author: DORNEY, J.,

text:
    Clark v. Clark

      John C. Herrold, for plaintiff.

      Robert Glessner, for defendant.
    January 4, 1991
   DORNEY, J.,

This matter is before the court on a petition to stay plaintiff’s proposed depositions, filed by defendant, Clifford W. Clark (hereinafter referred to as husband). Plaintiff is Ann L. Clark (hereinafter referred to as wife). Husband, in his petition, contests the scheduled depositions of Gary R. Clark, his brother, and Richard F. Schin, the vice-president of York Federal Savings and Loan in charge of customer service. A brief background statement is in order.

On March 17, 1989, wife filed a complaint for divorce. On August 14, 1989, wife caused subpoenas to be served upon Richard Schin and Gary R. Clark requesting their presence at a deposition to be held on September 13, 1989, at 10 a.m. On August 24, 1989, husband petitioned the court to stay wife’s proposed depositions. The court entered an order staying the depositions until further order of court and providing a rule returnable within 20 days of service. Wife filed a response to petition to stay plaintiff’s proposed depositions, and memorandum in support of allowance of depositions on September 7, 1989. Husband filed a memorandum in opposition to allowance of depositions on September 15, 1989.

Initially, there was some question as to whether Pa.R.C.P. 1920.22 or 23 Pa.C.S. §403(b.l), dealing with depositions in divorce cases, should apply. However, both parties agree that Pa.R.C.P. 1920.22 is the applicable rule in this case and, due to the Pennsylvania Supreme Court’s suspension of 23 Pa.C.S. §403(b.l), this court agrees. Thus, the issue herein is whether the circumstances of this case warrant the issuance of a special order of court to obtain the depositions of Gary R. Clark and Richard Schin.

Husband argues that this court should deny wife’s request for oral depositions because the real purpose of wife’s request is to harass husband, interfere with his business relations and maliciously force him into settlement with her. Husband further argues that such depositions may have a devastating effect on his business relations and that a special order directing depositions is not necessary in this case.

Husband claims that he is near bankruptcy, yet refuses to give wife any information about his business. Wife claims that her request for depositions is not for purposes of harassment, but to obtain pertinent information about her husband’s business dealings and economic condition. Wife made a motion for request for production of documents on June 23, 1989, and contends that husband has refused to respond.

Discovery under the Divorce Code is governed by Pa.R.C.P. 1920.22, which provides as follows:

“Except as provided by subdivision (b), there shall be no discovery in an action of divorce or for annulment or a claim which has been joined as permitted under the Divorce Code unless authorized by special order of court.”

Subdivision (b) permits the filing of interrogatories regarding economic matters as of course. To apply this rule to the instant case, we look to case law for explanation as to when a special order for discovexy should issue. In Miller v. Miller, 31 Chester L. Rep. 509 (1983), the court sought to explain why discovery in divorce cases requires prior review by the court when discovery in civil cases has no such requirement. The court maintained that, “the most sensible explanation of the difference in approach in divorce cases is that the drafters of the rules wanted to prevent one spouse from harassing the other during the course of divorce proceedings and to eliminate ‘fishing’ expeditions into each other’s private lives.” The court, in McCann v. McCann, 19 D.&C. 3d 237 (1981), found that a “blanket order” for oral depositions regarding economic matters in divorce cases should not be allowed, but that special orders for oral depositions should issue when the circumstances warrant it. The court further found that oral depositions are often valuable methods of discovery in developing economic aspects pertinent to divorce cases. In McCann, the husband was president of a small, closely held corporation and the court found that the oral depositions of the husband’s accountant would be helpful to the case, and thus, warranted a special order of court.

In the instant case, husband is a businessman who has retired from his normal employment with Die-bold Corporation. After his retirement, he became a stockholder in a corporation located in the State of Maryland. Wife now seeks permission from the court to depose both Mr. Schin and husband’s brother in light of the fact that husband now claims that his company is nearly bankrupt and that he has no assets. In particular, wife would like to depose Mr. Schin because husband may have entered into certain business arrangements with Mr. Schin regarding the business relationship between York Federal Savings and Loan and her husband’s business. Wife also proposes to depose husband’s brother, Gary R. Clark, because she has learned that husband may have entered into business arrangements that included a loan to his brother in the amount of $25,000.

We think that the present situation merits a special order under Pa.R.C.P. 1920.22. We do not believe that wife’s purpose is to harass or delay the proceeding because proper preparation includes intensive discovery of the financial history of the marriage. Nor do we believe that permitting such discovery is allowing a “fishing” expedition into husband’s private affairs. Discovery is proper, as in this case, where inquiries are necessary to uncover the value and nature of the assets that were acquired during the marriage.

We believe that wife’s request for discovery is proper in that marital assets may be involved in husband’s corporation. Furthermore, in light of the fact that husband is claiming that his company is nearly bankrupt and that he does not have any assets, we believe that wife’s attempt to locate marital assets is proper.

Finally, we note that the circumstances herein are similar to those of the small, closely held corporation in McCann, supra, and likewise, find that oral deposition into the business affairs of this husband’s corporation are warranted, necessary and in accordance with proper procedure.

Accordingly, we shall enter the following

ORDER

And now, January 4, 1991, it is ordered and directed that the stay of August 24, 1989, is lifted and the plaintiff, Ann L. Clark, shall be permitted discovery by depositions of Richard Schin and Gary R. Clark.


source: Caselaw Access Project

author: SEMERARO, J.,

license: Public Domain

text:
    Stratton v. Allstate Insurance Co.

      J. Michael Sheridan, for plaintiff.

      J. Keath Fetter, for defendant.
    April 11, 1990
   SEMERARO, J.,

On October 1, 1987, the Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., went into effect and the No-fault Act was repealed. However, the MVFRL was made applicable only to insurance policies issued or renewed on or after October 1, 1984.

On October 9, 1984, at the request of the named insured, a 1985 Escort was added to the existing policy issued September 8, 1984 and until March 8, 1985 as an additional insured vehicle. The same coverages applicable to the 1984 Celebrity were extended to the 1985 Escort. The named insured did not ask for any coverage changes with respect to the second vehicle, nor did he request that a separate policy be issued for the second vehicle. Neither plaintiff nor the named insured ever paid any premium for underinsured motorist coverage on either vehicle covered under the policy.

On December 9, 1984, plaintiff sustained injuries while riding as a passenger in a vehicle being operated by Jeffrey Scott Brown. Following this accident, plaintiff applied for and received from Allstate personal injury protection benefits pursuant to the coordination of benefits provision of the policy and the No-fault Act. Plaintiff also made a third-party tort claim against Mr. Brown and settled that claim for the limits for Brown’s liability insurance coverage, $50,000. He then claimed underinsured motorist benefits from Allstate, and Allstate has denied that claim.

The insurance policy upon which plaintiff’s claim for underinsured motorist benefits is based was issued on September 8, 1984 pursuant to the No-fault Act. The MVFRL became effective on October 1, 1984, and the No-fault Act was repealed at the same time. However, section 9 of the Act of February 12, 1984, P.L. 26, no. 11, the legislation pertaining to the enactment of the MVFRL, expressly provides: “This act applies to insurance policies issued or renewed on or after the effective date of this act [October 1, 1984].” See Historical Note to 75 Pa.C.S. §1701.

The parties each filed motions for summary judgment which we reviewed, along with the entire record, and we conclude there is no genuine issue of material fact. In granting defendant’s motion we deny plaintiff’s motion and enter judgment in favor of defendant as a matter of law with this accompanying opinion.

FINDINGS OF FACT

(1) Plaintiff, John F. Stratton, initiated this declaratory-judgment action by filing a complaint against Allstate on October 11, 1988, seeking a declaration that a policy of automobile insurance issued by defendant provided underinsured motorist coverage in the amount of $50,000.

(2) On September 8, 1984, Allstate issued automobile insurance policy no. 008265897 to plaintiff’s father, also named John F. Stratton, as the named insured, in plaintiff’s answer to interrogatory no. 1. (See defendant’s brief, exhibit A.)

(3) A true and correct copy of policy is attached to defendant’s brief and marked exhibit B.

(4) The policy term was September 8, 1984 to March 8, 1985. (See Paul Mattus deposition attached to defendant’s brief, marked exhibit C.)

(5) The policy was issued under and pursuant to the provisions of the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §1009.101 et seq. (Allstate’s new matter, paragraph 17 and plaintiff’s reply thereto.)

(6) The policy as issued on September 8, 1984 insured one vehicle only, a 1984 Celebrity. (Answer to interrogatory no. 4. See exhibit A, defendant’s brief aforesaid.)

(7) The policy provided, among other coverages, coverage for bodily injury liability in the amount of $50,000 per person and $100,000 per occurrence, personal injury protection coverage pursuant to the No-fault Act, and uninsured motorist coverage in the amount of $15,000 per person and $30,000 per accident. The policy did not provide any underin-sured motorist coverage. (Allstate’s new matter, paragraphs 18 and 19 and plaintiff’s reply thereto.)

(8) Effective October 9, 1984, at the request of the named insured, a 1985 Escort was added to the policy as an additional insured vehicle, and the same coverages applicable to the 1984 Celebrity were extended to the 1985 Escort, including the bodily injury liability coverage, the personal injury protection coverage pursuant to the No-fault Act, and uninsured motorist coverage. (Attached to defendant’s brief and marked exhibit D.)

(9) The named insured did not request any changes in the coverages for either vehicle, nor did he ask that a separate policy be issued for the second vehicle. (Attached to defendant’s brief and marked exhibit C.)

(10) At the time of the issuance of the policy on September 8, 1984, the named insured elected to make his health insurance coverage primary to his personal injury protection coverage, as permitted by the No-fault Act, 40 P.S. §1009.203, in return for a reduction in premium. This same “coordination of benefits” was extended to the 1985 Escort when it was added to the policy. (Deposition of Paul G. Mattus, N.T. 16-7. See exhibit C attached to defendant’s brief.)

(11) On December 9, 1984, plaintiff sustained injuries while riding as a passenger in a vehicle being driven by Jeffrey Scott Brown.

(12) Following this accident, plaintiff applied for and received from Allstate personal injury protection benefits pursuant to the policy and the No-fault Act. (Allstate’s new matter, paragraph 24, and plaintiff’s reply thereto; plaintiff’s answers to interrogatories nos. 17 and 19.)

(13) Following the accident of December 9, 1984, plaintiff made a third-party tort claim against Jeffrey Scott Brown and settled that claim for the limits of Brown’s liability insurance coverage, $50,000. (Plaintiff’s answers to interrogatories nos. 20 and 21.)

(14) Neither plaintiff nor the named insured paid any premium for underinsured motorist coverage on either vehicle covered under the policy. (Allstate’s new matter, paragraph 23, and plaintiff’s reply thereto.)

(15) The policy issued by defendant to plaintiff’s father was not issued or renewed between October 1, 1984 and December 9, 1984, the date of plaintiff’s accident.

(16) The policy was issued prior to October 1, 1984, and no underinsured motorist coverage was provided by the policy or otherwise required by applicable law.

DISCUSSION

Plaintiff, John F. Stratton, initiated this declaratory-judgment action by filing a complaint against defendant, Allstate Insurance Company, on October 11, 1988 seeking a declaration that a policy of automobile insurance issued by Allstate provided underinsured motorist coverage in the amount of $50,000.

On September 8, 1984, Allstate issued automobile insurance policy number 008265897 to plaintiff’s father, also named John F. Stratton, as the named insured. The policy term was from September 8, 1984 to March 8, 1985, the next renewal date. The policy was issued pursuant to the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §1009.101 et seq., which was then in effect in Pennsylvania. As issued on September 8, 1984, the policy insured one vehicle only, a 1984 Celebrity. It provided, among other coverages, coverage for bodily injury liability in the amount of $50,000 per person and $100,000 per occurrence, personal injury protection coverage pursuant to the No-fault Act, and uninsured motorist coverage in the amount of $15,000 per person and $30,000 per accident. The policy did not provide any underinsured motorist coverage, and such coverage was not required by the No-fault Act. The named insured did, however, elect to make his personal injury protection coverage excess to this health insurance coverage in return for a reduced premium, thus taking advantage of the “coordination of benefits” provision of section 203(b) and (c) of the No-fault Act, 40 P.S. §1009.203(b) and (c).

Allstate contends that because the second vehicle was simply added to the existing policy issued pursuant to the No-fault Act and the named insured did not request or pay for any additional coverages including underinsured motorist coverage, the provisions of the MVFRL would not be applicable to either vehicle insured under the policy until the next renewal date after the effective date of the new law, or March 8, 1985.

Pennsylvania courts have consistently held that the MVFRL applies only to insurance policies issued or renewed on or after October 1, 1984, and the No-fault Act continues to apply to policies issued prior to that date until their next renewal. In Borysowski v. State Farm Mutual Automobile Insurance Company, 368 Pa. Super. 399, 534 A.2d 496 (1987), the court stated:

“We believe that it was the intention of the legislature to provide an orderly transition from the old statutory scheme to the new one. The express language of section 9 of Act 11 clearly indicates that the legislature intended that the new Financial Responsibility Law would only apply to insurance policies issued or renewed on or before October 1, 1984. In so providing, the legislature recognized that policies issued prior to October 1, 1984 would remain subject to the provisions of the repealed No-fault Act until such policies were renewed subsequent to the effective date of the Financial Responsibility Law.” Also see Soles v. Pennsylvania National Mutual Insurance Company, 372 Pa. Super. 605, 539 A.2d 1360 (1988).

In Government Employees Insurance Company v. Benton, 859 F.2d 1147 (3d Cir. 1988), the court noted that “[t]he Pennsylvania legislature chose to enact a bright-line statute making the new law effective only to those policies issued or renewed after October 1, 1984.” 859 F.2d at 1153. At least one Pennsylvania court of common pleas has concurred, Allen v. Public Service Mutual Insurance Company, C.P. of Allegheny County, no. GD 86-8762 (April 23, 1988).

Plaintiff argues in his motion for summary judgment that a determination that the MVFRL is not applicable to the additional vehicle would have the effect of extending the applicability of the No-fault Act beyond the date of its repeal while failing to recognize the effective date of the MVFRL. We do not agree. The language of the legislation consistently interpreted by the courts advises that the MVFRL is applicable only to policies issued or renewed on or after its effective date, and preexisting policies issued pursuant to the No-fault Act would remain subject to the terms of that act until their next renewal date. Thus, we concluded that the addition of a second vehicle did not alter that policy in any way.

It is undisputed that following his accident of December 9, 1984, plaintiff claimed and received personal injury protection benefits pursuant to the No-fault Act. Because of the “coordination of benefits” provisions in the policy, which had been elected by the named insured in return for a reduced premium, plaintiff’s PIP benefits under the policy were excess of his private health insurance coverage. Nevertheless, Allstate was obligated under the terms of its policy for unlimited excess medical expenses resulting from the accident, consistent with the requirements of the No-fault Act that the insurer be obligated for unlimited medical expenses regardless of how long those expenses might go on or how much they might total. In addition, Allstate was obligated for work loss benefits up to a maximum of $15,000, again consistent with the requirements of the No-fault Act.

To permit plaintiff to collect underinsured motorist benefits from Allstate here would have the effect of permitting him to collect both no-fault benefits and MVFRL benefits under the same policy, clearly a result not intended by the legislature.

CONCLUSION

Summary judgment may be granted where the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Pa.R.C.P. 1035. The entire record must be examined in the light most favorable to the non-moving party; the court’s sole function is to determine whether there is an issue of fact to be tried and not to decide issues of fact. Perry v. Middle Atlantic Lumberman’s Association, 373 Pa. Super. 554, 542 A.2d 81 (1988).

Despite the rigorous standard applicable to such motions, plaintiff’s claim is dependent upon statutory construction and the interpretation of the insurance policy. These are matters of law for the court. Timbrook v. Foremost Insurance Company, 324 Pa. Super. 384, 471 A.2d 891 (1984).

We found the policy remained unchanged (September 8, 1984 through March 8, 1985). The renewal date not having been changed or extended this is a case simply of an amendment to a pre-existing policy. We found that the insured paid for and received no-fault benefits and that the policy continued as a no-fault policy until its next renewal date. This is expressly contemplated by the legislation accomplishing the repeal of the No-fault Act and the enactment of the MVFRL.

ORDER

And now, April 5, 1990, upon consideration of the motions for summary judgment filed by the parties hereto, it is hereby ordered and decreed that defendant’s motion for summary judgment is granted, plaintiff’s motion for summary judgment is denied, and judgment is hereby entered in favor of defendant, Allstate Insurance Company, and against plaintiff, John F. Stratton.


author: BAYLEY, J.,

text:
    Commonwealth v. Ferguson

      Edward E. Guido, assistant district attorney, for the Commonwealth.

      Timothy J. Clawges, for defendant.
    December 12, 1990
   BAYLEY, J.,

On November 21,1990, defendant was found guilty by a jury on a count of driving under the influence. On November 30, he filed a post-trial motion seeking a new trial, alleging that the court erred in its denial of the claim of a spousal privilege by Joyce Ferguson. Prior to trial, we held a hearing, after which the following order was entered:

“The Commonwealth may call Joyce Ferguson as a subpoenaed witness in this case, and she may not refuse to testify on the basis of the privilege of not testifying against defendant because she is not the spouse of defendant.”

Joyce Ferguson then testified at trial, as a witness for the Commonwealth, to defendant’s conduct, including his drinking, in the time period that immediately preceded his arrest for driving under the influence. Her testimony did not disclose any confidential communications, nor did defendant raise any claim of privilege in that regard.

At the pretrial hearing, Joyce Ferguson was the only witness called in support of her claim that she was entitled to exercise the privilege set forth in the Judicial Code at 42 Pa.C.S. §5913 (Purdon Supp. 1990), which provides in part:

“[I]n a criminal proceeding a person shall have the privilege, which he or she may waive, not to testify against his or her then lawful spouse. . .” (emphasis supplied)

The basis for invoking this marital privilege is the existence of a valid marriage. Commonwealth v. Maxwell, 505 Pa. 152, 477 A.2d 1309 (1984). Joyce Ferguson testified that she married defendant, Clark W. Ferguson Jr., on July 4, 1979. She admitted that in April 1990 she had filed a petition in this court, seeking the entry of a protection from abuse order against defendant herein, in which she alleged: (1) she had been married to him on July 4, 1979; (2) she had divorced him on October 4, 1984; and (3) in 1987, she began living with him again. She testified in the case sub judice, however, that to her knowledge, there was no divorce. She understood she had filed for a divorce but she stated she had never received the final papers. At that point we ordered a recess, after which the assistant district attorney and defense counsel confirmed that the record in the Court of Common Pleas of York County, showed that Joyce Ferguson and Clark W. Ferguson Jr., were divorced by a final decree dated October 4, 1984.

Joyce Ferguson then testified that she had begun living with defendant “way before 1987,” which was also contrary to her sworn affidavit in her prior protection from abuse petition. She testified that she was actually separated from defendant for only a couple of weeks. She stated that the neighbors, friends, and business associates of defendant and herself all understand that they are married. She testified that she owns a home with defendant, although there is no evidence in this record as to the date it was purchased. She acknowledged that there had been no ceremonial marriage other than the marriage on July 4,1979. She never testified that she and defendant uttered any words by which they intended to remarry.

Defendant was arrested on the present charge on April 19, 1990, after he had driven to a convenience store from the parties’ home. When he left the home he got into his car, which was in a driveway. He backed his car into Joyce Ferguson’s car which was in the same driveway, pushed her car onto the public road in front of their property, and left it in the middle of the road with the wheels jammed and the automatic transmission still in “park.” Joyce Ferguson then called the County Emergency Dispatch Center, told them what defendant had just done, and stated that defendant was “drunk.” After defendant was stopped by a Mechanicsburg police officer, who observed erratic driving, and arrested for driving under the influence, another officer, Brian Kluck, went to defendant’s residence to check on the incident that Joyce Ferguson had reported. He found her car in the middle of the street with skid marks leading from the driveway. Joyce Ferguson admitted, in the present case, that she had told Officer Kluck that she wanted defendant out of her home, and that she was divorced.

Joyce Ferguson’s assertion that she was entitled to exercise a privilege not to testify against Clark W. Ferguson, was based upon her present claim that she is now, in light of the final decree of divorce entered on October 4, 1984, the common-law wife of defendant. Initially, we hold that defendant has no standing to seek relief upon a claim that the court erred in not allowing Joyce Ferguson to exercise a privilege not to testify against him. Until 1989, a spouse, with certain exceptions, was incompetent to testify against his or her spouse. Section 5913 of the Judicial Code had provided:

“§5913. Spouses as witnesses against each other
“Except as otherwise provided in the subchapter, in a criminal proceeding husband and wife shall not be competent or permitted to testify against each other.”

In 1989, in accord with the evolving trend to divest a defendant of the privilege to bar adverse spousal testimony, see Trammel v. United States, 445 U.S. 40 (1980), the Pennsylvania legislature amended section 5913 to allow the witness alone to assert the privilege against adverse spousal testimony regarding non-confidential communications. If Joyce Ferguson had not testified after her claim of privilege was denied, she would have been subject to the sanction of contempt. If the court had erred in ordering her to testify, and she had been held in contempt, she could have challenged the merits of the denial of her claim of privilege on appeal from the order of contempt. A fortiori, since defendant herein could not claim the privilege in section 5913 of the Judicial Code, he cannot challenge the merits of its denial to Joyce Ferguson.

Even on the merits, however, defendant is not entitled to relief. We make the following findings of fact in support of our order of November 21, 1990, denying Joyce Ferguson her claim of privilege.

(1) Joyce Ferguson has known since the divorce decree was entered on October 4, 1984, that she is divorced from defendant.

(2) Despite constant cohabitation and general reputation of marriage, Joyce Ferguson and defendant have not entered into any agreement of remarriage.

In Manfredi Estate, 399 Pa. 285, 159 A.2d 697 (1960), the Supreme Court stated:

“Marriage in Pennsylvania is a civil contract by which a man and a woman take each other for husband and wife. There are two kinds of marriage: (1) ceremonials; and (2) common-law. A ceremonial marriage is a wedding or marriage performed by a religious or civil authority with the usual or customary ceremony or formalities. It is too often forgotten that a common-law marriage is a marriage by the express agreement of the parties without ceremony, and almost invariably without a witness, by words — not in futuro or in postea, but — in praesenti, uttered with a view and for the purpose of establishing the relationship of husband and wife. . . .
“Because it is often difficult to prove a common-law marriage by words in praesenti, the law has created or raised a rebuttable presumption of marriage where two absolutely essential elements are conjoined and coexist — constant, as distinguished from an irregular or inconstant, cohabitation plus a reputation of marriage, which is not partial or divided but is broad and general. Constant cohabitation, even when conjoined with general reputation are [sic] not marriage, they are merely circumstances which give rise to a rebuttable presumption of marriage. ” (citations omitted; emphasis supplied)

The burden of proving a common-law marriage must be met by the party claiming such a marriage, by clear and convincing evidence. In re Cummings Estate, 330 Pa. Super. 255, 479 A.2d 537 (1984). As noted by the Superior Court in the “remarriage” case of Commonwealth ex rel. McDermott v. McDermott, 236 Pa. Super. 541, 345 A.2d 914 (1975), there is a tenuous distinction between words in the present tense and words in the future tense; and “[t]he setting in which the words are uttered, more strongly than any delicate shading in grammar, reveals the intention of the parties.” In the present case, however, there is no clear and convincing evidence, either direct or circumstantial, that Joyce Ferguson and defendant have uttered any words, of any type, whereby they intended to and entered into an agreement to remarry. Therefore, their constant cohabitation and general reputation of marriage are not alone sufficient to prove a marriage at common law. Commonwealth ex rel. Pilla v. Pilla, 189 Pa. Super. 302, 150 A.2d 365 (1959); In re Estate of Fayetta M. Clayton, 36 Cumberland L.J. 445 (1986), affd., 362 Pa. Super. 628 (1986).

In conclusion, since defendant does not have standing to raise the only issue set forth in his post-trial motion, and since, even on the merits, his claim does not provide a basis for relief, the following order is entered:

ORDER OF COURT

And now, December 14, 1990, the post-trial motion of defendant is denied.

        ~ 75 Pa.C.S. §3731(a)(l) (Purdon Supp. 1990). It is defendant’s fourth offense.

      . The privilege is subject to certain exceptions that are not applicable in the present case.

      . The case is docketed at no. 84-S-291.

      . How could she; her position was that she did not know she was divorced. This proves, of course, that allowing a person to pursue inconsistent legal theories is based on fairness, not logic.

      . Derived from Act of May 23, 1887, P.L. 158, no. 89, §2(b).

      . Section 5314 of the Judicial Code relating to confidential communications, has not been amended. This privilege survives divorce. Commonwealth v. Clark, 347 Pa. Super. 128, 500 A.2d 440 (1985).


author: SCOTT, J.,

text:
    PennDOT v. Cern

      Timothy P. Wile, assistant counsel-in-charge, for PennDOT.

      John J. Kerrigan Jr., for defendant.
    February 6, 1991
   SCOTT, J.,

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing appeals our order of January 17, 1991, reversing a five-year revocation of John Cern’s driving privileges imposed by the department. The department imposed the five-year revocation of appellee’s motor vehicle operator’s license pursuant to the habitual offender statute found at 75 Pa.C.S. §1542. That statute states:

“§1542. Revocation of habitual offender’s license
“(a) General Rule — The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A ‘habitual offender’ shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated in subsection (b) committed after the effective date of this title and within any period of five years thereafter.
“(b) Offenses enumerated — Three convictions arising from separate acts of any one or more of the following offenses committed either singularly or in combination by any person shall result in such person being designated as a habitual offender:
“(1) Any offense set forth in section 1532 (relating to revocation or suspension of operating privilege).
“(2) Operation following suspension of registration as defined in section 1371 (relating to operation following suspension of registration).
“(3) Making use of or operating any vehicle without the knowledge or consent of the owner or custodian thereof.
“(4) Utilizing a vehicle in the unlawful transportation or unlawful sale of alcohol or any controlled substance.
“(5) Any felony in the commission of which a court determines that a vehicle was essentially involved.
“(c) Accelerative Rehabilitative Disposition as an offense — Acceptance of Accelerative Rehabilitative Disposition for any offense enumerated in subsection (b) shall be considered an offense for the purposes of this section.
“(d) Period of revocation — The operating privilege of any person found to be a habitual offender under the provisions of this section shall be revoked by the department for a period of five years.
“(e) Additional offenses —Any additional offense committed within a period of five years shall result in a revocation for an additional period of two years.”

Appellee received two of the three offenses while a resident of Pennsylvania, possessing a Pennsylvania drivers license. Prior to incurring the third offense, appellee moved to New Jersey, surrendered his Pennsylvania license there and obtained a valid New Jersey license. In January 1990 he received the third citation in Pennsylvania. Even though the citation shows his address to be Trenton, New Jersey, his address had not been changed in the files of the Bureau of Driver Licensing in Harrisburg, Pennsylvania. In June 1990, the Bureau of Driver Licensing sent an official notice of revocation of his operating privileges to appellee at his Warminster, Pennsylvania address.

The post office forwarded the notice to him at his address in New Jersey. Thereafter, appellee filed a petition for appeal of the revocation to this court. The hearing was held on September 25, 1990 and on January 17, 1991 the order complained of on appeal was entered.

At the time of the hearing this court examined the official notice sent to appellee. As previously stated, this notice (sent by Pennsylvania) was sent to appel-lee at his old address in Pennsylvania. The citation clearly shows his address to be Trenton, New Jersey, so that the State of Pennsylvania was on notice that appellee was no longer a resident. Additionally, there can be no question that Pennsylvania authorities have no power to revoke or suspend a driver’s license issued by a sister state, here New Jersey. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Bender, 107 Pa. Commw. 475, 529 A.2d 44 (1987). The notice asks him to return his driver’s license to the bureau. Appellee had already complied with the requirements of the notice, he had already surrendered his Pennsylvania license.

Therefore, given this fact situation, we came to the conclusion that the appeal of this appellee should be sustained and we issued the order complained of on appeal.

       Pa.R.Crim.P. 175 to 185.


author: ERB, P.J.,

text:
    Crites v. Century Products Inc.

      Thomas W. Hall, for plaintiff.

      Donald H. Yost, for defendants.

      Michael J. Hohenadel, for additional defendant.

      January 9, 1991
   ERB, P.J.,

This matter is before the court on the motion for summary judgment by defendants, Century Products Inc. and Gerber Products Company.

The relevant uncontested pleaded facts are as follows. Rhonda McAlarney left her daughter, age two years and eight months, unattended in the car while she went into a pizza shop. She left the car at the curb with the motor running and without applying the hand brake. The child freed herself from her car seat, manufactured and distributed by defendants, Century Products Inc. and Gerber Products Company, and came into contact with the gear shift, placing the vehicle into forward gear. As a result, the car went forward and hit another car which was propelled into plaintiff, Charles S. Crites Jr., then loading items into his truck.

Plaintiff filed suit against defendants, Century Products and Gerber Products, alleging strict liability, negligence and breach of warranty. Defendants then filed a complaint to join Rhonda McAlarney as an additional defendant. Defendants have now filed a motion for summary judgment contending that the additional defendant’s negligent conduct was an unforeseeable superseding cause, relieving defendants from liability. In addition, defendants argue that Mrs. McAlarney misused the car seat, negating the manufacturer’s liability since such use was not reasonably foreseeable. Defendants submit that the pleadings are now closed, and as such, the motion is timely.

Plaintiff opposes this motion, arguing that defendants have misstated the law. Plaintiff contends that for defendants to prevail, they must present clear and convincing evidence that Mrs. McAlarney’s use of the car seat was without question a misuse of the product and that such misuse was unquestionably unforeseeable by the manufacturer. Plaintiff argues that Mrs. McAlarney’s use of the seat was neither a misuse nor was it unforeseeable. Plaintiff points out that defendants have warning labels on other products cautioning parents not to leave children unattended. Moreover, plaintiff alleges that the design of the car seat was defective. To support his argument, plaintiff argues that a locking clip, which is now standard on all Century car seat products, was at that time only available if bought separately from the manufacturer.

After reviewing the file, we will grant defendants’ motion for summary judgment. As required by Pa.R.C.P. 1035(b), we find that the pleadings and the depositions reveal that there is no genuine issue of material fact. After considering the pleadings and depositions, we conclude that plaintiff has not established causation between the car seat’s alleged defects and the plaintiff’s injuries. In so doing, we conclude that Mrs. McAlarney’s misuse of the car seat was not reasonably foreseeable and was a superseding cause of the accident, thus relieving defendants of liability.

In support of this court’s conclusion that there is not the requisite proximate cause needed in a strict liability action between the defects and plaintiff’s injuries, we will first discuss proximate causation. Am. Law Prod. Liab. 3d §4:3. Proximate causation is established when something is a substantial contributing factor which brings about the injury or a cause which operates in a continuous sequence, uninterrupted by intervening causes, and results in injuries. Am. Law. Prod. Liab. 3d §4:1. In strict product liability actions proximate cause also involves a determination that the relationship between defendants’ wrongful actions or omissions and the harm produced requires that defendant be held liable on an economic and social basis. E.J. Stewart Inc. v. Aitken Products Inc., 607 F.Supp. 883 (E.D. Pa. 1985), aff'd, 779 F.2d 41 (1985); Am. Law Prod. Liab. 3d §4:2. The facts of this case do not reveal that the car seat’s defects were either a substantial factor in, or the proximate cause of, plaintiff’s injuries. Am. Law Prod. Liab. 3d §§4:8, 4:9. Even if it appeared that defendants’ product was defective or its actions were negligent, we must conclude that Mrs. McAlarney’s conduct was a superseding cause relieving defendants of liability. A superseding cause is an intervening act or a new, independent force which occurs between negligent actions and the resulting injuries. In addition, a superseding cause, when viewed together with defendants’ negligent conduct, makes it appear highly extraordinary to the court that defendants’ conduct could have produced the harm. Am. Law Prod. Liab. 3d §4:9. The court concludes that such an analysis applies to the facts of the instant case.

The facts reveal that Mrs. McAlarney placed her two-year-old child in the car seat and left her unattended while she went into a store. In her deposition, Mrs. McAlarney stated that she had used the car seat for approximately one year. (N.T. 34, 1. 1; N.T. 35, 1. 18-24.) Mrs. McAlarney also testified that she did not view the car seat as a restraining device and, more importantly, was aware that the child could get out of the car seat. (N.T. 36, 1. 11-7.) Apparently, the child was able to stand and push herself out of the car seat without unfastening the seat belt holding the car seat in place. (N.T. 40, 1. 13-21.) Mrs. McAlarney stated that she did not understand the importance of locking the plastic teeth, which snaps the car seat bar into place. In addition, Mrs. McAlarney stated that she believed she did not properly snap the grooves into place which secures the padded bar in front of the child. (N.T. 41,1. 1-25.) Despite this knowledge, Mrs. McAlarney left the child in the car seat unattended, without setting the hand brake, even though she left the car’s engine running. The child then got out of the car seat and placed the car in forward gear, causing the car to lurch forward into a second car which then hit plaintiff.

Mrs. McAlarney’s actions clearly were the substantial factors and proximate cause of plaintiff’s injuries. We do not believe that the car seat was a substantial factor or the proximate cause of plaintiff’s injuries. Instead, we conclude that Mrs. McAlarney’s actions were an unforeseeable, intervening cause which broke the chain of causation between any actions by defendants and plaintiff’s injuries. Without Mrs. McAlarney’s actions the link between the car seat’s alleged defects and the harm are too tenuous to satisfy the proximate cause requirements. See Mueller v. Jeffrey Mfg. Co., 494 F.Supp. 275 (E.D. Pa. 1980). Although the jury ordinarily determines proximate cause, this court may properly rule on the question if the parties do not dispute the critical facts and only their legal effect remains in issue. Mueller, supra; Am. Law Prod. Liab. 3d, §4:8. Furthermore, we conclude that the circumstances in this case indicate that, if indeed the product was defective, Mrs. McAlarney had a duty to prevent the harm since she had control over all other factors, which caused the injuries, including parking the car, caring for and watching the child and properly using the car seat. Id.

Although we conclude that plaintiff has not shown a design defect on the car seat, we also note that regardless of the design defect and failure to warn, there are situations in which an individual is so inattentive to her surroundings that an accident is likely to occur. We think that such is the case here. To establish liability for a failure to warn, plaintiff must show that the lack of adequate warnings was the cause in fact and proximate cause of plaintiff’s injuries. Conti v. Ford Motor Co., 743 F.2d 195 (1984). Clearly, plaintiff cannot do so in this case. Directions warning Mrs. McAlarney to refrain from leaving the child unattended would have made no difference. Mrs. McAlarney disregarded other directions for use of the car seat. First, the instructions, which came with the car seat, clearly indicate that a lock clip is needed only if the car seat were used in the front seat. The clip was not needed if the car seat was used in the back seat. Despite the directions, Mrs. McAlarney elected to use the car seat in the front seat without the locking clip. See McAlarney deposition, exhibit no. 1. Second, she did not contemplate the danger of leaving her child alone since she expected the child would nap. (N.T. 39, 1. 17-25; N.T. 40, 1. 1-7.) Third, Mrs. McAlar-ney did not correctly snap the bar into place as indicated by the directions. Plaintiff has indicated that the absence of a lock clip for the car seat is a design defect. We think not. The lock clip, as shown on an exhibit in the file, is a device to be placed over the release button for the seat belt to prevent a child from inadvertently releasing the seat belt. In this case, the seat belt was not released, but rather the child maneuvered out of the seat belt without releasing it. Moreover, the bar on the car seat did not prevent the child’s escape since she was able to stand up and push herself out. The failure to have a lock clip therefore had no relationship to the child’s escape from the seat. The car seat and the missing clip did not cause plaintiff’s injuries. Instead, Mrs. McAlarney’s actions constitute a superseding cause.

In Foley v. Clark Equipment and Co., 361 Pa. Super. 599, 523 A.2d 379, alloc. denied, 531 A.2d 780 (1987), the court stated that in a strict products liability cause of action plaintiff must show that the product is defective and such defect was a substantial cause of the injury. In Pennsylvania, courts consider the following factors to determine whether the defective product is a substantial factor in the injury:

“ ‘(a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it;
“ ‘(b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible;
“ ‘(c) lapse of time.’ Restatement (Second) of Torts §433.” Foley, 361 Pa. Super. at 627, 523 A.2d at 393.

To summarize, the following factors substantially causing plaintiff’s injuries include: (1) Mrs. McAlar-ney left the car running; (2) she failed to set the hand brake; (3) she parked the car curbside in front of the store; (4) she left the child unattended; (5) she improperly used the car seat by placing it in the front seat without using a lock clip as specified in the directions, though this had no relevance to the child’s getting out of the seat; and (6) she did not lock the bar in place while aware that the child could free herself from the seat. (N.T. 40-2.) Mrs. McA-larney clearly set the series of events into place, which resulted in this accident.

We, therefore, conclude that Mrs. McAlarney’s actions were a superseding cause of plaintiff’s injuries, relieving the manufacturers of liability. We believe that there is no room for reasonable difference of opinion regarding the foreseeability and negligence of the additional defendant’s intervening actions. Based on the undisputed facts of this case, we conclude that it was unforeseeable that an individual would improperly act in the way we have discussed and that as a result, such injuries to plaintiff could occur. Kalik v. Allis-Chalmers Corp., 658 F.Supp. 631 (W.D. Pa. 1987).

Though this accident is a tragic occurrence for plaintiff, justice would not be served by holding defendants in this action when neither their actions nor their product caused the injuries. Manufacturers cannot be expected to absolutely insure their product when it is misused in an unforeseeable manner and subjected to extraordinary circumstances.

Accordingly, we enter the following

ORDER

And now, January 9, 1991, the motion for summary judgment filed by defendants, Century Products Inc. and Gerber Products Company, is hereby granted. The prothonotary shall enter judgment in favor of defendants and against plaintiff, Charles S. Crites Jr. The prothonotary is directed to provide notice of this order and opinion as required by law.

       N.T. refers to the Notes of Testimony taken during the deposition of additional defendant, Rhonda J. McAlarney, on April 23, 1990.


author: D’ALLESSANDRO, J.,

text:
    Bruce v. Allstate Insurance Co.

      Bernard L. Kubert, for plaintiff.

      Lawrence F. Coyne, for defendant.

    February 11, 1991
   D’ALLESSANDRO, J.,

This opinion is written in support of this court’s order dated October 11, 1990, dismissing plaintiff’s motion to vacate, set aside and/or modify an arbitration award. For the reasons stated herein, the petition to vacate is dismissed.

On September 20, 1986, petitioner, Bernard Bruce, was injured in an automobile accident with an uninsured motorist. Petitioner’s automobile was covered by a policy issued by respondent, Allstate Insurance Company, which provided petitioner with uninsured motorist coverage in accordance with Pennsylvania’s Uninsured Motorist Act, 40 P.S. §2000 et seq. On March 5, 1990, unable to resolve the dispute, the parties arbitrated the matter before petitioner’s arbitrator, Michael DeFino, Esq.; respondent’s arbitrator, Kenneth Taylor, Esq.; and the neutral arbitrator, Paul J. Cody, Esq. On March 7, 1990, the neutral arbitrator sent a letter to all counsel which stated:

“Gentlemen:
“In the above matter the undersigned and Kenneth W. Taylor, Esquire find in favor of Bernard M. Bruce and against Allstate Insurance Company in the amount of $16,000.
“Michael A. DeFino dissents with respect to the amount of the award.
“Very truly yours,
“Paul J. Cody”

On June 4, 1990, the neutral arbitrator forwarded a decision and award signed by all three arbitrators. Petitioner now moves this court to vacate the arbitration award.

Petitioner argues that the March 7, 1990 correspondence is a complete nullity pursuant to 42 P.S. §7310. That statute states, in pertinent part:

“(a) General rule — The award of the arbitrators shall be in writing and signed by the arbitrators joining in the award. The arbitrators shall deliver a copy of the award to each party personally or registered or certified mail, or as prescribed in the agreement to arbitrate.”

Petitioner alleges that because the March 7, 1990 correspondence was only signed by the neutral arbitrator, the award is a nullity and thus cannot be reinstated by the otherwise valid June 4, 1990 award.

It is well settled in this state that there is a strong presumption in favor of an arbitration panel’s final award. Goeller v. Liberty Mutual Insurance Co., 376 Pa. Super. 608, 615, 546 A.2d 690, 693 (1988). In fact, pursuant to 42 Pa.C.S. §7314, the court shall vacate an award only where:

“(i) the court would vacate the award under section 7341 (relating to common-law arbitration) if this subchapter were not applicable:
“(ii) There was evident partiality by an arbitrator appointed as a neutral or corruption or misconduct in any of the arbitrators prejudicing the rights of any party:
“(in) The arbitrators exceeded their powers;
“(iv) The arbitrators refused to postpone the hearing upon good cause being shown therefor or refused to hear evidence material to the provisions of section 7307, as to prejudice substantially the rights of a party; or
“(v) There was no agreement to arbitrate and the issue of the existence of and agreement to arbitrate was not adversely determined in proceedings under section 7304 and the applicant-party raised the issue of the existence of an agreement to arbitrate at the hearing.”

In addition to vacating the arbitrator’s award, this court can also modify the award, pursuant to 42 Pa.C.S. §7715, where:

“(1) There was an evident miscalculation of figures or an evident mistake in the description of any person, thing or property referred to in the award;
“(2) The arbitrators awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted; or
“(3) the award is deficient in a matter of form, not affecting the merits of the controversy.”

Even with these rigid statutory and common-law standards in mind, petitioner argues that the arbitrator’s award should be vacated in accordance with Goeller v. Liberty Mutual Insurance Co., 523 Pa. 541, 568 A.2d 176 (1990). In Goeller, the Pennsylvania Supreme Court held that a purported arbitration award signed by only one arbitrator was a complete nullity, and a new arbitration was ordered.

This court, however, does not agree with petitioner’s arguments. There are distinct factual differences from the instant case and Goeller. In Goeller, one of the arbitrators was denied his opportunity to deliberate. This obvious impropriety was the primary reason the arbitrator’s award was vacated.

In this case, there is no such impropriety. All arbitrators entered into the deliberations, even though one dissented with the result. There was no fraud, misconduct, corruption or other irregularity which would justify our vacating the award. In this case, the situation simply involved correspondence which was sent by the neutral arbitrator, to all counsel, but was not signed by the other arbitrators. This does not make the June 4, 1990 award a nullity pursuant to 42 P.S. §7310.

Because all arbitrators were given the opportunity to present their case, and no impropriety such as those set forth in 42 Pa.C.S. §7314 occurred, this court will not vacate the arbitration award.


author: WALSH, P.J.,

text:
    U.S. Fidelity and Guaranty Co. v. Szajowski

      Daniel Morgan, for plaintiff.

      J. Joseph Grady, for defendant.
    October 26, 1990
   WALSH, P.J.,

This matter comes before the court by way of plaintiff’s petition for a protective order. On November 17, 1986, a fire broke out at Montage Video. The fire caused considerable damage to the building as well as its contents. Plaintiff insurer, USF&G, paid a claim filed by the insureds, Mia and Paul Kobierecki. USF&G then initiated the present action against the original defendant, Steven Szajowski, claiming the fire was caused by the negligent installation of duct work by Szajowski. Plaintiff’s expert, William D. Grow, filed a report which supported plaintiff’s claim concerning the cause of the fire. A copy of Mr. Grow’s report was furnished to Szajowski. Sza-jowski filed a notice to take Mr. Grow’s deposition. Plaintiff then filed this petition to prohibit the taking of the deposition.

Pa.R.C.P. 4003.5(a) provides in pertinent part:

“(1) A party may through interrogatories require
“(b) the other party to have each expert so identified by him state the substance of facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. The party answering the interrogatories may file as his answer a report of the expert ....
“(2) Upon cause shown, the court may order further discovery by other means subject to such restrictions as to the scope and such provisions concerning fees and expenses as the court may deem appropriate.”

Plaintiffs have notified Szajowski that they intend to call Grow as an expert and plaintiff has also provided Szajowski with a copy of Grow’s report. The report is detailed and states succinctly what Grow believes to be the cause of the fire. Szajows-ki’s claim of surprise at trial is unwarranted. At trial, Grow’s testimony would be limited to only those matters set forth in his report. Szajowski would not be taken by surprise because of this limited use.

Szajowski also claims the report is too vague and general and does not afford his expert any basis to prepare for trial. We do not agree with this assertion. Grow states in his report that the fire was caused by a damaged phase cable. Grow opined that the cable was damaged by the duct work performed by Szajowski. The report states Grow’s opinions and the basis for his opinions. This is more than adequate for the original defendant to prepare for trial. Expert reports have been found to be adequate when the report provides sufficient notice of the expert’s report theory to enable an opposing party to prepare a rebuttal witness. Wilkes-Barre Iron and Wire Inc. v. Pargas of Wilkes-Barre Inc., 348 Pa. Super. 825, 502 A.2d 210 (1985). Accordingly, further discovery is inappropriate.

An order will be entered in conformity with this memorandum.

ORDER

Now, October 26, 1990, it is hereby ordered and decreed that the petition for a protective order by plaintiff, United States Fidelity and Guaranty Company, is granted.


text:
    LaBar v. Erie Insurance Exchange

      Jill Miller, for plaintiff.

      Edward Neyhart, for defendant.
    December 6, 1990
   WALSH, P.J.,

We have before us plaintiff’s motion for partial summary judgment and defendant’s cross-motion for summary judgment. The parties have stipulated to the pertinent facts which we will set forth before discussing the merits of their claims.

On November 9, 1989 plaintiff was injured when a forklift operator backed over his foot while plaintiff was standing on the ground strapping a load of cement blocks onto a flatbed trailer. Plaintiff was insured under a policy of insurance issued by defendant, Erie Insurance Exchange. The policy, number Qll-1402495 A, was in full force and effect at the time of the accident. Plaintiff completed an application for benefits under the terms of the policy on December 12, 1989. Plaintiff sought first-party benefits for loss of earnings as a result of the accident.

Defendant denied plaintiff’s lost-earnings claim based on an exclusion in plaintiff’s policy. Said provision excludes from coverage the payment of benefits to any person injured as a result of loading or unloading a motor vehicle except while occupying a motor vehicle. Defendant further contends that coverage is not applicable under the Pennsylvania Motor Vehicle Financial Responsibility Law because the accident did not arise out of the maintenance or use of a motor vehicle.

Pennsylvania Rule of Civil Procedure 1035 provides that a motion for summary judgment shall be granted when the pleadings, depositions, interrogatories, admissions and supporting affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. In evaluating a motion for summary judgment, a trial court must accept as true all well-pleaded facts in the non-moving party’s pleadings as well as the admissions on file, giving the non-moving party the benefit of all reasonable inferences to be drawn therefrom; the record must be examined in the light most favorable to the non-moving party. Spain v. Vincente, 315 Pa. Super. 135, 461 A.2d 833 (1983). No genuine factual issue exists as evidenced by the parties’ stipulation. The issue at hand is whether plaintiff or defendant is entitled to judgment as a matter of law.

The PMVFRL, section 1711, requires an insurer to include coverage for income loss benefits up to a monthly maximum of $1,000 with respect to injuries arising out of the maintenance or use of a motor vehicle. The PMVFRL further provides that “the insurer . . . shall make available for purchase first-party benefits with respect to injury arising out of the maintenance or use of a motor vehicle as follows. . . (2) income loss benefits. . .”75 Pa.C.S. §1712.

Plaintiff posits that his injuries arose from the “maintenance or use” of his motor vehicle. The threshold issue is what constitutes “maintenance or use” of a motor vehicle. The term is not defined in the PMVFRL. Section 1921(c)(5) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1921(c)(5), provides that when the words of a statute are not explicit, the former law on the subject is one of the matters that may be considered in order to ascertain the intent of the legislature. We are guided by the definition provided in the Pennsylvania No-fault Motor Vehicle Insurance Act, 40 P.S. §1009.101 et seq. (repealed). The No-fault Act provided:

“ ‘Maintenance or use of a motor vehicle’ means maintenance or use of a motor vehicle as a vehicle, including occupying, entering into or alighting from it. Maintenance or use of a motor vehicle does not include:
“(b) conduct in the course of loading or unloading a motor vehicle unless the conduct occurs while occupying, entering into or alighting from it. 40 P.S. §1009.103 (repealed); Omodio v. Aetna Life and Casualty, 384 Pa. Super. 544, 559 A.2d 570 (1989).”

Plaintiff must show that he was occupying, entering into or alighting from the trailer in order for the coverage to apply. Plaintiff need not establish that a causal connection rise to the level of proximate cause; but he must show that the connection between the vehicle and his injuries is more than mere happenstance. Roach v. Port Authority of Allegheny County, 380 Pa. Super. 28, 550 A.2d 1346 (1988).

Plaintiff maintains he was injured while he was occupying the tractor-trailer. Plaintiff relies on Spisak v. Nationwide Mutual Insurance Co., 329 Pa. Super. 483, 478 A.2d 891 (1984). The Spisak court noted that the real issue is what instrumentality caused the injury. In Spisak, two occupants of a motor vehicle were killed by carbon monoxide fumes from the automobile while engaged in lovemaking in the back seat. The court held that for purposes of the No-fault Act, the vehicle was the instrumentality which caused the injuries. Here, plaintiff’s injuries were not caused by his vehicle or any other vehicle. He was injured by an unregistered forklift. The forklift was the instrumentality which caused his injuries.

Plaintiff maintains that for purposes of the PMVFRL he was an “occupant” of the motor vehicle as the phrase is defined for purposes of “maintenance or use of a motor vehicle.” Plaintiff cites a number of cases dealing with the Pennsylvania Uninsured Motorist Law, namely Schultz v. Nationwide Insurance Co., 373 Pa. Super. 429, 541 A.2d 391 (1988); Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984). These cases are not controlling for the purpose of defining “occupant” as used in the definition of maintenance or use of a motor vehicle. As stated previously, we are guided by the No-fault Act and its supporting case law. The Superior Court stated in Cerato v. Holy Redeemer Hospital, 342 Pa. Super. 551, 493 A.2d 728 (1985):

“[T]he Act defines the extent of an insured’s coverage in terms of the period during which he is in physical contact with a motor vehicle, that is his entrance into, occupation of, and exit from it.”

At the time of the accident, plaintiff was not entering or exiting his vehicle. He was standing on the ground fastening his load to the trailer. Likewise, plaintiff was not occupying the vehicle either.

Plaintiff’s claim that he was engaged in a transaction essential to the use of the vehicle and therefore was occupying the vehicle is also without merit based on the facts before us. See Schultz v. Nationwide Insurance Company, 373 Pa. Super. 429, 541 A.2d 391 (1988). If plaintiff’s argument was accepted, it would render the exclusion of loading and unloading null and void. Plaintiff was not occupying, entering, or exiting the vehicle at the time of the incident, thus the exclusion applies. We do not believe the legislature intended the result supported by plaintiff.

Defendant, Erie Insurance Exchange, has met its burden and is entitled to a judgment as a matter of law. An order denying plaintiff’s motion for partial summary judgment and granting defendant’s cross-motion for summary judgment will be entered accordingly.

ORDER

Now, December 6, 1990, it is hereby ordered and decreed that defendant’s cross-motion for summary judgment is granted and plaintiff’s motion for partial summary judgment is denied.


author: O’MALLEY, J.,

text:
    Shay v. Parabia

      Richard S. Campagna, for plaintiff.

      Thomas B. Helbig, Melissa A. Scartelli, and Michael Perry, for defendants.
    February 8, 1991
   O’MALLEY, J.,

Plaintiff in this case, Wanda Shay, filed a complaint, the first count of which was directed at Perin Parabia, M.D., and the second of which was against Community Medical Center. The matter sounded in tort with the first count incorporating that of the intentional infliction of emotional distress and the second alleging, not negligent infliction of emotional distress, but negligence in the sense that because of such negligence “CMC allowed circumstances to exist under which such an incident [involving Parabia and the plaintiff] could occur.” Plaintiff’s brief at 4.

The pertinent language is as follows:

"Count I”
“(4) On or about August 1, 1989, plaintiff was admitted to CMC as a surgical patient.
“(5) On August 1, 1989, as plaintiff lay on a stretcher, preparatory to entering the operating room for surgery, she was approached by Dr. Para-bia who began berating plaintiff and verbally abusing her in an offensive and obnoxious manner.
“(9) Dr. Parabia’s conduct was uninvited and highly offensive to plaintiff and caused plaintiff to become extremely agitated and emotionally upset.”
“Count II”
(Incorporating the paragraphs of count I by reference)
“(11) The incident set forth in count I hereof occurred due to the negligence of defendant, CMC, in that defendant, CMC . . . [Here followed allegations of failing to properly supervise staff physicians; to properly look into the mental character of its staff physicians; and negligently allowing Parabia access to plaintiff knowing the doctor was prone to engage in the conduct that she did.]”

Both defendants responded to the complaint with preliminary objections, each setting forth a demurrer as their basis.

The law in Pennsylvania is clear that in determining whether a demurrer should be sustained and the complaint dismissed the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. Watson v. Zanotti Motor Company, 219 Pa. Super. 96, 280 A.2d 670 (1971). A demurrer admits every well-pled material fact set forth in the complaint as well as all inferences reasonably deducible therefrom, but not conclusions of law. The law does not provide a “magic formula” to determine the sufficiency of a plaintiff’s complaint; however, the law is clear that a demurrer can only be sustained in a case free from doubt. Pike County Hotels Corp. v. Kiefer, 262 Pa. Super. 126, 396 A.2d 677 (1978).

The preliminary objections of both defendants will be granted.

Parabia’s Preliminary Objections

Intentional Infliction of Emotional Distress

It is for the court to determine, in the first instance, whether defendant’s conduct can reasonably be regarded as so extreme and outrageous so as to permit recovery. Dawson v. Zayre Department Stores, 346 Pa. Super. 357, 499 A.2d 648 (1985); Daughen v. Fox, 372 Pa. Super. 405, 539 A.2d 858 (1988). It is not enough that the allegations of the complaint support a finding that the defendant’s conduct was outrageous. The court must also ascertain whether the defendant’s conduct also can be viewed as extremely outrageous. Field v. Philadelphia Electric Co., 388 Pa. Super. 400, 565 A.2d 1170 (1989).

“So far as is possible to generalize from the cases, the rule which seems to have emerged is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. The requirements of the rule are rigorous and difficult to satisfy.” Prosser and Keeton on Torts at 60-1 (5th ed. 1984).

The plaintiff must necessarily be expected and required to be hardened to a certain amount of rough language, and to acts that are definitely inconsiderate and unkind. Prosser and Keeton on Torts, supra, at 59. The complained-of conduct must be so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society, and where the requisite outrageous conduct is not alleged, dismissal of the claim on preliminary objections is appropriate. Buczek v. First National Bank of Mifflintown, 366 Pa. Super. 551, 531 A.2d 1122 (1987); Gordon v. Lancaster Osteopathic Hospital Association, 340 Pa. Super. 253, 489 A.2d 1364 (1985). Major outrage is essential to the tort; and the mere fact that the actor knows that the other will regard the conduct as insulting or will have his feelings hurt is not enough. Lazor v. Milner, 346 Pa. Super. 177, 499 A.2d 369 (1985).

The facts herein presented do not, as a matter of law, show extreme and outrageous conduct. Doe v. Dryer-Goode, 389 Pa. Super. 151, 566 A.2d 889 (1989).

CMC’s Preliminary Objections

Negligence

In her brief plaintiff states she is not contending CMC negligently inflicted emotional distress (the tort partner of intentional infliction of emotional distress) but rather the hospital was negligent in the sense it allowed circumstances to exist under which such an incident, as averred, could occur. Plaintiff’s brief at 4. She goes on to argue that the principle involved here is the same one under which hospitals have been held responsible for the negligence of an incompetent surgeon who is not a hospital employee. Plaintiff cites no cases for this latter proposition but we grant that there are apparent exceptions to the general rule that there is no vicarious liability upon the employer for the torts of an independent contractor if indeed this is what the plaintiff is driving at. See Prosser and Keeton on Torts, supra, §71. For instance, where a doctor is an independent contractor if the patient accepts treatment in the reasonable belief that there is an agency relationship the ostensible master is liable. Capan v. Divine Providence Hospital, 287 Pa. Super. 364, 430 A.2d 647 (1981).

But in the present case, (and the plaintiff says so in her complaint), Parabia was in no way connected with her medical care and treatment. Plaintiff is not condemning the hospital in its capacity of a medical provider specifically but in its general capacity of an employer who brought aboard a bad apple as an independent contractor. Even if plaintiff could make a case to fit under an exception to the rule forbidding vicarious liability in these circumstances, the fact remains we have found, as a matter of law, that there was no tort committed, under the facts alleged, by the independent contractor Parabia. With no negligence on the latter’s part, there can be none on CMC’s part.

ORDER

Now, February 8, 1991, for the reasons set forth in the accompanying opinion, the preliminary objections of defendants in the nature of demurrers are granted; the complaint is dismissed as to both defendants.

       Plaintiff indicates that Parabia was on the “staff” of CMC without further explaining what connection with CMC being on the “staff” involves. Physicians in private practice with staff privileges are generally considered not to be servants of the hospital. Brown v. Moore, 247 F.2d 711 (3d Cir. 1957).


author: GRIM, J.,

text:
    Klopp Estate

      Jack G. Mancuso, for estate.

      Peter W. Schmehl, for Lola M. Klopp.

      David M. Kozloff, for Barbara Trostler.
    December 27, 1990
   GRIM, J.,

The case is before the court on an executor’s request for a declaratory judgment pursuant to 42 Pa.C.S. §7535. The issue is whether a spouse who is a surviving tenant on an entireties account should be reimbursed for monies which were advanced from the account by the spouse for the deceased spouse’s medical, nursing, and related care expenses. The question is one of first impression. The following are the pertinent facts and procedural history.

Leroy Klopp, decedent, and his second wife, Lola M. Klopp, were married on February 18, 1984. Prior to his marriage decedent owned a checking account. Within one month following his marriage to Mrs. Klopp, decedent added her name to the account. Decedent was wealthier than Mrs. Klopp and consequently his contribution to the account was greater than that of Mrs. Klopp, but there is no dispute that Mrs. Klopp also contributed her income to the joint account. This account was used to pay the couple’s expenses, including taxes and household and medical costs.

In September 1986, decedent had a stroke which severely affected his physical condition. He eventually returned home on March 20, 1987; however, 10 days later he had a seizure and returned to the hospital. In May 1987, he again returned home until July 1988, at which time he went back to the hospital. He died in the hospital on January 16, 1989.

During the time decedent was living in his home, he required medical and nursing care. The couple paid for the services from money in the joint checking account and forwarded the bills to Blue Cross/ Blue Shield for reimbursement. The money which was reimbursed was returned to the account.

Blue Cross/Blue Shield paid for health services from May 1987 to August 1987, and August 1987 to November 1987. They refused, however, to pay any expenditures for the same exact health services rendered between December 1, 1987 and July 19, 1988. The amount which they refuse to reimburse is $40,563. Blue Cross/Blue Shield reimbursed $26,908 by checks made payable to the estate. This money is being held in escrow in an interest-bearing account. A total amount of $67,571 is claimed. The estate is attempting to negotiate the recovery of the money and is providing only custodial care for the money until the court determines who is the owner of the recovered funds. The estate takes no position in regard thereto. Mrs. Klopp, a co-executrix, claims the money. Barbara Trostler, decedent’s daughter and co-executrix, refuses to release the money to Mrs. Klopp because she claims that any recovered monies are assets of the estate; however, both parties agree to pay the fees of the attorney for the estate for any recovery.

According to the terms of the will, Mrs. Klopp receives $20,000, the marital residence, and personal property. The residue of the estate is in trust with the income for life to Barbara Trostler and the remainder to Ms. Trostler’s daughter. Thus, if the checks are determined to be estate assets the entire amount will become part of the trust.

Barbara Trostler first argues that the advancement of monies from an entireties checking account by one owner to pay medical bills of the other joint owner severs the joint tenancy in those monies. Where property or an account is placed in the names of husband and wife, a gift and the creation of an estate by the entireties is presumed even though the funds used to acquire the property or to establish the account were exclusively those of the husband. The placing of the property in both names, without more, creates an estate by the entireties. In order to overcome the presumption that an estate by the entireties exists and that a complete gift ensued therefrom, there must be clear and convincing evidence to the contrary. It is fundamental that once the estate by the entireties existed, neither tenant could partition (except after divorce), nor terminate or sever by his or her own conveyance as a joint tenant can do, nor by his or her own act affect the right to survivorship. Holmes Estate, 414 Pa. 403, 200 A.2d 745 (1964).

In the instant case decedent changed his checking account from his own name to the names of himself and Mrs. Klopp. By this act alone an estate by the entireties was created. Barbara Trostler has presented no evidence which demonstrates that a completed gift was not contemplated nor that an entire-ties property was not desired. There is a presumption that either holder of an entireties property may act for both without specific authorization, so long as the benefit of that action inures to both. Estate of Matson, 374 Pa. Super. 61, 542 A.2d 147 (1988). In her brief Ms. Trostler acknowledges that the payments Mrs. KIopp made for decedent’s care inured to the benefit of decedent and Mrs. KIopp. Decedent benefited from the payments because he received the medical care and he was primarily liable for the bills; Mrs. KIopp benefited by the payments since she was secondarily liable for the payment of necessities for her spouse.

In order to show that an entireties asset is severed, a direct harm to one spouse through the actions of the other has to be proven. In the instant case, this never happened. If the court were to accept Ms. Trostler’s argument that by the payments of decedent’s bills at his direction and consent, Lola KIopp severed the account, the result would be ridiculous. It would mean that every time a spouse paid a bill for the other spouse from funds deposited in a joint account, the monies would cease to be entireties property. Properties owned by tenants by the entireties would exist only as long as the properties remain stagnant.

The cases which Ms. Trostler cites are not apposite to the case sub judice since none pertain to properties titled in the names of husband and wife, but to properties held jointly with the right of survivorship. An entireties property is a special creation of the law with unique characteristics. Ownership to entireties assets is not based on percentages of the contributions to each asset; rather, both spouses when acting in good faith own an indivisible whole until death or divorce.

For these reasons, the court finds that the joint checking account was an entireties account and the monies were not severed by Mrs. Klopp’s payments of the health care expenses.

Barbara Trostler also contends that an insurance carrier making the reimbursement for payment of medical expenses has a duty to reimburse the estate of the insured as the successor in interest of the insurance under an agreement for medical insurance. The cases which Ms. Trostler cites are not apposite to the instant case. McDivitt v. Pymatuning Mutual Fire Insurance Company, 303 Pa. Super. 130, 449 A.2d 612 (1982), involved a husband and wife who had been separated for many years. The insured property was owned by the couple as tenants by the entireties but was occupied by only the wife. The wife took out an insurance policy in her own right, paid the premiums from her funds, and named herself as the insured. For these reasons the Superior Court found that the wife alone was entitled to the insurance proceeds.

In re Gormen’s Estate, which Ms. Trostler quotes, is also not pertinent to the case at bar. In the Gormen case a life tenant bought insurance for a building and the court decided that the remainder-men were not entitled to any of the proceeds when the building was destroyed.

In the instant case, decedent and Mrs. Klopp were not separated at the time of decedent’s death and mutual funds were used to pay for the services. Ms. Trostler would be unjustly enriched at the expense of Mrs. Klopp if she were to receive the money for the reimbursement of the expenses. Clearly, if Blue Cross/Blue Shield had repaid the monies before decedent’s death, no issue would exist. The money would have been returned to the account which became solely Mrs. Klopp’s at decedent’s death. The law should not allow a windfall to be bestowed upon Ms. Trostler simply because payments were not timely made.

For these reasons, the court finds that any reimbursements from Blue Cross/Blue Shield should be turned over to decedent’s widow, Lola M. Klopp, for repayment of the funds advanced from the joint checking account. Accordingly, the court enters the following

ORDER

And now, December 27, 1990, after hearing and review of the record, it is ordered and decreed as follows:

(1) Lola Klopp is entitled to $26,908 plus interest which represents the medical insurance refunds currently held in escrow as well as to any and all additional refund monies received either as a result of negotiations or litigation with the insurance carrier.

(2) Jack G. Mancuso, Esq., is entitled to deduct from the funds any fees which are due and owing for his efforts in obtaining said refunds.


author: KELLER, P.J.,

text:
    Kegerreis v. Lincoln Intermediate Unit No. 12

      James S. Palermo and John J. Szajna, for plaintiffs.

      James K. Thomas II, for defendant Chambers-burg Area School District.
    August 9, 1990
   KELLER, P.J.,

Plaintiffs, Ronald D. Kegerreis and Julie R. Kegerreis, commenced this action on February 26, 1990 by filing a complaint for damages against defendants, Lincoln Intermediate Unit No. 12, Chambersburg Area School District, Roxanne M. Dennis, Marilyn Breier and Jane L. Cline, for injuries suffered by the minor plaintiff, Ellen R. Kegerreis.

Defendant/school filed preliminary objections on April 26, 1990 in the nature of a demurrer, and a motion to dismiss for failure to join necessary parties.

Briefs of the Kegerreises and the school have been filed. Oral argument was heard June 7, 1990. The matter is now ripe for disposition.

We will first address defendant’s demurrer. Defendant demurs to the complaint on the ground that plaintiff has failed to state a cause of action against it under the real estate exception to governmental immunity.

When considering a preliminary objection in the nature of a demurrer, the demurrer “admits all relevant facts sufficiently pleaded in the complaint, and all inferences fairly deductible therefrom, but not conclusions of law or unjustified inferences.” DeSantes v. Swigart, 296 Pa. Super. 283, 286, 442 A.2d 770, 772 (1982). Only where it appears with certainty that upon the facts averred the law will not permit recovery, will a demurrer be sustained. If any doubt exists as to whether the demurrer should be sustained, the doubt should be resolved by refusing to sustain the demurrer.

Plaintiffs contend that defendant’s preliminary objection concerning governmental immunity should be dismissed for being in violation of Pa.R.C.P. 1030.

Initially, we note that immunity is an affirmative defense which pursuant to Pa.R.C.P. 1030 is properly raised in new matter rather than by preliminary objection. The Supreme Court in In re Upset Sale of Properties, 522 Pa. 230, 560 A.2d 1388 (1989), concluded that the governmental immunity defense may be raised at any time in a proceeding. See Cotter v. School District of Philadelphia, 128 Pa. Commw. 159, 562 A.2d 1029 (1989). In numerous cases the courts have addressed the issue of whether the defense of immunity from suit raised by preliminary objection should be stricken. See Swartz v. Masloff, 62 Pa. Commw. 522, 437 A.2d 472 (1981). Courts have held preliminary objections are a proper vehicle for raising immunity where the defense is apparent on the face of the pleadings under attack. Ziccardi v. School District of Philadelphia, 91 Pa. Commw. 595, 498 A.2d 452 (1985). However, the Commonwealth Court and the Supreme Court have held that a party may object to an opponent’s raising immunity from suit in an improper manner. The current procedure for raising such a challenge is to file preliminary objections to the preliminary objections raising the immunity defense. McCreary v. City of Philadelphia, 95 Pa. Commw. 285, 505 A.2d 385 (1986). Plaintiffs failed to file preliminary objections to defendant’s preliminary objections. Therefore, defendant’s preliminary objection will not be stricken.

Title 42 Pa.C.S. §8542 provides, inter alia:

“(b) Acts which may impose liability — The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(3) Real property — The care, custody or control of real property in the possession of the local agency, except that the local agency shall not be liable for damages on account of any injury sustained by a person intentionally trespassing on real property in the possession of the local agency.”

The General Assembly intended to exempt the Commonwealth from immunity only in specific clearly defined situations. Therefore, the real property exception must be strictly construed. Exceptions to the rule of governmental immunity are to be narrowly interpreted. Snyder v. Harmon, 522 Pa. 424, 562 A.2d 307 (1989). We find the case law to be well established. Section 8542(b)(3) must be construed as a narrow exception to a general legislative grant of immunity.

For 42 Pa.C.S. §8542(b)(3) to apply, thus waiving the political subdivision’s immunity for negligent care of real property, there must be negligence which makes the real property itself unsafe for activities for which it is used. The government-owned real estate must be able to afford safety not only for the activities for which the property is regularly used but also intended to be used or reasonably foreseen to be used. The focus of the negligent act involving a dangerous condition of real estate is the actual defect of the real estate itself. Snyder v. Harmon, supra. Acts of others, however, are specifically excluded in the general immunity section (42 Pa.C.S. §8541.) We must conclude that any harm caused by others may not be imputed to the local agency.

The real estate exception has consistently been held to be unavailable to those whose claim of negligence consists of a failure to adequately supervise the conduct of students or persons. Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987). The language of the real property exception would be totally distorted if the supervision of school children, or the lack thereof, was placed within its scope. Frank v. SEPTA, 96 Pa. Commw. 221, 506 A.2d 1015 (1986). The real estate exception can be applied only to those cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others. Mascaro, supra.

Plaintiffs have not alleged that an artificial condition or a defect of the land caused the minor child’s injuries. The complaint instead alleges that the minor child, Ellen R. Kegerreis, received a forceful blow or was permitted to fall. There is no allegation of a defective toilet or table causing the injury; only that the child received a forceful blow or was permitted to fall. The complaint is replete with unexplained, conclusory statements rather than factual allegations. We find nothing alleged in the complaint that establishes or suggests a significant connection between an alleged dangerous condition and plaintiff’s injury to trigger the application of the real property exception. We conclude that the essence or “gravamen” of plaintiff’s complaint in the case at bar is that the minor child was negligently dropped, let fall, or swung onto the table or wheelchair. These claims are based upon alleged negligent supervision of the minor child and not a defect in the real property. Plaintiff’s claim arises from the alleged conduct of the staff as distinguished from the condition of the property itself.

Based upon the foregoing, we are persuaded that the facts alleged do not bring the case at bar within the narrow scope of the exception to governmental immunity as set forth in the real estate exception. We therefore sustain defendant’s preliminary objection in the nature of a demurrer.

Defendant’s second motion, failure of plaintiffs to join necessary parties, will not be acted upon because we have concluded the defendant’s demurrer must be sustained. However, for the guidance of counsel, we feel compelled to observe that the legal posture of the Chambersburg Area School District appears to be identical with the other school districts.

ORDER OF COURT

Now, August 9, 1990, the preliminary objections of the Chambersburg Area School District in the nature of a demurrer are sustained.

Plaintiffs are granted leave to file an amended complaint within 20 days of date hereof.


author: MILLER, J.,

text:
    Stettler Estate

      W. William Anderson, for appellant.

      Vicky Ann Trimmer, assistant counsel, Department of Revenue, for the Commonwealth.

      February 12, 1991
   MILLER, J.,

This matter is before the court on appeal by the estate of Gene A. Stettler from a notice of inheritance tax appraisement and assessment of tax issued by the Pennsylvania Department of Revenue. The general issue is whether decedent’s interest in an Employee Stock Option Plan issued by decedent’s former employer is properly includable in the taxable estate, or whether it is exempt under the Pennsylvania Inheritance and Estate Act, 72 Pa.C.S. §1711(r). We hold that the ESOP is not exempt from such taxation.

The stipulated facts are that decedent, Gene A. Stettler, died on March 12, 1987, survived by his wife, Sarah S. Stettler. Sarah S. Stettler, decedent’s wife, died on December 24, 1987. Sarah S. Stettler was a transferee, upon decedent’s death, of an ESOP issued by decedent’s former employer, De-ntsply International Inc. On February 21, 1989, at the request of the Pennsylvania Department of Revenue, the co-executors of the estate of Sarah S. Stettler, transferee of decedent’s ESOP, filed a Pennsylvania Inheritance Tax Return on behalf of the estate of Gene A. Stettler. The ESOP was valued at $97,314.27. However, an exemption was claimed under the employee benefits provision of the Inheritance and Estate Tax Act of 1982. On July 11, 1989, the Department of Revenue issued a notice of inheritance tax appraisement and assessment of tax assessing the inheritance tax due as $5,838.36 and the interest as $1,034.45, a total of $6,873.31.

The executors of the estate of Sarah S. Stettler filed an appeal on August 1, 1989. On the same date a citation was awarded directing the Commonwealth to show cause why the appeal should not be sustained. The Department filed its response to the petition for appeal.

The precise issue raised by both parties is whether decedent’s ESOP is exempt from the Pennsylvania inheritance tax under the employment benefit provisions, 72 Pa.C.S. §1711(r), if the plan qualifies for the marital deduction under the federal estate tax by virtue of its passing to the surviving spouse. That section provides:

“Employee benefits — Payments under pension, stock bonus, profit-sharing and other retirement plans including, but not limited to, H.R. 10 plans, individual retirement accounts, individual retirement annuities and individual retirement bonds to distributees designated by decedent or designated in accordance with the terms of the plan, are exempt from inheritance tax to the extent that decedent before his death did not otherwise have the right to possess (including proprietary rights at termination of employment), enjoy, assign or anticipate the payment made. In addition to this exemption, whether or not the decedent possessed any of these rights, the payments are exempt from inheritance tax to the same extent that they are exempt from federal estate tax under the provisions of the Internal Revenue Code of1954, as amended, any supplement to the code, or any similar provision in effect from time to time for federal estate tax purposes, except that a payment which would otherwise be exempt for Federal estate tax purposes if it had not been made in a lump-sum or other non-exempt form of payment shall be exempt from inheritance tax even though paid in a lump sum or other form of payment. The proceeds of life insurance otherwise exempt under subsection (d) shall not be subject to inheritance tax because they are paid under a pension, stock bonus, profit-sharing, H.R. 10 or other retirement plan.” 72 Pa.C.S. §1711(r). (emphasis supplied)

Both parties agree that decedent was the owner of the ESOP at the time of his death, and that its full value was includable in his gross estate for federal estate tax purposes. A federal estate tax return was not filed, however, because of the unlimited marital deduction provision of section 2056(a), 26 U.S.C., which provides, inter alia:

“For purposes of the tax imposed by section 2001, the value of the taxable estate shall, except as limited by subsection (b) [not here relevant], be determined by deduction from the gross estate an amount equal to the value of any interest in property which passes or has passed from the decedent to his surviving spouse, but only to the extent such interest is included in determining the value of his gross estate.”

The question, then, is whether the value of the ESOP is a “deduction” under the Internal Revenue Code (and therefore taxable in the decedent’s Pennsylvania taxable estate), or whether it is exempt from federal estate tax and therefore exempt from Pennsylvania inheritance taxation. We are satisfied that the terms “deduction” and “exemption” define concepts that are separate and distinct. A deduction for the purposes of estate taxation refers to the amount subtracted from the gross estate to arrive at the net estate for tax purposes, the net estate being the part of the estate remaining after payment of charges against the entire estate. Black’s Law Dictionary at 372 (rev. 5th ed. 1979). On the other hand, an exemption may be defined as a relieving of certain classes of property from liability to taxation. Black’s Law Dictionary, supra, at 513. Exempt property is therefore excluded from taxation and need not be identified since disclosure provides no additional information. On the other hand, something which is deductible must be disclosed so that, if appropriate, it can be subtracted from the balance of the gross estate in order to arrive at a figure which represents the net estate. Exempt property, therefore, is not included in the decedent’s gross estate, for exemptions are excluded from the valuation of the gross estate. Deductions, on the other hand, are subtracted from the value of the gross estate, which gross estate valuation necessarily includes the property subsequently deducted in order to arrive at the valuation of the net estate.

The marital deduction was written into the Internal Revenue Code as an attempt to equalize estate and gift tax liability between community property states and common-law states. Its practical effect is to defer taxation on some part of the decedent’s estate passing to the surviving spouse until the death of the spouse, Pennsylvania National Bank and Trust Co. v. United States, 360 F.Supp. 116 (M.D. Pa. 1973). It is clear that the value of the ESOP must be included in the gross estate of decedent for federal estate tax purposes. Its value was not taxable in the estate only by virtue of the marital deduction provisions of the Internal Revenue Code as set forth above. Were it not for those marital deduction provisions, the value of the ESOP in decedent’s estate would be fully taxable. Therefore, the value of the ESOP, rather than being exempt from federal estate taxation, is merely one of the items deducted from the gross estate in order to calculate the net estate. It does not represent a class of property that is exempt from taxation, but only a value which is deductible from the total gross estate for the purposes of fixing the amount upon which the federal estate tax will attach.

Since we have determined that the ESOP is not exempt from federal estate tax under the provisions of the Internal Revenue Code, it follows that it is not exempt from Pennsylvania Inheritance Tax under section 1711(r) of the Pennsylvania Inheritance and Estate Tax Act. Accordingly, we enter the following

ORDER

And now, February 12, 1991, the appeal of the executors is dismissed, and the assessment of inheritance tax and interest by the Department of Revenue is sustained.