author: GARB, P.J.,

text:
    Travelers Mortgage Services v. Birtell

      Joseph Goldbeck Jr., for plaintiff.

      Hey wood Eric Becker, for Jonathan Lax and Frederick Betz Jr.

      Richard Green, for Fidelity Bank.
    October 25, 1990
   GARB, P.J.,

The issue to be decided herein is whether a judgment secured against the owner of property sold at tax sale becomes a lien against that property prior to the confirmation of the sale and the delivery of the deed from the tax claim bureau to the successful bidder. The question is a curious one apparently never decided in Pennsylvania, for obvious reasons. We doubt that great numbers of people wait breathlessly for the determination.

The facts are agreed upon. On November 6, 1987, the Tax Claim Bureau of Bucks County sold the subject premises at 180 Harrison Avenue, Middle-town Township in the regularly conducted upset sale. The successful bidder was one Jonathan Lax who subsequently assigned his bid. The named defendants herein were the owners of the property at least up to the date of that sale. On January 21, 1988, Fidelity Bank obtained a judgment against Birtell in this county. Subsequently thereto, the Travelers Mortgage Services Company foreclosed upon the property. Birtell was the mortgagor. Pursuant thereto, a sheriff’s sale was held with respect to that foreclosure. One Frederick Betz Jr. was the successful bidder at the sheriff’s sale. The order confirming the tax sale was entered by this court on Februaiy 23, 1988. Betz received a deed to the property by the sheriff on February 24, 1988.

The matter comes before us on exceptions to the sheriff’s schedule of distribution. The question is whether the fund held by the sheriff as against the asserted lien of the Fidelity Bank should be paid to the bank to satisfy that lien or to Lax’s assignee. Lax’s assignee asserts that claim based upon the assertion of his rights as a result of Lax’s successful bid at the tax sale. Fidelity Bank asserts its claim based upon an alleged lien upon the property as a result of its judgment against Birtell subsequent to the tax sale. The parties have posed the question as being whether Lax became the owner of the property as a result of his successful bid at the time that the gavel knocked the property down to him. Whether or not he became the “owner” for all purposes is not necessary to our decision. We do hold that he is entitled to this fund held by the sheriff.

Section 607 of the Real Estate Tax Sale Law, the Act of July 3, 1986, P.L. 351, no. 81, §29, 72 P.S. §5860.607, provides that it shall be the duty of the bureau, not later than 60 days after a sale was held, to make a consolidated return to the court of common pleas of the county setting forth a brief description of the property, the name of the owner in whose name it was assessed, the name of the owner at the time of sale, to whom notice by mail was given, a reference to the record of the tax claim, the time when the newspapers to which the advertisement for sale was made, the time of sale, the name of the purchaser, the price for which each property was sold or that no bid was made equal to the upset price. This section then provides for exceptions to the sale, and if none are made, or those which are made are disposed of, the court shall absolutely confirm the sale. The act provides that there shall be no period of redemption after such sale, and the sale shall be deemed to pass a good and valid title to the purchaser free from any liens or encumbrances whatsoever, “except such liens as are hereafter specifically saved, and in all respects as valid and effective as if acquired by a sheriff’s deed.” Therefore, it is apparent that there is an extended period of time of no less than 60 days from the time of the sale to the date on which the successful purchaser can receive a deed. It is likewise clear that he takes the property subject to any and all liens and encumbrances which are not specifically divested by the act.

Section 605 of the act provides that the bureau shall fix the upset price to be realized at the sale of any property which shall constitute the sum of the tax liens of the Commonwealth, the amount of the claim absolute and interest thereon on which the sale is being held, the amount of any other tax claim or tax judgment due on such property and interest on the judgment to the date of sale, the amount of all accrued taxes, including taxes levied for the current year, the amount of municipal claims against the property and the record costs and costs of sale. It is further provided in this section that no sale of property shall be made by the bureau unless a bid equal to the upset price is made.

Section 609 provides that every such sale shall convey title to the property under and subject to the lien of every recorded obligation, claim, lien, estate, mortgage, ground rent, and Commonwealth tax lien not included in the upset price. Therefore, once the upset price is set and established, all other liens on the property then existing remain on the property and are not divested by virtue of the sale. The purchaser at the sale must bid no less than the upset price or the sale cannot be held. Therefore, the prospective purchaser at such a sale is on notice of what the upset price is and what he must bid in order to acquire the property successfully, and he is further on notice of the liens then outstanding. Therefore, at that moment, he can make a rational determination of what he wishes to bid knowing what he is purchasing. If he is to be subjected to liens subsequent to the time that he makes that bid, and before the time of confirmation and the receipt of a deed under section 608, then essentially, he is purchasing a pig in a poke. The purchaser at an upset sale is required to pay to the bureau the entire purchase price on the date of the sale, no later than one hour before the close of business. See section 606. Therefore, as of that date, on the date of the sale, he has put his money up, and it is only reasonable that at that moment he knows what he has purchased. Of course, if the sale is invalidated as a result of successful objections or exceptions by the property owner under section 607, then he is permitted to receive his money back. However, that won’t happen if subsequent liens essentially exhaust whatever equity he may think he has in the property. Of course, in this case, there was a foreclosure by a mortgage not divested. However, he had notice of that and faced that eventuality with his eyes open. He did not anticipate a subsequent lien at the time that he made his bid and put up his money.

For the foregoing reasons, it is ordered and directed that the proceeds held by the sheriff with respect to the asserted lien of the Fidelity Bank shall be distributed to petitioner herein.

ORDER

And now, October 25, 1990, it is hereby ordered that the proceeds held by the sheriff by virtue of his schedule of proposed distribution in this matter on behalf of the lien of the Fidelity Bank shall be distributed to the petitioner herein.


source: Caselaw Access Project

author: JIULIANTE, P.J.,

license: Public Domain

text:
    Erie Indemnity Co. v. McGaughey

      S.E. Riley Jr. and Craig R.F. Murphey, for plaintiff.

      Joseph J. May, for defendant.
    October 11, 1990
   JIULIANTE, P.J.,

This matter is before the court on plaintiff’s motion for summary judgment on its complaint for declaratory judgment. Part of plaintiff’s prayer for declaratory relief requests the court declare that the limit of underinsured motorist coverage provided to defendant under her policy is $25,000. Plaintiff further requests that the limit of underinsured motorist coverage from her parents’ policy not exceed the limits of the third-party bodily injury liability coverage of $25,000.

FACTUAL STATEMENT OF THE CASE

This underinsured motorist claim arises from serious personal injuries sustained by defendant, Gail McGaughey, on April 20, 1987, when the motor vehicle which she was driving was rear-ended by Michael Julius. At the time of the accident, Julius was insured under a policy of insurance with liability limits of $15,000/$30,000. Gail McGaughey had in effect a policy of motor vehicle insurance issued by Erie Insurance Exchange covering two vehicles owned by McGaughey, a 1978 Ford and 1986 Nissan which she was driving at the time of her accident. The policy provided bodily injury liability limits of $25,000/$50,000 and underinsured motorist coverage of $25,000/$50,000 applicable to each vehicle per accident. The policy also states that the underin-sured motorist coverage available for all damages suffered by one person for one accident is $25,000; that is, the policy does not allow “stacking” of underinsured motorist benefits.

Gail McGaughey, after receiving from Erie a consent to settle, settled the action against Julius for $15,000. However, Gail McGaughey’s damages arising out of the accident exceed $15,000, and she has advised Erie of her intentions to present a claim for the underinsured motorist benefits of her policy in the amount of $50,000. Erie has filed this action and raised the issue as to whether or not Gail McGaug-hey is permitted to stack her underinsurance coverage. They claim that although she has insured two vehicles and paid two separate premiums for under-insured motorist coverage, that she may recover damage only to the extent of the liability coverage under the same policy. Moreover, Gail McGaughey is an “insured” under a separate policy of insurance issued to her parents by Erie which insured four vehicles owned by the McGaugheys with underin-sured motorist benefits of $25,000/$50,000 per vehicle. At the time of the accident in question, defendant contends that Ms. McGaughey was a resident of her parents’ household and thus entitled to benefits under that policy as well.

In essence, defendant is attempting to “stack” the underinsured motorist coverage on the two automobiles insured under her policy, that is, defendant seeks to recover the $25,000 one injured/one accident limits applicable to both vehicles insured under her policy.

Erie has filed the present declaratory-judgment action because it contends that defendant has only $25,000 in underinsured motorist coverage available to her. Plaintiff’s argument is that because Pennsylvania’s Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., along with the Commonwealth and federal cases construing the MVFRL, precludes the underinsured motorist coverage of a policy from exceeding the amount of the bodily injury liability coverage of that policy. Erie contends that the underinsured motorist coverage available to defendant under her policy with Erie may not exceed the bodily injury liability coverage of the policy, i.e. $25,000.

DISCUSSION

At the outset, the court notes' that plaintiff’s motion for summary judgment seeks a judicial determination of defendant’s right to stack the unde-rinsured motorist coverage of a policy when the total amount of the stacked coverage would exceed the amount of the liability coverage of that policy. The policy from which defendant demands underin-sured motorist benefits provides that disagreements between Erie and its insureds regarding underin-sured motorist coverage are to be resolved by arbitration. Pennsylvania law provides that such arbitration agreements provide the arbitrators with exclusive jurisdiction to determine disagreements regarding who was at fault for the subject accident and the monetary value of the claim. See e.g., Myers v. State Farm Insurance Company, 842 F.2d 705, 707 (3d Cir. 1988); Nonemacher v. Aetna Casualty and Surety Company, 710 F.Supp. 602, 605 (E.D. Pa. 1989).

However, a question of coverage, such as the right of a claimant to stack coverages, is an issue for the court to determine. Metropolitan Property and Liability Insurance Company v. Streets, 856 F.2d 526, 529 (3d Cir. 1988); LaCourse v. Firemen’s Insurance Company of Newark, New Jersey, 756 F.2d 10, 13-4 (1985). Thus, the legal issue for this court’s determination is whether an insured may stack the underinsured motorist coverage of a policy so as to provide coverage in excess of the third-party liability limits of the same policy. The remaining issues present in defendant’s claim will be determined by arbitration. However, the legal issue to be determined herein is equally applicable to defendant’s claim against her parents’ policy. Therefore, this court shall determine whether the underinsured motorist coverage limits of defendant’s parents’ policy may or may not exceed the bodily injury liability limits of that policy in the event the arbitrators decide that defendant is covered by her parents’ policy.

The Pennsylvania Rules of Civil Procedure provide that a motion for summary judgment shall be granted:

“[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” Pa.R.C.P. 1035(b).

Summary judgment should be granted when the right to judgment is clear and free from doubt, and when the facts are undisputed and only one conclusion can reasonably be drawn from them. Johnson v. Walker, 376 Pa. Super. 302, 545 A.2d 947 (1988); Askew v. Zeller, 361 Pa. Super. 35, 521 A.2d 459 (1987).

Inasmuch as the questions involved are simply those of law and no material facts are in dispute, the present case is appropriate for summary judgment.

For the following reasons, the court is compelled to conclude that the underinsured motorist benefits in this case may not exceed the bodily injury liability coverage of defendant’s policy. The court shall grant plaintiff’s requested declaratory relief.

The motor vehicle accident from which the present litigation arose occurred on April 20, 1987. On the day of the accident, defendant was insured by an Erie automobile insurance policy which had been renewed on November 29, 1986.

The MVFRL governs the interpretation and effect of automobile insurance policies issued or renewed after October 1, 1984. Se& Borysowski v. State Farm Mutual Automobile Insurance Company, 368 Pa. Super. 399, 534 A.2d 496 (1987); see also 75 Pa.C.S. §1701 — Historical Note. Therefore, the MVFRL applies in this case to determine what coverage is available to defendant from the Erie policy.

Subchapter C of the MVFRL contains those provisions which govern uninsured motorist and unde-rinsured motorist coverage. 75 Pa.C.S. §§1531 to 1736. Section 1736 provides:

“The [uninsured and underinsured] coverages provided under this subchapter may be offered by insurers in amounts higher than those required by this chapter but may not be greater than the limits of liability specified in the bodily injury liability provisions of the insured’s policy. ” 75 Pa.C.S. §1736. (emphasis supplied)

Chartan v. Chubb Corporation, 725 F.Supp. 849 (E.D. Pa. 1989) (applying Pennsylvania law) dealt with precisely the issue at hand. In Chartan, the plaintiff’s husband was killed in an accident with an uninsured motorist. The decedent was covered by an automobile insurance policy issued by the Sea Insurance Company. 725 F.Supp. at 850-1. The Sea policy provided $1 million in bodily injury liability coverage and $1 million in uninsured motorist benefits. 725 F.Supp. at 852. However, the Sea policy covered two vehicles which. were owned by the plaintiff’s decedent. Although the Sea policy contained no-stacking language similar to that present in the policies at issue herein, the plaintiff argued that the uninsured motorist coverage available to her was $2 million since Pennsylvania generally allows stacking of uninsured motorist coverage despite no-stacking provisions. 725 F.Supp. at 850-1.

The Chartan court held that the plaintiff could not stack the uninsured motorist coverage of the Sea policy because to do so would provide the plaintiff with uninsured motorist coverage in excess of the liability coverage of the policy. 725 F.Supp. at 854. The basis for the decision is four-pronged: the plain language of section 1736 of the MVFRL, the legislative intent behind section 1736 and the MVFRL, public policy and Pennsylvania appellate authority.

First, the Chartan court concluded that to allow recovery of uninsured or underinsured coverage in excess of the amount the policy provides for liability claims would violate the plain language of the MVFRL:

“Section 1736 . . . states that an insured who purchases liability coverage in excess of the minimum amount required by the MVFRL may obtain uninsured and underinsured coverage in an amount equal to, but not greater than, the amount of liability coverage. . . . Thus the plain language of section 1736 undercuts plaintiff’s argument by setting limits on the amount of recoverable uninsured benefits. ” 725 F. Supp. at 852. (emphasis supplied)

The Chartan court was correct in deciding that the plain language of the MVFRL precludes a policy from providing more in uninsured motorist or under-insured motorist coverage than liability coverage. When interpreting the MVFRL, Pennsylvania courts turn for guidance to the Statutory Construction Act, 1 Pa.C.S. §1501 et seq., in the absence of a specific statement of findings and purpose within the law. Wolgemuth v. Harleysville Mutual Insurance Company, 370 Pa. Super. 51, 535 A.2d 1145 (1988). The act provides that the intention of the General Assembly is to be ascertained and effectuated. 1 Pa.C.S. §1921. Thus, words of a statute which are clear and free from ambiguity are to be enforced unless the provision violates public policy. Tallman v. Aetna Casualty and Surety Co., 372 Pa. Super. 593, 595, 539 A.2d 1354, 1355 (1988). Consequently, this court may not ignore the clear prohibition in section 1736 or rewrite the MVFRL “under the pretext of pursuing its spirit.” Wolgemuth, 370 Pa. Super, at 62, 535 A.2d at 1151; Allen v. Erie Insurance Co., 369 Pa. Super. 6, 11, 434 A.2d 839, 841 (1987).

A review of the entire MVFRL reveals that the plain language of section 1736 should be given effect. Nowhere in the MVFRL has the General Assembly expressly required or permitted the stacking of uninsured or underinsured motorist coverage. Similarly, no express prohibition of stacking of uninsured or underinsured motorist coverage was written into the law. Tallman, 372 Pa. Super, at 599, 539 A.2d at 1357.

Prior to the enactment of the MVFRL, the principle of allowing insureds to stack uninsured or underinsured coverage was created entirely by the Pennsylvania appellate courts fashioning their perception of public policy. Because the General Assembly is presumed to have been familiar with the law as it existed prior to enactment of MVFRL, Tallman, 372 Pa. Super, at 598, 539 A.2d at 1357, the principle of stacking should be deemed to continue under the MVFRL only to the extent it has not been expressly repudiated and is not in conflict with the clear and unambiguous language of the act. While it is true that the statutory language does not expressly prohibit stacking of uninsured or underinsured motorist coverage as it does first-party benefits coverage under section 1717, it is equally true that the stacking of uninsured motorist coverage which plaintiff seeks here is directly in the face of the clear and unambiguous language of section 1736. Thus, reading the text of section 1736 in light of applicable principles of statutory construction reveals no viable reason that the plain words of section 1736 should not be given effect and operate to preclude recovery of uninsured or underinsured motorist coverage in excess of the liability coverage of the same policy.

The Chartan court further concluded that not only does stacking uninsured motorist or underinsured motorist coverage in excess of the liability coverage violate the plain language of the MVFRL, it also violates the legislative intent behind the statute:

“Permitting individuals to stack uninsured or un-derinsured motorist coverage behind that of liability coverage would be inconsistent with section 1736 and undermine the purpose behind it.

“The legislature’s intent in enacting section 1736 was to ‘prevent the new insurance system from degenerating into a purely first-party insurance system, where each driver [was] insured against his or her own loss, but no driver insure[d] against the damage he or she may do to others.’ J. Ronca, L. Sloane & J. Mundy, An Analysis of the Financial Responsibility Law, 104, §6:11 (1986). As the Pennsylvania Superior Court recently noted in discussing this section: ‘The legislature has thus prevented an insured from providing greater coverage, via uninsured/underinsured coverages, for himself and his additional insureds than the amount of coverage he provides for others injured through his negligence.’ Wolgemuth v. Harleysville Mutual Insurance Co., 370 Pa. Super. 51, 55 n.3, 535 A.2d 1145, [1147 n.3] (1988).”

The Chartan court correctly interprets the legislative intent behind section 1736 and the MVFRL. In enacting the MVFRL, the Pennsylvania legislature sought to ensure that all persons operating motor vehicles in Pennsylvania would be financially responsible by requiring each operator to procure liability insurance in at least a minimum amount. Allen v. Erie Insurance Co., 369 Pa. Super. 6, 534 A.2d 839 (1987). While the legislature did further some benefits to insureds, the underlying intent of the MVFRL was to promote financial responsibility of drivers to injured third parties.

As noted by the Chartan court, section 1736 was enacted to further the legislature’s intent to prevent Pennsylvania’s insurance system from “degenerating into a purely first-party system.” The only way to effectively implement that intent is to enforce section 1736 as the Chartan court has.

The Chartan court also recognized the negative public policy ramifications of allowing the uninsured motorist or underinsured motorist coverage of a policy to exceed the liability coverage of that policy:

“Acceptance of plaintiff’s argument would permit individuals to effectively orchestrate coverage to provide adequately for their own loss but not that of potential victims of their negligence. Thus, an individual with four cars could obtain $120,000 of protection for himself while only bearing responsibility for $30,000 in damages to others. The legislature reasonably could not have intended to permit by means of stacking what it forbade by means of purchasing coverage directly.” 725 F.Supp. at 853.

To allow stacking of underinsured coverage in excess of the policy’s liability coverage would allow an insured to provide significantly greater protection for himself than for the benefit of third parties he injures. This result would severely undermine the general tort orientation of the MVFRL and be directly contrary to the Pennsylvania legislature’s public policy determinations.

The Chartan decision thoroughly discusses, analyzes and applies all relevant Pennsylvania appellate authority and found that the case law supports its holding. We concur. The Chartan court stated:

“In Wolgemuth [v. Harleysville Mutual Insurance Co., supra], the Pennsylvania Superior Court, sitting en banc . . . emphasized the limit set in section 1736 when discussing the general provisions of the MVFRL: ‘An insured who purchases liability coverage in an amount greater than the minimum amount required by the Motor Vehicle Financial Responsibility Law may obtain uninsured and under-insured coverage in amounts equal to, but not greater than, the amount of his liability coverage.’ 370 Pa. Super, at 55[, 535 A.2d at 1147.] (emphasis in Wolgemuth)

“In the Tallman [v. Aetna Casualty and Surety Co., supra] case . . . the court stated: ‘Unlike appellant we do not read the provisions of Sub-chapter C to place a ceiling on the amount of underinsurance a victim may recover. Although an insured may obtain uninsured and underinsured coverages in amounts equal to, but not greater than, the amount of his liability coverage, there is no restriction on the maximum uninsured or underin-sured motorist coverage limits.’ 372 Pa. Super, at 601-2[, 539 A.2d at 1358] . . . This statement makes clear that, while there is no absolute limit on the amount of uninsured and underinsured benefits available, there is an explicit relative limit imposed by section 1736, i.e., an amount no greater than the amount of one’s liability coverage.” 725 F.Supp. at 853. (emphasis in original)

In further support of the conclusion reached in Chartan, it is significant that the Tallman decision, on which defendant relies, expressly adopted the Wolgemuth court’s construction of section 1736:

“The legislature has thus prevented an insured from providing greater coverage, via uninsured/un-derinsured coverages, for himself and his additional insureds than the amount of coverage he provides for others injured through his negligence.” 372 Pa. Super, at 602, 539 A.2d at 1358-9. As is well-documented by the Chartan court, it is clear that Pennsylvania appellate case law supports the Char-tan holding.

Contrary to the defendant’s argument that under-insured motorist coverage may be stacked in reliance on Tallman, this court concludes that Tallman does not control the issue in this case because the court there decided only that underinsured motorist coverage may be stacked to provide underinsured motorist coverage equal to the liability coverage of the policy. 372 Pa. Super, at 602, 539 A.2d at 1358. Tallman cannot be read as support for stacking of uninsured motorist/underinsured motorist coverage where the stacked coverage would exceed the liability coverage of the policy, which is what defendant herein seeks to do.

While this court does not have to accept Chartan as controlling authority, the case thoroughly examined all applicable Pennsylvania law. Pennsylvania courts have held that such a well-reasoned federal district court opinion merits deference by Pennsylvania state courts. North Penn Consumer Discount Co. v. Schultz, 250 Pa. Super. 530, 378 A.2d 1275 (1977).

The automobile policy at issue specifically precludes the stacking of underinsured motorist benefits. The Uninsured/Underinsured Motorists Coverage portion of the policy provides:

“The amount shown on the Declarations for ‘each person’ is the limit of protection for all damages because of injury to one person as the result of one accident. . . . The insuring of more than one person or auto under these coverages does not increase the limits of protection.”

The continuation notice of defendant’s policy states that the amount of coverage for each person for injuries arising from one accident is $25,000. Nonetheless defendant, who is one person who suffered injury in one accident, seeks to recover twice the underinsured coverage limits because she contends she can stack the limits because two cars were covered by the policy. The Chartan decision reveals that the proper interpretation of Pennsylvania law gives effect to the policy’s anti-stacking provision and limits defendants’ underinsured motorist coverage to $25,000.

The Chartan court’s analysis of section 1736 of the MVFRL is extremely well-reasoned, and should be seen as determinative of the present case. Since section 1736 limits the underinsured motorist coverage of the policy in question to the same as the bodily injury liability coverage — in this case $25,000 — defendant herein may not be permitted to stack her underinsurance coverage to a total limit greater than $25,000.

And now, October 11, 1990, for the reasons set forth herein, the court further declares that the limit of underinsured motorist coverage provided to defendant under the subject policy is $25,000 and further that the limits of underinsured motorist coverage of the policy of insurance issued to the defendant’s parents may not exceed the limits of the third-party personal injury liability coverage of that policy.

ORDER

It is hereby ordered, adjudged and decreed this October 11, 1990, that plaintiff’s motion for summary judgment is granted and judgment is entered in plaintiff’s favor and against defendant as follows:

The limits of the underinsured motorist coverage of the policy of motor vehicle insurance issued by plaintiff to defendant may not exceed the limits of the third-party personal injury liability coverage of that policy, i.e. $25,000.

The limits of the underinsured motorist coverage of the policy of motor vehicle insurance issued by plaintiff to defendant’s parents may not exceed the limits of the third-party personal injury liability coverage of that policy, i.e. $25,000.

       While the Chartan plaintiff sought uninsured motorist benefits and defendant herein seeks underinsured motorist benefits, the Chartan court’s decision is expressly applicable to both uninsured and underinsured claims and coverages. See 725 F.Supp. at 853.


author: RUFE, J.,

text:
    Commonwealth v. Tusiano

      Karen A. Diaz, assistant district attorney, for the Commonwealth.

      J. Michael Rutfle, for defendant.
    December 3, 1990
   RUFE, J.,

This case involves an appeal by the Commonwealth of Pennsylvania from a decision by the undersigned dismissing the charges filed against defendant following a hearing on September 14, 1990 on defendant’s appeal from conviction by a district justice of four summary offenses on May 29, 1990. The charges were dismissed based upon the belief that defendant’s right to a speedy trial under Rule 1100 of the Pennsylvania Rules of Criminal Procedure mandated that he be brought to trial within one year of his date of arrest. The Commonwealth argues that the case involves summary offenses only, and is therefore controlled by 42 Pa.C.S. §5553(e), mandating only that proceedings be disposed of within a two-year period.

On January 26, 1989, defendant, Thomas Tusiano, was arrested in Bristol Borough, Pennsylvania. At that time he was charged with a violation of section 6503 of the Vehicle Code, a third-degree misdemeanor, 75 Pa.C.S. §6503, as well as four summary offenses. On February 22, 1989, defendant waived the preliminary hearing from the district court to the common pleas court. The initial information filed by the District Attorney’s Office contained only the misdemeanor charge. On May 17, 1989, the Commonwealth amended the information to include the companion summary violations. Pursuant to defendant’s motion to dismiss the misdemeanor count, a hearing was held before the Honorable William Hart Rufe III, in the Court of Common Pleas of Bucks County. The basis for defendant’s motion was that the misdemeanor count was improperly charged and graded as a misdemeanor because it was not a substantive offense. The Commonwealth elected to file a nolle prosequi as to this count, thereby dropping the misdemeanor charge and remanding the summary offenses to the district court.

The Office of the District Attorney contacted District Justice Manto by letter on April 20, 1990 in order to have a hearing scheduled. On May 29, 1990 the district justice heard the summary charges and found defendant guilty. Defendant appealed de novo to this court and the appeal was sustained.

Rule 3(s) of the Pennsylvania Rules of Criminal Procedure defines a summary case as “a case in which the only offense or offenses charged are summary offenses.” Pa.R.Crim.P. 3(s). The time limit for disposition of a summary proceeding is two years. 42 Pa.C.S. §5553(e). Rule 3(g) defines a court case as “a case in which one or more of the offenses charged is a misdemeanor, felony or murder of the first, second or third degree.” Pa.R.Crim.P. 3(g). Rule 1100(a)(3) requires that trial in a court case be commenced no later than 365 days from the date on which the complaint is filed in cases where a written complaint is filed against the defendant. Pa.R.Crim.P. 1100(a)(3).

As originally filed, the case at hand was a court case because one of the charges was a misdemeanor. The Commonwealth contends that upon the filing of the nol pros, the case became a summary case even for purposes of Rule 1100.

Defendant asserts that even though the misdemeanor charge under section 6503 of Title 75 was nol prossed, for purposes of Rule 1100 the proceeding is still a court case because the summary charges were originally accompanied by a misdemeanor charge, maintaining, in effect, “Once a court case, always a court case.”

This case appears to be one of first impression. We agree with defendant’s contention that the case must be dismissed under Rule 1100. We base our decision on the Superior Court’s ruling in Commonwealth v. Kujas, 291 Pa. Super. 411, 435 A.2d 1293 (1981).

In Kujas, defendant was charged with two misdemeanors and two summary traffic offenses. Id. at 412, 435 A.2d at 1293. Because the Commonwealth admittedly failed to obtain a proper extension for trial commencement, the court dismissed the two misdemeanor charges. Id. at 413, 435 A.2d at 1294. Defendant also sought dismissal of the two summary charges against her because she argued that they were part of a “court case” for purposes of Rule 1100. Id. We read Kujas to hold that once a cáse is filed as a court case under Rule 3(g), it must remain a court case for purposes of Rule 1100. The Commonwealth cannot use a nol pros to dismiss a misdemeanor charge and thereby change the status of a case to that of a summary case. The Commonwealth in this case merely assumed that the case was now a summary case. It did not file a motion for an extension as provided for in the commentary to Rule 1100 and by Pennsylvania case law. See Pa.R.Crim.P. 1100, advisory committee’s note; see also, Commonwealth v. Ray, 240 Pa. Super. 33, 360 A.2d 925 (1976). In short, it appears that the Commonwealth did not exercise due diligence in bringing this case to trial promptly. Based upon the foregoing, we sustained defendant’s appeal.


author: WETTICK, J.,

text:
    Howard v. Port Authority of Allegheny County

      Frank E. Little, for plaintiff.

      J. Russell McGregor Jr., for defendant.

      Richard C. Schomaker, for Gerald Newman, D.C.
    July 31, 1990
   WETTICK, J.,

This is a claim filed in the arbitration division of this court for first-party benefits under the Pennsylvania Motor Vehicle Financial Responsibility Law (75 Pa.C.S. §1701 et. seq.).

Plaintiff, a passenger in a PAT bus, was allegedly injured when the bus collided with a truck. In her complaint, plaintiff sued to recover unpaid medical bills of $3,315 owed to Newman Chiropractic Center for treatment provided for injuries sustained from the accident. In its answer to plaintiff’s complaint, defendant alleges that the treatment was unnecessary and that the charges of Newman Chiropractic Center were excessive and unreasonable.

Plaintiff’s counsel provided to defendant a written notice of counsel’s intention to offer into evidence at the arbitration hearing a September 19, 1988 report of Dr. Gerald Newman and a billing statement of Newman Chiropractic Center. This is permitted by Pa.R.C.P. 1305(b) which provides that with at least 20 days’ written notice, a party may offer in evidence, without further proof, the bills, records, and reports of health care providers. This rule further provides that any other party may subpoena the person whose testimony is waived by this rule to appear at the hearing for cross-examination.

Dr. Newman’s report describes plaintiff’s physical condition, the treatment that he provided, and the reasons for the treatment. The report also includes his opinion that plaintiff received the injuries for which he provided treatment from the bus accident. The billing statement of Newman Chiropractic Center sets forth the dates of each office visit, the procedures that were administered, and the fees for the procedures. According to the statement, plaintiff has made no payments for the services that were rendered, and the outstanding balance is $3,315 (which is the amount claimed in plaintiff’s complaint).

After receiving Dr. Newman’s report and the billing statement of Newman Chiropractic Center, defendant’s counsel subpoenaed Dr. Newman to testify at the arbitration hearing. By a letter dated January 19, 1990, Dr. Newman advised defendant’s counsel that he would not comply with the subpoena unless he was paid his customary witness fee of $750. Defendant then filed (1) a petition to enforce subpoena requesting this court to compel Dr. Newman to attend the arbitration hearing upon payment of a witness fee of $5 per day and travel expenses of seven cents per mile and (2) a motion in limine requesting this court to prohibit plaintiff from introducing the reports of Dr. Newman and the billing statement of Newman Chiropractic Center if Dr. Newman failed to honor the subpoena.

I

We initially consider defendant’s petition to enforce its subpoena.

The amount of compensation and expenses that shall be paid to a witness served with a subpoena to testify at a court proceeding is governed by 42 Pa.C.S. §5903. Subsection (b) provides for every witness to be paid at a rate of $5 per day and subsection (c) provides for every witness to be paid travel expenses of. seven cents per mile. Defendant contends that Dr. Newman has a duty to appear provided that he is tendered the statutory witness fees which any fact witness is entitled to receive. Dr. Newman has no right to demand payment of an additional expert witness fee as a condition for his appearance.

Dr. Newman contends that he should not be compelled to testify without receiving an expert witness fee because subsection (a)(1) of 42 Pa.C.S. §5903 states that the provisions of this section do not affect “(1) The right of a witness who gives expert testimony to receive additional per diem compensation therefor.” Dr. Newman further contends that in response to a petition to enforce a subpoena a court has the authority to make any order which justice requires to protect a person from unreasonable burden or expense.

Defendant seeks to avoid subsection 5903(a)(1) by contending that it is calling Dr. Newman as a fact witness rather than as an expert witness. In this case, Dr. Newman is being called as a “medical” witness. He is a fact witness because the testimony that he would offer is based solely on personal knowledge. But he is also an expert witness because he is offering his facts and opinions as an expert — he would not be permitted to testify as to the matters in the report if he were not qualified as an expert. Thus, the issue is whether the' provisions of 42 Pa.C.S. §5903(a)(l) recognizing the right of a witness “who gives expert testimony” to receive an expert fee is restricted to witnesses who are called to give evidence on hypothetical questions propounded to them or whether it encompasses any witnesses who must be qualified as experts in order to provide testimony. For several reasons, we conclude that this provision protects any person who is offering testimony as an expert.

First, this provision would be unnecessary if it applied only to experts giving their views on hypothetical questions. Since at least 1918, Pennsylvania has recognized a privilege which protects experts who have no personal knowledge of the factual issues of the lawsuit from testifying in private civil litigation against their will. See Pennsylvania Co. for Insurances on Lives and Granting Annuities v. City of Philadelphia, 262 Pa. 439, 105 Atl. 630 (1918); Evans v. Otis Elevator Co., 403 Pa. 13, 168 A.2d 573 (1961); Williams v. South Hills Health System, 24 D.&C. 3d 206 (1981). Thus, the expert giving opinions based on hypothetical questions does not need legislation protecting his or her right to a witness fee — he or she can simply invoke the privilege if the party who seeks the testimony has not paid the fee which the expert witness requests.

Second, where the issue is the witness’s right to compensation as opposed to the witness’s right to refuse to testify, there is no reason to distinguish between the expert with personal knowledge and the expert without personal knowledge because he or she provided professional services in anticipation of receiving reasonable compensation for the time expended on the matter. When this witness must spend additional time on the matter by serving as a witness in court proceedings, he or she is inconvenienced to the same extent as the expert without personal knowledge who is asked to give an opinion as an expert.

Third, expert witnesses with personal knowledge acquired by providing professional services, unlike witnesses who happened to observe the incident that caused the injuries, will be subject to frequent requests to testify because they are rendering services in connection with matters for which litigation is anticipated. Consequently, the burdens that the legal system would impose upon them are unfair if they do not receive reasonable compensation for their time.

We recognize that Rule 4003.5 of the Pennsylvania Rules of Civil Procedure governing discovery protects from discovery facts known and opinions held by an expert acquired or developed in anticipation of litigation or for trial. This rule does not bar discovery of an expert who provided professional services for any other purpose. But this distinction is not related to the issue of an expert witness’s right to compensation. Rule 4003.5 bars discovery from the specially retained expert in order that parties will be encouraged to seek the opinions of responsible experts (who may disagree with the parties’ positions) and in order to encourage responsible persons to serve as experts by minimizing the burdens that the litigation will place upon them. Rule 4003.5 does not provide protections to other expert witnesses simply because they are outside the scope of the purpose of the rule. The interests of these witnesses are protected by Rule 4011, which bars discovery that would cause unreasonable burden or expense, and Rule 4012 which permits a court to make any order which justice requires to protect a person from unreasonable burden or expense.

Finally, Pa.R.C.P. 234.4(b) permits a court, in response to a motion to quash a subpoena, to make an order to protect a party or witness from unreasonable burden or expense. If Dr. Newman were to file a motion to quash the subpoena, we would very likely require payment of his reasonable witness fee pursuant to Rule 234.4(b) before requiring his appearance.

II

Through its motion in limine, defendant seeks a court order prohibiting plaintiff from offering the report of Dr. Newman and the billing statement of Newman Chiropractic Center unless plaintiff pays the expert witness fee that Dr. Newman requests before he will appear at the arbitration hearing.

Rule 1305(b) governs the right of a party to offer documents in evidence in an arbitration proceeding without further proof. The relevant portions of this rule read as follows:

“(b) If at least 20 days’ written notice of the intention to offer the following documents in evidence was given to every other party accompanied by a copy of the document, a party may offer in evidence, without further proof,

“(1) bills, records and reports of hospitals, doctors, dentists, registered nurses, licensed practical nurses and physical therapists, or other licensed health care providers.

“Any other party may subpoena the person whose testimony is waived by this rule to appear at the hearing and any adverse party may cross-examine him as to the document as if he were a witness for the party offering the document.”

The following provisions of the Explanatory Note — 1981 to Rule 1305 are also relevant:

“If the party receiving such copies wishes to cross-examine the person who prepared the document, he must subpoena that person to appear at the hearing.

“The foregoing provisions of subdivisions (b) and (c) apply, of course, only to documents which are prepared by a person who is within the subpoena power of the court in which the action is pending. The special relaxation of the rules of evidence is conditioned on the power of the opponent to subpoena the person whose testimony is waived; if that is not possible, for territorial or other reasons, the foundation for the special rule disappears, and the proponent must follow the normal rules of evidence.”

Defendant contends that this rule, as construed by the Explanatory Note, allows the documents to be introduced only if the person who prepared the report will appear at trial when served with a subpoena. Since Dr. Newman is refusing to appear, the foundation for this rule has disappeared. Thus, plaintiff must follow the normal rules of evidence.

Defendant’s argument is without merit. Dr. Newman is both within the subpoena power of the court and has been served with a subpoena. Furthermore, he is not refusing to appear. He is simply requesting payment of the expert fees provided for by the legislation governing the compensation of witnesses as a condition for his appearance. Consequently, even if we were to construe Rule 1305(b) to bar the introduction of documents simply because the witness who prepared the documents refused to honor the subpoena, defendant’s motion should not be granted.5

Defendant also contends that it is the responsibility of the party who wishes to introduce the documents to make available the person whose testimony is waived by Rule 1305(b) if another party wants that person available for cross-examination. We disagree. The final paragraph of Rule 1305(b) provides that “[a]ny other party may subpoena the person whose testimony is waived.” The Explanatory Note to Rule 1305 also specifically states that the party that wishes to cross-examine the person who prepared the documents “must subpoena that person to appear at the hearing.” A party subpoenas a witness to appear by complying with the statutory requirements governing the compensation and expenses of witnesses. See 42 Pa.C.S. §5903.

Also, defendant’s contention, that the burden of paying the expert witness’s fee for a medical witness should rest on the party offering the medical report, would defeat the purpose of Rule 1305. Subdivision (b) relaxes the rules of evidence for a medical witness to reduce the litigation expenses of the party who seeks to introduce this evidence. Particularly in small claims, a party with the burden of proof may accept a settlement which does not fully compensate that party to avoid paying litigation expenses that would be a substantial percentage of the anticipated award. Rule 1305(b) is designed to eliminate this bargaining tool by significantly reducing the costs of litigation. This rule would be undermined if a party could prevent another party from introducing its medical proof through records simply by serving a subpoena on the medical witness that prepared the records.

For these reasons, we enter the following

ORDER OF COURT

On July 31, 1990, it is hereby ordered that:

(1) upon consideration of defendant’s petition to enforce subpoena, it is hereby ordered that Gerald Newman, D.C., is compelled to attend the arbitration hearing scheduled in this case upon receipt of a witness fee of $750 which shall be paid by defendant;

(2) upon consideration of defendant’s motion in limine, it is hereby ordered that this motion is denied;

(3) the various motions for counsel fees are denied; and

(4) the arbitration hearing in this proceeding is scheduled for October 18, 1990, at 9 a.m.

      . The subpoena provisions of Pennsylvania law apply to compulsory arbitration proceedings. 42 Pa.C.S. §7309.

      . We note that this case does not involve a claim on the part of Dr. Newman that he cannot be compelled to give testimony. He claims only that he is entitled to his reasonable witness fee as a condition for his court appearance. Also, this is not a case in which the witness is a party to the action. While Dr. Newman is interested in the outcome of the case because his Chiropractic Center is more likely to receive payment for his services if plaintiff is successful, plaintiff is obligated to pay this bill regardless of the outcome of the case.

      . Defendant does not challenge the reasonableness of Dr. Newman’s fee of $750 for a court appearance.

      . We found no appellate court case law that governs this issue. See case law cited at section 54:118 (Fees of expert witness) of 9 Standard Pennsylvania Practice 2d. Defendant’s reliance on Cohen v. Continental Casualty Co., 89 Pa. Super. 367 (1926) is misplaced. In that case the witness, a physician served with a subpoena to testify, was not permitted to recover a fee as a witness because of his failure to allege or to show that he was summoned to testify as an expert.

      . We emphasize that we do not necessarily construe Rule 1305(b) in this fashion. This issue is not before the court in the present case because of Dr. Newman’s willingness to appear upon payment of the fees provided for by 42 Pa.C.S. §5903.


author: LUDGATE, J.,

text:
    Commonwealth v. Adams

      Jeanne R. Boyer, assistant district attorney, for the Commonwealth.

      Lawrence J. Hracho, for defendant.
    November 23, 1990
   LUDGATE, J.,

On July 24, 1990, this court entered an order granting defendant’s petition to dismiss the Commonwealth’s criminal complaint against defendant. An appeal was timely filed by the Commonwealth and this opinion is written pursuant to Rule 1925(b), Pa.R.A.P. and in support of that order.

On August 16, 1990, in accordance with Rule 1925(b) Pa.R.A.P., this court entered an order directing that the Commonwealth file a concise statement of matters complained of on appeal. In its concise statement, the Commonwealth contends solely that “the trial court erred in determining the summary charge to which the defendant pled guilty at the district justice level, this was based on the same conduct as the driving under the influence charge that was therefore dismissed on double jeopardy grounds.”

This court remains unenlightened as to the Commonwealth’s argument on appeal. However, based on the Commonwealth’s memorandum of law, it appears to be that their argument may be that the conduct being used by the Commonwealth to prove the charge of driving under the influence of alcohol, was not the same conduct for which defendant has been previously prosecuted. The Commonwealth also may argue, as it did in its memorandum, that defendant has waived the double jeopardy argument by failing to raise it in defendant’s omnibus pretrial motion.

The double jeopardy clause of the declaration of rights of the Pennsylvania Constitution states that “no person shall, for the same offense, be twice put in jeopardy of life and limb. . .” Pa. Const., art. I, §10. The double jeopardy clause of the Fifth Amendment of the United States Constitution states that “nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb.” U.S. Const., amend. V. The double jeopardy clause of the Fifth Amendment of the United States Constitution is enforceable against the states through the 14th Amendment. Benton v. Maryland, 395 U.S. 784, 794, 23 L.Ed. 2d 207, 89 S.Ct. 2056 (1969). The Superior Court held in Commonwealth v. Simons, 342 Pa. Super. 281, 492 A.2d 1119 (1985), that “the double jeopardy protections afforded by the federal and state constitutions generally are said to be co-extensive . . . and our state courts adopt the approach of the United States Supreme Court in double jeopardy cases.” Id. (citations omitted), citing Commonwealth v. Beaver, 317 Pa. Super. 88, 463 A.2d 1097 (1983).

The order granting defendant’s petition to dismiss was entered on July 24, 1990, after a hearing and argument was held on July 16, 1990. The order was issued pursuant to the U.S. Supreme Court’s recent decision in Grady v. Corbin, 495 U.S. _ , 109 L.Ed. 2d 548 (1990). In Grady, the U.S. Supreme Court held that “the double jeopardy clause bars a subsequent prosecution, if to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which the defendant has already been prosecuted.” Id.

The Commonwealth states, in what purports to be a memorandum in support of their position in this matter, that “the court must determine in every case, based on the procedural history of that case, whether a defendant has waived his double jeopardy rights.” Therefore, the Commonwealth’s position would be that defendant waived the double jeopardy claim. However, the Superior Court stated in Commonwealth v. Nixon, 288 Pa. Super. 78, 431 A.2d 296 (1981), that “failure to raise an issue in a prior proceeding is not a waiver, when the legal principles upon which the issue is premised, are newly announced in an appellate decision rendered subsequent to the date of the prior proceeding.” Id., quoting Commonwealth v. Simon, 446 Pa. 215, 285 A.2d 861 (1971). As the double jeopardy claim is based upon a legal principle announced in an appellate decision rendered after the date of the omnibus pretrial proceeding, the issue was not waived and this court properly considered the petition.

The Commonwealth further argues that this court erred in granting defendant’s petition to dismiss the complaint on double jeopardy grounds. As previously stated, the test established in Grady v. Corbin is whether, to establish an essential element of an offense charged in that prosecution, the government will prove conduct that constitutes an offense for which defendant has already been prosecuted. The issue remains whether the disposition of the summary offense amounts to prosecution of that conduct and thus, has placed defendant in jeopardy, and the present driving under the influence prosecution would place defendant twice in jeopardy for the same conduct.

The Commonwealth and defendant agreed that the court would consider defendant’s petition to dismiss, based upon stipulated facts. By that same stipulation, no further testimony was taken.

“The Court: So then on December 17th, this occurred. He was stopped by the Officer Steven Chieffo, a 0.26 was obtained from him, his blood alcohol. December the 18th a summons was issued for reckless driving, served upon him by registered mail. He went into the D.J. — Wagonseller?

“Mr. Hracho: That’s correct, Judge.

“The Court: — Wagonseller’s office, he pled guilty and paid the fines and costs for that summary offense of reckless driving before he got the — was served with the charges of driving under the influence of alcohol.

“Mr. Hracho: That’s correct, Judge. The citation number was A-268620, charging a violation of section 3714 of the Motor Vehicle Code, reckless driving. The description of the offense is that the, quote, above defendant did drive said motor vehicle in reckless disregard for persons and property.

“The Court: And if we could have that citation number.

“Mr. Hracho: A-268620.

“The Court: I think it would be helpful if we could have a copy of that entered by agreement into the record. I think that that’s important. With that having been entered, I think at this point, gentlemen, would it be your position that I can hear — make a decision on this case without having any further testimony?

“Mr. Hracho: I believe so, Your Honor, yes.

“Mr. Coleman: Yes, Your Honor.

“The Court: And since the officer is here, I’d like to be certain this all occurred in the same instance?

“The Prosecutor: Yes.” (N.T. at 5-6.)

The facts are that defendant was stopped by Officer Steven Chieffo of the Oley Township Police Department on or about December 17, 1989, at approximately 1:57 a.m. The officer stopped defendant’s vehicle after observing the vehicle being driven in an erratic manner, and not staying within the lane. This is according to the probable cause statement which was attached to the criminal complaint. Defendant was issued a citation, for reckless driving in violation of 75 Pa.C.S. §3714, on December 18, 1989. The officer also requested that a summons be issued for defendant’s arrest, charging him with driving under the influence of alcohol, 75 Pa.C.S. §3731(a)(l), in that defendant drove his motor vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving; and under 75 Pa.C.S. §3731(a)(4), charging defendant with driving under the influence of alcohol, in that he drove his motor vehicle while the amount of alcohol in his blood was 0.10 percent or greater.

In a driving under the influence of alcohol prosecution, the essential elements which the Commonwealth must prove are that defendant did drive or operate his motor vehicle while under the influence of alcohol, to a degree which rendered him incapable of safe driving, in violation of section 3731(a)(1) of the Vehicle Code; or in the alternative, that defendant did drive or operate his motor vehicle while the amount of alcohol by weight in his blood was 0.10 percent or greater, in violation of section 3731(a)(4) of the Vehicle Code. Therefore, the Commonwealth must prove that defendant drove his motor vehicle while under the influence of alcohol, either to a degree which would render him incapable of safe driving or while the amount of alcohol in his blood was greater than 0.10 percent.

The Commonwealth may argue that they should be able to prosecute defendant on the section 3731(a)(4) count alone. That avoids the issue of how the car appeared on the highway in the first place. The car appeared and was observed by an officer driving in an erratic manner and the driver of the automobile was prosecuted and pled guilty to the offense of reckless driving. The Commonwealth misplaces its argument by asserting that if the jury is not aware that defendant was tried for reckless driving, that somehow does not affect defendant’s substantive rights under the Constitution of the United States and the Constitution of the Commonwealth of Pennsylvania. The double jeopardy issue is based upon defendant’s constitutional rights, not the Commonwealth’s ability to try a case without the jury having all of the information available. This is not a suppression issue. This is a substantive constitutional issue and the Commonwealth’s argument is without merit.

In Grady the Supreme Court relied upon the fact that the prosecutor had filed a bill of particulars which stated that it would prove the entirety of the conduct for which Corbin had been convicted, that is, driving while intoxicated and failing to keep right of the median, to establish the essential elements of the homicide and assault charges which were involved in that case. In the instant case, the probable cause which was issued states in pertinent part that, “[T]his officer observed the vehicle being driven in an erratic manor [sic] not being able to stay within his lane.” The conduct which the Commonwealth will use to prove that defendant was unable to operate his motor vehicle safely, is that defendant drove in an erratic manner, which is a summary offense to which defendant has previously entered a guilty plea and paid the fine. The fact that no bill of particulars was filed in this case does not affect the application of the test adopted in Grady v. Corbin, as the Supreme Court stated in a footnote “[application of the test we adopt today, will not depend, as Justice Scalia’s dissent argues, on whether the indictment ‘happens to show that the same evidence is at issue’ or whether the jurisdiction ‘happen[s] to require the prosecution to submit a bill of particulars that cannot be exceeded.’ ” Grady, supra, at n.14.

For the above-mentioned reasons, we affirm our prior order dismissing the complaint and respectfully urge that the appeal be denied.


author: HILL, J.,

text:
    Russell v. Mercy Catholic Medical Center

      Louis S. Fine, for plaintiffs.

      Jonathan Kirk Miller, for defendants Mercy Catholic Medical Center and Michael Silver, M.D.

      J. Kurt Straub, for defendants West Philadelphia Community Mental Health Consortium Inc. and Michael Silver, M.D.
    December 6, 1990
   HILL, J.,

On the morning of June 27, 1981, Michael Silver, M.D., a psychiatrist, evaluated plaintiff Sandalio Russell at the facilities of the West Philadelphia Community Mental Health Consortium. Mr. Russell had been brought there at the request of his family who wanted him involuntarily committed pursuant to section 302 of the Mental Health Procedures Act, 50 P.S. §7302, which provides for involuntary emergency examination and treatment if a person is found to be severely mentally disabled. Following his examination of Mr. Russell, Dr. Silver did not cause Mr. Russell to be involuntarily committed but instead discharged him that same day.

Following his discharge, Mr. Russell suffered injuries on June 29, 1981. Plaintiffs brought three actions, which have been consolidated, in which they contend that Dr. Silver’s discharge of Mr. Russell was a substantial factor in bringing about his injuries.

On April 9, 1984, Dr. Silver was deposed. At that time he refused to answer, upon advice of counsel, three hypothetical questions posed to him by plaintiffs’ counsel. The three hypothetical questions at issue are the following:

“(1) Q: If you had agreed with Mr. Kerlin that in the intrapsychiatric report that item that was circled number four, his depression, the symptom check list of 6-27-81, if you found that he had profound problems with suspiciousness, paranoia and feelings of persecution as Mr. Kerlin had found, would your results have been different, your diagnosis, and your actions in relation to the involuntary commitment of Mr. Russell?

“(2) Q: The sister in her 302 wrote out certain items. If you had relied exclusively what the sister had mentioned in the 302, and if the patient had confirmed those items, would you have committed Mr. Russell?

“(3) Q: If he had confirmed that he had stopped eating, would you have found that as a basis to commit him?” Deposition of Michael Silver, M.D., at 48, 88, 89.

Counsel for Dr. Silver concede that since he is a physician he may be asked opinion questions during his deposition. As stated in the explanatory note to Pa.R.C.P. 4003.5:

“It should be emphasized that Rule 4003.5 is not applicable to discovery and deposition procedure where a defendant is himself an expert, such as a physician, architect or other professional person, and the alleged improper exercise of his professional skills is involved in the action. Such a defendant can be examined by written interrogatories under rule 4005 or by oral deposition under Rule 4007.1. If so examined, a defendant cannot assert that his opinion may not be discovered without his consent.” Pa.R.C.P. 4003.5, explanatory note — 1978. See also, Neal by Neal v. Lu, 365 Pa. Super. 464, 470-1, 530 A.2d 103, 107 (1987).

Counsel for Dr. Silver contend, however, that plaintiffs may not seek to discover his opinion by means of hypothetical questions. No cases have been submitted, nor have any been found, which support this interpretation of the rules. In fact, First National Bank & Trust Co. of Waynesboro v. E.R. Squibb & Sons Inc., 41 D.&C. 3d 52 (1985), supports a contrary interpretation.

In First National Bank a defendant physician refused to answer a number of questions during his deposition which called for an opinion. After a review of the applicable case law the court concluded that the defendant physician could be asked opinion questions and commented:

“We are mindful of the limitations, as enunciated in David [v. Lower Bucks Hospital, 56 F.R.D. 21 (E.D. Pa. 1972)] and Williams [v. Thomas Jefferson Hospital, 54 F.R.D. 615 (E.D. Pa. 1972)], supra, on the discovery of opinions. That is, the information sought must pertain to matters within the doctor’s area of expertise; hypothetical questions must be based upon facts of record; the opinion question must be based upon a complete statement of all relevant facts; and the question should not be so broad as to elicit a medical treatise.” 41 D.&C. 3d 52, 55-6.

The three hypothetical questions asked of Dr. Silver meet the above requirements. All three questions pertained to matters within Dr. Silver’s area of expertise. All three questions were based upon facts of record, in this case the testimony of Mr. Kerlin, an employee of the West Philadelphia Mental Health Consortium, and Mr. Russell’s sister. All three questions, although they may not be based upon a complete statement of all the facts, contain a sufficiently complete statement. Finally, the questions are not so broad as to elicit a medical treatise.

Additionally, plaintiffs’ motion to compel this discovery, although it comes several years after the original deposition, is not so unreasonably burdensome that it runs afoul of the limitations placed on discoveiy by Pa.R.C.P. 4011.

Accordingly, Dr. Silver is ordered to respond to the three hypothetical questions which were not answered at his deposition of April 9, 1984, and a limited number of non-repetitive and appropriate additional questions arising from and connected with his response to these questions.

ORDER

And now, December 6, 1990, upon consideration of plaintiffs’ motion to compel the deposition of defendant Michael Silver, M.D., responses thereto and following oral argument, it is hereby ordered and decreed that Dr. Silver appear at the offices of Fine and Staud at a mutually convenient time within 20 days from the date of this order. Dr. Silver is ordered to respond to the questions which his attorney instructed him not to answer at pages 48, 88 and 89 of his deposition taken on April 9, 1984. Dr. Silver is further ordered to respond to a limited number of non-repetitive and appropriate additional questions arising from and connected with his response to these questions.

      . In SEPTA v. Workmen’s Compensation Appeal Board (Saxon), 82 Pa. Conunw. 590, 595, 477 A.2d 9, 12 (1984), the Commonwealth Court stated:
      “[A] hypothetical question need not encompass the assertions of both the proposing and opposing parties; rather, a party may state specifically the particular facts he believes find support in the evidence and ask the opinion of the expert on such facts, assuming them to be true. Battistone v. Benedetti, 385 Pa. 163, 169-70, 122 A.2d 536, 539 (1956).”

      . Pa.R.C.P. 4011 states:
      “Rule 4011. Limitation of Scope of Discovery and Deposition

      “No discovery or deposition shall be permitted which
      “(a) is sought in bad faith;
      “(b) would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party;
      “(c) relates to a matter which is privileged; or
      “(d) Rescinded November 20, 1978, effective April 16, 1979.

        “(e) would require the making of an unreasonable investigation by deponent or any party or witness;
      “(f) Rescinded November 20, 1978, effective April 16, 1979.”


author: HORN, J.,

text:
    Goodman v. Holder

      Eugene R. Campbell, for plaintiff.

      Linda S. Porr, for defendant.
    December 7, 1990
   HORN, J.,

This matter is before this court on defendant’s preliminary objection in the nature of a demurrer. Defendant objects to paragraphs 14 and 15(4) of the complaint. Defendant claims that plaintiff’s complaint purports to seek an award of punitive damages and that the complaint fails to aver any facts setting forth circumstances which would permit an award of punitive damages in this case. Finally, defendant objects to paragraphs 14 and 15(4) as being conclusory allegations of outrageous conduct without setting forth facts to support such allegations.

A brief recitation of the facts of this case will illustrate the reason for the court denying defendant’s preliminary objections. On or about October 3, 1988, plaintiff was in an automobile accident, at which time she sustained a fractured sternum, multiple cuts and bruises, a fracture of the left elbow and shoulder and spondylolisthesis at L5-S1.

Defendant treated plaintiff on numerous occasions until June 29, 1989. Plaintiff alleges that during that time defendant never prescribed X-rays for plaintiff, which X-rays would have revealed the fracture to the sternum, left elbow and shoulder. Plaintiff further alleges that defendant never obtained a complete medical history.

Plaintiff’s main contention is that the defendant’s conduct amounted to both a breach of chiropractic standard of care and a breach of the normal standards of care in the community.

Defendant’s objection lies solely with the sufficiency of facts set forth and whether these facts present an issue of punitive damages that should go to the jury.

It is the opinion of this court that plaintiff has alleged enough facts to constitute a possible claim for punitive damages. Section 908 of the Restatement of Torts has been adopted as the rule in many malpractice cases. Regarding punitive damages:

“The question in medical malpractice cases, as in tort actions generally, is whether there has been sufficiently aggravated conduct contrary to the plaintiff’s interests, involving bad motive or reckless indifference, to justify the special sanction of punitive damages that serves the dual function of penalizing past conduct constituting an aggravated violation of another’s interests, and of deterring such behavior in the future.” See Restatement of Torts §908, and see Medvecz v. Choi, 569 F.2d 1221, 1227 (1977).

In evaluating the conduct of a physician and surgeon charged with malpractice, the test is whether the physician, in the performance of his or her duties:

“[Ejither did some particular thing or things that physicians and surgeons, in that medical community, or ordinary skill, care and diligence, would not have done under the same or similar circumstances, or failed to do some particular thing or things which physicians and surgeons of ordinary skill, care and diligence would have done under the same or similar circumstances; he is required to exercise the average degree of skill, care and diligence exercised by members of the same medical specialty community in similar situations.” See 61 Am. Jur. 2d §205 at 338, and see Bruni v. Tatsumi, 46 Ohio St. 2d 127, 75 Ohio Op. 2d 184, 346 N.E.2d 673 (1976).

In this case, we are not dealing with a physician or surgeon; however, chiropractic standards should be applied in the same manner. A chiropractor was found liable by a Colorado Appeals Court under very similar circumstances to our case at hand. The Colorado court held that the failure of a chiropractor to take an X-ray picture of the shoulder of a patient and his failure to refer the patient to a medical doctor because of his failure to take X-rays and thus discover a broken bone constituted negligence on the part of the chiropractor. Salazar v. Ettmann, 505 P.2d 387 (Colo. App. 1972), cited also in 58 ALR 3d 585.

It is the general rule that one who has been injured by the negligence of a physician or surgeon in the course of treatment is entitled to recover compensatory damages. The law may, however, permit an award of punitive damages in such cases where the “negligence is wanton or gross,” as where the physician is shown to have been “actuated by bad motives” or with an “intent to injure the patient,” or where the “treatment was given with utter indifference to the effect upon the patient.” 61 Am. Jur. 2d §371, Punitive/Exemplary Damages, at 546.

The issue of punitive damages may be submitted to the jury in such a case if the court determines as a preliminary matter that there is sufficient evidence to take that issue to the jury. See 58 ALR 1556, 1560.

For these reasons, we deny defendant’s preliminary objections in the nature of a demurrer as to paragraphs 14 and 15(4) of plaintiff’s complaint. It is the feeling of this court that once discovery occurs, as plaintiff argues, many of these allegations may become moot; until such time, this court will permit the punitive damages claim to remain in the complaint.

       Paragraphs 14 and 15(4) of plaintiff’s complaint are as follows:
      “14. Defendant’s conduct is so outrageous and so contrary to the standards of chiropractic care and the normal standards of care in the community, that plaintiff should be entitled to punitive damages against the defendant.
      “15(4). For punitive damages in an amount in excess of $10,000.”


author: LABRUM, J.,

text:
    Commonwealth v. Maloney

      Thomas F. Lawrie Jr., assistant district attorney, for the Commonwealth.

      John J. Duffy, for defendant.
    November 16, 1990
   LABRUM, J.,

Defendant Stephen W. Maloney was tried before the court and jury on charges of rape, involuntary deviate sexual intercourse, indecent assault, simple assault, aggravated assault, false imprisonment, unlawful restraint and corrupting the morals of children. Defendant’s demurrer was sustained to the charges of aggravated assault, false imprisonment and unlawful restraint. The jury found defendant guilty of involuntary deviate sexual intercourse and indecent assault, and not guilty of rape and corrupting the morals of children. Timely post-trial motions were filed by defendant and on May 31, 1990, the court granted defendant a new trial. The Commonwealth has appealed to the Superior Court.

The charges in the present case were filed against defendant on March 23, 1989. On March 19, 1989, this defendant was charged in a totally unrelated incident, with the crimes of simple assault and indecent assault on an alleged victim in Sheehan Hall on the campus of Villanova University. The preliminary hearings on both sets of charges were held on the same date, at which time the Commonwealth successfully moved to add the charges of unlawful restraint and false imprisonment to the second set of charges. When informations were prepared, the Commonwealth gave notice that it intended to join the latter charges with the present charges. The defense filed motion to sever and the court granted the said motion and ordered separate trials.

Prior to the trial of this matter, the defense filed a motion in limine to exclude any evidence of the existence of the other charges into this case. The defense anticipated that the alleged victim in this case might reveal the existence of the other charges against defendant when she was questioned by the district attorney upon direct examination.

The charges against defendant in the present case arose out of his conduct with the alleged victim on October 29, 1988. The incident was not reported until March 23, 1989, some five months later.

In a case involving charges as found herein, the issue arose as to the reason for the delay in reporting alleged incident number one.

The Commonwealth explained that alleged Victim Number One, involved in the incident of October 29, 1988, heard about a second incident for which defendant was arrested on March 19, 1989. Alleged Victim Number One and alleged Victim Number Two were both members of the university’s varsity swim team. In light of a second incident, Victim Number One decided to press charges on March 23, 1989. Thus, chronologically, the incident involved in this trial occurred first, yet was reported second. The Commonwealth argued its need to explain the reason for delay between the occurrence and reporting of incident number one, the case presently before this court.

In an in camera proceeding, the court instructed the district attorney that the court would permit no reference to the other charges from incident number two in the testimony of this case. The district attorney offered to have the alleged victim respond only that she has heard of another incident in March 1989 which compelled her to report what had allegedly happened to her in October 1988. Again, the court indicated that it would not permit any reference to other charges against defendant in this case.

In her actual direct testimony and in response to the questions from the district attorney, the alleged victim testified that she reported defendant’s attack upon her because she had read in the campus newspaper in March 1989 that another member of the varsity swim team had been attacked in her dormitory room. She further stated that she felt guilty for not having reported the attack upon her by defendant for, had she done so, she might have prevented the subsequent attack. This clearly went beyond the ruling in the in camera procedure.

The jury began deliberations on March 21, 1990 and returned its verdict on March 22, 1990. On the morning of March 22, 1990, defense counsel brought to the attention of the district attorney and the court a newspaper article in the Delaware County Daily Times, a newspaper of general circulation in the community, which stated inter alia the following:

“Maloney is also scheduled to stand trial next week on charges he indecently assaulted a 19-year-old student in her dormitory room on March 20, 1989.” Delaware County Daily Times, March 22, 1990, at 26.

Referring, of course, to incident number two.

Defense counsel requested the court to conduct voir dire examination of the jurors in order to determine whether or not any of them was exposed to or acquired knowledge of the published article. The court and counsel learned that at least one juror arrived at the jury deliberation room in possession of a copy of the newspaper in question. The juror was relieved of the copy of the paper before she entered the jury deliberation room and the newspaper was delivered to the trial judge.

Juror Number One indicated that he has seen the headline of the story but had not read the article. Juror Number Three, who had been in possession of the newspaper, denied reading the article. Juror Number Two saw Juror Number Three with a newspaper and saw it taken from her when she reached the deliberation room. Juror Number Eight admitted hearing about the article from Juror Number One. Juror Number Nine told the court that he had heard of two newspaper articles. One had apparently appeared on March 21 and the other was the article in question. This juror indicated that he had been told by someone on the jury that the Times article reported the defendant’s version on the incident. The remaining seven jurors indicated no knowledge of the newspaper article.

The defense moved for a mistrial and the motion was denied; however, the court expressed concern over the situation and chose not to further elaborate to the jury and chose to permit the trial to continue with appropriate closing instructions at the end of the trial.

After consideration of post-trial motions and argument by respective counsel, the court granted a new trial on the basis that defendant was prejudiced by the violation of the court’s directive restricting the Commonwealth’s proof to avoid suggestion of other criminal conduct by defendant and by the conduct of the jurors in disobeying the court’s instructions to avoid viewing and discussing newspaper publicity of the case, against which they had been repeatedly warned throughout the trial.

The law of this Commonwealth provides that evidence that shows or tends to show that the accused is guilty of committing other crimes and offenses other than those for which he is on trial is inadmissible. Commonwealth v. Perdue, 387 Pa. Super. 473, 564 A.2d 489 (1989). If a jury can reasonably infer from the evidence presented that defendant engaged in other criminal activity the prejudicial error has been committed. Commonwealth v. Knapp, 374 Pa. Super. 160, 542 A.2d 546 (1988). Whether the testimony was intentionally elicited by the Commonwealth is a factor to be considered in granting a mistrial or a new trial. Commonwealth v. Thomas, 361 Pa. Super. 1, 521 A.2d 442 (1987). It is clear to this court that the instructions to the district attorney were explicit as to the restriction imposed on the testimony to be permitted by the alleged victim in the case. The prosecutor chose to have his witness testify as to knowledge of a subsequent incident even though the court instructed that no reference was to be made to any other charges involved beyond the parameters of the in camera instructions. By treading into such a restricted area, the Commonwealth must suffer the consequences.

Turning to the newspaper article, the court determined that the published article contained prejudicial information regarding defendant and that at least a portion of the jury had breached its duty by exposing itself to the information. When such an incident occurs during a trial and it becomes probable in the mind of the court that the jury, despite the instruction of the court, has been tainted by the improper information which it has received, the only appropriate relief is to grant defendant a new trial. Commonwealth v. Breakiron, 524 Pa. 282, 571 A.2d 1035 (1990). In reviewing the totality of circumstances of this case and the verdict of the jury the danger of prejudice was so great to the defendant that a new trial was mandated.


author: AVELLINO, J.,

text:
    Lawrysh v. United Van Lines

      Bernard M. Gross, for plaintiff.

      Osvaldo Fontecchio, for defendants.
    December 10, 1990
   AVELLINO, J.,

Defendants have filed a notice of appeal, claiming the right to have my discovery order reviewed by the Superior Court. The order appealed from imposes sanctions of a preclusive nature, and is designed to punish defendants for their discovery misconduct. I’m hoping, of course, that “gagging” defendants will enhance plaintiff’s chances of prevailing when (and if) her claim is called for trial. This aside, my order does not end this litigation in our court and, hence, it is hopelessly unappealable as a matter of right.

I certify that the statements I’ve made are accurate, and that the orders I’ve appended are true and correct copies of the originals which are part of the record maintained by our court. I suggest that the information I’ve supplied is sufficient for the Superior Court to conclude that it is not empowered to review my order on this appeal which has been lodged prematurely. Until the question of appellate jurisdiction is resolved, I intend to ignore this appeal. For example, I will not file an opinion explaining my reasons for selecting the sanction I imposed, transmit the record, or so on.

More importantly, it is perfectly clear (at least to me) that defendants’ lawyer lodged this appeal without doing his legal homework, or perhaps, in spite of the overwhelmingly hostile case authority that he may have uncovered. It is equally plain that the Pennsylvania judicial system can no longer afford to accommodate ignorant or lazy lawyers, and will not tolerate mischievous ones. Hence, unless defense counsel can justify his conduct (which I doubt), I think that the Superior Court should award such “damages as may be just” to those who have been victimized by his abuse of the appellate process.

I also suggest that the real victim of a premature appeal is not so much an appellee as it is the unified judicial system, and per extensio, the citizens whose tax dollars support it. Consequently, if the Superior Court decides to sanction defense counsel (or his clients), it ought to consider the plight of Philadelphia taxpayers. For example, judging from reports that have been widely publicized, the City of Philadelphia is having difficulty funding our court. Hence, our court would probably welcome financial reimbursement for the time I (and others) wasted processing this premature appeal.

Appendix A

ORDER OF COURT

And now, October 19, 1990, plaintiff’s motion for sanctions is granted. Defendants are barred from introducing evidence at trial on any subject covered by the plaintiff’s interrogatories and document requests which defendants failed to answer despite the court’s orders of June 25, 1990 and August 24, 1990.

Appendix B

ORDER

And now, June 25, 1990, it is hereby ordered and decreed that defendants shall answer plaintiff’s interrogatories and requests for production of documents within 20 days or risk sanctions.

Appendix C

ORDER

And now, August 24, 1990, plaintiff’s motion that we sanction defendants for failing to comply with our order of June 25, 1990, is granted.

We direct that the following order be entered:

(1) Defendants shall pay a counsel fee of $300 for the preparation and filing of this motion;

(2) Defendants are cautioned that their continued and unexplained failure to comply with our order of June 25, 1990, may occasion even harsher sanctions; and

(3) Plaintiff is directed to refrain from seeking further sanctions for 30 days.

      . See Appendix A (order of October 19, 1990, barring the defendants from introducing evidence at trial on the subjects covered by the interrogatories and document requests which defendants refused to answer despite two previous orders). See also, Appendix B (uncontested order of June 25, 1990, granting plaintiff’s motion to compel discovery), and Appendix C (uncontested order of August 24, 1990, imposing a financial sanction and warning the defendants that a harsh sanction was likely if they continued to ignore my order).

      . Bruno v. Elitzky, 515 Pa. 47, 526 A.2d 781 (1987) (instructing the Superior Court to refrain from granting appellate review as of right for discovery sanction orders unless such orders literally end a litigation as to one or more of the parties). See also, Commonwealth, Dept. of Transportation v. Kmetz, 129 Pa. Commw. 97, 103, 564 A.2d 1040, 1043 (1989) (recognizing, correctly I think, that the Supreme Court used the Bruno case to lay down a “door-closing” rule respecting the appealability of discovery orders). Compare Commonwealth v. Dugger, 506 Pa. 537, 486 A.2d 382 (1985) (“thrashing” the Superior Court for attempting to interpret a “door-opening” jurisdictional rule which the Supreme Court had announced in a previous case decision).

        As the Dugger case illustrates, the Supreme Court has at least one “bad habit”: It sometimes announces a jurisdictional rule in a case decision instead of promulgating the same rule by using its regular lawmaking channels. See, e.g., The Pennsylvania Project — The Pennsylvania Supreme Court: Perspectives From Within, 23 Vill. L. Rev. 1041, 1084 (1977-78) (reporting on an interview with Justice Packel who lamented this practice which deprives the organized bar of an opportunity to participate in the creation of a new rule). For other illustrations of jurisdictional rules announced initially in case decisions, see, e.g., Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974) (abolishing the doctrine of “fundamental error” and, hence, curtailing the jurisdiction of intermediate appellate courts); Commonwealth v. Brady, 510 Pa. 336, 508 A.2d 286 (1986) (creating a “frivolity” exception to the “Bolden ” prohibition against proceeding to trial when an accused appeals from the denial of a motion to dismiss on double jeopardy grounds).
      Jurisdictional rules, like the “door-closing” rule laid down in Bruno, represent political judgments about a subject that is well beyond the constitutional grasp of inferior Pennsylvania courts, namely, the proper allocation of the state’s limited judicial resources. See, e.g., Pines, Pennsylvania Appellate Practice: Procedural Requirements and the Vagaries of Jurisdiction, 91 Dick. L. Rev. 55, 80 (1986) (“The [final order doctrine] represents a prudential standard by which to best allocate and maximize limited judicial resources.”). Stated differently, these rules originate in Article V, §10 of the State Constitution and may not be scrutinized by inferior courts which, quite simply, do not possess Article V power. Commonwealth v. Dugger, supra. See also, Commonwealth v. Chimenti, 510 Pa. 149, 507 A.2d 79 (1986); Reilly v. SEPTA, 507 Pa. 204, 489 A.2d 1291 (1985); Municipal Publications Inc. v. Court of Common Pleas, 507 Pa. 194, 489 A.2d 1286 (1985) (each “reminding” the Superior Court that it is hardly an autonomous, self-defining institution).

      . Id. See also, White v. SEPTA, 366 Pa. Super. 16, 530 A.2d 870 (1987) (decided before Bruno, but correctly holding that a discovery order imposing sanctions of a preclusive nature is not appealable as a matter of right); Joyce & Associates v. Pivirotto, 358 Pa. Super. 50, 516 A.2d 763 (1986) (same); Griffin v. Tedesco, 355 Pa. Super. 475, 480 n.4, 513 A.2d 1020, 1022 n.4 (1986) (same). I should add, perhaps, that the Superior Court has repeatedly explained that discovery orders imposing sanctions against a defendant that go beyond fact preclusion and take the form of a verdict for the plaintiff on the larger issue of liability with damages to be determined at trial may not be appealed on a demand basis. See, e.g., Edney v. SEPTA, 356 Pa. Super. 160, 514 A.2d 194 (1986); Miller Oral Surgery Inc. v. Dinello, 342 Pa. Super. 577, 493 A.2d 741 (1985); Sims v. Feingold, 329 Pa. Super. 437, 478 A.2d 868 (1984). Accord Harasym v. Commonwealth, Dept. of Transportation, 321 Pa. Super. 492, 468 A.2d 817 (1983) (implicating an analogous sanction as between defendants).

      . Cf. Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989) (recommending, sensibly I think, that trial courts should use this style of certification to trigger a resolution of claims to competing jurisdiction with intermediate appellate courts).

      . See Pa.R.A.P. 1701(b)(6) (authorizing trial judges to ignore unauthorized appeals from interlocutory orders).

      . Id.

      . See, e.g., notes 2 and 3, supra (collecting cases).

      . Id. “Dilatory” (or “spiteful”) appeals are a bane to the discovery process and have been repeatedly condemned in the reported decisions. See, e.g., Hall v. Lee, 285 Pa. Super. 542, 548, 428 A.2d 178, 181 (1981) (“[I]f this order [imposing a financial sanction] were found to be presently appealable, it would tend to discourage the lower court’s use of this disciplinary tool, and [piecemeal appeals] would merely become another weapon in the arsenal of dilatory practice for the attorney who wished to delay judicial proceedings.”). Accord McManus v. Chubb Group of Insurance Cos., 342 Pa. Super. 405, 410, 493 A.2d 84, 87 (1985). The Supreme Court doubtless shares these concerns. See, e.g., Bruno, 515 Pa. at 50 n.1, 526 A.2d at 782 n.l:
      “By insisting that sanctions are final orders, the dissent, in effect, would open the floodgates to perpetual judicial impermanence and impotence at the trial level and an unmanageable quantum of cases choking the appellate system. We should be reminded that trial [judges] are empowered to sanction litigants in a variety of ways [pursuant to rule 4019] and [are required] to enforce the obligations of the judicial system in a fair, fast, and firm manner. Followed to its logical conclusion, the argument of my learned colleague would lead inexorably to disastrous consequences.”

      . See, e.g., Comment, The Demise of the Doctrine of Basic and Fundamental Error in Pennsylvania and the New Role of Strict Issue Preservation, 23 Duq. L. Rev. 395 (1985) (explaining, nicely I think, that the “Dilliplaine” line of cases represents a political judgment by the Supreme Court that Pennsylvania’s judicial system can no longer afford to squander any time or money accommodating incompetent or la2y lawyers).

      . Speaking broadly, Pennsylvania courts have always possessed the inherent authority to punish those who abuse court process. The countless rules (and statutes) conferring sanction authority, such as Pa.R.C.P. 4019 (discovery) or Pa.R.A.P. 2744 (frivolous appeals), merely “clarify” the authority to punish in different settings.

      . In Bruno, the Supreme Court explicitly rejected the notion that “constructive finality,” Pines, note 2, supra at 88-91, was the appropriate doctrine for determining access to appellate courts for appeals as of right from discovery sanction orders. Hence, the Supreme Court “trumped” sub silento a few contrary decisions by lower appellate courts that were hopelessly at odds with later decisions by the same courts. See, e.g., the later case decisions collected, note 3, supra (refusing to entertain appeals as of right from discovery orders imposing sanctions of a preclusive nature), and compare Brunetti v. SEPTA, 329 Pa. Super. 477, 478 A.2d 889 (1984); Roman v. Pearlstein, 329 Pa. Super. 392, 478 A.2d 845 (1984); Marshall v. SEPTA, 76 Pa. Commw. 205, 463 A.2d 1215 (1983) (each holding that a discovery order imposing a sanction of a preclusive nature was a “constructively final” order and, hence, was appealable as of right).
      Despite Bruno’s’ embrace of “classic finality,” Pines, note 2, supra, at 78-81, as the appropriate doctrine for determining access to appellate courts for appeals as of right from discovery sanction orders, in Weist v. ARCO, 374 Pa. Super. 405, 543 A.2d 142 (1988), two judges of the Superior Court (acting sua sponte) applied the doctrine of “constructive finality” to a preclusive sanction, and “distinguished” the Supreme Court’s rule banning appeals as of right from discovery orders that did not end a litigation. Those judges were probably unknowing victims of the Supreme Court’s “bad habit” of announcing jurisdictional rules in case decisions. Note 2, supra. Stated differently, they interpreted Bruno as supplying a legal “principle” as opposed to laying down an Article V rule. This sort of mistake has occurred before, much to the chagrin of the Supreme Court. See, e.g., Commonwealth v. Dugger, note 2, supra (“thrashing” the Superior Court). Meanwhile, the appealability holding in Weist is hopelessly at odds with existing Superior Court decisions that the two-judge majority never mentioned. See note 3, supra, (collecting cases). For these reasons, the precedential value of Weist is problematic at best. Nevertheless, Weist ought to be explicitly overruled by the Superior Court since it represents the only “constructive finality” cloud that remains in the sky above “Discoveryland.”

      . Pa.R.A.P. 2744. The quoted language represents a dramatic enlargement of the Superior Court’s sanction authority. See, e.g., Kelley v. Thompson, 326 Pa. Super. 364, 474 A.2d 44 (1984) (expressing dissatisfaction with former rule 2744).

      . For a concise description of the usual justifications for eschewing “piecemeal” appeals, see, e.g., Elderkin v. Sedney, 354 Pa. Super. 253, 511 A.2d 858 (1986), appeal denied, 514 Pa. 617, 521 A.2d 932 (1987). For a broader discussion contending, “We must think hard about ways to save time and money in the litigation system so that the system can function properly and thereby provide justice for all who wish to use it or are affected by it,” see Newman, Rethinking Fairness: Perspectives on the Litigation Process, 94 Yale L.J. 1643, 1657-8 (1985).

      . The Superior Court should also consider the plight of other Pennsylvania taxpayers. For example, the Superior Court is reputed to be one of America’s busiest (or “hardest working”) appellate courts. Pines, supra note 2, at 142 and n. 389 (quoting from a report of the American Judicature Society). As such, it can hardly afford to squander its time processing premature appeals.