant, Cambridge Township, together with costs and statutory interest at the rate of 6 percent from the date of the verdict.

      . 42 Pa.C.S. §8522(b)(4), known as the “real estate exception” to Commonwealth immunity.

      . References to trial transcripts are to the defendant’s reproduced transcripts of proceedings which have been bound in consecutive order and not the official transcripts of proceedings.


source: Caselaw Access Project

author: WETTICK, J.,

license: Public Domain

text:
    Wilson v. Bucci

      C.P. of Allegheny County,
    no. GD97-20740, AD98000500.

      R. Bruce Carlson, for plaintiff.

      Robert J. Bucci, pro se.

      Leo Gerard Daly and Andrew F. Adomitis, for defendant Allegheny Cty. Housing Auth.
    October 14, 1998
   WETTICK, J.,

This is a lawsuit brought by a grandparent in her own right and on behalf of her grandchild to recover damages resulting from the child’s alleged exposure to hazardous levels of lead-based paint at rental property that plaintiff and her grandson occupied pursuant to a section 8 lease. This section 8 housing rental assistance was administered by defendant Allegheny County Housing Authority.

Plaintiff’s claims against the housing authority are brought under the Civil Rights Act of 1871 codified at 42 U.S.C. § 1983 (1994), based on the housing authority’s alleged failure to comply with the Federal Lead-Based Paint Poisoning Prevention Act, 42 U.S.C. §4801 et seq. (1995), the housing inspection provisions of section 8 of the United States Housing Act of 1937, 42 U.S.C. §1437f (Supp. 1998), and regulations promulgated under the authority of these two laws.

The 1973 amendments to the LBPPPA added section 302 which reads in part as follows:

“The secretary of Housing and Urban Development shall establish procedures to eliminate as far as practicable the hazards of lead-based paint poisoning with respect to any existing housing which may present such hazards and which is covered by ... housing assistance payments under a program administered by the secretary. . . .” Act of Nov. 9, 1973, PL. no. 93-151, sec. 4(a)(1), 87 stat. 566 (codified at 42 U.S.C. §4822(a)(l)).

Under the previously described federal legislation and the implementing regulations, a housing authority must conduct a preoccupancy inspection for defective paint surfaces and other deficiencies and additional periodic inspections, at least annually thereafter, for units built before 1978 that will be occupied by any family with young children. When the housing authority detects defective paint surfaces, it must follow HUD procedures for notifying tenants and owners of the presence of hazardous levels of lead paint.

In the present case, plaintiff-tenant alleges that the property which she rented contained numerous areas of cracking, chipping, peeling, and otherwise deteriorating paint during the entire period that plaintiff and her grandson occupied the property, from April 1995 to October 1997, and that the housing authority failed to properly conduct the required inspections. The housing authority has filed preliminary objections seeking dismissal of plaintiff’s section 1983 action on the ground that violations of the LBPPPA, the inspection provisions of section 8, and the implementing HUD regulations cannot be enforced through a private action for money damages under section 1983. These preliminary objections are the subject of this opinion and order of court.

Section 1983 provides a cause of action for the deprivation of any rights, privileges, or immunities secured by the constitution and laws of the United States. In Maine v. Thiboutot, 448 U.S. 1, 100 S.Ct. 2502, 2504 (1980), the United States Supreme Court held that section 1983 provides a cause of action for violations of federal statutes. Subsequent case law restricts section 1983 actions to violations of federal legislation creating federal rights; section 1983 actions cannot be based on what are characterized as simply violations of federal law.

The United States Supreme Court applies the analysis developed in Wilder v. Virginia Hospital Association, 496 U.S. 498, 110 S.Ct. 2510 (1990), to determine which federal laws create federal rights enforceable under section 1983. This analysis was described in Blessing v. Freestone, 117 S.Ct. 1353, 1359-60 (1997) (citations omitted), as follows:

“In order to seek redress through section 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law. We have traditionally looked at three factors when determining whether a particular statutory provision gives rise to a federal right. First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so ‘vague and amorphous’ that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the states. . . . Even if a plaintiff demonstrates that a federal statute creates an individual right, there is only a rebuttable presumption that the right is enforceable under section 1983. Because our inquiry focuses on congressional intent, dismissal is proper if Congress ‘specifically foreclosed a remedy under section 1983.’ Congress may do so expressly, by forbidding recourse to section 1983 in the statute itself, or impliedly, by creating a comprehensive enforcement scheme that is incompatible with individual enforcement under section 1983.”

In the cases of Roman v. Horace, supra, 1997 WL 777844; Hunter v. Estate of Baecher, supra, C.A. no. 2:95 CV 878; and Parker v. Philadelphia Housing Authority, 33 Phila. 97 (1997), the housing authorities contended that a tenant may not base a section 1983 action on alleged violations of the LBPPPA, the inspection provisions of section 8, and their implementing regulations. In each case, the court concluded that under the Wilder analysis, the plaintiffs may maintain a section 1983 cause of action. Each court found that the plaintiffs were the intended beneficiaries of legislation and implementing regulations, that the legislation and implementing regulations imposed requirements that were sufficiently specific to be within the competence of the judiciary to enforce, that the legislation and the implementing regulations created mandatory directives, that there was no explicit provision within the legislation forbidding recourse to section 1983, and that a private cause of action is not inconsistent with the regulatory scheme. I find these opinions to be persuasive and adopt their reasoning.

Plaintiff’s position is also supported by Wright v. City of Roanoke Development & Housing Authority, 479 U.S. 418, 107 S.Ct. 766 (1987), which permitted tenants living in section 8 housing to sue a housing authority under section 1983 for violating the rent ceiling imposed by an amendment to the Housing Act of 1937 and implementing HUD regulations and by Farley v. Philadelphia Housing Authority, 102 F.3d 697 (3d Cir. 1996), which permitted a tenant to bring a section 1983 action against a housing authority to enforce provisions of the Housing Act governing administrative grievance procedures for tenants disputing adverse housing authority actions.

The plaintiffs in the Roman, Hunter and Parker lawsuits left the leasehold premises prior to October 2, 1995. In the present case, plaintiff and her grandson occupied the premises until October 1997. Consequently, this case involves an additional issue that was not addressed in the previous lawsuits. The housing authority seeks dismissal under 24 C.F.R. §982.406 (effective date, October 2, 1995) which provides that:

“Part 982 does not create any right of the family, or any other party other than HUD or the HA, to require enforcement of the HQS requirements by HUD or the HA, or to assert any claim against HUD or the HA, for damages, injunction or other relief, for alleged failure to enforce the HQS.”

The housing authority’s obligation to inspect section 8 premises for violations of the HUD lead-based paint regulations is an HQS requirement. The housing authority contends that HUD promulgated 24 C.F.R. §982.406 in order to bar tenants from bringing any lawsuits, including section 1983 actions, against a housing authority based on a housing authority’s failure to inspect for defective paint surfaces. The housing authority relies on the language providing that part 982 does not create any right of a family to assert any claim against a housing authority for damages for alleged failure to enforce the HQS. Plaintiff contends that HUD lacked authority to promulgate 24 C.F.R. §982.406.

The standards for judicial review of regulations promulgated by a federal administrative body are set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 104 S.Ct. 2778 (1984). An administrative agency is authorized to promulgate legislative regulations only to the extent that Congress has explicitly or implicitly delegated such authority to the agency. Where a challenge to an agency’s regulation centers on the wisdom of the agency’s policy, a judge shall not substitute his or her policy preferences for the preferences of the administrative agency to which Congress has delegated policy-making responsibilities. On the other hand, where a regulation is challenged on the ground that the agency is regulating matters that are beyond the scope of the authority which Congress has delegated to the agency, a court shall employ traditional tools of statutory construction. Id. at 2781 n.9, 2781-82.

In the present case, plaintiff’s challenge is not based on the wisdom of the HUD policy. Plaintiff contends that Congress authorized HUD only to promulgate regulations establishing and implementing procedures to eliminate as far as practicable the hazards of lead-based paint poisoning and that the regulation which she challenges does not involve any procedures related to the elimination of the hazards of lead-based paint poisoning.

The housing authority contends, on the other hand, that this regulation covers a matter that HUD is authorized to address. It cites HUD’s justification for the adoption of the regulation — “Elimination of unnecessary distinctions between the tenant-based program and a private market tenancy encourages broad participation by owners of units outside of areas of minority and high poverty concentration.” 60 Fed. Reg. 34660,34676 (1995).

The first issue that I address is whether the HUD regulation at 24 C.F.R. §982.406 upon which the housing authority relies was intended to bar a tenant from bringing a section 1983 action against a housing authority based on alleged violations of the LBPPPA, the inspection provisions of section 8, and the implementing HUD regulations. It is clear that HUD intended to prevent causes of action based solely on its administrative regulations governing the enforcement of HQS. However, a section 1983 claim is based on separate federal legislation under which a plaintiff must first establish a violation of a federal right grounded in the United States Constitution or congressional legislation (i.e., the Wilder requirements). Upon a showing that the Wilder requirements have been met, the plaintiff must next meet the requirements under Monell v. New York City Department of Social Services, supra, 98 S.Ct. 2018, that the plaintiff establish that the violation of his or her federal rights resulted from a municipal custom or policy. See Roman v. Morace, supra, 1997 WL 777844, where the court recognized as separate and distinct a section 1983 claim against the housing authority based on violations of the LBPPPA, the inspection provisions of section 8, and the implementing HUD regulations governing lead paint, and a claim against the housing authority based solely on violations of the HUD regulations governing lead paint.

The regulation upon which the Housing Authority relies does not contain any language suggesting that HUD was attempting to divest federal or state courts of section 1983 jurisdiction. The housing authority has not cited any history surrounding the promulgation of this regulation which indicates that HUD intended for this regulation to limit a tenant’s ability to bring a section 1983 action based on violations of the LBPPPA, the inspection provisions of section 8, and the implementing HUD regulations. When the final rule was published, no comments to this rule were discussed.

Beginning in 1969, amendments to the Housing Act of 1937 have imposed a ceiling for rents charged to low-income people (Brooke Amendment). HUD regulations promulgated pursuant to the Brooke Amendment included certain utility payments within the definition of rent for purposes of the rent ceiling.

Among HUD’s 1982 proposed regulations was section 865.476(d), 47 Fed. Reg. 35249, 35254 (1982), which would have confined tenant utility-allowance challenges to procedures available in the state courts. The final regulation did not impose any such limitations. In the supplementary information section of HUD’s publication of the final regulations, HUD discussed why it omitted this limitation. HUD stated that legal service groups had challenged HUD’s power to divest federal courts of jurisdiction over cases involving questions of compliance with federal statutes and regulations. HUD stated that “the department’s power to preclude access to federal court is doubtful.” 49 Fed. Reg. 31399, 31403 (1984).

See Wright v. City of Roanoke Development & Housing Authority, supra, 107 S.Ct. at 772, 774 n.11, for a discussion of HUD’s proposed and final regulation. Also see the dissenting opinion of Justice O’Connor which stated that:

“Thus, HUD did not express the view that there is a right to reasonable utilities enforcement in federal courts; it simply recognized that it lacked authority to determine federal jurisdiction.” Id. at 779.

In order to accept the housing authority’s interpretation of 24 C.F.R. §982.406,1 would have to conclude that HUD, without discussion of the issue and without public comments, reversed its position. I do not believe that HUD functions in this fashion.

Furthermore, I am unwilling to construe 24 C.F.R. §982.406 in the manner which the housing authority proposes unless there appears to be substantial legal support for the position that HUD may divest the federal and state courts of jurisdiction conferred through federal legislation. I do not find a substantial argument for this position.

An administrative agency is authorized to formulate policy and make rules where Congress has implicitly or explicitly left a gap for the agency to fill. Chevron U.S.A. Inc. v. National Resources Defense Council Inc., supra, 104 S.Ct. at 2781-82. The gap that Congress left HUD to fill involved the development of procedures to eliminate the hazards of lead-based paint poisoning in federally subsidized housing. There is not a sufficient relationship between procedures involving the elimination of hazards of lead-based paint poisoning and a regulation purportedly prohibiting a tenant from maintaining a section 1983 action based on violations of HUD procedures for eliminating the hazards of lead-based paint poisoning for the latter to be characterized as coming within the gap that HUD was authorized to fill.

Furthermore, at the time HUD was authorized to promulgate regulations eliminating the hazards of lead-based paint poisoning, there was no unfilled gap as to the jurisdiction of federal and state courts to provide injunctive relief and money damages for violations of federal rights resulting from a municipal custom or policy. As of 1871, the Civil Rights Act codified at 42 U.S.C. §1983 conferred jurisdiction on the federal and state courts to provide relief for the deprivation of rights secured by the constitution and the laws of the United States.

I do not believe that the housing authority is claiming that through the enactment of the United States Housing Act of 1937, the amendments to this Act, or the LBPPPA, Congress intended to alter the scope of this 1871 legislation. Thus, if the HUD regulation is construed in the fashion which the housing authority proposes, HUD is not filling a gap but rather is attempting to override congressional legislation enacted in 1871. Obviously, it lacks the power to do so.

In this analysis, I am not suggesting that a HUD regulation has no impact on the question of whether a person may bring a section 1983 action to enforce federal legislation and the implementing HUD regulations. I am stating only that HUD lacks the authority to promulgate regulations for the purpose of affecting section 1983 jurisdiction. For example, if the HUD regulations governing lead-based paint had provided only for housing authorities to make reasonable efforts, consistent with available resources and other priorities, to inspect for defective paint surfaces, it is unlikely that a tenant could maintain an action against a housing authority under section 1983 based on alleged violations of the inspection provisions of the LBPPPA, section 8, and their implementing regulations. However, the reason that a section 1983 action could not be maintained would have nothing to do with whether or not HUD expressed any view as to enforcement of these regulations through a section 1983 action. Instead the section 1983 action could not be maintained because, according to the United States Supreme Court’s construction of section 1983, Congress did not intend to provide a remedy under section 1983, where federal mandates impose general, rather than specific, obligations on state and local bodies.

For these reasons, I enter the following order of court:

ORDER

On October 14, 1998, it is hereby ordered that defendanthousing authority’s preliminary objections seeking dismissal of plaintiff’s section 1983 action on the ground that violations of the LBPPPA, the inspection provisions of section 8 of the United States Housing Act, and their implementing regulations cannot be enforced through a private action for money damages under section 1983 are overruled.

      . The housing quality standards (HQS) are set forth at 24 C.F.R. §882.109 and 24 C.F.R. §982.401. The housing quality standards governing lead paint promulgated under the authority granted HUD by LBPPPA are set forth at section 882.109(i) and 24 C.F.R. §982.4010).

      . See Roman v. Morace, 1997 WL 777844 at 4-5 (S.D.N.Y. 1997), and Hunter v. Estate of Baecher, C.A. no. 2:95 CV 878 at 3-5 (E.D. Va. 4/4/96), for a discussion of the applicable regulations.

      . In Roman v. Morace, supra, the court dismissed the section 1983 action on the ground that the plaintiffs failed to meet the requirements under Monell v. New York City Department of Social Services, 98 S.Ct. 2018 (1978), that a plaintiff seeking to hold a municipality liable under section 1983 establish that the violation of federal rights resulted from a municipal custom or policy. The issue of whether plaintiffs in the present case can meet the Monell requirements is not before me at this time.


author: SALUS, J.,

text:
    Greenspun v. U.S.A. Entertainment Center

      C.P. of Montgomery County,
    no. 94-20047.

      Debra A. Jensen and Michael W McGurrin, for plaintiff.

      Margaret Sherry Lurio and Douglas M. Lurio, for defendant.
    November 17, 1998
   SALUS, J.,

This appeal stems from a set of orders issued by this court with respect to an age discrimination claim brought by Norman H. Greenspun, appellant, against U.S.A. Entertainment Center Inc., defendant, for alleged wrongful termination of employment. Appellant raises two issues in his 1925(b) concise statement of matters complained of on the appeal. First, he argues that this court erred as a matter of law when, by order dated May 22, 1996, it granted defendant’s preliminary objections to appellant’s complaint in striking appellant’s demand for a jury trial, his request for punitive damages, and his claim against defendant George H. Jensen Jr. in his individual capacity brought by appellant pursuant to the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. Second, appellant argues that this court erred as a matter of law when, by order dated August 27, 1998, it entered a verdict in favor of the defendant because it found that appellant failed to prove that age discrimination was the basis for his employment termination. These points of appeal will be addressed below.

FACTUAL AND PROCEDURAL HISTORY

This action centers on appellant’s allegations that defendant perpetuated a yearlong pattern of age-based employment discrimination against him. As required under the Act, appellant proceeded first to the Pennsylvania Human Resource Commission to settle his claim. The commission dismissed appellant’s claim because it determined that the claim lacked merit. Consequently, appellant next sought resolution of his claim in the Montgomery County Court of Common Pleas.

Appellant filed a complaint with this court on October 17, 1994, alleging that the defendant willfully violated the Act by replacing appellant with Edward Sullivan, a worker 30 years his junior. Defendant filed preliminary objections to appellant’s complaint on March 15, 1995, arguing, inter alia, that appellant failed to state a cause of action against defendant.

By order dated May 22,1996, the Honorable William J. Nicholas of this court overruled in part and sustained in part the defendant’s preliminary objections to appellant’s complaint. In particular, this court ordered that the following claims be stricken from the case: (1) appellant’s demand for a jury trial; (2) his request for punitive damages; and (3) his claims for intentional infliction of emotional distress and for personal liability against defendant, Mr. Jensen. Defendant then filed an answer to plaintiff’s complaint on June 11, 1996.

On March 24, 1998, appellant filed a motion for reconsideration of this court’s May 22, 1996 order to encourage this court to revive Mr. Jensen as a defendant in this matter, in light of case law which developed, since that order which suggested that individual employees may be personally liable under section 955(e) of the Act. By order dated April 28,1998, Judge Nicholas denied appellant’s motion because the developing case law cited by appellant was factually distinguishable from the instant case. More precisely, this court held that Mr. Jensen could not be subject to personal liability under the Act because he failed to take affirmative steps to aid and abet the employer in the employment termination of appellant.

The Honorable Samuel W. Salus II of this court presided over the trial of this matter on July 13 and 14, 1998. By order dated August 27,1998, this court entered a verdict in favor of defendant because appellant failed to show that his termination of employment was the result of age discrimination.

DISCUSSION

Appellant raises three points of appeal in its concise statement which question the propriety of this court’s May 22, 1996 order. Appellant argues that this court erred as a matter of law when it sustained defendant’s preliminary objections to appellant’s demand for a jury trial, to his request for punitive damages, and to his claim against Mr. Jensen in his individual capacity.

This court correctly sustained the defendant’s preliminary objections to appellant’s demand for a jury trial because such a right is not afforded to appellant under the Act. In Murphy v. Cartex Corp., 377 Pa. Super. 181, 546 A.2d 1217 (1988), the Superior Court of Pennsylvania held that an employee did not have a right to a jury trial under the Act. According to Murphy, jury trials are not available in proceedings created by statute unless either the proceeding has a common-law basis or the statute expressly or impliedly provides for this right. Id. at 192, 546 A.2d at 1222. (citations omitted) First, the Murphy court concluded that the Pennsylvania Constitution did not preserve a right to a jury trial under the Act because the PHRA and “the rights it confers were nonexistent at the time the Pennsylvania Constitution was adopted.” Id. at 192-93, 546 A.2d at 1223. Second, the court concluded that no such right is expressly provided by the Act because neither section 962(c) “nor any other provision of the PHRA states whether the proceedings authorized in the courts of common pleas may be tried before a jury.” Id. at 192, 546 A.2d at 1222.

The court also concluded that the Act does not implicitly provide for this right. The commission is vested with exclusive initial jurisdiction to resolve claims brought under the Act, and courts of common pleas may hear a claim only when the commission either fails to act upon a claim within a one-year period or decides to dismiss a claim. The commission is also granted broad discretion in fashioning an award and is entitled to deference by a reviewing court. As such, the commission is primarily responsible for resolving claims based upon alleged violations of the Act. However, there is no right to request a jury trial in cases brought before the commission. Id. at 192-93,546 A.2d at 1222-23. Thus, there is also no right in proceedings brought before courts of common pleas because there is nothing in either the express language of the Act or in its legislative history which suggests that the legislature intended to provide for a materially different proceeding when claims are decided by this court rather than by the commission. For these reasons, the court in Murphy held that the employee did not have a right to a trial by jury under the Act.

This court also correctly sustained the defendant’s preliminary objections to appellant’s request for punitive damages because punitive damages are not recoverable under the Act. In Hoy v. Angelone, 456 Pa. Super. 596, 691 A.2d 476 (1997), aff’d, 554 Pa. 134, 720 A.2d 745 (1998), the Superior Court of Pennsylvania held that punitive damages are not recoverable under the Act. The Angelone court stressed that the availability of punitive damages under the Act was an issue of first impression in Pennsylvania. Id. at 611-12, 691 A.2d at 483. The court noted, however, that there was a recent trend among federal courts to allow the recovery, of punitive damages under the Act, based on their interpretation of a Pennsylvania Supreme Court decision in Pennsylvania Human Relations Commission v. Zamantakis, 478 Pa. 454, 387 A.2d 70 (1978), in which the state’s highest court held that the Act permits employees to recover damages for humiliation and mental anguish. The Angelone court, however, stressed that “damages for humiliation and mental anguish are compensatory in nature, and are thus different in purpose and kind from punitive damages, the express purpose of which is to punish.” Angelone, 456 Pa. Super, at 612, 691 A.2d at 483. The court further stated that:

“We are unpersuaded that such damages are recoverable under the PHRA and are reluctant to allow such recovery in the absence of more definitive guidance by our high court. Whether the PHRA contemplates recovery for punitive damages is a matter which is properly determined by our Supreme Court.” Id.

In light of Pennsylvania precedent, this court properly found that appellant was not entitled to punitive damages under the Act.

This court properly sustained the defendant’s preliminary objections to appellant’s claim against George Jensen for individual liability under section 955(e) of the Act because Mr. Jensen was not the employer of the appellant and the action he took did not perpetuate an unlawful discriminatory practice. Section 955(e) holds liable any persons, employers, or employees who perpetuate discriminatory practices against employees in the workplace. Mr. Jensen is not personally liable to appellant because Mr. Jensen is not the employer. Notwithstanding his position as president, CEO, and chairman of the board of directors of the corporate defendant, Mr. Jensen is not the appellant’s employer. Rather, he is only an officer of the defendant who made his decision to terminate the appellant’s employment at the behest of the company. Further, Mr. Jensen is not individually liable as a person or employee of the defendant because he failed to “aid, abet, incite, compel or coerce the doing of any act declared by this section [of the Act] to be an unlawful discriminatory practice . . . .” Section 955(e). Appellant does not make any allegations that Mr. Jensen perpetuated an ongoing pattern of discrimination against him. In fact, appellant admits that he was not aware of any age-based discriminatory comments directed against him while employed by the defendant. Thus, Mr. Jensen is not personally liable to appellant because his action does not place him within section 955(e) of the Act.

Appellant’s final point of appeal contends that this court erred as a matter of law when, by order dated August 27, 1998, it ordered a verdict in favor of defendant because it found that appellant failed to prove either a direct or pretextural case of age discrimination. For reasons set forth below, this court properly ruled in favor of defendant because age discrimination was not the basis for appellant’s employment termination.

In the absence of a showing that defendant terminated appellant for discriminatory reasons, defendant was free to release appellant from its employ because appellant maintained only an at-will employment relationship with the corporation. Pennsylvania is an at-will employment state. Geary v. United States Steel Corp., 456 Pa. 171, 319 A.2d 174 (1974). There was an employment at-will relationship here because no contract existed between appellant and the defendant. Thus, in the absence of the applicability of the discrimination or public policy tort exceptions to the at-will doctrine, defendant may at any time and for any reason dismiss the appellant. See Jacques v. Akzo International Salt Inc., 422 Pa. Super. 419, 619 A.2d 748 (1993). Appellant’s position with the company only came about because appellant was in need of work and was familiar with Mr. Jensen from working periodically with him over the last 25 years. The defendant, however, hired appellant on a part-time basis solely for the purpose of assisting the corporation with bookkeeping in its early stages of operation. Defendant made no promise to appellant of long-term employment and provided no assurances to appellant that he could work for the corporation in the future. That defendant did not compensate appellant for his assistance until the corporation received funding and that appellant was not entitled to employment benefits further underscore the temporary nature of appellant’s employment. Thus, the nature and scope of appellant’s employment relationship with the defendant allowed the corporation to terminate appellant once his temporary function to the defendant was fulfilled.

Appellant’s inability to grasp the employment skills required of him in light of the defendant’s corporate growth provided the basis for appellant’s employment termination, not his age. Mr. Jensen began overseeing the company in 1992. As a new company, the defendant employed appellant to assist the corporation in its start-up operation. Appellant was considered a treasurer of the corporation. Due to the company’s infancy at this time, however, appellant’s position entailed nothing more than acting as a bookkeeper for the defendant. Shortly after the beginning of appellant’s employment, however, the company continued to grow and its financial needs expanded. For example, over 900 more shareholders now invested in the corporation since the beginning of appellant’s employment. Consequently, the defendant placed greater reliance on computerization in tracking stockholder information. Further, this progress also positioned the defendant to become a public company. As a result, appellant’s limited capacity as a bookkeeper did not coalesce with the company’s future and trends. Appellant’s manual style of accounting precluded him from performing work in the timely, efficient manner provided by computerization. For example, the bookkeeping functions that appellant performed by hand in days could be performed by a computer in less than half a day. Appellant even admitted that computerization eradicated his manual style of accounting such that he was limited to writing checks for the company. Appellant also lacked the skills necessary to complete a public filing. Notwithstanding the importance of these filings to the corporation, appellant was not qualified to prepare the paperwork necessary to make the defendant a public company. For these reasons, defendant properly terminated appellant because his limited employment skills contravened the future growth and success of the corporation.

That the skills lacking in appellant were critical to the continued survival of the corporate defendant further explains why age discrimination was not the reason for his employment termination. By the summer of 1993, the defendant changed the focus of the company because of equipment inadequacy. This corporate change created a net loss to the company such that it needed the managerial expertise of Mr. Sterling and Mr. Sullivan, employees more qualified than appellant, to survive. Further, the funds of the company for compensating employees were so stretched as a result of this new business focus that retaining appellant on the payroll for work that he could not do was not a viable option for the defendant. Appellant’s limited accounting skills were not necessary to the corporation. While appellant may have fulfilled his old role in assisting the company in its start-up operation, he failed to assume the new financial role required of him by the corporation’s expansion and focus. Appellant’s termination was necessary to preserve the smooth operation of the company because appellant’s limited employment skills rendered him a liability to the corporation.

The circumstances of appellant’s recent employment history also demonstrate that legitimate business concerns rather than age discrimination provided the basis for his job termination. Before he was employed by the defendant, appellant worked for American Film Technologies. Though he initially served as the company’s chief financial officer, appellant was relegated to the position of the assistant C.F.O. when a new C.F.O. was hired by A.F.T. to handle more complex business matters brought about by A.F.T.’s expansion. Notwithstanding its parallel to the present case, this set of facts did not engender an age discrimination suit against A.F.T. Here, the defendant also hired a more qualified financial expert to handle more complex business matters precipitated by corporate growth. Specifically, defendant hired Mr. Sullivan to assume the responsibilities of C.F.O. of a company set to become public and to achieve computerization. Mr. Sullivan’s duties included preparing a business plan, preparing budgets, assisting new product development, conducting investor relations, and using computer-driven accounting. Appellant could not perform any of these duties. As a result, appellant cannot maintain that his termination was the result of age discrimination.

Finally, appellant’s failure to put forward persuasive evidence in support of his claim convinces this court that his employment termination was proper and unactionable. Appellant’s only source of evidence suggesting age discrimination is the videotaped deposition of Robert Bartlett. Mr. Bartlett is the only person who claims that he heard defendant utter discriminatory comments concerning appellant’s age. This court properly found this evidence not credible. At the time of his deposition, Mr. Bartlett was a disgruntled former employee of the company. Thus, the ill will displayed by Mr. Bartlett towards Mr. Jensen and other present employees of the defendant rendered his testimony “skewered and unworthy of belief.” Moreover, this court finds most telling that no other employees reported any discriminatory comments to either the defendant or this court. Unlike Mr. Bartlett, Mr. Sullivan and Mr. Sterling had no reasons to provide inaccurate testimony because they were not employed by defendant at the time of trial. Therefore, this court properly entered a verdict in favor of the defendant because appellant’s age discrimination claim was not borne out by the evidence.

CONCLUSION

For the foregoing reasons, the Superior Court should affirm this court’s orders of May 22, 1996, April 28, 1998, and August 27, 1998.

      . In particular, appellant questions the propriety of three orders issued by this court in this case. Two orders, dated May 22, 1996 and April 28,1998, were issued by the Honorable William T. Nicholas, in which this court granted in part and overruled in part the defendant’s preliminary objections to appellant’s complaint. The Honorable Samuel W. Salus II, of this court issued a final order in favor of the defendant disposing of this case on August 28, 1998.

      . Judge Nicholas of this court once again denied appellant’s claim against Mr. Jensen in his individual capacity. By order dated April 28, 1998, Judge Nicholas denied appellant’s motion for reconsideration of this court’s May 22, 1996 order, notwithstanding the emergence of new case law after the May 22,1996 order, which suggested that Mr. Jensen may be personally liable to appellant under the Act.

      . Appellant also questions the propriety of this court’s April 28, 1998 order, which denied the appellant’s motion for reconsideration of the May 22, 1996 order and again sustained the defendant’s preliminary objections to appellant’s personal liability claim against Mr. Jensen.

      . The court also stressed two other reasons as support for its holding. First, it stressed that the equitable relief provided under the Act strongly suggested against the right to a jury trial because courts are uniquely qualified to fairly grant equitable relief. Murphy, 377 Pa. Super, at 194-95, 546 A.2d at 1223-24. Second, the absence of a right to a jury trial in title VII of the Civil Rights Act of 1964 lent support to the notion that no such right is provided under the Act because the Pennsylvania legislature modeled the Act after this federal legislation. Id. at 195, 546 A.2d at 1224.

      . Id; see also, Walker v. Grand Central Sanitation Inc., 430 Pa. Super. 236, 239 n.l, 634 A.2d 237, 238 n.1 (1993) (holding that the trial court correctly disallowed the jury to consider his PHRA claim because the Act did not provide Walker with the right to a jury trial).

      . See deposition of Norman H. Greenspun, dated December 21, 1995, p. 20.

      . Findings of fact, no. 5, of August 27, 1998 order.

      . Findings of fact, no. 9.

      . Findings of fact, no. 11.

      . Findings of fact, no. 38.

      . Findings of fact, no. 30.

      . This court stresses that appellant’s refusal to try and adapt to the new role required of him in light of the corporation’s growth did not help his case. This court found that appellant did not respond to Keith Sterling’s (employed as vice president of operations) and Mr. Sullivan’s attempts to assimilate appellant into the new financial role. Findings of fact, no. 37.

      . Findings of fact, no. 39.

      . Findings of fact, no. 55.

      . Findings of fact, no. 45.

      . Findings of fact, no. 49.


author: BAYLEY, J.,

text:
    In re Adoption of Baby Girl “B”

      C.P. of Cumberland County,
    no. 97-0109 Adoptions.

      James D. Flower Jr., for petitioners. '

      Anne M. Shepard, for “E.”

      Lindsay D. Baird, for Baby Girl “B.”
    May 13, 1998
   BAYLEY, J.,

On July 16, 1997, “A” and “C” met with representatives of Adoption Placement Inc., in Fort Lauderdale, Florida. “A” was pregnant, and she and “C” said that he was the father. “A” said that her due date was August 10, 1997. “A” and “C” made arrangements with the agency to have the baby adopted. “A” gave birth to Baby Girl “B” in Florida on July 27, 1997. On July 29, 1997, “A” signed a consent surrendering the baby to Adoption Placement Inc. On August 2, 1997, the “Ds” of Shippensburg, Pennsylvania, received Baby Girl “B” as the result of a placement by Adoption Placement Inc., working through Adoption Horizons in Shippensburg, Pennsylvania. On August 25, 1997, an order was entered in the Circuit Court of the Seventeenth Judicial Circuit of Broward County, Florida, terminating the parental rights of “A” and “C” to Baby Girl “B.”

On November 17, 1997, “A” called Adoption Placement Inc. She stated that she wanted her baby back. She was with “E” who told the representative on the phone that he was the father of Baby Girl “B” and that he wanted the baby. “E” went to Adoption Placement Inc. on November 19, 1997. He again stated that he was the father of Baby Girl “B” and that he wanted the baby. The agency would not divulge the location of the baby to “E.” However, it immediately notified the “Ds” of the parental claim made by “E.”

On December 5, 1997, the “Ds” filed this petition for involuntary termination of the putative parental rights of “E.” An order was entered on December 23, 1997, setting a hearing date on the petition for February 18, 1998. The petition and the order were served on “E” on January 22, 1998. On February 13, 1998, the “Ds” filed a petition in this court seeking to adopt Baby Girl “B.” Hearings on the merits of the involuntary termination petition were conducted on February 18 and May 11, 1998.

“E,” age 39, lives in an apartment in Tampa, Florida. He is single and unemployed. He draws military retirement and social security disability. He has a daughter in the Army, age 20, and daughters, ages 18 and 17, and a 15-year-old son, none of whom live with him. “E” testified that “A” moved into his apartment in Tampa on April 8, 1996. She brought her two children whose father is “C.” “C” and “A” had maintained a long-term relationship. “C” had left the State of Florida when “A” moved in with him. “E” recalls that “A” became pregnant in November 1996. During her pregnancy, “E” took “A” to a doctor for prenatal care. Her due date was in August 1997.

“E” testified that “A” left him on June 19, 1997, stating that she was returning to live with “C” in Louisiana. He testified that “A” left him after a Florida state agency removed her two children from their home and threatened not to return them after she had spanked one of the children. “E” testified that “A” told him that he would be able to see their child and that she would accept financial support from him. “E” also talked to “C” who told him that “I could see the kid and I had nothing to worry about, that he was going to raise the infant as his own, and they [were] going to move to Louisiana.” “E” testified that “A” did not provide him an address or telephone number to contact her in Louisiana, and he did not know any of her relatives whom he could have contacted. Therefore, he was unable to contact “A” even though he knew their baby would be born around the beginning of August 1997.

“E” testified that on November 17, 1997, “A” contacted him and told him of the birth of “B” and that she had placed the child for adoption. It was on that day that they called Adoption Placement Inc. in Fort Lauderdale. He then went to the agency office on November 19, 1997, seeking to have his child given to him. An employee of Adoption Placement Inc., in Fort Lauderdale, and an owner/attomey of the agency, testified that when “E” came to the agency on November 19,1997, he told them that he had contacted the mother to see the child, and to get a picture of the child, because he was moving to Georgia. When the agency would not divulge the location of the placement of Baby Girl “B,” “E” contacted an attorney in Florida on November 26, 1997. On December 2, 1997, through the attorney, “E” filed a vital statistics report in the State of Florida that listed him as the father of Baby Girl “B.” “E” testified that he did not learn where his daughter had been placed until he was served on January 22, 1998, with the within petition and hearing notice for the involuntary termination of his putative parental rights. As part of this proceeding, blood tests were conducted. Based on the genetic testing results, the probability of the paternity of “E” to Baby Girl “B” is 99.99 percent.

DISCUSSION

All parties agree that the law in Pennsylvania is applicable to this petition seeking to involuntarily terminate the parental rights of “E” to Baby Girl “B.” The Adoption Act, 23 Pa.C.S. §2101 et seq. provides at section 2511(a)(6) that the rights of a natural parent to a child may be terminated on the grounds that:

“In the case of a newborn child, the parent knows or has reason to know of the child’s birth, does not reside with the child, has not married the child’s other parent, has failed for a period of four months immediately preceding the filing of the petition to make reasonable efforts to maintain substantial and continuing contact with the child and has failed during the same four-month period to provide substantial financial support for the child.” (emphasis added)

Clear and convincing evidence is necessary to prove the statutory grounds to terminate parental rights. In re Adoption of Atencio, 539 Pa. 161, 650 A.2d 1064 (1994). In Atencio, the Supreme Court of Pennsylvania stated that clear and convincing evidence is “[testimony that is so clear, direct, weighty, and. convincing as to enable a trier of fact to come to a clear conviction, without hesitance of the truth of precise facts in issue.” We find that “E” is the father of Baby Girl “B.” The time sequence in the case is:

“A” starts to live with “E” April 8, 1996
“A” became pregnant November 1996
“A” left “E” June 19, 1997
Baby Girl “B” was bom July 27, 1997
“A’s” parental rights are terminated in Florida August 25,- 1997
“A” told “E” of the birth and the placement of the child for adoption and they called Adoption Placement Inc. stating that they wanted Baby Girl “B” November 17, 1997
“E” went to Adoption Placement Inc. to claim Baby Girl “B” November 19, 1997
“E” contacted an attorney in Florida November 26, 1997
“E” filed a vital statistics form in Florida claiming he is the father of Baby Girl “B” December 2, 1997
The petition for involuntary termination of “E’s” putative parental rights is filed in Pennsylvania December 5, 1997
“E” is served with petition and learns for the first time the location of Baby Girl “B” in Pennsylvania January 22, 1998
The first hearing is conducted on the petition for involuntary termination February 18, 1998

Reviewing the prerequisites for the termination of parental rights under the Adoption Act at 23 Pa.C.S. §2511 (a)(6), “E” (1) knew that his child would be born around the beginning of August 1997, (2) did not reside with his child, and (3) did not marry his child’s mother, “A.” As to the fourth requirement, the failure of a parent for a period of four months immediately preceding the filing of the petition for involuntary termination to make reasonable efforts to maintain substantial and continuing contact with the child, that four-month period ran from August 6, 1997, to the date of the filing of the petition for involuntary termination on December 5, 1997.

In T.J.B. v. E.C., 438 Pa. Super. 529, 652 A.2d 936 (1995), MJ.C. was bom on August 13,1993. On August 16, the child was placed with the Totaros, the proposed adopting parents. The mother claimed that appellee was the father of the child. He refused to decide whether he would consent to an adoption until blood tests were taken. In early November 1993, the results of blood tests showed that appellee was the father of MJ.C. On December 8, appellee acknowledged paternity for the first time. He sought to meet MJ.C. and told the Totaros that he would not consent to an adoption unless he received some later access to MJ.C. On December 13, the Totaros filed a petition pursuant to the Adoption Act at 23 Pa.C.S. §2511 (a)(6), to involuntarily terminate appellee’s parental rights to MJ.C. The petition was not served on appellee until February 3,1994. Following a hearing, the trial court denied the petition to involuntarily terminate appellee’s parental rights from which the Totaros filed an appeal to the Superior Court of Pennsylvania.

The Superior Court noted that, “[0]nly when an involuntary termination of a parent’s parental rights to a child occurs will the consent of that parent not be required for a valid adoption to occur.” Id. at 542, 652 A.2d at 943. The court concluded that the Totaros had not proven by clear and convincing evidence that the parental rights of appellee should have been terminated. It noted that the issue was whether appellee made reasonable efforts to maintain continuing and substantial contact with M.J.C. during the four months between M.J.C.’s birth and the filing of the petition to involuntarily terminate his parental rights. The court stated:

“Appellee’s first efforts to maintain continuing and substantial contacts with M.J.C. occurred in September 1993 when he began the process to determine his paternity of M.J.C. Appellee hired an attorney, Mr. Cunilio, to represent him and protect his parental rights to M.J.C. in case it was proven that M.J.C. was his child. Subsequently, appellee paid for all the necessary tests to determine the likelihood of his paternity of M.J.C. These tests were conducted on appellee and E.C. on September 20,1993 and on M.J.C. on September 22,1993. Finally, within one month of receiving the results of the paternity tests, appellee expressly stated, via the December 8, 1993 letter, that he wanted to establish a visitation schedule with M.J.C. or he would file for custody. Therefore, we hold that appellee’s actions during the four months prior to the filing of appellants’ petition to involuntarily terminate his parental rights to M.J.C. constituted reasonable efforts to maintain continuing and substantial contacts with M.J.C.” Id. at 546, 652 A.2d at 945. (emphasis added)

In the case sub judice, even though “E” knew that his child would be born around the beginning of August 1997, he made no immediate effort to contact his child. He had been told that the mother and “C” were living in Louisiana. Whether we accept his testimony that he did not know where to contact them and that “A” finally contacted him, or if based on the testimony of what the owner/attorney and the employee of Adoption Placement Inc. said “E” told them on November 19, 1997, were we to conclude that he finally contacted “A,” the fact remains that he made no effort to have any contact with his child until November 17, 1997. Either way, it was that day that the mother told him that she had placed her daughter with Adoption Placement Inc. It was the placement that “E” objected to, not the mother raising the child. Therefore, on November 17, which was the first time he learned of the placement, he sought to claim his child by calling the agency. He went to Adoption Placement Inc. two days later, on November 19, to seek contact and to press his claim as the father. However, he was denied any information as to where his child was located. He contacted an attorney on November 26. On December 2, he filed a vital statistics form in the State of Florida claiming that he was the child’s father. He did not learn of the placement in Pennsylvania until he was served with the petition for involuntary termination on January 22, 1998. The first hearing on the petition was conducted less than a month later on February 18, 1998.

On these facts, as in T.J.B. v. E.C., supra, we find that “E,” starting on November 17, 1997, which was within four months prior to the filing of this petition for involuntary termination on December 5,1997, made reasonable efforts to maintain continuing and substantial contact with “B.” In our making this determination, counsel for the “Ds” and Baby Girl “B” argue that we should consider section 2511(b) of the Adoption Act that provides, “The court in terminating the rights of a parent shall give primary consideration to the developmental, physical and emotional needs and welfare of the child.” This provision has been interpreted to mean that once it has been determined that the statutory requirements for the involuntary termination of parental rights exist, then the court must be further satisfied before ordering termination that it will serve the needs and welfare of the child. In re E.S.M., 424 Pa. Super. 296, 622 A.2d 388 (1993). In the present case, no statutory requirements for the termination of “E’s” parental rights to Baby Girl “B” have been met. Therefore, section 2511(b) does not apply.

In conclusion, there is no clear and convincing evidence that the prerequisite for terminating “E’s” parental rights under section 2511(a)(6) of the Adoption Act has been met. Therefore, the following decree is entered.

DECREE NISI

And now, May 13, 1998:

(1) The petition to involuntarily terminate the parental rights of “E” to Baby Girl “B,” bom July 27, 1997, is denied.

(2) This decree nisi shall be governed by Pennsylvania Rule of Civil Procedure 227.1.

      . As to the fifth requirement to terminate parental rights under section 2511(a)(6), that a parent during the four-month period prior to the filing of the involuntary termination petition fails to provide substantial support for his child, there was no way “E” could provide such support because he was not told where “B” had been placed. Obviously, both “E” and the “Ds” were the victims of the mother’s duplicity that led to these circumstances.


author: ALEXANDER, P.J.,

text:
    Lewis v. Erie Insurance Exchange
    C.P. of Clarion County,
    no. 515 CD 1998.

      Todd Berkey, for plaintiffs.

      Terry R. Heeler, for defendant.
    December 11, 1998
   ALEXANDER, P.J.,

This matter comes before the court on a motion for summary judgment brought on behalf of Erie Insurance Exchange, defendant, pursuant to Pa.R.C.P. 1035.2. This matter is a declaratory judgment action brought by Robert A. Lewis, Linda S. Lewis, and Robert J. Lewis, plaintiffs. Plaintiffs seek to have this court declare that the insurance policy issued by defendant to Robert A. and Linda S. Lewis be reformed to provide the policyholders with uninsured motorist (UM) and underinsured motorist (UIM) coverages equal to the policy’s bodily injury liability coverage, which is $500,000 per person and $500,000 per accident with the stacking option applicable. Defendant defends this action and requests summary judgment solely on the ground that Robert A. Lewis selected lower limits of UM and UIM coverage in compliance with section 1734 of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1734. For the reasons that follow, the court will treat defendant’s motion as a motion for judgment on the pleadings and grant judgment on the pleading to plaintiffs.

There are no disputes as to the material facts in this action. Defendant issued automobile insurance policy number Q06 0502942 N, the policy, to Robert A. and Linda S. Lewis. (Complaint ¶5; answer and new matter ¶5.) The effective dates of the policy were from June 5, 1997 to June 5, 1998. (Complaint ¶5; answer and new matter ¶5.) By the terms and conditions of the policy, the bodily injury liability coverages afforded to Robert A. and Linda S. Lewis were $500,000 per person and $500,000 per accident. (Complaint ¶7; answer and new matter ¶7.) The policy provided for UM and UIM coverages in the amount of $50,000 per person and $100,000 per accident. (Complaint ¶7; answer and new matter ¶7.) The stacking option applied to the policy. (Complaint ¶7; answer and new matter ¶7.) Robert A. Lewis signed waivers for “reduced limits of uninsured motorist protection” and “reduced limits of underinsured motorist protection” dated November 23,1992. (Complaint ¶11; answer and new matter ¶¶11, 12.) The waivers respectively contained requests for UM and UIM coverage in the amount of $50,000 per person and $100,000 per accident. (Complaint ¶11; answer and new matter ¶¶11, 12.) The reduced limits waivers appeared on a single page with forms for “rejection of uninsured motorist protection” and “rejection of underinsured motorist protection.” (Complaint ¶11; answer and new matter ¶¶11, 12.)

Where a motion for judgment prior to trial presents a purely legal question requiring no development of evidence, it should be presented as a motion for judgment on the pleadings. Bensalem Township School District v. Commonwealth, 518 Pa. 581, 588-89, 544 A.2d 1318, 1322 (1988). In such a case, it is appropriate for the court to enter judgment in favor of the prevailing party even if that party is not the moving party. Id. at 587, 544 A.2d at 1321. Here, it is undisputed that Robert A. Lewis signed reduced limits waivers that appeared on a single page with forms for “rejection of uninsured motorist protection” and “rejection of underinsured motorist protection.” The outcome of this action depends solely on whether that fact invalidates the reduced limits waivers and requires this court to reform the policy to provide the policyholders with UM and UIM coverages equal to the policy’s bodily injury liability coverage. This is a purely legal question, so the court will treat defendant’s motion as a motion for judgment on the pleadings. The court may, therefore, enter judgment in favor of plaintiffs.

This case is controlled by the recent opinion of a panel of the Superior Court in National Union Fire Insurance Co. v. Irex Corp., 713 A.2d 1145 (Pa. Super. 1998). The panel in Irex held that an insurer must “strictly comply” with section 1731 of the MVFRL, 75 Pa.C.S. §1731, in order for an election of lower UM and UIM coverage limits under section 1734 to be valid. 713 A.2d at 1154. Section 1731 requires insurers to provide their named insureds with forms for “rejection of uninsured motorist protection” and “rejection of underinsured motorist protection.” 75 Pa.C.S. §1731(b), (c). Section 1731 further requires insurers to place the rejection forms on separate sheets. 75 Pa.C.S. §1731(c.l). “Any rejection form that does not specifically comply with this section is void. If the insurer fails to produce a valid rejection form, uninsured or underinsured coverage, or both, as the case may be, under that policy shall be equal to the bodily injury liability limits.” Id.

It is undisputed that defendant placed the section 1731 rejection forms on the same page, so the reduced limits waivers signed by Robert A. Lewis are invalid. Accordingly, the policy must be reformed to provide the policyholders with UM and UIM coverages equal to the policy’s bodily injury liability coverage, which is $500,000 per person and $500,000 per accident with the stacking option applicable.

Hence, the following order:

ORDER

And now, December 11, 1998, for the foregoing reasons, defendant’s motion for summary judgment, which the court has treated as a motion for judgment on the pleadings, is denied. Judgment on the pleadings is entered in favor of plaintiffs. Automobile insurance policy number Q06 0502942 N, the policy, issued by defendant to Robert A. and Linda S. Lewis with effective dates from June 5, 1997 to June 5, 1998 is hereby declared and ordered to be reformed to provide the policyholders with uninsured motorist and underinsured motorist coverages equal to the policy’s bodily injury liability coverage, which is $500,000 per person and $500,000 per accident with the stacking option applicable.

      . The file in this case contains defendant’s motion for summary judgment and brief in support thereof, plaintiffs’ brief in opposition thereto, and plaintiffs’ brief in support of plaintiffs’ motion for summary judgment. The file does not, however, contain a motion for summary judgment filed by plaintiffs, nor is there a docket entry for one. The court will not treat plaintiffs’ brief in support of their motion for summary judgment as a motion for summary judgment. Rather, as explained below, the court will treat defendant’s motion for summary judgment as a motion for judgment on the pleadings and grant judgment on the pleadings to plaintiffs.