author: MIHALICH, P.J.,

text:
    Kuhns Estate

      George M. Lynch, for Arthur B. Kuhns.

      Denis P. Zuzik, for Mary Kuhns.
    May 4, 1989
   MIHALICH, P.J.,

This difficult matter comes before the court on exceptions to the schedule of distribution in the estate of Barry Lee Kuhns raised by his natural father, Arthur B. Kuhns. While the matter is not one free of doubt, the court is convinced that the exceptions of Arthur Kuhns must be dismissed.

Barry Lee Kuhns died intestate on April 8, 1986. He left behind neither spouse nor issue, and was survived only by his parents, Mary Kuhns and Arthur B. Kuhns, and three brothers.. Mary and Arthur have been divorced for many years and Arthur and Barry did not enjoy a close relationship throughout Barry’s lifetime.

Approximately one week after the death of Barry Kuhns, Arthur Kuhns met with two of his sons, John and Thomas, at the residence of Barry Kuhns. During this meeting, Arthur and his sons examined Barry’s residence, walking from room to room taking an unofficial inventory of its contents. From the testimony, it is clear that Arthur knew that his deceased son was the owner of this home, although he also believed that a mortgage encumbered it, and he also believed that his son had owned liquid assets such as bank accounts, cash and savings bonds.

At the time of this meeting, Arthur Kuhns executed documents renouncing his right to co-administer the estate of Barry Kuhns with Mary and also executed the document which is the subject of the present controversy. This document, hand-drawn by his son John, stated as follows:

“I, Arthur B. Kuhns father of deceased Barry Lee Kuhns of 2705 Raymond Ave., Latrobe, Pa. wish to receive the following from his estate:
“1984 Datsun King Cab pickup with cap
“1 homemade cross bow
“1 lawn mower
“1 gun (snub nose blank)
“Miscellaneous fishing equipment
“In receiving the above items, I wish to relinquish all claims to his estate. The remaining assets shall go to his mother Mary Kuhns for her to do with as she sees fit.
“/s/ Arthur B. Kuhns
“/s/ Mary Kuhns
“Witness: /s/ Neil A. Brant
“Witness: /s/ Roxanne L. Ament
“Notary: /s/ Judith R. Moffat”

While the testimony on this point was somewhat conflicting, the court concludes that Arthur Kuhns was fully aware of the nature of this document as well as its effect of denying him the opportunity to claim anything further from the estate of his deceased son. This conclusion is based upon the court’s consideration not only of the testimonies of the members of the Kuhns family present when the document was drawn, read, and executed, but also upon the testimony of Neil Brant, a neighbor who was present when the document was read to Arthur Kuhns and when Arthur acknowledged his understanding of its contents and import. There is no evidence that this document was executed by an individual mentally or physically incapable of appreciating the significance of it; nor is there any evidence of undue influence or duress resulting in its execution. Counsel for Arthur Kuhns has also withdrawn from this court’s consideration the issue of fraud, acknowledging that the evidence simply will not support that finding.

At some point after the execution of this document, Arthur Kuhns decided that he had made an unwise choice in signing it. The gross value of the estate of Barry Kuhns was determined to be $46,036.92, which included the net proceeds of the sale of the home in which this document was executed. Those net proceeds amount to $32,364.81, the gross sale price being $46,000, less a mortgage of $12,245.62 and closing costs of $1,389.57. The total net assets of the estate of Barry Lee Kuhns were valued at $35,830.87, of which one-half would have been the share of Arthur B. Kuhns had he not executed the subject document.

The parties have struggled to classify the subject document in a category common to law of decedents’ estates in Pennsylvania. Initially, we must consider whether the document is a disclaimer under section 6201 of Title 20 Pa.C.S.

Under section 6201, an individual who stands to acquire an interest in property through operation of intestate succession may disclaim that interest by executing a written disclaimer which is to meet three criteria. The disclaimer shall: (1) describe the interest disclaimed; (2) declare the disclaimer and extent thereof; and (3) be. signed by the disclaim-ant. In the present case, the document appears to satisfy sections 2 and 3 of section 6201, leaving only the question of whether it otherwise satisfied section 1.

Able counsel for the parties have been unable to cite the court to controlling precedent for the interpretation of this section in Pennsylvania law. The court also has had a difficult time in discerning controlling precedent since those cases which generally discuss the renunciation, release or disclaimer of an interest such as this either relate to issues other than the one presented here, see In re Zindel’s Estate, 23 D.&C. 3d 282 (1982), or have been decided under older versions of the statute giving little authoritative insight to the court as to the current interpretation of its language. See In re Becker’s Estate, 352 Pa. 452, 43 A.2d 4 (1945); Dorn Estate, 12 Pa. Fiduc. 439 (1962); Days Estate, 55 D.&C. 2d 536 (1971). It may be noted, however, that the older cases seemed to permit more general language to be effective for a disclaimer and it must also be observed that in the official commentary to section 6201 it is noted that a purpose for its enactment was to “liberalize the property law requirements for a disclaimer so that legitimate attempts to avoid taxes on unwanted gifts will not be frustrated by property law provisions that are stricter than those required for tax purposes.”

Counsel for Arthur Kuhns has drawn the court’s attention to two cases from other jurisdictions which allegedly shed light on this issue. We find the case of Winkler v. Bauman, 452 N.Y. Supp. 2d. 440 (1982) to be inapposite to the present situation. The case of Faught v. Estate of Faught, 730 S.W.2d 323 (Tenn. 1987), however, is a case factually similar to the case at bar. The difficulty of use of the Faught case to resolve the present matter, however, is that the Faught opinion deals with a disclaimer statute which is different in an important respect from section 6201 of the Pennsylvania Estate Code. The Tennessee statute interpreted in Faught required that the disclaimer “describe the property or part thereof or interest therein renounced.” Id. at 324. One of the reasons the court refused to acknowledge the disclaimer in Faught was its failure to describe the property disclaimed. Id.

While using the phrase “interest in property” in the beginning of section 6201, our legislature has chosen to simply require that a disclaimer “describe the interest disclaimed.” While there is by no means a clear-cut definition wholly applicable to this purpose, we find that use of the term “interest” requires something different than a strict and precise delineation of the property disclaimed.

An “interest” in an estate is not necessarily an interest in any particular item of property in the estate. Rather, an “interest” is normally an interest in a share of the net proceeds of an estate once all proper deductions have been made. If it was truly the intent of our legislature to “liberalize” the law regarding disclaimers, it would appear appropriate to require only that the individual recognize what interest he or she may have in the estate before disclaiming it instead of having to go through the more rigorous requirement of identifying all items of personalty and realty which may be contained within the estate itself.

Again, in the unfortunate absence of clear appellate guidance in this area, we are constrained to conclude that the subject document would meet the disclaimer statute given that, within its body, the disclaimant noted and recognized his interest in the estate of his deceased son and clearly opted to take specified property in lieu of a more generalized share. While this case certainly should stand for the proposition that legal documents are best prepared by those whose legal training qualifies them to appreciate the importance of a precisely drawn writing, we believe that this document meets the rather broad standards of section 6201.

It would be with great trepidation that this court would rest the entirety of its resolution of this matter on its finding that the document meets the standard of a disclaimer of section 6201. We are much more comfortable, then, in concluding that the document is a binding agreement between the intestate heirs and one properly enforced by this court.

We begin this phase of the analysis by recognizing certain facts we have found in this record. First, we find that Arthur Kuhns was entirely competent to enter into an agreement disposing of certain interests he had in the estate of his deceased son. Secondly, we find no evidence of fraud, overreaching, undue influence or duress on the part of those who were present when this document was executed. Moreover, we find that there was no negligent or intentional failure to disclose any material fact to Arthur Kuhns by his sons or his ex-wife. This agreement was executed approximately one week after Barry Kuhns had died. All of the persons connected with the execution of this document knew that Barry Kuhns owned the residence in question, that some sort of mortgage encumbered it, and that Barry Kuhns had other tangible and valuable assets which would be part of his distributable estate. No one seemed to have any particular or superior knowledge with respect to the value of these assets and each party appeared to have a full opportunity to investigate that value with or without the assistance of counsel.

Additionally, we find no breach of a fiduciary duty on behalf of the administratrix, Mary Kuhns. The evidence indicates to us that John and Thomas Kuhns were not acting as agents or representatives of their mother or the estate in dealing with their father with respect to this document. Unaware of the precise language of section 6201, the sons presented this writing to their parents as a simple agreement by which these two estranged parties would be able to quickly and fairly resolve the disposition of the assets of their deceased son. Arthur Kuhns was given a full and fair opportunity to accept the proposal by his sons and did so in a circumstance in which he was given a broad opportunity to select particular assets from Barry Kuhns’ estate which he wanted for himself. He did so without duress and without Mary Kuhns or her sons being guilty of withholding information pertinent to the resolution of this settlement agreement. Agreements among family members regarding the distribution of the assets of one who dies intestate are favored agreements in the law and a court is wise to enforce them wherever possible. See Kurek Estate, 8 Pa. Fiduc. 287 (1958). Accord, In re Estate of Brojack, 321 Pa. Super. 154, 467 A.2d 1175 (1983).

In the present case, Arthur Kuhns received consideration for his agreement. He was given an apparently unfettered opportunity to select the specific assets of his. choice from this estate and was relieved of any obligation to pay a pro rata share of the expenses of the estate administration and inheritance taxes. He was able to achieve a current receipt of these items and was not required to wait for a period of time necessary to achieve a further authorization for the release of those assets to him. Consideration for this may also be found in the mutual promise of Mary Kuhns that she would agree to take whatever assets remain from the estate, allowing Arthur free and clear possession of those items he had specifically requested.

Again, in the absence of any showing that Mary Kuhns withheld pertinent information from Arthur in reaching this agreement, we are compelled to conclude that Arthur Kuhns made a deal by which he is presently bound. His hindsight view of the circumstance does not call upon the law to save him from the results of a deal which he and the others involved struck in good faith.

An order dismissing the exceptions of Arthur B. Kuhns will be entered as follows:

ORDER OF COURT

And now, May 4, 1989, it is hereby ordered, adjudged and decreed that the exceptions to schedule of distributions filed on behalf of Arthur B. Kuhns are hereby dismissed.


source: Caselaw Access Project

author: PODCASY, J.,

license: Public Domain

text:
    Pleiscott v. Schweitzer

      William F. Anzalone and Joseph J. Terraria, for plaintiffs.

      Joseph P. Lenahan and Frank T. Blasi, for defendant.

      James K. Thomas II, for additional defendant.
    December 5, 1989
   PODCASY, J.,

Before the court is the motion to amend answer and new matter filed by defendant, William E. Schweitzer.

Plaintiff initiated this action by complaint filed on July 26, 1988, seeking damages for injuries allegedly suffered by Lori Lee Pleiscott as a result of an automobile accident which Occurred on September 30, 1986.

The complaint alleges that defendant, a teacher and junior class advisor at Crestwood Area High School, was negligent in allowing plaintiff to consume alcoholic beverages while at a meeting in his home in Hazleton, Pennsylvania. .

The original defendant, William E. Schweitzer, filed a timely answer and new matter to plaintiffs’ complaint. On April 29,1989, defendant was granted leave to join Crestwood Area School District as an additional defendant, alleging that all activities on behalf of defendant were performed within his scope and capacity as a teacher and junior class advisor at the school district.

On July 7, 1989, original defendant filed a motion to amend asking this court for leave to amend his answer and new matter to raise the defense of municipal immunity under title 42 Pa.C.S. §8541 et seq., and particularly that he was within the scope of his employment as a teacher and junior class advisor at the Crestwood Area High School at the time of the meeting at his home.

Generally, Pa.R.C.P. 1033 governs the amendment of pleadings and provides as follows:

“A party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading. The amended pleading may aver transactions or occurrences which have happened before or after the filing of the original pleading, even though they give rise to a new cause of action or defense. An amendment may be made to conform the pleading to the evidence offered or admitted.”

It has long been the rule in this commonwealth that the decision to permit an amendment to pleadings is a matter of judicial discretion, Tanner v. Allstate Ins. Co., 321 Pa. Super. 132, 467 A.2d 1164 (1983), and that amendments to pleadings should be liberally allowed in order to secure a determination of cases on their merits, except in those instances where surprise or prejudice to the other party would result, or where the proposed amendment is against a positive rule of law. Posternack v. American Casualty Company of Reading, 421 Pa. 21, 218 A.2d 350 (1966); Tanner v. Allstate Ins. Co., supra; Gregg v. Gacon Construction Company, 249 Pa. Super. 377, 378 A.2d 344 (1977); Sands v. Forrest, 290 Pa. Super. 48, 434 A.2d 122 (1981); Puleo v. Broad Street Hospital, 267 Pa. Super. 581, 407 A.2d 394 (1979); Connor v. Allegheny General Hospital, 501 Pa. 306, 461 A.2d 600 (1983).

In developing a rule of law as to prejudice and surprise, our Supreme Court in Bata v. Central-Penn National Bank of Philadelphia, 448 Pa. 355, 293 A.2d 343 (1972), cert. denied 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973), stated:

“All amendments have this in common: they are offered later in time than the pleading which they seek to amend. If the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed. ...” Id. at 380, 293 A.2d at 357. (footnote omitted; emphasis in original)

In the present matter, defendant’s motion to amend was filed some 11 months after the original complaint was filed; however, the essence of the amendment was derivative of the investigation of the incident through the discovery process, including the deposition of defendant and answers to plaintiffs’ interrogatories. The proposed amendment is consistent with defendant’s action in filing a complaint against the additional defendant.

In their argument of timeliness and prejudice plaintiff relies heavily on Pugh v. Bankers Mutual Insurance Company of Adams County, 206 Pa. Super. 136, 211 A.2d 15 (1965). However, in Pugh, unlike in the instant matter, the trial proceedings had been initiated when the amendment was proposed. Consequently, the same would have required cessation of the trial until the new issues were clarified and defenses developed. Conversely, the record before us does not indicate that discovery has been completed, or the matter is prepared for certification.

Plaintiffs in our view do not show that they have suffered prejudice or surprise by any lapse of time in the preparation of the case. Nor is there any indication that they have been lulled into any inactivity in prosecuting their cause of action due to the defendant’s subsequent assertion of the immunity defense.

Equally, we do not find defendant’s assertion of municipal immunity to be against a positive rule of law. Pa.R.C.P. 1030 provides that immunity from suit is an affirmative defense to be raised in new matter.

Our immunity statute defines “employee” at 42 Pa.C.S. §8501 as follows:

“Any person who is acting or who has acted on behalf of a government unit whether on a permanent or temporary basis, whether compensated or not, and whether within or without the territorial boundaries of the governmental unit, including any volunteer fireman and any elected or appointed officer, member of a governing body or other person designated to act for the government unit.”

Section 8545 of the said statute provides:

“An employee of a local agency is liable for civil damages on account of any injury to a person or property caused by acts of the employee which are within the scope of his office or duties only to the same extent as his employing local agency and subject to the limitations imposed by this sub-chapter.”

In addition, our courts have recognized a broad perspective involving school district activity.

In Wilson v. Miladin, 123 Pa. Commw. 405, 553 A.2d 535 (1989), the court found a high school football player immune from liability for injuries sustained by a spectator because he acted under the statute as an employee of the district within his duties. The court, at 123 Pa. Commw. 405, 553 A.2d 537, stated:

“We recognize that a high school football player is not a school district’s ‘employee’ as that term is defined under standard usage. As can be seen, however, the statutory definition of employee is much broader. It extends immunity to those not normally considered ‘employees,’ includes those acting ‘on behalf of a government unit, and is not restricted to either permanent or paid personnel. In addition to examples of such persons, the legislature included a general classification, those ‘designated to act for the government unit.’. . .
“Having concluded above that Miladin was an ‘employee’ of Midland Area School District, we also conclude that his actions during the course of the football game entitled him to official immunity under section 8545, just as a football coach would be entitled to immunity for negligence occurring during the course of the game.” Wilson at 410, 553 A. 2d at 537.

Prior to Miladin, supra, in Brown v. Quaker Valley School District, 86 Pa. Commw. 496, 486 A.2d 526 (1984), the court held that a high school physical education teacher was entitled to immunity under section 8545, because his actions during a gymnastic instruction were within the scope of his official duties. While we are not by our decision suggesting that the original defendant is immune from suit within the scope of the judicial code, we cannot at this stage of the proceedings hold that said defendant’s proposed affirmative defense is against a rule of law on the subject of governmental immunity.

Rather, we find the amendment to be consistent with the policy of our courts in trying cases on the merits.

ORDER

It is hereby ordered, adjudged and decreed as follows:

(1) the motion of defendant, William E. Schweitzer, to amend answer and new matter is granted;

(2) defendant is granted leave of 25 days from the date of this order in which to file said amended answer and new matter; and

(3) the prothonotary is directed to mail notice of entry of this order to all counsel of record pursuant to Pa.R.C.P. 236.


author: SALMON, S.J.,

text:
    Richards v. The Mahoning Valley Country Club

      William E. McDonald, for plaintiffs.

      Daniel F. Zeigler, for defendants.

      November 6, 1989
   SALMON, S.J.,

specially presiding,

This action as above captioned is commenced by the filing of a petition which seeks to enjoin William Lilley from taking office as president of defendant non-profit corporation, hereinafter referred to as the club, and for other relief. An answer has been filed which shows the parties are in agreement as to most of the salient facts. In addition, counsel met with the court on September 14, 1989, and placed of record a stipulation which confirms their agreement as to most of the important facts. The crucial fact not stipulated, because not known with certainty in the absence of the club’s records, was the date when William Lilley became a member of the club.

Following the entry of that stipulation, this court entered a preliminary decree enjoining William Lilley from becoming president pending a hearing on October 23, 1989 and the further order of the court. Hearing was had on that date and the facts as to Mr. Lilley’s membership were established.

In accordance with Pa.R.J.A. 2156, this matter is heard in the Orphans’ Court.

The Mahoning Valley Country Club was organized under the Act of April 29, 1874, P.L. 73, as appears by an order of the Court of Common Pleas of Carbon County filed October 30, 1926, at No. 10 January term 1927, by Laird H. Barber, President Judge. Said Act of 1874 in section 1 authorized every corporation formed thereunder “to make bylaws not inconsistent with law, for the management of its property, the regulation of its affairs and the transfer of its stock.” As to non-profit corporations, the Act of 1874 was succeeded by the Non-Profit Corporation Law of 1933, P.L. 289. There have been various amendments and re-enactments since the Act of 1933 but in each instance the power to make bylaws has been retained in substantially the same language. At the time of the events here involved, the governing statute was the Act of 1972, P.L. 1063, section 7504, 15 Pa.C.S. §7504. There is no dispute as to the power of the membership of this corporation to adopt, amend and repeal bylaws.

The most recent re-enactment of the non-profit corporation statute is the Act of 1988, P.L. 1444, known as. the Corporation Not for Profit Code, effective October 1, 1989. We find nothing in the new code which might affect the outcome of our present problem. It was not yet in effect when the events here in issue took place and there are no provisions which would change our result even if it were effective.

While defendants do not question the power of the membership to control the bylaws, they do contend that, under Article XI and particularly under the last clause of section 2 which states “and the interpretation of these bylaws shall rest with the board of governors,” the board of governors had authority to rule that William Lilley was eligible to be elected. We do not agree.

At the conclusion of said hearing on October 23, including summations by counsel, we granted defense counsel’s request for leave to file a legal memorandum in support of his client’s position by October 27. We have not been favored with any such memorandum.

We think that, in the present posture of this case, with no dispute as to facts, and no ambiguity in the plain language of Article IV, section 3, of the bylaws hereinafter set forth, there is no need for “interpretation.” According to Black’s Law Dictionary, the definition of the word “interpretation” is: “A translation. The art of finding the true sense of any form of words or symbols.”

And Webster’s Seventh New Collegiate Dictionary defines that word as: “To explain the meaning of.”

The words of the bylaw are so clear that “he who runs may read” and no interpretation is needed to apply it to our present problem. If the language were unclear or ambiguous, we agree that the interpretation would be for the board of governors. What the board has undertaken to do here is not to “interpret” but to suspend or repeal the bylaw. This is a power which the membership has not surrendered to the board of governors under these bylaws.

The members who objected from the floor to the nomination of Mr. Lilley were acting properly, were clearly in order, and should have been heard and should have prevailed. The election of William Lilley cannot be permitted to stand in the face of the bylaws.

Decided cases in this area of the law are few, probably because such issues, especially in nonprofit corporations, are nearly always resolved within the structure of the organization, as they should be. In fact, when we had our in camera conference with counsel on September 13 and 14, we pointed out the devastating effect such litigation can have in an organization, especially a social one, and urged that a compromise be reached. Obviously, oiir view did not prevail.

Perhaps the closest case to the issue here is Commonwealth ex rel. Grabert v. Markey, 325 Pa. 433, 190 Atl. 892 (1937). The bylaw in issue there governed nomination rather than election. Shareholders voted for and elected two directors who had not been nominated in accordance with the bylaw, in fact had not been nominated at all. The Supreme Court held that the bylaw governed only nomination and not election, saying: “If it was intended that only those nominated as it provides should be eligible for election, it would have been easy to say so.”

In our present case, the bylaw deals clearly with qualification for election. We think our holding is in accord with the Supreme Court’s decision.

We have also considered Commonwealth ex rel. Laughlin v. Green, 351 Pa. 170, 40 A.2d 492 (1945), which cites the Grabert case with approval. There the bylaw again dealt with nomination, and a certain shareholder cumulated a large number of votes and cast them for himself although he was not nominated. The Supreme Court upheld his election holding that the bylaws did not explicitly say that only those nominated are eligible for election.

Again, we point out that the bylaw in our case explicitly provides that only those who have been members for three consecutive years, etc., may be elected to the board. We think our holding is in accord with this Supreme Court decision also.

From the testimony, from the stipulation of counsel and from the court records of Carbon County, we make the following

FINDINGS OF FACT

(1) Mahoning Valley Country Club was incorporated as a non-profit corporation by an, order of the President Judge of Carbon County entered October 30, 1926, at No. 10 January term 1927.

(2) The bylaws of the club were introduced in evidence without objection as plaintiffs’ exhibit 1 and were effective at all times here involved.

(3) Provisions of the bylaws which we find relevant to disposition of this case are:

“Article III”
“Section 1. The officers of the club shall be a president, vice-president, secretary, treasurer and six directors, all of whom shall constitute the board of governors. The immediate past president shall be a member of the board for one year following his presidency.
“Article IV”
“Section 1. The president, vice-president, secretary and treasurer shall be elected at each annual election meeting and shall serve one year or until their successors are chosen. These officers shall be eligible for re-election. Their term of office shall begin with the fiscal year of the club.
“Section 2. Two directors shall be elected at each annual meeting to serve for three years or until their successors are chosen. No director fulfilling a three-year term shall be eligible to succeed himself.
“Section 3. No member shall be elected to the board of governors unless he has been a member in good standing not less than three consecutive years and shall have served on at least one of the standing committees of the club.
“Article VIII”
“Section 8. Application for membership must be signed by the applicant on a form prescribed by the club, countersigned by two recommending members and be presented to the secretary, who shall deliver same to the membership committee and the board of governors. The dissenting vote of three of the board of governors shall be sufficient to reject the applicant. The rejected candidate shall not, within six months after rejection, be again proposed for membership. A second rejection shall be final. Candidates for membership in the club, who have been elected by the board of governors shall qualify as members by the payment of the entrance fees upon notice of their election. If membership is not accepted within 30 days, an election may be declared void.
“Article X”
“Section 1. The annual election meeting shall be held at the clubhouse on the fourth Wednesday of August at a time to be decided by the board of governors. Election of officers and directors shall be the principal purpose of this meeting.
“Section 2. The fiscal year shall be from October 1 to September 30.
“Article XI”
“Section 1. These bylaws may be amended by a majority vote of the members present at the annual or any special meeting of the club, provided that notice of the meeting and of the proposed amendment, or amendments, shall be posted on the bulletin board two weeks before the meeting and a copy of said amendment or amendments shall be mailed to each resident member at least two weeks before the meeting. Should discussion of the proposed amendment result in a general consensus to reword the amendment while retaining its general characteristics, such amendments may be made at the time of the meeting.
“Article XI”
“Section 2. The board of governors shall from time to time have power to make rules and regulations on matters not herein mentioned and the interpretations of these bylaws shall rest with the board of governors.”

(4) On August 23, 1989, the fourth Wednesday of the month, an election meeting was held as provided in the bylaws, Article X, section 1, as above quoted.

(5) At the election meeting, Daniel Zeigler, Esq., now counsel for the defendants herein, presided.

(6) There were two candidates for the office of president, Richard Clune and William Lilley.

(7) There was objection from the floor to the eligibility of William Lilley for the office of president and member of the board of governors on the ground he had not been a member for three years and was not eligible to the office under the bylaws.

(8) The chairman, Mr. Zeigler, ruled the objectors out of order and stated before this court that he did so because the board of governors had ruled Mr. Lilley eligible.

(9) The voting resulted in one more vote for William Lilley than for Richard Clune.

(10) Under the bylaws, the officers elected August 23 were to take office on October 1, 1989, as per Article X, section 2, and Article IV, section 1.

(11) On September 11,1989, this action was filed.

(12) William Lilley filed his application for membership in the club in September 1986 and it was acted upon favorably by the board of governors on October 8, 1986, and the said applicant was notified of his acceptance on October 22, 1986.

(13) William Lilley was sent a bill for entrance fee and dues for the period commencing November 1, 1986.

(14) Under Article VIII, section 8 of the bylaws, a newly elected member qualifies as a member when he or she pays the entrance fee upon notice of election to membership.

(15) The earliest date at which William Lilley could have qualified as a member would have been November 1, 1986.

(16) William Lilley could not have qualified under the bylaws to be a member for three years and thus eligible to be elected president and a member of the board of governors until November 1,1989, and was therefore not eligible when he was elected on August 23, 1989.

(17) Richard Clune was the only eligible candidate involved in the voting, received just one vote less than Mr. Lilley, and is therefore the duly elected president and member of the board of governors.

We reach the following

CONCLUSIONS OF LAW

(1) Plaintiffs’ exhibit 1, the printed bylaws in effect as of May 27, 1989, constituted the bylaws of Mahoning Valley Country Club at all times here involved.

(2) Article IV, section 3, establishing the prerequisite of three years’ membership in good standing for membership in the board of governors, is reasonable and valid.

(3) William Lilley was not qualified or eligible under the bylaws to be elected president and to the board of governors at the election held August 23, 1989.

(4) The election of William Lilley as president and to membership on the board of governors was illegal and void.

(5) Richard Clune, the sole other candidate for president and for membership on the board of governors, and who received one vote less than William Lilley, is the successful candidate for said positions and is entitled to assume those positions for the term commencing October 1, 1989 and until his successor is elected and installed.

(6) Article IV, section 3 required no “interpretation” in the circumstances existing at the election meeting, and the board of governors exceeded its authority in ruling, as expressed by the chairman of the meeting, that William Lilley was eligible for election to said offices.

(7) Richard Clune shall be promptly installed as president and member of the board of governors of said club.

An appropriate decree nisi shall be entered.

DECREE NISI

And now, November 6, 1989, it is ordered and decreed that the election of William Lilley on August 23, 1989, to the offices of president and member of the board of governors was illegal and void; and that Richard Clune was duly elected to said offices and shall be promptly installed therein.

Ten days after the filing hereof in the office of the prothonotary and clerk of Orphans’ Court, this decree nisi shall be entered as the final decree unless further proceedings have been timely taken under Pa.R.C.P. 227.1.


author: GATES, P.J.,

text:
    Nationwide Insurance Company v. Rigid Ply Rafters Inc.

      Cary W. Valyo, for plaintiff.

      Robert M. Frankhouser Jr., for defendant Rigid Ply Rafters Inc.

      Charles E. Wasilefski, for defendant Metropolitan Edison Company.
    September 15, 1989
   GATES, P.J.,

Plaintiff, Nationwide Insurance Company, is alleged to be the workmen’s compensation insurance carrier for Springfield Floor Covering, the employer of Eric E. Schnetzka. The complaint alleges that Schnetzka was injured on May 24, 1985 when a crane operated by an employee of defendant, Rigid Ply Rafters Inc., came in contact with a high voltage power line of defendant, Metropolitan Edison Company. Plaintiff claims it made payments to Schnetzka for his work loss and medical loss sustained as a result of the accident.

Plaintiff initiated this action by filing a praecipe for a writ of summons on February 13, 1987. Each of defendants was served by a deputy sheriff on February 17, 1987. In each instance service was made by handing a copy of the writ to a representative of defendants at their respective places of business.

Defendant, Metropolitan Edison, has filed preliminary objections to plaintiffs complaint. The first objection is that plaintiff has failed to state a cause of action or claim upon which relief can be granted. The second objection is that original service of process was improper.

Section 319 (77 P.S. §671) of the Pennsylvania Workmen’s Compensation Act provides the basis for a subrogation claim by a workmen’s compensation carrier. This section provides:

“Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employee, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer; reasonable attorney’s fees and other proper disbursements incurred in obtaining a recovery or in effecting a compromise settlement shall be prorated between the employer and employee, his personal representative, his estate or his dependents.” 77 P.S. §671.

Defendant argues that plaintiff cannot bring an action for subrogation against the third-party tortfeasors because the injured employee has foregone his right to pursue an action against the third-party tort-feasors. According to defendant, plaintiff is suing in its own right and not through the derivative rights of the injured employee. Defendant asserts that the right to subrogation only arises when a fund is developed as a result of action taken by the injured employee against the third-party tort-feasor.

In support of this position defendant cites passages from several cases. These passages state generally that an employer or an insurer may recover benefits it has paid to the employee, such recovery to be obtained from compensation recovered by the employee from the third-party. See Reliance Insurance Company v. Richmond Machine Company, 309 Pa. Super. 430, 455 A.2d 686 (1983); Moltz v. Sherwood Brothers Inc., 116 Pa. Super. 231, 176 Atl. 842 (1935). These cases also indicate the right of the insurer is derivative from the rights of the employee and the action must be brought on behalf of the employee.

Defendant goes on to cite a passage from Olin Corporation (Plastics Division) v. Workmen’s Compensation Appeal Board, 14 Pa. Commw. 603, 324 A.2d 813 (1974), stating the “rights of the employer are preconditioned upon ... a recovery against the third party or a compromise settlement by and between the employee and the third party.” Olin Corporation at 609, 324 A.2d at 817. The lack of a recovery or settlement was crucial in that case because the employer was seeking to avoid workers’ compensation liability. In .the case at hand plaintiff is not seeking to avoid workers’ compensation liability but is attempting to establish the liability of third-party tort-feasors to Schnetzka.

Finally, defendant cites Whirley Industries Inc. v. Segel, 316 Pa. Super. 75,462 A.2d 800 (1983), where it is stated that an “action against a third-party tortfeasor must be brought by the injured employee . . . the employee victim must sue.” Whirley Industries at 79, 462 A.2d at 802. Whirley, however, deals with an employer seeking recovery for its increased worker’s compensation insurance premiums from the third party rather than an action to establish the liability of the third party to the employee.

The proper procedure for an employer or insurer to enforce its subrogation rights is to proceed in an action brought on behalf of the injured employee to determine the liability of the third party to the employee. Reliance Insurance Company, supra A cursory look at plaintiffs complaint indicates plaintiff is seeking to establish the liability of defendants to Schnetzka, the injured employee. The action was brought on behalf of Schnetzka.

Reliance Insurance Company also provides that the applicable statute of limitations is that which would be applicable to an action by an employee against a third-party tort-feasor. Plaintiff initiated this action within two years after the accident, complying with the statute of limitations. The crux of Reliance Insurance Company is that a workers’ compensation insurance carrier may not seek indemnity or contribution from the third-party tortfeasor but is limited to a subrogation action. Clearly plaintiff is not seeking indemnity or contribution from defendants. Plaintiff has properly stated a cause of action against defendants.

Defendant’s second objection concerns the service of the reinstated complaint by mail on September 21, 1987. Defendant claims this was original process and service was improper under rule 402 of the Pennsylvania Rules of Civil Procedure. Original process in this case was by writ of summons. Service was made in compliance with rule 402 on February 17, 1987 when the deputy sheriff served the writ at defendant’s place of business. It was, therefore, proper to serve the complaint by mail as provided by rule 440 of the Pennsylvania Rules of Civil Procedure.

ORDER OF COURT

And now, September 15, 1989, for the reasons set forth in the accompanying opinion, the preliminary objections of defendant, Metropolitan Edison Company, are hereby denied.

       Passages in Moltz and Olin Corporation also support this manner of proceeding. “The employer’s right of subrogation must be worked out through an action brought in the name of the injured employee.” Moltz, 116 Pa. Super, at 234, 176 AtL at 843. “A subrogee must prove the negligence of the third-party tort-feasor.” Olin Corporation, 14 Pa. Commw. at 609, 324 A.2d at 816. Also “it seems to be optional where the carrier sues, (and the employee has not instituted an action), whether the carrier’s suit in such case would proceed in the name of the carrier itself or in the name of the employee.” Barbieri, Pa. Work. Comp. §5.46(1).


author: LEVIN, J.,

text:
    In re Millcreek Township Zoning Ordinance

      Norman H. Stark and John J. Mehler, for appellant Human Development of Erie Inc.

      Mark J. Murphy and Phyllis Chambers, for individual appellants.
    July 25, 1989
   LEVIN, J.,

Presently before the court is an appeal from the decision of the Millcreek Township Zoning Hearing Board upholding the validity of Millcreek Township Ordinance no. 87-24.

Ordinance 87-24 is an amendment to Millcreek Ordinance no. 2, which this court reviewed previously. In that related case, district justice criminal convictions against appellants Human Development and Lakeshore were reversed. In the opinion, the court held that the residents of each group home constituted a family under Pennsylvania law and thus the homes were permissible in areas zoned for residential use.

Upon review of the ordinance amendment (87-24) the Millcreek Township Planning Commission recommended that it not be adopted. Nonetheless, the Millcreek Township Board of Supervisors enacted ordinance 87-24 on December 14, 1987. A hearing on the appellants’ challenge to the validity of the ordinance was held on March 16, 1988, by the Millcreek Township Zoning Hearing Board. The board entered its adjudication upholding the ordinance on July 27, 1988.

The zoning appeal filed by Human Development of Erie Inc. was consolidated with the appeal brought on behalf of 11 citizens of Millcreek Township, who are mentally retarded and reside in three community living arrangements. Lakeshore Community Services later intervened as a party appellant. Finally, the Township of Millcreek intervened as an interested party, joining in the argument of appellee the zoning hearing board of Millcreek Township.

In challenging the decision of the zoning hearing board, appellants argue that the ordinance is substantively invalid under an equal protection analysis, that it contravenes the public policy of this commonwealth and that it violates the federal Fair Housing Act.

This court took no additional evidence in the instant case. As such, the scope of review is to determine whether the Millcreek Township Zoning Hearing Board abused its discretion and/or committed an error of law in upholding the validity of the ordinance. Konover & Associates v. Zoning Board of Adjustment, City of Philadelphia, 89 Pa. Commw. 396, 492 A.2d 802 (1985).

This court adopts the findings of fact set forth in the board’s adjudication with an important caveat. A number of the residual findings of fact improperly contain legal conclusions. This court is not bound by interpretations of law made by the zoning board and as such, does not accept the following findings in subsection P, “Residual Findings of Fact,”: nos. 3 through 5, 9 through 12, 13, 16 through 22, 24 through 26. However, the court does accept all other findings of fact made by the board. Those findings of fact have been made a part of the record and are incorporated herein by reference.

As defined, ordinance 87-24 excludes from residential districts group homes for dependent children, the mentally retarded, the physically handicapped and those over age 62. Group homes are permitted only in “B” Business Districts and may be located in “A” Business Districts by special exception. Restrictions on lot size, access, and distance between similar facilities are imposed under the special exception. In essence, appellants are challenging the validity of the ordinance because it excludes all group homes from single-family residential zones.

The court is well aware that the “rational basis” standard must be applied in examining the instant ordinance under an equal protection analysis. In City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 105 S.Ct. 3249, 87 L.Ed.2d 313 (1985), the U.S. Supreme Court held that mental retardation is not a suspect/quasi-suspect classification in need of heightened judicial scrutiny. Nonetheless, on equal protection grounds, the court invalidated the Texas zoning ordinance as not being rationally related to a legitimate governmental purpose. The ordinance in Cleburne required operators of group homes for the mentally retarded to obtain a “special-use permit” to operate in districts where other care facilities were freely permitted.

Admittedly, the Cleburne case is not on all fours with the facts of the instant case. However, the court in Cleburne indicated a willingness to make a more detailed inquiry into governmental interests in certain minimum scrutiny cases than would normally be warranted. In fact, Cleburne has been heralded as introducing a “rationality with bite” test for certain classifications.

In order to prove an equal protection violation, a party must show that applying the statute to all persons within a given classification would not, on the whole, serve a legitimate state interest.

In the case at bar, the classification includes the mentally retarded, dependent children, the physically handicapped and those over age 62. The government purposes set forth in the record supposedly relate to the welfare and safety of putative group home residents and include the following: greater access to public transportation, restaurants, supermarkets, department stores, drug stores, employment opportunities, police/fire protection and other community facilities. However, there is no evidence in the record to indicate that persons with mental or physical disabilities need greater access to these facilities than persons of average abilities. In fact, the board expressly found that the appellants/ residents are able to shop, attend religious services, visit friends and take walks throughout Millcreek Township and beyond. To the contrary, the board failed to take into consideration the advantages of living in group homes in residential zones.

The instant ordinance does not affect other unrelated persons living in a small group in the same way that it affects the mentally retarded. For example, a group of five single, unrelated women would be permitted to live together as a single housekeeping unit in one home within a Millcreek Township residential zone. Yet the same number of mentally retarded or physically disabled or aged persons are precluded from living in a residential neighborhood pursuant to ordinance 87-24. The only difference between these group homes would be the fact that members of the latter require some level of personal care and assistance. This is an invalid distinction and the adjudication compiled by the MiUcreek Township Zoning Hearing Board is devoid of any legitimate governmental end to be attained by placing smaU group homes in areas zoned only for business.

Our government, which obviously includes our judicial system, has an obligation to see that handicapped persons are treated equally with all others. Failure to do so in fact would, constitute failure of the government itself. This court finds it necessary to point out the simple fact that if the government has no interest in denying a benefit to a group of persons other than a societal fear or disHke of the group (as may indeed be the case here), the law wiU be invaUd, even under the minimal scrutiny test.

It is necessary in this case to address the type of homes which are being excluded from residential zones by virtue of the ordinance. In order to vaUdly exercise their authority, local zoning bodies should be less concerned with compositional characteristics or membership of group homes than with the manner in which they function. As wiU be discussed in greater detail below, the instant type of group home inherently functions as a single housekeeping unit, not as an institution. Consequently, access should be granted into residential zones.

Although composed of persons not legaUy related to one another, the homes have quahti.es of stabiUty and structure simüar to that of a family. The township cannot be permitted to avoid the legal definition of “famUy” by enacting an ordinance which excludes group homes for the mentally disabled from residential areas by classifying them as “institutions” without justification.

The findings of the board strongly support the fact that the individual group homes are, to all outward appearances, stable family units. The board found, inter alia:

— There are no signs on the outside of the house indicating the nature of the activities conducted.

— There are no more than two cars parked at the house at anytime during the usual week’s activity.

— No unusual activities take place at the house which would not be customary for other single-family residences in the neighborhood.

The board adjudication also goes into great detail describing the internal structure of the homes, again much akin to those activities of a natural family. Based on common sense, in addition to the board’s findings of fact, the only logical conclusion is that the homes are not institutions.

Amidst a myriad of cases dealing with such group homes, no court has held them to be businesses or institutions. See In re Appeal of Miller, 511 Pa. 631, 515 A.2d 904 (1986). The board in this case incorrectly made a legal conclusion that the group homes are institutions. Innocuous as ordinance 87-24 may seem on its face, it cannot be upheld where its effect is to circumvent the definition of “family” as this court and a number of appellate court cases have found.

Group homes of this type do not conflict with the character of a residential neighborhood. In fact, the purpose of the group home is to be quite the opposite of an institution. It is designed specifically to be a home like other homes. The benefits the group home residents derive from living in a residential area are great.

Hence, zoning ordinance 87-24 violates the equal protection clause of the 14th Amendment because the township has no legitimate interest in prohibiting a group of five or fewer mentally retarded persons, aged persons, dependent children or physically handicapped persons from living together in a single, family-like setting in a residential neighborhood.

In addition, the policy of this commonwealth favors deinstitutionalization of the mentally handicapped. It further supports local community treatment of the mentally handicapped as opposed to regional or institutional care. The Pennsylvania General Assembly has specifically enunciated this statewide policy in adopting Senate Resolution 42 as excerpted in part below:

“Whereas, it is public policy in Pennsylvania that people who are developmental^ disabled, mentally retarded, mentally ill, physically disabled, elderly, and children shall enjoy the benefits of community residential surroundings; and
“Whereas, such citizens who are unable to live independently without special care and supervision generally achieve higher functioning levels when living in home-like settings in the community rather than large institutions; and
. “Whereas, small, community living arrangements have been recognized in Commonwealth Court and other court decisions as being the functional equivalent of biological families; and
“Whereas, it is primarily the responsibility of municipalities through their zoning powers to permit the establishment of small, community residential facilities in all residential zones; therefore, be it
“Resolved (the House of Representatives concurring), that the General Assembly reaffirm the policy that people who are developmentally disabled, mentally retarded, mentally ill, physically disabled, elderly, and children shall enjoy the benefits of community residential surroundings; and be it further
“Resolved, that all municipalities throughout this commonwealth are urged to review their zoning ordinances to assure that they facilitate the achievement of this policy.” S.R. 42, 1985 Legislative Journal — Senate 1346 (1985), 1986 Legislative Journal — House 94 (1986). (emphasis supplied)

This court takes judicial notice of Senate Resolution 42 in its entirety.

Appellees argue that no Pennsylvania statute directly pre-empts local ordinances which bar the establishment of group homes in residential neighborhoods. However, as referred to above, our state policy does manifest an intent to disperse group homes throughout residential areas and therefore impliedly pre-empts local control in some instances. As such, the ordinance at issue, while not in direct conflict with any Pennsylvania statute, is nonetheless contrary to a clear policy of the commonwealth.

The court must also consider the applicability of the federal Fair Housing Amendments Act of 1988 to the instant case. The 1988 amendments to the Fair Housing Act (codified at 42 U.S.C. § §3601-3616) make denial of housing on the basis of an individual’s handicap illegal. These new provisions address the serious shortage of non-institutional accessible housing available to those with disabilities. The amended act is set forth in relevant part below:

“§3604. Discrimination in the sale or rental of housing and other prohibited practices
“As made applicable by section 3606 of this title and except as exempted by sections 3603(b) and 3607 of this title, it shall be unlawful —
“(f)(1) To discriminate in the sale or rental, or to otherwise make unavailable or deny, a dwelling to any buyer or renter because of a handicap of —
“(a) that buyer or renter;
“(b) a person residing in or intending to reside in that dwelling after it is so sold, rented, or made available; or
“(c) any person associated with that buyer or renter.” 42 U.S.C. §3604. (emphasis supplied)

The FHAA broadly defines “handicap” as follows:

“§3602. Definitions
“As used in this subchapter —
“(h) ‘Handicap’ means, with respect to a person—
“(1) a physical or mental impairment which substantially limits one or more of such person’s major life activities,
“(2) a record of having such an impairment, or
“(3) being regarded as having such an impairment ...” 42 U.S.C. §3602.

This expansive definition extends protection against housing discrimination to a wide range of persons, including those who have been affected by ordinance 87-24 in the case at bar.

The act does not apply solely to discrimination in the private sale or rental of housing. In fact, under federal case law, governmental entities in the housing situation are subject to a stricter standard for facially neutral zoning decisions which have discriminatory effects. See, e.g., Resident Advisory Board v. Rizzo, 564 F.2d 126 (3d Cir. 1977), cert. denied, 435 U.S. 908 (1978); Arlington Heights II, 558 F.2d 1283 (7th Cir. 1977); United States v. City of Black Jack, 508 F.2d 1179 (8th Cir. 1974), cert. denied, 422 U.S. 1042 (1975).

In construing a statute, the court is like an interpreter:

“The interpreter must uncover, from among the spectrum of linguistic possibilities, that meaning which will accomplish the purpose of the statute. ‘The statute is an instrument for executing a legislative goal, and therefore it must be interpreted according to the purpose it embodies.’ ‘The judge, when he comes to interpret the statute, should ask himself: what normative social goal does this statute seek to attain?’ Indeed, it is an established rule of interpretation in most systems that a statute is to be interpreted in light of its legislative purpose and with a view to effecting its accomplishment.” Barak, Aharon, Judicial Discretion, p. 61, Yale Univ. Press (1987). (footnotes omitted)

Thus, legislative history plays a significant role in determining the applicability of the FHAA to the Millcreek Ordinance sub judice.

The legislative history of the 1988 amendment undeniably indicates that local zoning ordinances are affected thereby:

“While state and local governments have authority to protect safety and health, and to regulate use of land, that authority has sometimes been used to restrict the ability of individuals with handicaps to live in communities. This has been accomplished by such means as the enactment or imposition of health, safety or land-use requirements on congregate living arrangements among non-related persons with disabilities. Since these requirements are not imposed on families and groups of similar size of unrelated people, these requirements have the effect of discriminating against people with disabilities. The committee intends that the prohibition against discrimination against those with handicaps apply to zoning decisions and practices. The act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special-use permits that have the effect of limiting the ability of such individuals to live in the residence of their choice in the community.” Report, House Committee on the Judiciary, H.R. 1158, p. 24, June 17, 1988. (emphasis supplied)

The FHAA was signed September 13, 1988, and became effective March 12, 1989. It is the appellees’ contention that the FHAA has no applicability to this case as the issue was not raised before the Millcreek Board at the time of hearing. The U.S. Supreme Court has generallly addressed the retro-activity issue stating that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is a statutory direction or legislative history to the contrary. Bradley v. School Board of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed. 2d 476 (1974). The court believes that the FHAA is properly before it at this time. Obviously, any governmental body is bound by federal legislation. Since the FHAA is now the law in effect, the ordinance must be reviewed in that context. By applying the FHAA, no manifest injustice would occur. In fact, by invalidating this amended ordinance, the underlying ordinance (ordinance no. 2) is in compliance with federal law, and duplicative litigation can be avoided. This saves ' the appellees both time and money and places no burden on them. Finally, there is no statutory/ legislative history to the contrary. The court notes that the effect of ordinance 87-24 is a continuing violation of federal law. As such, there is no problem with retroactive application of the FHAA in this case.

Defendants also question the relevance of the Fair Housing Act here because appellants failed to initially exhaust their administrative right to relief. This argument is misplaced. While a party may follow the complaint procedure with HUD prior to instituting a civil action under 42 U.S.C. §3610, exhaustion of remedies is not a prerequisite to bringing a civil action under 42 U.S.C. §3612.

This court must look to federal law for guidance. As set forth in this opinion, it has been found that ordinance 87-24 violates the appellants’ right to equal protection of the law. This indicates both discriminatory intent and effect exist. Millcreek Zoning Ordinance 87-24 appears to be in violation of the FHAA as it denies the handicapped non-institutional housing in small group homes within areas zoned for residential use. By upholding the validity of the ordinance, the board has violated federal law.

In conclusion, this court is most mindful of the judicial restraint imposed on trial courts not to substitute their personal beliefs or opinions for the rules set forth in appellate decisions of our commonwealth. Also, the court fully realizes it cannot and must not become a super-zoning body. The court has in the past willingly respected this limitation and will continue to do so in the future. It has done so in previous decisions even though the court might not have agreed with the decision of the zoning board. Yet these constraints were never meant to prevent a court from acting where there has been discrimination against a claimant. In this case, as stated earlier, the court finds that the ordinance cannot be upheld based on equal protection, public policy and the federal Fair Housing Act.

ORDER

And now, July 25, 1989, it is hereby ordered, adjudged and decreed that Millcreek Township Zoning Ordinance no. 87-24 is invalid and unenforceable to the extent that it excludes small group homes for dependent children, the mentally retarded, the physically handicapped, and those over age 62 from residential zoning districts within the township. It is further ordered that the adjudication of the Millcreek Township Zoning Hearing Board is reversed. Appellants’ request for attorney fees and costs is denied.

      . The primary difficulty the court has with the board’s residual findings is that they label the group homes as “institutions” with no valid factual or legal basis to be found in the adjudication.

        . Interestingly, in the proceedings below, the Fifth Circuit found an equal protection violation in the city’s denial of a permit while the U.S. Supreme Court found fault with the legislative mandate requiring a permit in the first place.

      . In ruling on the many aspects of this case, this court is reminded of a statement made by the famous late New York jurist Justice Learned Hand:
      “What is this liberty which must lie in the hearts of men and women? It is not the ruthless and unbridled will; it is not freedom to do as one likes. That is the denial of liberty and leads straight to its overthrow. A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few, as we have learned to our sorrow. What then is the spirit'of liberty? I cannot define it; I can only tell you my own faith. The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interest alongside its own, without bias; the spirit of liberty remembers that not even a sparrow falls unheeded.” (emphasis supplied)

      . Although a concurrent resolution is neither a bill nor a statute, it is nonetheless a formal expression of opinion of the Pennsylvania legislature, adopted by vote. Scudder v. Smith, 331 Pa. 165, 200 Atl. 601 (1938). It is quite ironic to note that Millcreek Township has opted, by way of its zoning powers, to ban from residential areas all small group homes that benefit the exact same classes of people to whom Senate Resolution 42 is directed, namely the developmentally disabled, mentally retarded, mentally ill, physically disabled, elderly and children.

      . The court takes judicial notice of the legislative history cited, supra.


author: ROSS, J.,

text:
    Henning Estate

      Michael P. Schaefer, for contestant.

      Edward J. Greene, for beneficiary-proponent.

      James P. Lochner, for trustee.
    September 14, 1989
   ROSS, J.,

CarlC. Henning died in October 1986. Audrey Popovich, who contests the validity of an amendment made April 9, 1986, to the inter vivos trust created on September 25, 1984, by Carl C. Henning, has moved to compel the production of a memorandum dated September 13, 1988, written by an attorney, a legal officer of Pittsburgh National Bank, to a trust officer of the bank. Pittsburgh National Bank is the trustee of the trust the amendment to which is now under attack by Popovich.

The memorandum recites only the basic facts given above and goes on to express a legal opinion as to the merits of certain defenses to the contest, the viability of the Popovich attack and- proper procedures to be followed by the bank.

The document has been made available to Láveme Abel, a beneficiary-proponent of the trust as amended, and her counsel by the trustee. Láveme Abel is defending the challenge to the trust as amended.

Pa.R.C.P. 4003.3 provides:

“Subject to the provisions of rules 4003.4 and 4003.5 [relating to trial preparation materials and expert testimony] a party may obtain discovery of any matter discoverable under rule 4003.1 [non-privileged, relevant materials] even though prepared in anticipation of litigation or trial by or for another party or by or for that party’s representative, including his attorney ... or agent. The discovery shall not include disclosure of . . . [a party’s attorney’s] conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his . . . conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.”

Is the trustee here a party or a representative of a party for purposes of the rule?

A trustee has broad powers in matters involving the validity of the document from which it derives its powers and a positive duty to defend the document: Restatement (Second) of Trusts, §178. A trustee has a different duty from that of an executor. An executor is only a stakeholder in a will contest and, although he is a necessary party to be joined, he may not appeal from a refusal by the register to probate the testamentary document appointing him: Probate, Estates and Fiduciaries Code of June 30, 1972, P.L. 508, §908, 20 Pa.C.S. §908. A trustee, on the other hand, since he has a positive duty to defend the trust, may under the same statutory section actively participate in an appeal from any decree of the register adversely affecting the trust. The statutory section and the case law recognize that a trustee must defend the trust from attack: Probate, Estates and Fiduciaries Code of June 30, 1972, supra, §908, 20 Pa.C.S. §908; Martin Estate, 349 Pa. 255, 260, 36 A.2d 786, 788 (1944); Ryan Trust, 2 Pa. Fiduc.2d 61, 64 (1979).

If an executor becomes embroiled in a will contest, in the absence of the testator’s requirement that he defend the will, he may not look to the estate for fees and costs incurred in the contest while a trustee may: Bennett Estate, 366 Pa. 232, 77 A.2d 607 (1961); Martin’s Estate, supra at 260, 36 A.2d at 788.

At any event, the trustee here is a party and also is a representative, as trustee, of Láveme Abel, a party-beneficiary actively defending the trust. Therefore, the legal opinion of the trustee’s counsel concerning the validity of the contest, defenses and proper procedures to be followed by the trustee is an opinion “respecting the value or merit of claim or defenses or respecting strategy or tactics” prepared by an attorney for a party. (It also is an opinion prepared by counsel for the trustee of another party.)

Counsel for the petitioner argues, since the rule says that certain matters are discoverable even though prepared “in anticipation of litigation or trial by or for another party” or his representative, that the exception for opinions of counsel cannot apply because the document here sought was prepared prior to a pending lawsuit. But this agreement belies the plain meaning of the words of the rule. “Anticipation of litigation” means in “expectation of’ or “looking forward” to litigation and would include the situation where no lawsuit was filed: Equitable Gas Company v. Walbrook Insurance Company, no. G.D. 05108 of 1982 (Allegheny County, 1984); Little v. Allstate Insurance Company, no. G.D. 20421 of 1979 (Allegheny County, 1980).

Popovich argues that, since the bank at deposition only raised a general attorney-client privilege objection, it may not now raise the work-product objection under Pa.R.C.P. 4016. At argument before the court, the bank contended that its general objection included the work-product exclusion. It further argued that by refusing to produce the document at deposition, the same broad-based objection was made.

Pa.R.C.P. 4016(b) provides for waiver of objections to the competency of testimony by a witness if timely objection on grounds known to the objector was not made at deposition. Other kinds of waiver relate to failure to obj ect to errors in notice (Pa. R. C. P. 4026(d)); failure to object to errors of procedure (Pa.R.C.P. 4016(c)); failure to object to the competency of a witness (Pa.R.C.P. 4016(b)); or failure to object to the disqualification of the person before whom the deposition is taken (Pa.R.C.P. 4016(a)).

None of these situations is before the court now. No one failed to object to the competency of a witness or his testimony or to errors of procedure or notice. If a document was asked for at the deposition but not produced, the right to object later to its production is not one waived under the rule. Thus, whether or not the bank or Láveme Abel failed to object to the production of a document at deposition, there has been no waiver of the right to object to the petition for production.

Counsel for Popovich argues, even though the bank may be a party protected by Pa.R.C.P. 4003.3 from having to disclose its counsel’s opinions concerning the validity of the trust contest, defenses thereto and tactics, that the bank has waived its privilege by revealing the contents of the memorandum of its counsel to Láveme Abel and her lawyer.

It must be noted that the bank wears two hats in this matter. It is not only a party defending an attack on the trust. It is also the trustee of the other party defending the trust, Láveme Abel.

Pa.R.C.P. 4003.3 is broad in scope. It permits discovery of materials prepared for a party or for his agent, attorney, consultant, surety, insurer or indemnitor. Although these entities may have a similar interest as the party, it is not required that the interest be identical. An insurer may have a similar interest as the insured but its liability is based upon contract as well as upon the wrong-doing of the insured. The rule extends the protection from discovery of opinions concerning the validity of a claim or defense or respecting strategy or tactics to the representative of a party as well as to a party. If a representative of a party, such as an insurer, is protected, it logically follows that a co-defendant-party-representative is also protected.

Pittsburgh National Bank, a trustee defending the trust, has an interest in the trust not identical with that of the beneficiary party. Both derive their differing trust rights from the trust. However, they have a common and identical interest in defense of the suit as do insurer and insured whose liability is based upon differing grounds.

The sharing of an opinion drafted by counsel for the bank with the other party in defense of the trust cannot be a waiver of the right not to disclose the contents of the memorandum since it was prepared as a matter of common defense. The bank and Mrs. Abel have similar positions vis-a-vis the litigation now going on. Both prepared the witness for the deposition and utilized the memorandum in so doing. The sharing of the work product of counsel for one respondent with counsel for another respondent, whose interests in defending the trust amendment are identical, although their interests in the trust are not identical, will not render available for discovery a document which otherwise would be shielded under Pa.R.C.P. 4003.3.

The petition will be denied.

ORDER OF COURT

And now, September 14, 1989, after consideration of the written and/or oral arguments of counsel for Pittsburgh National Bank, trustee, for Láveme Abel, beneficiary-proponent, and Audrey Popovich, contestant, concerning the petition by Audrey Popovich seeking to compel production of a memorandum dated September 13, 1988, prepared by counsel for Pittsburgh National bank for a member of the bank’s trust department, it is ordered, adjudged and decreed that the prayer of the petition is hereby denied.

      . The objection to the trust amendment was made orally and by the filing of written objections by Popovich. This is proper procedure since the validity of the amendment raises a question of proper distribution: Martin Estate, 349 Pa. 255, 260, 36 A.2d 786, 788 (1944).

      . A recent case, refusing counsel fees and costs to a trustee, held that the trustee must be passive in defending the trust if his position is identical to that of one of the parties, but that case is contrary to section 908 of the Probate, Estates and Fiduciaries Code of June 30, 1972, supra, 20 Pa.C.S. §908, and the duty placed on all trustees to defend the trust: Restatement of Trusts, supra, §178. A better decision might have restricted costs and fees payable to a total of one reasonable fee.


author: WETTICK, A.J.,

text:
    McAndrew v. Hicks

      Annie Pennock Kaplan, for plaintiffs.

      Scott A. Millhouse, for defendant Charles Hicks.
    October 23, 1989
   WETTICK, A.J.,

Plaintiff-husband was injured when he was struck by a truck. He received medical treatment for his injuries. These injuries were aggravated by this treatment.

In this lawsuit, plaintiffs have sued only those persons whose negligence allegedly caused the accident (original tort-feasors). Plaintiffs’ claim against the original tort-feasors includes damages for those injuries attributable to the negligent medical care — plaintiffs have not restricted their claim against the original tort-feasors to only those injuries that plaintiff-husband would have sustained if he had received proper medical care.

Plaintiffs have instituted a second lawsuit at G.D. 88-11804 against the physician who treated plaintiff-husband for his injuries and the hospital at which he was treated (medical defendants). In this medical malpractice action, plaintiffs seek only the damages sustained from the additional harm attributable to the negligence of the medical defendants. Plaintiffs do not seek to recover from these defendants any damages for injuries that plaintiff-husband would have sustained from the accident if he had received proper medical care.

One of the original tort-feasors seeks to join the medical defendants as additional defendants in the present action. Plaintiffs oppose on the ground that the proposed joinder is outside the scope of Pa.R.C.P. 2252(a). This rule permits a defendant to join the following persons as additional defendants:

“[A]ny person whether or not a party to the action who may be alone liable or liable over to him on the cause of action declared upon by the plaintiff or jointly or severally liable thereon with him, or who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiff’s cause of action is based.”

In order to decide whether the joinder of the medical defendants is within the scope of rule 2252(a), we must first determine what claims, if any, the law permits the original tort-feasors to raise against the medical defendants.

Plaintiffs suggest that there is no relationship between the original tort-feasors and the medical defendants. The acts of negligence of these two groups are unrelated in time and nature. Also, these separate acts of negligence caused separate injuries — they did not unite in causing a single injury. Plaintiffs’ argument would have substantial merit if plaintiffs were restricting their claims against the original tort-feasors to only those injuries that plaintiff-husband would have sustained if he had received proper medical care.However, in their claim against the original tort-feasors, plaintiffs chose to include the additional harm sustained from the alleged medical malpractice in the treatment of the injuries sustained from the accident. Plaintiffs are permitted to do so under case law holding that the liability of the original tort-feasor extends to any additional harm caused by negligent medical treatment necessitated by the original negligent conduct. Boggavarapu v. Ponist, 518 Pa. 162, 542 A.2d 516 (1988); Smialek v. Chrysler Motors Corp., 290 Pa. Super. 496, 434 A.2d 1253 (1981); and Embrey v. Borough of West Mifflin, 257 Pa. Super. 168, 390 A.2d 765 (1978).

While the original tort-feasor’s liability to the injured party extends to the additional harm caused by the negligent medical treatment necessitated by the original negligent conduct, the law permits the original tort-feasor who assumes responsibility for payment of all damages that the injured party sustained to recover those damages attributable to improper medical care from the negligent medical providers. See Boggavarapu v. Ponist, supra.

The issue of the relationship between the original tort-feasors and the medical defendants was first considered in Embrey v. Borough of West Mifflin, supra. In that case, plaintiffs separate lawsuits' against the original tort-feasors and the medical defendants were consolidated for trial. The jury concluded that the original tort-feasors were responsible only for the minimal damages that the deceased had sustained prior to his death and that the medical defendants were responsible for the remaining damages arising out of the death of the accident victim. The jury’s finding was based on the instructions of the trial judge that damages between the original tort-feasors and the medical defendants were to be apportioned on the basis of the harm that each defendant caused plaintiff, provided that the harm was capable of being apportioned. The Embrey opinion held that these jury instructions were a proper statement of the law.

In Smialek v. Chrysler Motors Corp:, supra, plaintiff sued the manufacturer whose defective product allegedly caused the accident and the physician and hospital that failed to provide proper treatment. The jury entered an award against the hospital. On appeal, the hospital contended that the lower court erred in instructing the jury that damages could be apportioned between the other defendants and the hospital. The Superior Court rejected this contention. It reaffirmed the holding in Embrey v. Borough of West Mifflin that “ ‘to the extent that the acts of the original tort-feasor and those of the physician are capable of separation, the damages should be apportioned accordingly.’ ” Smialek at 507, 434 A.2d at 1259, quoting Lasprogata v. Qualls, 263 Pa. Super. 174, 397 A.2d 803 (1979).

Since plaintiffs’ claim against the original tortfeasors in the present case includes the damages attributable to the additional harm- caused by the negligent medical treatment, the original tortfeasors are entitled to raise a claim against the medical defendants for the portion of any damage award against the original tort-feasors that is attributable to the additional harm caused by the negligent medical treatment. The original tort-feasors may raise this claim through the joinder of the medical defendants as additional defendants under rule 2252(a). This rule permits a defendant to join as an additional defendant any person “who may be liable to the joining party on any cause of action which he may have against the joined party arising out of the transaction or occurrence or series of transactions or occurrences upon which the plaintiffs cause of action is based.” The original tortfeasors’ cause of action for apportionment against the medical defendants arises out of the same series of transactions or occurrences upon which plaintiffs’ cause of action is based because plaintiffs’ claim against the original tort-feasors includes the additional harm caused by the negligent medical treatment.

Plaintiffs have cited a series of cases which hold that original tort-feasors who have settled their claims with the injured party may not be joined as additional defendants in a lawsuit by the injured party against the medical defendants for the additional harm caused by the negligent treatment of the injuries which the original tort-feasors caused. See Harka v. Nabati, 337 Pa. Super. 617, 487 A.2d 432 (1985); Voyles v. Corwin, 295 Pa. Super. 126, 441 A.2d 381 (1982); and Lasprogata v. Qualls, supra. The basis for this case law is that since the plaintiffs did not release the medical defendants from liability in their settlement agreement with the original tort-feasors, the settlement agreement covered only the harm which the original tort-feasors caused. Consequently, the medical defendants are still liable to the plaintiffs for any additional harm that they caused. But the original tort-feasors have no place in this lawsuit against the medical defendants for the additional harm caused by the medical defendants because the original tort-feasors are not liable to the medical defendants for any of the harm that the medical defendants caused.

This case law is not inconsistent with the holdings of the Superior Court in Embrey v. Borough of West Mifflin, supra, and Smialek v. Chrysler Motors Corp., supra, that damages between the original tort-feasor and the medical defendants shall be apportioned on the. basis of the harm that each caused the plaintiff. In fact, it was the Embrey court’s characterization of the acts of negligence of the original tort-feasors and the negligent medical providers as separate acts causing separate injuries that served as the basis for the case law holding that the original tort-feasors who settled with the plaintiffs could not be joined by the medical defendants because they were separate tort-feasors liable for distinct injuries rather than joint, tort-feasors, responsible for a single injury. Also see, Corbett v. Weisband, 380 Pa. Super. 292, 551 A.2d 1059 (1988).

For these reasons, we enter the following

ORDER OF COURT

On this October 23, 1989, it is hereby ordered that defendant Charles Hicks’ motion to join additional defendants is granted.

       If the plaintiffs had released the medical defendants, the settlement amount would have included any additional harm that the negligent medical treatment caused. Consequently, the original tort-feasors could sue the medical defendants to recover the portion of the settlement amount attributable to the additional harm which they caused.