author: MUNLEY, J.,

text:
    Manci v. Sewer Authority of the City of Scranton

      Charles Wilson, for plaintiffs.

      Michael P. Savitsky, for defendants Sewer Authority of the City of Scranton, Salvatore Occhipinti and Robert Keegan.
    May 16, 1990
   MUNLEY, J.,

This matter is before the court on the motion for summary judgment of defendants Scranton Sewer Authority, Salvatore Occhipinti and Robert Keegan.

The underlying factual scenario giving rise to this legal issue appears to be as follows: Plaintiff instituted an action sounding in negligence and strict liability, claiming that on August 16, 1983, defendants Salvatore Occhipinti and Robert Keegan, employees of defendant Sewer Authority of the City of Scranton, were negligent. In addition, and at the aforementioned time, defendant, Sewer Authority owned a Vactor Jet Rodder, a machine with which high-pressure water is utilized combined with an air vacuum system for the purpose of cleaning sanitary sewers or drain lines. The Vactor Jet Rodder machine was used, , taking advantage of its high-pressure water line, to clear an obstruction in the drains of property owned by plaintiff, Louis Manci, on August 16, 1983. Plaintiff, Louis Manci, was self-employed as the owner and operator of an automobile collision repair shop located at 1120 Penn Avenue, Scranton, Pennsylvania. Upon the request of plaintiff, Louis Manci, defendants Salvatore Occhipinti and Robert Keegan, as employees of defendant Sewer Authority, arrived at the repair shop of plaintiff, Louis Manci, to clear three collision shop garage drains. While the high-pressure hose was inserted in a drain, a pressure buildup apparently occurred, and the hose sprang from the drain striking plaintiff, Louis Manci, causing personal injury.

In ruling upon a motion for summary judgment, the function of the court rests in determining whether any disputed factual matters are in existence; the court does not decide an actual issue of fact. Weiss v. Keystone Mack Truck Sales Inc., 310 Pa. Super. 425, 456 A.2d 1009 (1983). Where facts are in dispute, those questions of fact are for the jury. Nonemaker v. York County, 62 Pa. Commw. 200, 435 A.2d 675 (1981).

Rule 1035(d) of the Pennsylvania Rules of Civil Procedure provides in pertinent part:

“[W]hen a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.
“In considering a motion for summary judgment under Rule 1035, a court may rely on the pleadings for uncontroverted facts but must ignore the pleadings as to controverted facts. Rule 1035(d) of the Pennsylvania Rules of Civil Procedure was taken verbatim from Federal Rule of Civil Procedure 56(e). The Advisory Committee on the federal rule commented as follows on the purpose of the last two sentences of the rule: *. . .A typical case is as follows: A party supports his motion for summary judgment by affidavits or other evidentiary matter sufficient to show that there is no genuine issue as to a material fact. The adverse party in opposing the motion, does not produce any evidentiary matter, or produces some but not enough to establish that there is a genuine issue for trial. Instead, the adverse party rests on averments of his pleadings which on their face present an issue .... The very mission of the summary judgment procedure is to pierce the pleadings and to assess the proof in order to see whether there is genuine need for trial. The . . . doctrine, which permits the pleadings themselves to stand in the way of granting an otherwise justified summary judgment, is incompatible with the basic purpose of the rule. . . .’ ” Phaff v. Gerner, 451 Pa. 146, 150-1, 303 A.2d 826, 829 (1973).

Defendants argue that they are immune from liability for claims asserted by plaintiffs by virtue of the Governmental Immunity Act, 42 Pa.C.S. §§8541 to 8564.

The basic statute on immunity is found at 42 Pa.C.S. §§8541 and 8542(b). The general rule of law is that there is immunity. Title 42 Pa.C.S. §8541 states:

“Except as otherwise provided in this sub-chapter, no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

However, to this general rule, an exception is set forth at 42 Pa.C.S. §8542(b) which reads as follows:

“The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency:
“(1) Vehicle liability — The operating of any motor vehicle in the possession or control of the local agency. As used in this paragraph, ‘motor vehicle’ means any vehicle which is self-propelled and any attachment thereto, including vehicles operated by rail, through water or in the air.” (emphasis supplied)

As noted from the deposition of Mr. Occhipinti, the hose that was used to clean this drain was powered by the same motor that powered the wheels of the vehicle. Mr. Occhipinti clearly stated in his deposition that the accident occurred when the engine that he was operating — which is the same engine that operates the wheels — stalled. When he started up the engine — the same engine that operates the wheels — the hose received the pressure, jumped out of the hole, and struck plaintiff in the face. While we recognize that the Jet Rodder has a separate engine on the back that operates the suction part of a vacuum-type hose, that is not the hose that caused the accident in this case. Notably Mr. Occhipinti testified that the hose which caused the alleged accident was the hose that is located on a reel located in the front of the truck. The operation of this hose, its pressure, and the water that goes into it comes directly off the engine that operates the truck and, ergo, would appear to constitute an attachment to the motor vehicle and therefore come within the exception to immunity that is noted in section 8542(b).

We believe, in accord with Justice McDermott’s opinion in Love v. City of Philadelphia, 518 Pa. 370, 543 A.2d 531 (1988), despite the narrow construction which must be applied to exceptions to governmental immunity (see Mascaro v. Youth Study Center, 514 Pa. 351, 523 A.2d 1118 (1987)), in matters of this nature it becomes a question of definition to interpret these subtleties. “[Wjords and phrases shall be construed according to rules of grammar and according to their common and approved usage.” Love, supra. We find the operation of the questioned apparatus presently falls within the definition of operation as defined in Love. I discern support for this conclusion in the following authority. Webster’s Ninth New Collegiate Dictionary (1984) defines attachment as follows: “attachment — a device attached to a machine or implement.”

Further, William C. Burton’s Legal Thesaurus, Deluxe Edition (1980) at 37, gives the following fit nuances for the word attachment:

“attachment — (Thing affixed), noun - accessory, addendum, additum, adjunct, affixture, annex, appendage, appendix, appurtenance, fixture, postfix, supplement, supplementary device.”

In the instant case, it is clear from the deposition of Mr. Occhipinti and from the word or words employed by the legislature in the statute under discussion that there is a genuine issue of a material fact, i.e., was the operation of this hose, which is an attachment to the truck, the operation of a motor vehicle in the possession or control of the local agency. We opine that this does constitute such an “operation” of a motor vehicle so as to fall within the exception to the act and not the getting-into or alighting-from acts ancillary to operating a motor vehicle, as distinguished in Love, supra. Furthermore, in as much as the hose in question is operated off the very engine that runs the wheels of the truck, and since the hose receives its power and pressure from the engine that operates the wheels of the truck as revealed by Mr. Occhipinti, there is, as a consequence, a genuine issue of fact for the jury to decide as to whether the operation of that hose constitutes the operation of a motor vehicle with an attachment thereto. Section 8542(b)(1), supra. Therefore there being a genuine issue as to fact, that issue should be decided by a jury, not by this court on a motion for summary judgment.

ORDER

Now, May 16, 1990, it is hereby ordered that the motion for summary judgment of defendants Sewer Authority of the City of Scranton, Salvatore Occhi-pinti and Robert Keegan is denied.


source: Caselaw Access Project

author: LABRUM, J.,

license: Public Domain

text:
    Holmes v. Borough of Lansdowne

      Gustine J. Pelagatti, for plaintiff.

      Gary Stewart Seflin, for defendant.
    February 26, 1991
   LABRUM, J.,

Plaintiffs filed a complaint against defendant borough seeking damages as a result of injuries sustained by the wife plaintiff as a result of contact with a contaminated syringe used to inject a diseased raccoon. Defendant filed preliminaiy objections which were sustained by the court and an appeal has followed to the Pennsylvania Commonwealth Court.

On or about September 26, 1989, animal control officer Blade Cash, acting on behalf of the Borough of Lansdowne, found an apparently sick or diseased raccoon within the borough and pursuant to procedures followed by municipalities throughout Delaware County, he brought the animal to the Delaware County SPCA for examination. Custody of the animal was transferred to the SPCA and the raccoon was brought to the rear of the SPCA building and was taken into the euthanasia room for destruction, at which time the animal was placed on a metal table by plaintiff, Virginia Holmes, who then injected it with a lethal solution. Mrs. Holmes placed the syringe on the table and her co-worker reached across the table to retrieve the syringe. While attempting to retrieve the syringe, the co-worker grazed plaintiff with the needle and possibly injected plaintiff, who was not wearing gloves or other protective clothing at the time, with the needle on her right ring finger, thus possibly exposing Mrs. Holmes to blood or serum from the raccoon.

At that time, plaintiff sought medical treatment for her potential exposure. A determination was made to test the now deceased raccoon for rabies and the next day the tests were deemed positive, thus requiring plaintiff to undergo a series of anti-rabies treatments.

The aforesaid facts as stated formed the basis of plaintiffs’ suit against the Borough of Lansdowne. The pertinent preliminary objections of the borough argued that the borough did not have possession or direct control of the raccoon, that the act of the co-worker was an intervening, superseding negligent or intentional act and that the raccoon was classified under statute as a wild animal, thus barring plaintiffs’ claim under the doctrine of governmental immunity. The court sustained the preliminary objections and dismissed the complaint.

Generally, actions against municipalities or political subdivisions of this Commonwealth are barred by the doctrine of governmental immunity as established in the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. Under the act, however, a local agency or municipality may be subject to suit only if the facts alleged state a cause of action within one of the eight limited categories within which governmental immunity has been waived by the legislature under 42 Pa.C.S. §8452(b)(l) through (8). The failure to plead a cause of action within one of the limited categories of waiver bars suit based upon governmental immunity. E-Z Parks Inc. v. Philadelphia Parking Authority, 110 Pa. Commw. 629, 532 A.2d 1272 (1987).

Of the enumerated categories within which governmental immunity has been waived, plaintiffs suggested that their claim fell within the “animals” exception regarding the negligent “care, custody” of animals within the possession of a local agency.

The “animals” exception provides:

“§8542. Exceptions to governmental immunity
“(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:
“(8) Care, custody or control of animals — The care, custody or control of animals in the possession or control of a local agency, including but not limited to police dogs and horses. Damages shall not be recoverable under this paragraph on account of any injury caused by wild animals, including but not limited to bears and deer, except as otherwise provided by statute.”

The limited categories within which governmental immunity has been waived by the act must be strictly construed against a waiver of immunity. Farber v. Pennsbury School Dist., 131 Pa. Commw. 642, 571 A.2d 546 (1990). In the present action according to the allegations of plaintiffs’ complaint, the harm alleged was caused by a third party, that is the co-worker of the wife plaintiff, as opposed to any direct result of an act or omission by the Borough of Lansdowne.

An analogous case to the one before this court is that of Herman v. Greene County Fair Board, 112 Pa. Commw. 615, 535 A.2d 1251 (1987), a case in which horses broke away from exhibitors at a county fair and ran into the crowd, injuring bystanders. In Herman, the Commonwealth Court held that since the horses broke away from the direct control of third parties that negligence could not be imputed to the Greene County Fair Board. The court ruled that in order for a waiver of immunity to lie within the “animals exception” of the act, the animal in question must be within the direct control of the local agency.

In the present case, the complaint states that the wife plaintiff and her co-worker were involved directly in the control and possession of the raccoon through their administration of the lethal injection. The complaint further states that the direct action of the co-worker was the cause of plaintiff’s injury, as stated in 42 Pa.C.S. §8541:

“Except as otherwise provided in this subchapter no local agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

The Commonwealth Court has precluded liability against a local agency for the negligent acts of a third party where the actions or omissions of the local agency merely facilitated the claimed injuries. Gallagher v. Pennsylvania Bureau of Correction, 118 Pa. Commw. 516, 545 A.2d 981 (1988). Furthermore, in Crowell v. City of Philadelphia, 131 Pa. Commw. 418, 570 A.2d 626 (1990), the court ruled that the acts of omissions within one of the eight categories must be a direct result of the injury, thus leading the court to conclude that a local agency may not be a joint tort-feasor to an action.

In light of the current status of the case law, the allegations of plaintiffs failed to allege a cause of action which would permit their claims to fall within any of the limited categories within which governmental immunity has been waived.

As previously stated, the raccoon was brought to the SPCA by Officer Cash, at which time the custody and control of the animal was turned over to the SPCA. Thus, at the time the alleged injury took place, the animal was in the direct possession and control of the co-worker of Mrs. Holmes and plaintiff herself, and the pleadings do not sustain the position that the animal was in fact in control of the borough.

Absent the factual allegation that the animal which was the cause of the injuries in question was within the complete and direct control and possession of a local agency, the claim of plaintiffs must fail under the statute and case law.

Finally, the act allows for a waiver of immunity for the negligent care, custody or control of animals within the possession of a local agency, so long as the injuries claimed are not caused by “wild animals.” Title 42 Pa.C.S. §8542 extends immunity to a municipality caused by “wild animals,” though the municipality may be liable for injuries caused by such animals as police dogs or horses. Deluca v. Whitemarsh Twp., 106 Pa. Commw. 325, 526 A.2d 456 (1987).

The Game and Wildlife Code, 34 Pa.C.S. §102 defines “wild animals” as “all mammals other than domestic animals as defined in 1 Pa.C.S. §1991.” Title 1 Pa.C.S. §1991 defines a “domestic animal” as “any equine animal, bovine animal, sheep, goat and pig.” Thus, under the Game Wildlife Code and definitions section, a raccoon is not defined as a domestic animal and thus must fit under the definition of “wild animal.” The Game and Wildlife Code sub-defines a raccoon not only a wild animal but also one of “furbearers” which is a term designed to include “the badger, the fisher, the mink, the muskrat, the opossum, the otter, the pine martin, the stripped and spotted skunk, the beaver, the raccoon, all weasels, the red and gray fox and the bobcat.” The code continues its regulations regarding furbearers under sections 2361 through 2364 regarding the unlawful and permitted acts respecting furbearing wild creatures, such as raccoons.

Since the complaint alleged that injuries occurred to plaintiff from the alleged negligent care, custody or control of a raccoon which is a wild animal, the claim of plaintiff must be barred under the statute.

For the foregoing reasons, the preliminary objections were sustained and the complaint was dismissed for failure to state a cause of action.


author: BROWN, J.,

text:
    Jones v. Beach

      Marc F. Lovecchio, for petitioner.

      Frederick D. Lingle, for plaintiff.

      Paul Welch, for defendant.
    February 15, 1991
   BROWN, J.,

FINDINGS OF FACT

Plaintiff and defendant are the natural parents of Vesta Marie Jones who was born on July 8, 1985. The present petition has been filed by Marcus R. Hill requesting the court for leave to intervene in the custody action.

For purposes of the present petition only, the court makes the following findings of fact. Mr. Hill is the natural father of defendant. However, Mr. Hill’s legal status as a parent concluded in 1969 or 1970 when he consented to defendant’s adoption by another person. Notwithstanding the legal termination of his parental rights, Mr. Hill re-established a relationship with the defendant when she was 15 and at the present time alleges that he is the natural grandfather of Vesta.

It is petitioner’s position that from 1986 to the present time he has enjoyed liberal partial custody and visitations with Vesta including periods of time when she temporarily resided with him. Petitioner presently resides with an adult female companion and her daughter who is the approximate age as Vesta. He further alleges that Vesta presently visits with him on a daily basis and that Vesta resides with him on “most every weekend.” Petitioner contends that he is actively involved in Vesta’s upbringing and that he substantially provides for her education, social, physical, intellectual, spiritual, moral, hygienic and entertainment needs.

Petitioner also contends that Vesta has established strong ties to himself, to his female adult companion and her daughter, as well as with other friends in the community and her school. He alleges that he is better able to provide for Vesta’s health, welfare and well-being than is plaintiff. He has further alleged that if defendant becomes incarcerated for any significant period of time that he would be better able to provide for the health, welfare and well-being of Vesta than would defendant. By way of further explanation the court would note that defendant was recently sentenced on charges- involving delivery of controlled substances to a prison term having a minimum duration of 12 months.

In view of his relationship with Vesta, petitioner has requested that he be granted full legal and physical custody of Vesta. In the alternative he alleges that the parents of Vesta have been separated for more than six months and that if he is not awarded primary physical custody of Vesta that it would be in her best interest and would not interfere with the parent/child relationship to grant him liberal partial custody, visitation rights and liberal legal custody rights to Vesta.

ISSUE

Should the court grant a petition to intervene in a child custody action where the proposed intervenor is not legally related to the child but is instead the natural grandfather who enjoys a significant relationship with the child?

DISCUSSION AND CONCLUSIONS OF LAW

Initially there is a substantial legal question as to whether petitioner could qualify for visitation or partial custody privileges as a grandparent under 23 Pa.C.S. §5312 because of the intervening adoption of defendant by another party. Adoption forever terminates the natural parent-child relationship. In re Adoption of Best, 413 Pa. 253, 196 A.2d 392 (1964). In view of the adoption it appears that petitioner does not have the legal status of parent of defendant or of grandparent of Vesta, despite his biological connection to both of them. Accordingly, petitioner’s legal status with respect to these proceedings is that of a third party rather than a grandparent.

Nonetheless petitioner argues that he is permitted to intervene under Pa.R.C.P. 1915.6(b). Under Rule 1915.6(b) the court shall give notice of the pendency of a custody action and right to intervene therein to any person “who claims to have custody or visitation rights with respect to the child.” Whereas Rule 1915.6(a) requires joinder of (1) a non-parent who has physical custody of the child and (2) a parent whose parental rights have not been terminated, Rule 1915.6(b) does not mandate joinder. It appears that joinder of other persons seeking custody is in the court’s discretion.

The court will allow petitioner to intervene in this action. Neither plaintiff nor defendant opposes the intervention. Petitioner’s burden of proof is as follows:

“[I]n a dispute between a parent and a third party, including a relative such as a grandparent, the parent has a prima facie right to custody, which will be forfeited only if convincing reasons appear that the child’s best interest will be served by an award to the third party. In re Hernandez, 249 Pa. Super. 274, 287, 376 A.2d 648, 654-5 (1977). Since visitation is correlative to custody a similar test should apply when a third party seeks visitation, although the burden on the third party should not be so heavy, for an order granting visitation is a far lesser intrusion, or assertion of control, than is an award of custody. . . .
“When seeking visitation, a third party must show reasons to overcome the parent’s prima facie right to uninterrupted custody. However, the reasons need not be so convincing as in a custody case. In a custody case, the third party must convince the court that it is in the child’s best interest to take custody from a parent and award it to a third party. In a visitation case, the third party need only convince the court that it is in the child’s best interest to give some time to the third party. As the amount of time requested moves the visit further from a visit and closer to custody, the reasons offered in support of the request must become correspondingly more convincing.” Commonwealth ex rel. Williams v. Miller, 254 Pa. Super. 227, 385 A.2d 991 (1978).

Although petitioner bears a heavy burden to convince the court to take custody of the child from her natural parents, the court is obligated to hear petitioner’s evidence in order to determine what is in the child’s best interest. Ellerbe v. Hooks, 490 Pa. 363, 365, 416 A.2d 512, 513 (1980) (“What the hearing court must do is hear all the evidence relevant to the child’s best interest, and then, decide whether the evidence on behalf of the third party is weighty enough to tip the scale down on the third party’s side”). See also, Chapman v. Goodman, 366 Pa. Super. 130, 530 A.2d 926 (1987) (“Although the sole issue in any custody proceeding, whether between two parents or between a natural parent and a third party, is the best interest of the child, in a proceeding involving a parent and a third person, ‘the evidentiary scale is tipped, and tipped hard, to the parents’ side’”).

ORDER

And now, February 14, 1991, based upon the foregoing opinion, it is hereby ordered that Marcus R. Hill’s petition for leave to intervene is allowed. Hereafter, the caption in this action should include Mr. Hill as intervenor.


author: LAVELLE, P.J.,

text:
    Commonwealth v. $1,581 U.S. Currency

      LettyA. Kress, assistant district attorney, for the Commonwealth.

      Stephen P. Vlossak, for owner.
    February 26, 1991
   LAVELLE, P.J.,

PROCEDURAL HISTORY

On August 9, 1990, the Commonwealth filed a petition for forfeiture against $1,581 United States currency which was seized during the execution of a search warrant at the residence of George Rotke-wicz. We issued and ruled upon George Rotkewicz to show cause why that currency should not be forfeited to the Commonwealth under the Controlled Substances Forfeiture Act, 42 Pa.C.S. §6801 et seq. On October 30, 1990, an answer to the petition was filed by Raymond Rotkewicz, father of George Rotkewicz, claiming that he was the owner of the money.

After a hearing on February 6, 1991, we make the following

FINDINGS OF FACT

(1) On May 25, 1990, Trooper Thomas Marchetti of the Pennsylvania State Police obtained a search warrant for the residence of George Rotkewicz, located on 105 East Penn Street, Lehighton, Carbon County, Pennsylvania. The search warrant authorized a search of the Rotkewicz residence for controlled substances and related contraband.

(2) At approximately 11:20 that evening, Trooper Marchetti, accompanied by other state troopers and local police officers, executed the search warrant at the Rotkewicz residence.

(3) The police officers were met at the back door by George Rotkewicz, who had been seated on a porch of the residence.

(4) When Trooper Joe Carcaci first entered the residence, he seized a quantity of marijuana directly beneath the chair in which George Rotkewicz sat. A further search of the residence and individuals therein at the time of entry led to the seizure of:

(a) One marijuana joint in the purse of Linda Rotkewicz;

(b) A quantity of marijuana wrapped inside of a one-dollar bill such that it appeared to be a joint;

(c) One marijuana plant located in the front yard;

(d) Drug paraphernalia to include one OHAUS triple-beam scale, two packages of rolling papers, one plastic bag containing smoking pipes, and one box of sandwich bags;

(e) Approximately $1,580 from the back pants pocket of George Rotkewicz in denominations that included four $100 bills, three $50 bills, forty-seven $20 bills, seven $10 bills, two $5 bills, and ten $1 bills.

(5) The foregoing items were removed from the Rotkewicz residence by Trooper Carcaci and are now in the possession of the Pennsylvania State Police.

(6) The substance located beneath the chair was determined to be 52.6 grams of marijuana. See Commonwealth exhibit 2, the Pennsylvania State Police laboratory report.

(7) George Rotkewicz, having been informed of his rights against self-incrimination and further consenting to answer police questions without the presence of counsel, agreed to speak with Trooper Marchetti at the time of the search. George Rotke-wicz informed Trooper Marchetti that on May 22, 1990 he and a male identified only as “Jeff” traveled to New York City in order to purchase approximately two pounds of marijuana. Unsuccessful in their attempt, the two individuals then returned home on May 24, 1990 whereupon George Rotke-wicz was fronted one-quarter pound of marijuana from “Jeff,” who was paid $500 by George Rotke-wicz on May 25, 1990. George Rotkewicz then admitted to having sold quantities of marijuana in increments of “dime bags” during all of May 25, 1990 from his residence. George Rotkewicz admitted that most of the money seized from his person was derived from those sales.

(8) Trooper John Freed maintained surveillance of the Rotkewicz residence for approximately the five hours preceding entry by the search party team. He surveilled the arrival of approximately 25 vehicles at the Rotkewicz residence during this time period.

(9) Said currency was placed in close proximity to the marijuana seized from the Rotkewicz residence.

DISCUSSION

The Law

The Commonwealth proceeds under the Controlled Substances Forfeiture Act, 42 Pa.C.S. §6801 et seq., which provides in relevant part that all of the following assets are subject to forfeiture to the Commonwealth:

“(a) Money, negotiable instruments, securities or other things of value furnished or intended to be furnished by any person in exchange for a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act, and all proceeds traceable to such an exchange.
‘ ‘(b) Money, negotiable instruments, securities or other things of value used or intended to be used to facilitate any violation of the Controlled Substance, Drug, Device and Cosmetic Act.” 42 Pa.C.S. §6801(a)(6)(i)(A), (B).

The Commonwealth, in a forfeiture proceeding, must meet the burden of proof by a preponderance of the evidence in order to show that said assets were derived from illicit drug transactions. See Commonwealth v. $872 Cash, 12 Carbon L.J. 102 (1989).

Here, just as in the proceedings concerning the $872 currency, the Commonwealth properly invokes a statutory presumption in its favor. That presumption creates an evidentiary nexus between currency and controlled substances that are in “close proximity” to one another. This presumption, certified at section 6801(a)(6)(h) provides that:

“No property shall be forfeited under this paragraph, to the extent of the interest of an owner, by reason of any act or omission established by the owner to have been committed or omitted without the knowledge or consent of that owner. Such money and negotiable instruments found in close proximity to controlled substances possessed in violation of the Controlled Substance, Drug, Device and Cosmetic Act shall be rebuttably presumed to be proceeds derived from the selling of a controlled substance in violation of the Controlled Substance, Drug, Device and Cosmetic Act. ” 42 Pa.C.S. §6801(a)(6)(ii) (emphasis supplied); see also, Commonwealth v. Tate, 371 Pa. Super. 611, 538 A.2d 903 (1988).

Once the Commonwealth carries its burden of proof, the burden shifts to the claimant to show that:

“(1) the claimant was the owner of the property or the holder of a chattel mortgage or contract of conditional sale thereon;
“(2) the claimant lawfully acquired the property; and
“(3) the property was not unlawfully used or possessed by him. In the event that it shall appear that the property was unlawfully used or possessed by a person other than the claimant, then the claimant shall show that the unlawful use or possession was without his knowledge or consent. Such absence of knowledge or consent must be reasonable under the circumstances presented.” 42 Pa.C.S. §68020).

Before any claimant may attempt to rebut the presumption of forfeiture, the claimant must meet the threshold of showing that he or she has standing to raise the innocent owner defense. Not just any individual may enter into a forfeiture proceeding in order to raise the innocent owner defense. See Commonwealth v. One 1985 Cadillac Seville, 371 Pa. Super. 390, 538 A.2d 71 (1988).

The Commonwealth’s Evidence

During the hearing sub judice the Commonwealth presented the testimony of Troopers Carcaci, Mar-chetti and Freed. All three troopers participated in executing the search warrant that occurred at the Rotkewicz residence on May 25, 1990 and led to the seizure of the $1,581. At the time of entry, the police seized an amount of marijuana, later determined to be 52.6 grams, beneath the chair in which George Rotkewicz sat. Additional marijuana was found in other parts of the residence as well as drug paraphernalia. Approximately $1,580 in currency was found in George Rotkewicz’s back pocket. He told the police that this cash came from marijuana sales that he made during all of May 25, 1990 whereby customers would visit his residence in order to purchase the marijuana. In fact, during days immediately preceding May 25, 1990, George Rotkewicz actively pursued the purchase of quantities of marijuana, by his own admission, of anywhere from one-quarter pound to upwards of two pounds.

The Commonwealth proved that the $1,581 was found in close proximity to seized marijuana. We need not, however, rely on the presumption thereby created.

The Commonwealth’s evidence showed by a preponderance that the $1,581 United States currency was derived from or used in furtherance of illegal drug sales. Even without George’s admission to the police that the money was drug-sale related, it is reasonable to infer from the police surveillance testimony that George was actively engaged in multiple marijuana transactions for cash on the day the cash was found. We have no hesitancy in concluding that the cash was produced by these drug sales.

The Defense

The father of George Rotkewicz, Raymond Rot-kewicz, presented himself as the claimant in the hearing sub judice for purposes of raising the innocent owner defense. He claims that the $1,581 in cash was his money which was given to George by his wife, Wilma, before May 25, 1990 to buy a car. We hold that Raymond Rotkewicz has no standing to raise the innocent owner defense. Interestingly, his claim emerges after the confiscation of the money and is based solely on his word and that of his wife. Raymond Rotkewicz was not present at the time of the execution of the search warrant nor did he produce any independent, impartial evidence of possession or ownership of the $1,581. We are unwilling to conclude, based on some belated self-serving statements, that he has provided a sufficient factual basis on which to find ownership and standing. See Commonwealth v. One 1985 Cadillac Seville, 371 Pa. Super. 390, 538 A.2d 71 (1988).

CONCLUSIONS OF LAW

(1) This honorable court has jurisdiction over the parties and subject matter of this forfeiture action.

(2) The $1,581 in United States currency was acquired, used, and possessed in violation of the Controlled Substance, Drug, Device and Cosmetic Act.

(3) The statutory presumption of 42 Pa.C.S. §6801(a)(6)(ii) is applicable to this case.

(4) The $1,581 in United States currency is subject to forfeiture to the Commonwealth of Pennsylvania under 42 Pa.C.S. §6801.

For the foregoing reasons we enter the following

ORDER OF COURT

And now, February 26, 1991, the Commonwealth’s petition for forfeiture is granted.

All claims of right, title or interest of George A. Rotkewicz, or any other claimant in the property are hereby declared to be terminated, revoked and rendered null and void. The $1,581 cash, United States Currency, is hereby condemned and forfeited to the Commonwealth of Pennsylvania, Office of Attorney General, Bureau of Narcotics Investigations and Drug Control pursuant to the Judicial Code, Chapter 68, Controlled Substances Forfeitures, sections 6801 to 6802, 42 Pa.C.S. §6801 et seq., for use or disposition in accordance with law.


author: BIEHN, J.,

text:
    PennDOT v. Dixon

      Charles McCardle, Office of Chief Counsel, for the Commonwealth.

      Steven Kip Portman, for defendant..

      February 25, 1991
   BIEHN, J.,

The Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing has appealed to Commonwealth Court from our order of December 20, 1990 sustaining the appeal of Lawrence Dixon.

Appellee’s driver’s license was suspended due to his refusal to take a breathalyzer test. It is not disputed that he refused the test. The sole issue before this court was whether or not the police officer had reasonable grounds to request that ap-pellee submit to a chemical test as required by 75 Pa.C.S. §1547. We found that he did not.

The law in this area is clear that “reasonable grounds” must be decided on a case-by-case basis.

“We have held that an arresting officer has reasonable grounds to believe that a motorist is operating a vehicle under the influence of alcohol if a reasonable person in the officer’s position, viewing the facts and circumstances as they appear to the officer at the time, could have reached such a conclusion. Department of Transportation, Bureau of Driver Licensing v. Terreri, 114 Pa. Commw. 208, 538 A.2d 639 (1988). We defined reasonable grounds as follows in Department of Transportation, Bureau of Traffic Safety v. Dreisbach, 26 Pa. Commw. 201, 204-5, 363 A.2d 870, 872 (1976):

“ ‘Whether evidence is sufficient to constitute “reasonable grounds” can only be decided on a case-by-case basis. The test, however, is not very demanding. We note initially that, for “reasonable grounds” to exist, the police officer obviously need not be correct in his belief that the motorist had been driving while intoxicated. We are dealing here with the authority to request a person to submit to a chemical test and not with the admission into evidence of the result of such a test. The only valid inquiry on this issue at the de novo hearing is whether, viewing the facts and circumstances as they appeared at the time, a reasonable person in the position of the police officer could have concluded that the motorist was operating the vehicle and under the influence of intoxicating liquor.’” Polinsky v. Commonwealth, Department of Transportation, 131 Pa. Commw. 83, 85-6, 569 A.2d 425, 426 (1990). (footnotes omitted)

At the hearing held before this court, Officer George Nevel testified that he was dispatched to the scene of an automobile accident on September 7, 1990, where he came into contact with appellee. The officer stated that appellee was seated behind the steering wheel of his vehicle and that appellee and the driver of the other car involved in the accident were beginning to exchange information. The officer also testified that it was the other driver who informed him that “he [the other driver] felt [appellee] may have been intoxicated.” (Notes of Testimony 12/19/90, at 4.)

The officer stated that appellee’s eyes were bloodshot so he asked appellee to exit his vehicle and perform a few field sobriety tests. The officer then stated the following:

“A: It was the nine step heel-to-toe walk and turn [appellee] performed. He couldn’t walk heel-to-toe. He walked heel to instep and almost fell one time.
“After that I asked him to do the one-leg stand to a count of 30, and demonstrated this to him. He began. He could only count up to 17, and then he put his foot down.
“And also he held his foot up not straight out in front of him, but like a crane bent. He bent at the knee.” (N.T. 12/19/90, at 4.)

On cross-examination, however, Officer Nevel was unclear as to whether he or the other driver smelled the odor of alcohol about appellee:

“Q: Officer Nevel, you first became suspicious of [appellee] being under the influence from [the other driver] telling you [appellee] smelled of alcohol?
“A: Yes.
“Q: And I note from your testimony on direct that you didn’t smell an odor of alcoholic beverages about [appellee], did you?
“A: I don’t recall smelling it. In my report it states that there was, but I can’t recall.
“Q: Do you recall testifying at the preliminary hearing in this matter?
“A: Yes, I do. I recall not testifying to that.
“Q: You recall not saying that you smelled the odor of alcoholic beverage there?
“A: No, I didn’t say anything about that in my testimony at the preliminary. It was in my report as I stated. However, I passed over that while testifying at the preliminary hearing.
“The Court: But you were told by the other party in the accident that he had smelled an odor of alcoholic beverages?
“The Witness: No, he just told me that he believed that the operator was intoxicated.
“The Court: Didn’t give any other reason?
“The Witness: No.
“Q: Since you recall that part of [the other driver’s] testimony at the preliminary hearing, you recall that he also testified to some extent that there was an odor. He thought it was alcohol, but he really wasn’t sure what that was? It was just a strange odor?
“A: I don’t know if they were his exact words but yes, kind of something like that.” (N.T. 12/19/90, at 5-7.)

This court is aware that the presence or absence of the odor of alcohol about a motorist is not the only test of whether an officer had reasonable grounds to believe a driver was under the influence of alcohol. However, we believe it is a factor we must consider. So too did we consider that the field sobriety tests were performed on the shoulder of the road where, by the officer’s testimony, it was not smooth but consisted of stones and rocks and where traffic was heavy at the time. The officer also agreed that appellee was cooperative at the scene. It was the officer’s opinion that appellee failed the field sobriety tests that caused the officer to arrest appel-lee for driving under the influence.

This court attempted to clarify the officer’s observations:

“The Court: You talked to [the other driver] who said what in terms of the defendant’s intoxication? This may be important. What was it exactly that he said to the best of your recollection]?
“The Witness: Just that he didn’t seem right, [appellee] didn’t seem right, and that he thinks he may be intoxicated. Not word for word, but to that point.
“And when I walked up to the vehicle that he was sitting behind the wheel, I walked up to his driver’s door, his eyes were red and bloodshot, and he was sitting there writing his information down.” (N.T. 12/19/90, at 8-9.)

We believe it is the driver’s behavior and appearance, as observed by the arresting officer, which must be considered. In the instant case, Officer Nevel observed only that appellee had bloodshot eyes and partially completed the field sobriety tests. There was no evidence of slurred speech or an unsteady gait. Furthermore, the testimony concerning the odor of alcohol was inconclusive. In addition, the officer testified that appellee was cooperative and was exchanging information with the other driver. Viewing the above facts and circumstances, we found that a reasonable person in the position of the police officer could not have concluded that appellee was under the influence of alcohol.

Accordingly, we reversed the order of the Department of Transportation.


text:
    Kinderman v. PennDOT

      Peter G. Loftus, for plaintiff.

      Jerome T. Foerster, for defendant.
    May 31, 1988
   MUNLEY, J.,

This matter was heard by the court without a jury. Plaintiff, Edward G. Kinderman, has alleged he was the victim of employment discrimination, due to his non-job-related disability, by the Department of Transportation, Commonwealth of Pennsylvania.

A complaint in this action was filed on April 2, 1985. The basis of plaintiff’s action was his involuntary demotion in job classification, on October 7, 1983, by defendant PennDOT. Plaintiff brings this action pursuant to the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. Previously plaintiff had filed a complaint with the Human Relations Commission but that body failed to render a favorable decision and advised complainant of the availability of instituting the present proceedings. The subject litigation is properly before this court to determine whether defendant PennDOT engaged in discriminatory practices when it involuntarily demoted Mr. Kinderman.

FINDINGS OF FACT

(1) Plaintiff was born on December 18, 1930.

(2) Kinderman was a 20-year veteran in the Marine Corps and served his country in both the Korean War and Vietnam War.

(3) During his duty with the Marine Corps, he worked approximately 17 years as a metalsmith foreman.

(4) While in the Marine Corps, plaintiff received training in the following areas: internal diesel crawler tractor repair maintenance; aircraft structural mechanic’s shop practices; metalsmith foreman; engineer mechanics; vehicular body work; welding shop organization and management; heavy equipment mechanics; and accounting.

(5) In 1966, the Marine Corps determined plaintiff disabled due to bilateral loss of hearing resulting from nerve damage caused by tanks, tank fire, artillery fire and similar military conditions. Kinder-man saw combat in both the Korean War and Vietnam War.

(6) Plaintiff retired from the Marine Corps with an honorable discharge on February 1, 1970 and presently receives 60-percent disability benefits for service-related medical problems.

(7) Plaintiff worked briefly for the Pennsylvania Gas & Water Company following his retirement from the Marine Corps.

(8) His duties for the Pennsylvania Gas & Water Company included inventory, logistics and supplies.

(9) He ended his employment with the Pennsylvania Gas & Water Company when he was offered a job by the Pennsylvania Department of Highways.

(10) Plaintiff was hired by defendant’s predecessor, the Pennsylvania Department of Highways, on June 1, 1970.

(11) Plaintiff was hired as a preventive maintenance coordinator and was given the classification of a Mechanic I.

(12) When plaintiff initially learned of his classification as a Mechanic I, he informed Neil Chase, the county manager, and Bertram Perry, his immediate supervisor, of the physical limitations making it impossible for him to work as a Mechanic I. He also disclosed this information to Debbie Owens, the office secretary, and Jean O’Dell who worked in the office.

(13) Plaintiff was informed by Mr. Chase, the county manager, that he would be working as a preventive maintenance coordinator. In response to plaintiff’s concern to being classified as a Mechanic I, Mr. Chase said, “Don’t worry about that, you’ll be working as a preventive maintenance coordinator.”

(14) Plaintiff worked from the time he was hired in 1970 through 1983 as a preventive maintenance coordinator at the Clarks Summit facility. This is a Mechanic II position in a classification, a recognized higher category of employment and encompassing the work of a Mechanic I.

(15) Kinderman remained classified as a Mechanic I until October 7, 1983, when he was involuntarily demoted to highway maintenance worker which simultaneously reduced his salary from $689 biweekly to $520.50 biweekly.

(16) Plaintiff cannot work as a Mechanic I because of the bilateral hearing loss suffered in the military service. Furthermore, plaintiff suffers from diabetes and has had resulting cataract problems. In 1983 plaintiff was required to undergo cataract surgery on his left eye and this necessitates his wearing a contact lens. Noise present in the garage adversely affects his remaining hearing capacity and would lead to a total hearing loss. Dirt, dust and fumes present in the automotive garage irritate plaintiff’s left eye rendering it impossible for him to work in a garage setting.

(17) Plaintiff’s doctor, Anees Robert Fogley, M.D. has confirmed that plaintiff cannot work as an automotive mechanic in the garage setting. (See paragraph 50, infra.)

(18) Plaintiff has never performed as a Mechanic I since being hired on June 1, 1970 because of his physical disabilities. Despite the fact he was classified as Mechanic I, he performed the functions of a Mechanic II, i.e. preventive maintenance coordinator.

(19) The Clarks Summit garage of PennDOT did not have a preventive maintenance program prior to Mr. Kinderman’s employment in 1970.

(20) Plaintiff set up the preventive maintenance program at Clarks Summit which involves the preventive maintenance in the shop for approximately 150 pieces of mobile equipment.

(21) Plaintiff performed the functions normally carried out by a procurement officer (Mechanic II-A): responsibility for filling out work orders and forms necessary for the purchase of parts used in the day-to-day operations of an automotive garage.

(22) Kinderman also performed the functions normally carried out by a receiving agent (Mechanic II-B): responsibility for filling out work orders and documenting the maintenance history for Penn-DOT’s equipment. (Exh. 36.)

(23) The evaluations of plaintiff make reference to his work in preventive maintenance, inventory, record keeping, and the care of equipment and supplies.

(24) Plaintiff was essentially performing as a Mechanic II but was paid at the lower classification of a Mechanic I. No effort was made by PennDOT to reclassify Kinderman at the higher level (Mechanic II) throughout the period, of 1970 through 1983.

(25) Plaintiff’s performance evaluation report for the period June 1977 through June 1978 indicated his overall evaluation to be excellent in all of the performance factors: quality of work; work habits; relationship with people; dependability; quantity of work; and initiative. (See plaintiff’s exh. 8.)

(26) Plaintiff received an identical evaluation for the period June 1978 through June 1979. (See plaintiff’s exh. 8-A.)

(27) Plaintiff’s performance evaluation report for the period June 1979 through June 1980 contains the following comment by his evaluator: “Mr. Kinder-man has a very thorough working knowledge of all aspects of department policy concerning maintenance equipment records and scheduling of equipment in the preventive maintenance program. He has organized the P.M. program for this activity and constantly monitors it to insure timely completion of each item. His efforts have been instrumental in the success of the program. His recording attendance is excellent.” (See plaintiff’s exh. 9.)

(28) Plaintiff’s evaluation report for the period preceding his demotion, June 1982 through June 1983, reveals a “very good” overall evaluation with the following comment by the evaluator: “Mr. Kin-derman has been under my management since November 1982 and has always worked to my complete satisfaction.”

(29) In the early 1970s, the Clarks Summit garage foreman position, classified as a Mechanic II, became vacant. The work was divided between plaintiff and Nick Anuszewski, a fellow worker.

(30) Mr. Anuszewski was subsequently promoted to a Mechanic II position. Anuszewski was unfamiliar with the parameters of the position prior to his promotion. It was Kinderman who taught Anus-zewski the Mechanic II work.

(31) Plaintiff’s performance evaluation report for the period June 1979 through June 1980 makes reference to 60 percent of his job being Mechanic I duties. (See plaintiff’s exh. 9.) This latter comment in exhibit 9 is a misrepresentation because Kinder-man was unable to perform Mechanic I duties due to his physical disabilities. We find plaintiff’s testimony credible when he states in the record (T.R. at 39-40) that he subsequently learned that the reference to Mechanic I duties was added to the performance evaluation report after he had signed the original report.

(32) The record establishes that Kinderman was not given a physical examination or a written job description at the time of his hiring.

(33) In April 1983, plaintiff was informed by Michael Czachor, county maintenance manager, that he was not performing the duties of Mechanic I. Mr. Czachor assumed his responsibilities at Penn-DOT Clarks Summit facility approximately 13 months prior.

(34) By letter dated April 25, 2983 (see plaintiff’s exh. 21), plaintiff was informed by Czachor that the following alternatives were available to him:

“(1) Accept training as a mechanic and work on the floor in that capacity.
“(2) Accept a voluntary reduction to highway maintenance work at a reduction in pay.
“If future medical exams warrant a finding of serious medical problems, the following alternatives could be explored:
“(3) Involuntary reduction to highway maintenance work at no reduction in pay; or
“(4) Pursue disability retirement.” (emphasis supplied)

(35) He was informed that if his medical condition precluded work as a Mechanic I, then there would be an involuntary reduction to highway maintenance at no reduction in pay.

(36) Plaintiff obtained documents from the Veteran’s Administration which revealed that plaintiff was unable to perform inside the shop as a mechanic. The Veteran’s Administration documents were turned over to Czachor.

(37) Czachor reviewed this documentation and then informed plaintiff that the evidence was inconclusive, and that plaintiff would have to go to another doctor.

(38) Plaintiff was examined by Dr. Fogley who determined that plaintiff could not perform as a mechanic in his letter of May 26, 1983.

(39) In response to Dr. Fogley’s May 26, 1083 letter, Czachor then wrote to Kinderman on or about June 17, 1983 indicating that plaintiff could not work as mechanic or function as a highway maintenance worker.

(40) In the letter dated June 17, 1983, Czachor recommended disability retirement and suggested that if the plaintiff failed or refused, he should then be dismissed.

(41) On July 14, 1983, Czachor wrote. Tom Collins, District Engineer for PennDOT, stating that plaintiff did not “know how to do mechanical work. ”

(42) The record before us clearly demonstrated that the plaintiff’s extensive military training and background was mechanical and that he was unquestionably highly proficient in all types of mechanic’s work. Furthermore, we find that the only reason for his limitation as to garage work was his disability.

(43) Based upon the representations by Czachor in his July 14, 1983 correspondence, Thomas Collins, PennDOT district engineer, wrote a letter on July 25, 1983, through personnel officer Gordon Weber, recommending an involuntary dismissal of plaintiff.

(44) Plaintiff was never given a copy of the July 25, 1983 letter.

(45) In the spring of 1983, plaintiff filed a reclassification grievance. Kinderman was advised by his union that PennDOT had agreed to reclassify him as Clerk II or highway maintenance position, without a loss in income or seniority, if he should file such a grievance. (This was an established policy according to other employees. See plaintiff’s exhs. 30, 31.) Kinderman then pursued the grievance procedure.

(46) During the course of the grievance proceedings in 1983, plaintiff had an opportunity to review his personnel file. This opportunity to peruse the file produced a letter dated August 24, 1983, from Gordon Weber to Sharon Wright of the State Personnel Office, indicating that the District Office was going to furlough one Clerk II who was identified as plaintiff, Edward Kinderman.

(47) Kinderman was not a Clerk II at this point in time.

(48) Having discovered the above information, plaintiff refused to accept the proposed settlement, set forth in paragraph 45 above, during the course of the grievance procedure.

(49) When plaintiff discovered the August 24,1983 letter (see paragraph 46 above), he filed a complaint with the Pennsylvania Human Relations Commission and thereupon terminated the grievance procedure. Plaintiff now believed if he accepted the proposed settlement, he would be furloughed.

(50) Gordon Weber, defendant’s personnel analyst, testified that it was the plan of the Department of Transportation to wait until the grievance was settled and then furlough plaintiff. In this regard, plaintiff’s exhibit 52, a September 27, 1983 memo between Mr. Collins and Ms. Wright, is illuminating. Weber further testified that the Clerk II position was not to be eliminated until April 2, 1984, but plaintiff was to be furloughed as soon as he was placed in the position. Furlough was defined by Thomas Collins as “laid off.”

(51) Mr. Kinderman was informed by Sharon Wright of PennDOT’s personnel department by letter of October 6, 1983 that he would be placed into the highway maintenance category by letter of October 6, 1983.

(52) In 1983 when Mr. Kinderman was demoted, PennDOT replaced him with two persons stationed at the Clarks Summit facility and brought two women in from the District Office at Dunmore to perform his work. The record demonstrates that each of these employees had equal or less training and experience as compared to Mr. Kinderman.

(53) The reduction to highway maintenance worker was involuntary and based only on Kinder-man’s disabilities and handicaps.

(54) Ms. Wright’s letter incorrectly reflected that this demotion was voluntary.

(55) As a result of said demotion or reclassification, plaintiff’s salary was reduced approximately $160.72 biweekly.

(56) Plaintiff had been in pay range 31, step H, earning $17,976 annually prior to his demotion.

(57) When demoted to highway maintenance worker, plaintiff was placed in pay range 24, step H, and received $13,575 per annum.

(58) A Mechanic II’s pay range was approximately $19,750 per annum.

(59) Despite the fact that Czachor’s April 25, 1983 letter (see paragraph 34, above) indicated that an involuntary reduction to highway maintenance worker duties would result in no reduction of pay, plaintiff did suffer a reduction as outlined in paragraphs 57 and 58 above.

(60) On September 18, 1985 plaintiff received a letter from then District Engineer, Michael Ryan, advising him that all handicapped workers were to be furloughed.

(61) Approximately one month later, October 25, 1985, Kinderman received another letter from Mr. Ryan. This correspondence was sent through the Office of District Personnel Analyst - District Personnel Director, Gordon Weber, notifying plaintiff that he would be laterally reclassified from highway maintenance worker to a transportation equipment operator trainee effective November 1, 1985. The October 25, 1985 letter indicated that the highway maintenance position was to be abolished.

(62) Criteria for the reclassification was that Kin-derman successfully pass a physical exam.

(63) As a result of this October 1985 action by PennDOT, Kinderman faced the option of becoming a transportation equipment operator trainee or being, fired.

(64) Kinderman never became a transportation equipment operator trainee due to a stipulation of dismissal being entered in the United States District Court for the Eastern District of Pennsylvania.

(65) From his demotion in 1983 to November 1985, plaintiff performed as a highway flagman, radioman, as well as working briefly at PennDOT’s gas pumps, despite his disabilities.

(66) PennDOT attempted to place Kinderman in a Tech I or Tech II position which was under the civil service but would result in the loss of union seniority.

(67) Kinderman became suspicious that PennDOT was attempting once again to terminate him by perverse tactics.

(68) Plaintiff’s skepticism of PennDOT heightened after he discovered that the defendant now categorized the Tech I position as a clerk’s position. This represented the first offer to plaintiff since the filing of his complaint with the Human Relations Commission, a period of approximately three years.

(69) He questioned his immediate supervisors who were attempting to transfer him (Weber, Bombay, Baker, Finn) regarding the status of this position but received no response. William Baker, however, indicated that he felt Kinderman would lose his seniority.

(70) Mark Kelly, the union representative, was also offered the same position but declined it for similar reasons.

(71) Prior to the trial in this matter, plaintiff was doing storage and inventory work although still classified as a highway maintenance worker.

(72) From October 10, 1983 through July 29, 1987, plaintiff was classified as a highway maintenance worker and classified as 24 H for payroll purposes. He earned approximately $13,575 per annum. (Adjusted, see footnote 1, supra.)

(73) From July 29, 1987 through the date of this opinion, plaintiff has been classified as a Store Clerk II. Kinderman is presently in the 26 H pay range earning $17,252 per annum.

DISCUSSION AND CONCLUSIONS

By way of a preliminary matter, we must address the argument advanced by PennDOT that plaintiff’s failure to reply to the new matter, constitutes an admission of the factual averments in said new matter. We concur with the argument advanced by plaintiff’s counsel when he submits “there is no duty to reply when the new matter is in fact only a negative pleading, and denials of the averments of the complaint and conclusions of law.” Ritmanich v. Jonnel Enterprises Inc., 219 Pa. Super. 198, 208, 280 A.2d 570, 576 (1971). We construe these allegations as no more than mere defensive matters set up by way of defendant’s answer; they do not rise to the level of new matter and therefore do not require a reply. See 6 Standard Pa. Practice 2d §30:3. Furthermore, the Pennsylvania Rules of Civil Procedure should be liberally construed, disregarding technical errors which do not affect the substantial rights of a party. Pa.R.C.P. 126. Considering the mischief to be remedied, the object to be attained, as well as the nature of the statute we are following, suffice to say we are comfortable with our ruling.

Our next focus is the four-pronged attack on plaintiff’s claim advanced by the Commonwealth. Defendant argues that plaintiff’s claims are barred by the following: (1) Six-month statute of limitation pursuant to 42 Pa.C.S. §5522; (2) the sovereign immunity of defendant; (3) Article 39 of the master agreement between defendant and plaintiff’s union, AFSCME, subjecting plaintiff’s claims to arbitration and grievance; (4) res judicata or collateral estoppel serve as a bar to the plaintiff’s claims as a result of the United States Middle District Court, February 12, 1985 opinion in Kinderman v. Commonwealth of Pennsylvania, Department of Transportation, no. 84-0800 (M.D. Pa., February 12, 1985).

On February 6, 1986, now President Judge James J. Walsh of this court issued an opinion and order which dismissed all of the claims of plaintiff herein except those brought pursuant to the Pennsylvania Human Relations Act, 43 P.S. §951 et seq. In deciding the four-pronged attack on plaintiff’s cause of action, we are guided by and here adopt the able opinion of Judge Walsh. Specifically, each argument advanced by the Commonwealth today was dismissed by Judge Walsh. In dismissing the four arguments submitted by PennDOT in the February 6, 1986 opinion, our task is made that much clearer and permits us to set about addressing the discrimination action on its merits.

Pennsylvania Human Relations Act

On April 2, 1985, plaintiff filed a complaint in our court alleging that PennDOT demoted him because of his handicap or disability, in violation of section 5(a) of the Pennsylvania Human Relations Act, 43 P.S. §955(a), which provides in pertinent part:

“§955. Unlawful discriminatory practice
“It shall be an unlawful discriminatory practice, unless based upon a bona fide occupational qualification, or in the case of a fraternal corporation or association, unless based upon membership in such association or corporation, or except where based upon applicable security regulations established by the United States or the Commonwealth of Pennsylvania:
“(a) For any employer because of the race, color, religious creed, ancestry, age, sex, national origin or non-job related handicap or disability of any individual to refuse to hire or employ, or to bar or to discharge from employment such individual, or to otherwise discriminate against such individual with respect to compensation, hire, tenure, terms, conditions or privileges of employment, if the individual is the best able and most competent to perform the services required. . . .” 43 P.S. §955(a). Act of October 27, 1955, P.L. 744, §5, as amended, 43 P.S. §955 (Supp. 1965-1985).

In an employment discrimination case, the plaintiff bears the burden of establishing a prima facie case which, in the present matter, requires proof that Kinderman is disabled, that he was appointed to a position for which he was otherwise qualified, that he was demoted, and that PennDOT replaced him with someone with equal or lesser qualifications. See General Electric Corp. v. Pennsylvania Human Relations Commission, 469 Pa. 292, 365 A.2d 649 (1976). Once the prima facie case is established, the burden then shifts to the employer to establish the defendant was not the “best able and most competent” person to perform the required services, and that there was a legitimate nondiscriminatory reason for the employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973). Thus, provided Kinderman has met his burden of establishing that he is disabled under the Pennsylvania Humans Relations Act, it becomes PennDOT’s burdén to establish that Kin-derman’s disability is job-related and, therefore, provides a valid basis for the demotion. Amtrak v. Pennsylvania Human Relations Commission, 70 Pa. Commw. 62, 452 A.2d 301 (1982), and School District of Philadelphia v. Friedman, 96 Pa. Commw. 267, 507 A.2d 882 (1986). Plaintiff may then still prevail by proving that the reasons offered by the employer were a pretext for the true motivational reasons behind PennDOT’s decision. Montour School District v. Human Relations Commission, 109 Pa. Commw. 1, 530 A.2d 957 (1987), and Orweco Frocks v. Human Relations Commission, 113 Pa. Commw. 333, 537 A.2d 897 (1988).

Our analysis begins with the observation that there is no dispute between the parties that plaintiff is in fact disabled. A review of plaintiff’s medical history, past and present, confirms this. The question now focuses on whether or not Kinderman’s disability is job-related. Under section 4(p) of the act, a handicap or disability is by definition not job-related when it “does not substantially interfere with the ability to perform the essential functions of employment which the handicapped person applies for, is engaged in, or has been engaged in.” 43 P.S. §954(p). The Pennsylvania Human Relations Commission Regulation 44.4,. 16 Pa. Code §44.4, provides in pertinent part:

“Non-job-related handicap or disability—
“Includes the following:
“(i) Any handicap or disability which does not substantially interfere with the ability to perform the essential functions of the employment which a handicapped person applies for, is engaged in, or has been engaged in. Uninsurability or increased cost of insurance under a group or employee insurance plan does not render a handicap or disability job-related.
“(ü) A handicap or disability is not job-related merely because the job may pose a threat of harm to the employee or applicant with the handicap or disability unless the threat is one of demonstrable and serious harm.
“(iii) A handicap or disability may be job-related if placing the handicapped or disabled employee or applicant in the job would pose a demonstrable threat to the health and safety of others.”

In view of plaintiff’s work history for 13 years with PennDOT and in light of defendant-employer’s evaluations of the quality of his performance, this record clearly demonstrates that Mr. Kinderman’s disability was non-job-related as that term is defined in section 4(p) of the act, supra. Moreover we find the high performance ratings given by the defendant-employer so conclusive that the discussion of any reasonable accommodation is unnecessary under the facts here present.

Plaintiff, Mr. Kinderman, has met his burden of establishing a prima facie case by a preponderance of the evidence. Complainant has established at the time of the challenged action that he belonged to a protected class, that he was qualified to perform the work of a preventive maintenance coordinator, that he was involuntarily demoted and suffered a reduction in salary, and that PennDOT replaced him with individuals with equal or less qualifications.

The centerpiece of the defense is set forth in a memo dated July 14, 1983, exhibit 22, wherein the plaintiff’s immediate supervisor, Mr. Czachor, informed the district engineer, Mr. Collins, that Kan-derman did not “know how to do mechanical work.” From this point on it was all downhill for Mr. Kinderman. We find the evaluation expressed in the July 14, 1983 memo by the county maintenance manager to be incredible. The observations expressed therein flies in the face of Kinderman’s 20 years of training, schooling and work experience with the Marine Corps, and his 13 years of outstanding evaluations for job performance, in the same position, with the same employer, and are totally unsupported by the record. Juxtaposed during cross-examination, Mr. Czachor, defendant’s chief witness, testified that complainant was performing the normal work and carrying out the responsibilities of a Mechanic II. The defendant-employer submitted no additional evidence to sustain its qualification argument. Kinderman’s testimony and evidence on the qualification charges were uncontra-dicted or more correctly stated, went unchallenged. Therefore it is our judgment that plaintiff was qualified to perform the work and duties required of the position which he held and his demotion on this basis is pretextual. Orweco Frocks, supra.

Secondly, we view PennDOT’s district-wide policy argument (the policy designed to reduce the number of clerks or clerk filled positions on a one-per-county basis) as no more than a flawed defense to which we attach no weight. The policy argument simply fails to carry the day, i.e. adequately explain the Edward Kinderman matter. The district engineer testified that the basis for Penn-DOT’s personnel policy was to get the most out of federal funds for road maintenance. That testimony may be considered enlightening and perhaps even laudable, but it is not relevant to our query: Why was Edward Kinderman singled out for the demotion? Based on a careful reading of the entire record, Kinderman had an outstanding history with Penn-DOT and its predecessor, Pennsylvania Department of Highways. Defendant offered no evidence to indicate that Kinderman was ever compared with his fellow workers and found to be incapable of performing and therefore the logical one to be demoted to fulfill its policy. Contrariwise the record reflects contemporaneous with Kinderman’s reclassification that PennDOT was required to engage the services of a number of employees to replace him. Furthermore, Kinderman’s expertise as a preventive maintenance coordinator can be inferred from the fact that he was selected to train and show the replacements “exactly what had to be done. . .” (T.R. at 166.) Our conclusion is further strengthened when one considers the fact that two of these four replacement personnel were garage foreman, classified as Mechanic IIs. This confirms that there was a continuing need for the same services and skills that Kinderman performed. In any event, after a close reading of the transcript it would appear that this district-wide policy issue was raised after the fact with the principle thrust of the defense being poor performance or lack of qualifications. The latter argument was dismissed, supra, as pretextual.

With respect to defendant’s evidence concerning the overall reduction of PennDOT personnel in the Commonwealth between 1970 and 1986 (1986 being three years after Kinderman’s problem) from 22,000 to 12,680, we find this to be equally unpersuasive. We respectfully reject the inference that reduction of the Commonwealth’s cadre of employees, in general, is somehow relevant or controlling in the actions taken by PennDOT against Mr. Kinderman.

This record reveals that in 1970 plaintiff was placed in PennDOT’s Clarks Summit garage in the position of a preventive maintenance coordinator. He was classified for payroll purposes as a Mechanic I but was effectively performing out of class as a Preventive Maintenance Coordinator, a position normally classified as a Mechanic II. This classification continued throughout his 13 years of employment with PennDOT. The record demonstrates that certainly PennDOT benefited throughout these 13 years from plaintiff’s labors, in that in return for the accommodation they made for the employee (no garage duty) they not only obtained his expertise but profited by paying him in the lower pay scale (Mechanic I). At the time of Kinderman’s initial hiring by PennDOT and his learning of his classification as a Mechanic I, plaintiff immediately informed his superiors that he was unable to perform on the floor of the garage as a Mechanic I due to his physical handicaps. This information was forthrightly brought to defendant’s attention by Mr. Kinderman. His service-connected disability and resulting physical limitations were well documented, i.e., his medical discharge from the United States military, documentation from the Veterans Administration concerning that disability, and later reaffirmation by Dr. Fogley’s examination and reports. Kinderman was never given any pre-employment examination per defendant’s standard operating procedures at the time of his hiring. In light of all these circumstances he was assured by PennDOT supervisors that he would not be required to perform mechanical work in the shop. Instead, PennDOT and its officials confirmed that he would be in charge of the preventive maintenance coordination for the PennDOT equipment at the Clarks Summit facility, which involved the overall administration and supervision of some 150 pieces of mobile equipment. The testimony proffered and exhibits introduced demonstrate that plaintiff faithfully conducted his work and implemented the preventive maintenance program for PennDOT throughout this period, from 1970 through 1983. The record is devoid of any reference to negative performance evaluations or complaints concerning his work throughout the entire period he was so engaged by PennDOT, and in fact reflects, to the contrary, that he performed and contributed in an exemplary fashion. The record is clear that defendant-employer in attempting to rebut the prima facie case never attempted to reconcile these inconsistencies.

Furthermore this record fails to establish that any official at the Clarks Summit facility ever reviewed Kinderman'’s previous performance evaluations prior to judging him unqualified. This faulty circumstance is compounded when one considers the fact that neither did any official in the District Office or anyone throughout the entire PennDOT system examine these credible documents which evidence Kinderman’s outstanding performance for 13 years before judging him. The record is likewise bereft of evidence of any comparisons for demotion purposes between Kinderman and fellow employees stationed at the Clarks Summit facility. These procedures we find constitute questionable selection practices by the defendant-employer. Orweco Frocks, supra.

The Pennsylvania Supreme Court recently stated that “it is appropriate to the remedial purpose of the [Pennsylvania Human Relations] Act that the prima facie case not be an onerous one. ’ ’ Allegheny Housing Rehabilitation Corp. v. The Human Relation Commission, 516 Pa. 124, 532 A.2d 315 (1987). Guided by this principle, we find that the evidence as a whole demonstrates that plaintiff has sustained his burden of establishing a prima facie case of intentional discrimination. PennDOT, the defendant-employer, has been unable to demonstrate that there was a legitimate non-discriminatory reason for its employment decision to involuntarily demote Mr. Kinderman with a substantial reduction in his wages. Defendant in rebutting the prima facie case attempted to show a valid basis for the demotion; we find its defense, the lack of qualification or poor performance, to be pretextual and its policy argument uncorroborated by the record and raised after the fact. We are convinced, based on a careful reading of this record, that the true motive for the actions taken by PennDOT and its officials was discrimination based on Mr. Kinderman’s disability. We further find that Edward Kinderman is qualified for and physically able to perform the duties of a preventive maintenance coordinator.

DAMAGES

These proceedings record PennDOT officials dashing to a judgment that was predetermined and fixed, whose approach was not straightforward, and whose practices, on occasion, can only be characterized as deceptive. We found Edward Kinderman to be an appealing figure who despite his handicap worked ably and loyally for his employer through the years. Unfortunately we cannot find that Penn-DOT reciprocated in a like fashion.

In view of the fact that PennDOT is one of the largest employers in the Commonwealth of Pennsylvania I am seriously disturbed that it is in this instance guilty of discrimination. One would hope that the Kinderman matter is an isolated case. However the laws that prohibit employment discrimination in this state and in this nation must be observed in every instance. Discrimination in all its varied forms is abhorrent in our democracy. Discrimination wherever and however it takes place (race, age, sex, handicap, etc.; in the work place, in the school, etc.) will not be tolerated. It is incumbent on PennDOT to scrupulously observe anti-discriminatory policies in its organizational structure from top to bottom. A state agency such as PennDOT should set the example for fair and equal employment practices and like a beacon light serve to encourage other institutions to follow its example as a exemplary employer.

It is our opinion the act’s prohibition against discrimination on the basis of non-job related disability has been violated by the defendant-employer and we will order that PennDOT cease its discriminatory practices towards plaintiff Edward Kinder-man; and that defendant PennDOT will be ordered to pay Edward Kinderman his lost wages, totaling $16,000 (this sum should represent and include lost wages suffered to the present time), representing the difference between the pay scale of plaintiff as a Mechanic I and the lessor amounts paid to him as a result of his demotion plus 6 percent interest; and that Mr. Kinderman should be reinstated to the status of a Mechanic I retroactive to the time of his demotion by PennDOT (October 6, 1983), for purposes of lost wages and this should include all other employment rights and benefits including retirement, seniority, etc. In light of the substantial time that has elapsed and based on all of the evidence, we find it equitable that the defendant-employer promote Mr. Kinderman to the status of a Mechanic II and therefore PennDOT upon payment of said lost wages is directed to immediately advance Mr. Kin-derman to the status of a Mechanic II for payroll and occupational purposes; and that further PennDOT should be responsible for the payment of all reasonable legal costs and expenses incurred by the complainant.

An appropriate order will be entered.

ORDER

Now, May 31, 1988, having determined that Penn-DOT, defendant-employer, violated the provisions of section 5(a) of the Pennsylvania Human Relations Act, 43 P.S. §955(a), for the reasons set forth above, it is hereby ordered that judgment be entered in favor of the plaintiff-employee, Edward Kinderman and against defendant-employer, PennDOT; and further, it is ordered:

(1) That defendant-employer, PennDOT, cease and desist from engaging in discriminatory acts and practices against the said plaintiff-employee, Edward Kinderman, on the basis of his non-job related disabilities and;

(2) That defendant-employer, PennDOT, pay to plaintiff-employee, Edward Kinderman, $16,000 in lost wages plus 6 percent interest and;

(3) That defendant-employer, PennDOT, immediately promote plaintiff-employee, Edward Kinder-man, to the classification of Mechanic II, for payroll and occupational purposes and;

(4) That defendant-employer, PennDOT, is ordered to pay plaintiff-employee, Edward Kinder-man, all reasonable attorney fees and costs that plaintiff incurred as the result of this litigation. Plaintiff’s counsel is directed to prepare and submit to this court, for our consideration, a bill of costs, concerning the same.

      . Paragraphs 55, 56, 57 and 58 pertain to the 1983 pay scale; each of these figures would have to be adjusted to reflect earnings for 1984 through the present.

      . Hoage v. Thomas D. Larson, Class Action/Civil Action no. 85-6072 (E.D. Pa.).

      . In light of this evidence we think it unnecessary to address the issue of “best able and most competent” person to perform the required services.

      . We are unable to arrive at a sum certain because of the normal escalation in defendant-employer’s pay scales. A sum certain can be arrived at by adjustment, within the parameters we have set out.


author: CARPENTER, J.,

text:
    Hileman v. Morelli

      Robert A. Kosseff, for plaintiffs.

      Frank J. Hartye, for defendant Nason Hospital.

      James F. O’Malley, for defendant Ruth Morelli.
    January 30, 1991
   CARPENTER, J.,

Before the court are preliminary objections in this medical malpractice action filed by both defendants relevant to plaintiffs’ amended complaint. The amended complaint was filed pursuant to this court’s prior order of May 11, 1990 which granted the prior motions of both defendants for more specific pleading. Defendant Morelli now objects, both on the basis that the amended complaint unilaterally discontinues the cause against Nason Hospital without leave of court as required by Pa.R.C.P. 229(b), and also on the basis that certain of plaintiffs’ allegations fail to meet the level of specificity required by Pa.R.C.P. 1019(a). Defendant Nason Hospital has filed objections on the basis that, since plaintiffs have omitted from the amended complaint all of the allegations against the hospital appearing previously in the original complaint, a demurrer should be granted.

We agree with defendant Morelli to the extent that plaintiffs may not unilaterally discontinue their action against Nason Hospital merely by deleting its name from the caption on their amended complaint and by omitting all allegations of negligence against it previously appearing in the original complaint. Rule 229 provides that a discontinuance shall be the exclusive method of voluntary termination of an action, in whole or in part, by the plaintiff before commencement of trial. Martinelli v. Mulloy, 223 Pa. Super. 130, 299 A.2d 19 (1972); Pa.R.C.P. 229(a). A discontinuance as to less than all defendants may not be entered without leave of court after notice to all parties. Pa.R.C.P. 229(b).

In order to comply with this rule, however, plaintiffs presented an oral motion to discontinue their action against the hospital during the argument on these objections. While this eleventh-hour motion was not formally raised in plaintiffs’ brief and lacks the formality generally required, we believe it should nevertheless be considered at this time. In this regard, defendant Morelli may not claim prejudice by any lack of notice under Rule 229(b), since she herself raised and discussed the issue in her brief. Additionally, defendant Morelli may not chai-lenge the lack of formality, since Rule 229(b) makes no requirement for the filing of a formal petition. (Cf. Rule 229(c), “upon petition and after notice.”) We therefore consider plaintiffs’ motion to be properly before us.

Generally, discontinuance as to one of several defendants may be permitted where plaintiff discovers that he has no case against him and the other defendants can show no prejudice. Martinelli v. Mulloy, supra. In the case at bar, plaintiffs assert that their expert can find no reason to suspect negligence on the part of the hospital — an assertion uncontested by defendants. As to any possible prejudice, defendant Morelli asserts that she will suffer prejudice by losing the opportunity to plead against the hospital and charge it with sole liability for plaintiffs’ injuries. According to this argument, Rule 2252(d) provides her with the only procedure to file such a cross-claim against the hospital and requires that such cross-claim be made through the filing of an answer as new matter. However, since the complaint was filed only 14 days prior to the running of the applicable statute of limitations, and since in the opinion of both defendants, certain vague allegations in the complaint made the interim filing of preliminary objections necessary to prevent Conner amplification on the eve of trial, the time to cross claim set forth under Rule 2252(d) did not arise until after the running of the limitations period — that is, when the answer as new matter could be filed. Arguably, then, the granting of the discontinuance would cause defendant Morelli prejudice by denying her the ability to argue that the hospital was solely liable.

We agree that plaintiffs’ complaint omits any theory of sole liability against defendant Nason Hospital, alleging only that the hospital was jointly and severally liable with defendant Morelli. The onus thus fell upon defendant Morelli to preserve the sole liability claim against the hospital by filing a cross-claim and joining it as an additional defendant on this theory. This mechanism is specifically permitted under Pa.R.C.P. 2252(a). DiLauro v. One Bala Avenue Associates, 357 Pa. Super. 209, 515 A.2d 939 (1986); Svetz v. Land Tool Co., 355 Pa. Super. 230, 513 A.2d 403 (1986), allocatur denied, 527 A.2d 544 (1987). However, a cross-claim against a co-defendant on the theory of sole liability will be barred where the statute of limitations has already run on plaintiffs’ original cause of action. Wnek v. Boyle, 374 Pa. 27, 96 A.2d 857 (1953); Richards v. Alston, 123 Pa. Commw. 95, 553 A.2d 488 (1989), allocatur denied, 574 A.2d 75 (1989); Dickson v. Lewandowski, 228 Pa. Super. 57, 323 A.2d 169 (1974). The rationale for this rule lies in the fact that a sole liability theory relates not to a right of the defendants but rather to the plaintiffs’ cause of action. To preserve a theory of liability where plaintiffs would not be able to enforce judgment would, in effect, preserve nothing at all. Wnek v. Boyle, supra; Dickson v. Lewandowski, supra.

The rule is different where the cross claim avers that the additional defendant is liable over to him or is jointly and severally liable. An additional defendant or co-defendant may be joined on the theory of liability over or joint and several liability after the time period has run on the original action, because such liability relates to the duty of contribution or indemnification arising from the separate and distinct action between the defendant and additional defendant. Wnek v. Boyle, supra; Dickson v. Lewandowski, supra; Kitchen v. Borough of Grampian, 421 Pa. 464, 219 A.2d 685 (1966); Curtis v. Kitner, 37 Cumberland L.J. 52 (1986). After all, the running of the statute of limitations against plaintiffs’ cause of action can have no effect on defendant’s right to enforce his claim of contribution or indemnity. Kitchen v. Borough of Grampian, supra.

With respect to defendant Morelli’s argument that the provision for joinder by “answer as new matter” under Rule 2252(d) prevented her from asserting her cross-claim against defendant Nason Hospital before expiration of the statute of limitations, we find this contention unpersuasive for several reasons.

First, the purpose for enacting Rule 2252 was not to modify or suspend the running of limitations periods, but merely to provide a shortcut procedure to avoid the cumbersome three-step process of severance, joinder and consolidation formerly required to join a person already a party to the action. Ragan v. Steen, 229 Pa. Super. 515, 331 A.2d 724 (1974). Indeed, the “answer as new matter” vehicle for joinder of a person already a party to the action first appeared in Rule 2252(d) after the 1961 amendment, and this language had no effect upon the courts’ reasoning in Dickson v. Lewandowski, supra, and Richards v. Alston, supra. Further, the language “without . . . the filing of a praecipe for a writ or a complaint” appeared in the 1969 amendment to Rule 2252(d) and similarly had no effect upon the above two decisions. In the view of this court, the intent of Rule 2252(d) was not to establish “answer as new matter” as the exclusive vehicle for joinder to cross claim against a co-defendant, but rather the rule merely sought to avoid unnecessary filings and to streamline the joinder procedure. We view the “answer as new matter” method as merely one suggested method to accomplish these ends.

Second, in many of the cases cited above, each respective plaintiff had waited until shortly before the end of the limitations period before filing suit, unilaterally barring the original defendant from joining an additional defendant under sole liability by means of this tactical delay. Yet, this fact was considered irrelevant with respect to the application of the statute of limitations in each case. Wnek v. Boyle, supra; Richards v. Alston, supra; Dickson v. Lewandowski, supra. If the courts would not permit an extension of the statute of limitations to preserve sole liability in these cases, it is difficult to see why we should permit one on the similar facts at bar.

Third, the Rules of Civil Procedure promulgated by our Supreme Court cannot suspend a substantive right legislatively conferred. Marquez v. Hahnemann Medical College and Hospital of Philadelphia, 56 Pa. Commw. 188, 424 A.2d 975 (1981). The statute of limitations appearing in 42 Pa.C.S. §5524(2) confers an absolute defense upon defendant Nason Hospital against actions brought after the two-year period. And defenses to causes of action have long been construed as vested, substantive rights. Borough of Huntingdon v. Dorris, 78 Pa. Super. 469, 475-6 (1922). Consequently, Rule 2252(d) may not be read to suspend or toll the operation of 42 Pa.C.S. §5524(2).

Fourth, while acceptance of defendant Morelli’s argument requires a strict interpretation of Rule 2252(d), the appellate courts have consistently interpreted this rule in a broad manner as a permissive, rather than mandatory, procedure for the preservation of claims against co-defendants. In Ianni v. Pantalone, 238 Pa. Super. 548, 361 A.2d 772 (1976), the Superior Court held that the trial court erred in prohibiting defendant-physician in a medical malpractice action from joining defendant-hospital as an additional defendant after the jury had returned its verdict. Similarly, in Ragan v. Steen, 229 Pa. Super. 515, 313 A.2d 724 (1974), the court held that it was not necessary for defendant-hospital to plead against defendant-physician in answer as new matter under Rule 2252(d) to preserve the issue of indemnity on the part of defendant-physician. We are constrained in light of these cases to view Rule 2252(d) to be enacted merely for the sake of procedural efficiency, establishing the filing of an answer as new matter as a permissive, not exclusive, vehicle for the joinder of original defendants as additional defendants.

Fifth, the Rules of Civil Procedure are to be interpreted with common sense to carry out the purposes for which they were adopted. Usner v. Duersmith, 346 Pa. 494, 31 A.2d 149 (1943); Swope v. Costello, 47 D.&C. 696 (1943). Defendant Morelli’s expressed reliance upon the “answer as new matter” provision in Rule 2252(d) in the face of a fast-approaching limitations deadline would seem to lack prudence, in our view, since she could have preserved the sole liability theory in timely fashion by simply filing a writ or complaint against Nason Hospital before the statute had run.

Therefore, since any claims against defendant Nason Hospital on the basis of its sole liability are barred by the expiration of the two-year statute of limitations appearing in 42 Pa.C.S. §5524(2), the granting of plaintiffs motion for discontinuance to dismiss the hospital from the present action does not prejudice defendant Morelli. After December 28, 1989, the sole liability theory was lost forever. Of course, defendant Morelli may still join Nason Hospital by filing a writ or complaint under Rule 2252(b), but only upon the theory that the hospital is liable over or joint and severally liable.

With regard to defendant Nason Hospital’s demurrer, we would be hard-pressed not to grant the relief requested. Although the amended complaint attempted to dismiss defendant Nason Hospital unilaterally without leave of court, we have already opined that plaintiffs’ oral motion for discontinuance under Rule 229 cures this defect. In all respects other than the unilateral dismissal, then, the amended complaint remains in full effect. Since there are no allegations against the hospital whatsoever in the amended complaint, the pleading on its face would permit no recovery by plaintiff against the hospital, and defendant Nason Hospital’s preliminary objections in the nature of a demurrer must be sustained. Greensberg v. Aetna Insurance Co., 427 Pa. 511, 235 A.2d 576 (1967), cert. denied, Scarselletti v. Aetna Casualty & Surety Co., 392 U.S. 907 (1967); Bendas v. Upper Saucon Twp., 127 Pa. Commw. 378, 561 A.2d 1290 (1989).

Finally, we consider defendant Morelli’s motion for more specific pleading pursuant to Rule 1019(a) and Connor v. Allegheny General Hospital, 501 Pa. 306, n.3, 461 A.2d 600, n.3 (1983). These preliminary objections to the amended complaint raise questions that could have been raised in preliminary objections to the original complaint. The Rules of Civil Procedure imply a strong prohibition against such a serial raising of objections. Pa.R.C.P. 1028(b), 1032; Lexington Insurance Co. v. Commonwealth, Insurance Dept., 116 Pa. Commw. 259, 541 A.2d 834 (1988).

“Inherent in the entire scheme of the preliminary objections is the sanction against a series of preliminary dilatory steps .... [T]he defendant cannot attack the plaintiff’s complaint in small bites. He cannot point out a particular defect by preliminary objection; have the court pass on it; compel the plaintiff to amend; and then attack the amended complaint by pointing out another particular defect which was in the original complaint. This would make a travesty of the rule limiting the defendant to one dilatory stage. When an amended complaint is filed, defendant has the right of preliminary objections, but it is limited solely to matters which are new in the amended pleading and did not present themselves in the original complaint, or to which he objected in the original complaint but which he considers still objectionable.” Goodrich-Amram 2d §1017(b):4.

For this reason, the motion for more specific pleading is denied.

ORDER

And now, January 30, 1991, upon consideration of defendant Ruth Morelli’s preliminary objections to plaintiffs’ amended complaint, defendant Nason Hospital’s preliminary objections to plaintiffs’ amended complaint in the nature of a demurrer, plaintiffs’ motion to discontinue this action as against defendant Nason Hospital, briefs submitted by counsel and oral argument thereon, it is hereby ordered, directed and decreed that all of defendant Morelli’s objections and motions are denied, plaintiffs’ motion to discontinue the cause against defendant Nason Hospital is granted, and defendant Na-son Hospital’s demurrer is granted. We hereby direct the prothonotary of this court to strike the name of Nason Hospital from the caption in the docket.

In the interest of judicial economy, it is further ordered that defendant Morelli shall have 30 days from the date of this order to file a writ or complaint against Nason Hospital to preserve any rights of contribution or indemnity. Further, defendant Mo--relli shall file its answer to plaintiffs’ amended complaint within 30 days of the date of this order.

       Pursuant to 42 Pa.C.S. §5524(2), a wrongful death action must be brought within two years of the date of the injured person’s death, and a survival action must be brought within two years after the time when the injured person should reasonably have discovered the injury or cause of injury while alive. Pastierik v. Duquesne Light, 514 Pa. 517, 526 A.2d 323 (1987); Symbula v. Johns-Mansville Corp., 514 Pa. 527, 526 A.2d 328 (1987). In all other respects the discovery rule is inapplicable to wrongful death and survival actions. Id. Since the date of the injured person’s death here is alleged to be December 28, 1987, the statute of limitations for both the wrongful death action and the survival action had run by December 28, 1989, 14 days after the complaint was filed and nearly nine months before the amended complaint was filed.