author: STOELKER, Jr.,

text:
    In re Anonymous No. 67 D.B. 82
    Disciplinary Board Docket No. 67 D.B. 82
    November 30, 1989
   STOELKER, Jr.,

Member,

Pursuant to rule 208(d) of the Pennsylvania Rules of Disciplinary Enforcement, the Disciplinary Board of the Supreme Court of Pennsylvania submits its findings and recommendations to your honorable court with respect to the above-captioned petition for discipline.

HISTORY OF PROCEEDINGS

Respondent was admitted to practice law in the Commonwealth of Pennsylvania on June 26, 1975. He is currently suspended by order of the Supreme Court of Pennsylvania. Respondent’s last office address was [ ].

On December 4, 1981, respondent was convicted by a jury in the Court of Common Pleas of [ ] County of tampering with a witness in violation of 18 Pa.C.S. §4907 On July 9, 1982, Respondent was sentenced by the Honorable [A] as follows: (1) two-year probation; (2) a condition that defendant must stay within a 100-mile radius of [ ], Pa.; and (3) one year of full-time service to [ ] Legal Services.

By order dated October 22, 1982, the Supreme Court of Pennsylvania suspended respondent from the practice of law and ordered that the matter be referred to the Disciplinary Board pursuant to rule 214(f), Pa.R.D.E.

On November 1, 1982, the Office of Disciplinary Counsel filed a petition for discipline charging that respondent offered the sum of $1,600 to a plaintiff witness for the purpose of inducing the witness to change his testimony against several defendants represented by respondent in a pending criminal action in the Court of Common Pleas of [ ] County.

On November 1, 1982, respondent filed a petition for stay of his suspension. In a per curiam decision, the Supreme Court of Pennsylvania denied respondent’s petition on December 6, 1982. On December 13, 1982, respondent filed a statement of compliance pursuant to rule 217(d), Pa.R.D.E.

On July 29, 1982, respondent filed notice of appeal with the Superior Court of Pennsylvania. In an order and opinion dated September 2, 1983, the Superior Court reversed the charges on the grounds of insufficient evidence. Commonwealth v. [Respondent], By order of the Supreme Court of Pennsylvania dated October 20, 1983, respondent was reinstated to the practice of law pursuant to rule 214(e), Pa. R. D. E. Thereafter, respondent moved from Pennsylvania to Wisconsin.

The commonwealth filed a petition for allowance of appeal in the Supreme Court of Pennsylvania on December 12, 1983. The petition was granted on February 21, 1984. By order and opinion dated April 3, 1985, the Pennsylvania Supreme Court reversed the Superior Court decision of September 2, 1983 on the grounds that the evidence was sufficient to support the conviction; reinstated the judgment of sentence; and remanded the case to the Superior Court for disposition of respondent’s remaining appellate claims. Commonwealth v. [Respondent],[ ].

On remand, by order and opinion dated November 29, 1985, the Superior Court reversed and remanded for a new trial on the grounds that the jury which convicted respondent was improperly influenced by a court officer. Commonwealth v. [Respondent], [ ].

The commonwealth filed a second petition for allowance of appeal on December 30, 1985. The Supreme Court of Pennsylvania, again granted the petition and in an order and opinion filed on November 10, 1986, the Supreme Court reinstated the conviction on the grounds that no prejudicial communication had occurred between the trial court’s crier and the two jurors. Commonwealth v. [Respondent], [ ].

By order dated March 6, 1987, the Supreme Court of Pennsylvania reinstated the judgment of sentence and referred the matter to the Disciplinary Board pursuant to rule 214(f), Pa.R.D.E.

Among other claims, including a civil rights and tort action against all persons involved in the investigation and prosecution of respondent for witness tampering, respondent petitioned the Federal District Court to enjoin further prosecution and disciplinary proceedings. The court dismissed the entire complaint with leave to file an amended complaint. [Respondent v. Commonwealth, [ ].

Thereafter, Judge [A] modified respondent’s sentence to require that respondent provide 200 hours community service in Wisconsin where respondent resided. Respondent refused to accept the transfer of sentence to Wisconsin and again asserted his claim of double jeopardy. Judge [A] found respondent in violation of his probation that he stay within a 100-mile radius of [ ], Pa. and ordered respondent’s extradition from Wisconsin on June 29, 1987.

On June 14, 1988, the Vilas County Circuit Judge in Wisconsin ordered respondent’s extradition to Pennsylvania. Respondent appealed to the Wisconsin Appellate Court which affirmed the lower court’s order op March 7, 1989. The Wisconsin Supreme Court denied respondent’s request for review. [ ] State v. ex rel. [Respondent] v. [B] ([ ]).

On August 3, 1989, respondent filed a petition for writ of certiorari to the Supreme Court of the United States claiming double jeopardy. The petition, captioned State of Wisconsin ex rel. [Respondent] v. [B], Sheriff of Vilas County, Wisconsin, was denied by order of the Supreme Court of the United States dated October 2, 1989.

In the interim, on April 20, 1988, the matter was referred to Hearing Committee [ ] comprised of [ ]. A hearing was scheduled for November 30, 1988 and notice of the hearing along with a letter from the Office of Disciplinary Counsel stating their position was personally served upon respondent by a deputy sheriff of Vilas County, Wisconsin on October 21, 1988.

By letter dated November 23, 1988 addressed to the hearing committee chairperson, respondent contested the jurisdiction of the Disciplinary Board. Respondent failed to appear at the hearing held on November 30, 1988. The hearing committee filed its report on June 19, 1989 recommending disbarment.

On July 12, 1989, respondent, pro se, filed a brief on exceptions to the report and recommendation of the hearing committee and requested oral argument. Respondent argued that the Disciplinary Board lacked jurisdiction on the grounds of double jeopardy and therefore, the disciplinary proceeding should be dismissed.

On July 20, 1989, the Office of Disciplinary Counsel filed a reply brief opposing exceptions asserting that the Disciplinary Board has jurisdiction to recommend the appropriate discipline and respondent’s conduct is sufficiently egregious to warrant disbarment.

Oral argument was scheduled for September 13, 1989 before a three-member review panel of the Disciplinary Board consisting of [ ]. On September 8, 1989, respondent filed a letter with the Disciplinary Board in which he waived oral argument and requested the board to consider his written submissions challenging the board’s jurisdiction on grounds of acquittal.

The matter was adjudicated by the Disciplinary Board at its scheduled meeting on September 15, 1989.

FINDINGS OF FACT

In June 1980, Teamster Local 115 was engaged in a campaign to organize workers at the [C] Cab Company in [ ]. The workers at the [C] Cab Company went out on strike, at the instigation of the Teamsters, and set up a picket line. One of the workers, [D], a cab driver, became disenchanted with the Teamsters’ efforts and crossed the picket line. On June 27, 1980, while driving a cab, [D] was pursued and assaulted by five union members. [D] suffered injuries and filed a criminal complaint against those five individuals.

Subsequently, [D] met with a business agent of Local 115 to discuss the incident. At that time [D] had decided to withdraw the criminal charges in the interest of laying to rest his difficulties with fellow employees, and informed the agent of this fact. [D] sought compensation for the injuries he sustained in the assault, and a settlement in the amount of $1,600 was agreed upon. This sum was to be paid to [D] upon his written release of the union from civil liability and a withdrawal of the criminal charges.

In the ensuing weeks, [D] became impatient with the union’s failure to deliver the $1,600. Hence, on several occasions during August and September 1980, [D] met with respondent, the union’s legal counsel, to inquire as to the reasons that the settlement funds had not been paid. During that time, respondent also represented one or more of the union members against whom criminal charges had been filed.

On August 21, 1980, respondent delivered to [D] the sum of $400 as partial payment of $1,600 owed under the settlement that had been agreed upon by [D] and the union’s business agent. Subsequent to this meeting with respondent, [D] decided not to withdraw the criminal charges. However, [D] did not inform respondent of this decision.

On September 22, 1980, [D] met with members of the district attorney’s office and consented to wear a hidden recording device to record his conversations with respondent. Later that same day, [D] met with respondent on two occasions, and the tape recordings of those meetings form the heart of the case against respondent. In summary, the conversations revealed that [D] was to be paid the sum of $1,600 for a release of civil liability, but with the threat that the full amount of the funds would not be paid until [D] had “cooperated” by dismissing the criminal charges. The “cooperation” required [D] to change his testimony and indicate that his earlier accounts of the assault had been exaggerated or that his memory of the assault had failed. In addition, there was a discussion of the possibility of [D] ignoring a subpoena in order to elude having to testify at trial. For a complete description of the two conversations which [D] had with respondent on September 22, 1980 and other surrounding facts see Commonwealth v. [Respondent], [ ].

It should be noted that the taped conversations secured by [D] were obtained as a result of [D] telling lies to respondent which produced further conversation from respondent. Finally, [D] did in fact receive the agreed settlement sum and the union members involved in the assault on [D] were prosecuted on the criminal charges.

CONCLUSIONS OF LAW

Respondent’s conduct has constituted a violation of the following Disciplinary Rules of the Code of Professional Responsibility:

(A) D.R. 1-102(A)(1) — which prohibits the violation of a disciplinary rule (rule 203(b)(3), Pa.R.D.E.);

(B) D.R. 1-102(A)(3) — which prohibits illegal conduct involving moral turpitude;

(C) D.R. 1-102(A)(6) — which prohibits conduct that adversely reflects on the fitness of respondent to practice law; and

(D) D.R. 7-102(A) (6) - which prohibits an attorney, in his representation of a client, from participating in the creation or preservation of evidence when he knows, or it is obvious, that the evidence is false.

DISCUSSION

The sole issue before this board is the extent of discipline to be imposed upon respondent who was convicted by a jury in the Court of Common Pleas of [ ] County of tampering with a witness in violation of 18 Pa.C.S. §4907. Despite a lengthy appeal process, the Supreme Court of Pennsylvania upheld the conviction. Commonwealth v. [Respondent], [ ], Commonwealth v. [Respondent] [ ]. Pursuant to rule 203(b)(1), conviction of a crime defined under Enforcement Rule 214 is an independent ground for the imposition of discipline. Rule 214(c), Pa.R.D.E. states that “[a] certificate of conviction of an attorney for such a crime shall be conclusive evidence of the commission of that crime in any disciplinary proceeding against the attorney based upon the conviction.” The Disciplinary Board has jurisdiction of this matter pursuant to rule 201 (a)(3), Pa.R.D.E.

The Office of Disciplinary Counsel argues that respondent’s conduct is sufficiently egregious to warrant disbarment. Respondent, pro se, contends that the disciplinary proceedings against respondent should be dismissed on the grounds that the Disciplinary Board lacks jurisdiction. Respondent argues that the decision of the Superior Court of Pennsylvania in Commonwealth v. [Respondent], [ ], was an “acquittal” and since he was “acquitted,” the reinstatement of his conviction by the Supreme Court of Pennsylvania was unconstitutional. Therefore, the argument continues, the Disciplinary Board cannot recommend the imposition of discipline.

Respondent’s legal analysis is defective. First, by denying respondent’s petition for writ of certiorari, the Supreme Court of the United States laid to rest all respondent’s claims of the unconstitutionality of his conviction. Second, even if the jury in the Court of Common Pleas in [ ] County acquitted respondent of the charges (which apparently is not the case) the Disciplinary Board would still have jurisdiction to conduct disciplinary proceedings against respondent. It is now well-established that the constitutional protection of double jeopardy afforded defendants in criminal cases does not apply to disciplinary proceedings. See In re Oxman, 496 Pa. 534, 437 A.2d 1169 (1981), citing Office of Disciplinary Counsel v. Campbell, 463 Pa. 472, 345 A.2d 616 (1975). “[T]he mere acquittal of a crime will not be a bar to a suspension of the attorney’s right to practice or his disbarment for unprofessional conduct based upon the same acts or conduct involved.” Campbell, citing In re Echeles, 430 F.2d 347, 352 (7th Cir.1970). “Any argument which asserts that an acquittal on criminal charges bars a subsequent disciplinary proceeding ignores that nature of disciplinary actions.” Campbell. Unlike criminal proceedings, the nature of disciplinary sanctions are not primarily punitive, but rather designed to protect the public from attorneys who are unworthy of the public’s trust. See Office of Disciplinary Counsel v. Tumini, 499 Pa. 284, 288, 453 A. 2d 310, 312 (1982). “The punishment of an offending member of the profession is indeed a serious matter, but it is incidental to the [primary purpose] of protecting the public.” In re Oxman, 496 Pa. 534, 437 A.2d 1169 (1981).

Following the suggestion of the Supreme Court of Pennsylvania in Office of Disciplinary Counsel v. Casety, 511 Pa. 177, 512 A.2d 607 (1986), the board’s inquiry, in light of respondent’s conviction of a crime, will focus on whether respondent’s character, as shown by his conduct, make him unfit to practice law from the standpoint of protecting the public and the courts. Respondent is an attorney who has been convicted of employing an offer of pecuniary benefit in an attempt to change the testimony of a witness in a criminal matter in which respondent represented the defendants. Specifically, the conversations between the witness, [D] and respondent “reveal that [D] was to be paid the sum of $1,600 ostensibly for a release of civil liability, but with the threat that the full amount of the funds would not be paid until [D] had ‘cooperated’ by doing whatever was necessary to obtain dismissal of the criminal charges.” Commonwealth v. [Respondent], [ ]. (emphasis in original) Respondent instructed [D] to testify falsely that his memory had failed, that he had instigated the affray with the union members, and that his earlier accounts of the assault had been exaggerated. In addition, there was a discussion of the possibility of [D] ignoring a subpoena in order to elude having to testify at trial. Also, respondent agreed to “sweeten the pot a little” by securing some extra money for [D]. However, respondent warned [D] not to “push his luck” because [D] was dealing with some “very dangerous” people who “play with knuckles,” and respondent characterized himself as one of those “honorable” but “rough” people.

Respondent’s conduct has seriously eroded the fundamental view that the court system is a system of justice unscathed by outside influence. Respondent has neglected his duty as a court officer and also has breached the public’s trust and confidence in the court system and the legal profession.

Because respondent’s conduct indicates a deplorable disregard for the integrity of the judicial process, the board concludes that respondent is unworthy of the public trust and confidence vested in him as a member of the legal profession.

RECOMMENDATION

The Disciplinary Board unanimously recommends that the respondent be disbarred. The board recommends further that respondent be ordered to pay the costs of investigating and prosecuting this matter pursuant to rule 208(g), PaR.D.E.

Messrs. Brown and Gilardi and Ms. Heh did not participate in the adjudication.

ORDER

And now, February 5, 1990, upon consideration of the report and recommendation of the Disciplinary Board dated November 30, 1989, it is hereby ordered that [respondent] be and he is disbarred from the bar of this commonwealth, and he shall comply with all the provisions of rule 217, PaR.D.E. It is further ordered that respondent shall pay costs to the Disciplinary Board pursuant to rule 208(g), PaR.D.E.

      . Act of December 6, 1972, P.L. 1482, §1, 18 Pa.C.S. §4907 was repealed by the Act of December 4, 1989, P.L. 1097, §2. The offense now appears at 18 Pa.C.S. §4952. See Commonwealth v. [Respondent], [ ].


source: Caselaw Access Project

author: WOOD, J.,

license: Public Domain

text:
    Marks Estate

      Maurice D. Lee III, for petitioners.

      Louis N. Teti, guardian ad item.
    January 12, 1989
   WOOD, J.,

The co-guardians of the estate of the incompetent, David Marks, have filed this petition seeking authorization to make inter vivos gifts from David’s estate to members of his family in order to minimize estate and inheritance taxes.

David was rendered incompetent as the result of severe head injuries which he received in an automobile accident on November 26, 1978. At the time of the accident, David was 20 years old and was intestate. On July 6, 1979, David was adjudged incompetent, and his father, Daniel W. Marks, was appointed guardian of his estate. Some years later, David’s estate received a settlement in excess of four million dollars as the result of a claim arising from the automobile accident. Continental Bank was appointed co-guardian of the estate on January 31, 1984.

Thereafter, the co-guardians filed a petition asking the court to “substitute its judgment” for that of the incompetent, as provided in section 5536(b) of the Probate, Estates, and Fiduciary Code (PEF), 20 Pa.C.S. § 5536(b), and to direct that David’s estate be conveyed to revocable trust. The trust instrument would provide for the transfer of up to $10,000 annually out of trust income to each of David’s parents and two brothers, his immediate heirs under the Pennsylvania intestate laws. The petition averred that this scheme would accomplish a substantial savings in death taxes and “would accomplish the transfer of monies from David’s estate to the natural objects of his bounty without transfer tax ramifications.” (Petition for substitution of judgment, filed July 15, 1985, para. 12.)

On July 30, 1985, I granted this petition and on May 28, 1986, the trust was created and David’s estate was transferred to it. The trust instrument provides that after the trustees have made all expenditures necessary for David’s care and comfort from the income of the trust, they may, in their discretion, distribute up to $10,000 per year from the remaining income to David’s parents and two brothers. The trust instrument also provides for the distribution of the principal to these four individuals or their issue upon David’s death, with any amount distributable to a minor to be held in trust until majority.

On February 1,1988, the co-guardians filed a second petition, requesting the court to authorize annual gifts of $10,000 to any spouse of either of David’s brothers and any issue of either brother, in addition to those gifts presently being made. The petition avers that one of David’s brothers, Daniel Marks Jr., is now married, but that neither brother currently has any issue. The co-guardians state that the purpose of this request is to further minimize death taxes.

The petition also avers that the present value of the principal of the trust is now in excess of $5 million and that the annual income therefrom is approximately $375,000, nearly all of which is tax-free. Commissions to the trustees for the year 1987 were approximately $19,700 and distributions from the trust for David’s expenses amounted to approximately $1,160, leaving surplus income in excess of $350,000. This amount is added to principal. David is now 30 years old and is institutionalized at the Woods School in Langhome, Pa. A substantial portion of his medical expenses and living expenses are being paid by the proceeds of Pennsylvania No-fault Insurance, and that coverage is expected to continue for the rest of David’s life.

After receiving this petition, I appointed Louis Teti, Esq., as guardian ad litem for David, and directed him to investigate the allegations and consequences of the petition. Mr. Teti’s report, filed October 19, 1988, confirm the factual allegations of the petition. He reports that according to Dr. Arnold I. Kramer of the Woods School, David will not experience any significant medical improvement during his lifetime, although it is possible that David could live a normal lifespan. Mr. Teti found that David is well cared for, and since his expenses are covered almost entirely by no-fault insurance proceeds, very little of the trust fund is spent for David’s maintenance. Thus, the income continues to accumulate. Currently, the fund is increasing by over $350,000 per annum. According to the projections of the corporate trustee, the fund will nearly double in 10 years and will increase geometrically thereafter.

Mr. Teti concluded, however, that notwithstanding the size of David’s estate, the gifts which the trustees propose for estate planning purposes should be limited to David’s intestate heirs, or the natural objects of David’s bounty. Thus, he concluded that while gifts to the issue of David’s brothers would be justified, gifts to David’s sisters-in-law are not warranted. For the reasons discussed below, I agree. 20 Pa.C.S. §5536(b) provides:

“(b) Estate plan — The court, upon petition and with notice to all parties in interest, shall have the power to substitute its judgment for that of the incompetent with respect to the estate and affairs of the incompetent for the benefit of the incompetent, his family, members of his household, his friends and charities in which he was interested. This power shall include, but is not limited to, the power to:
“(i) Make gifts, outright or in trust.
“In the exercise of its judgment for that of the incompetent, the court first being satisfied that assets exist which are not required for the maintenance, support and well-being of the incompetent, may adopt a plan of gifts which results in minimizing current or prospective income, estate or inheritance taxes, or which carries out a lifetime giving pattern. The court in exercising its judgment may consider the testamentary and inter vivos intentions of the incompetent insofar as they can be ascertained.”

Thus, I must first be satisfied that the assets of David’s estate will continue to exceed the amount needed for his maintenance before authorizing additional gifts to be made. Considering the size of David’s present estate and the rate of its growth, the income from the fund alone should be more than adequate to meet his expenses, even if David’s insurance benefits were to cease for any reason or if his medical costs were to increase. Secondly, the statute authorizes the court to adopt a plan of gifts for the sole purpose of minimizing death taxes. However, I note that the proposed plan leaves most of the discretion up to the trustee, rather than the court, and arguably I should narrow the scope of that discretion.

The real issue in this case is whether I should authorize gifts to the spouses of David’s brothers. The statute provides that gifts may be made to the incompetent’s “family” (the only term under section 5536(b) which might include these spouses).

I have not been able to find a definition of “family” which seems to cover this situation directly. Section 6114 of the PEF, 20 Pa.C.S. §6114, says that, as used in conveyances, “family” shall be taken to refer to those who would take under the intestate laws. The. rules of intestate descent provide for blood relatives but not in-laws: see 20 Pa.C.S. §2101 et seq. Black’s Law Dictionary (5th ed.), contains a lengthy definition of “family,” and without repeating it word for word, the definition appears to include either blood relatives or those living under the same roof, but not spouses of relatives.

Accordingly, I could make a good case for denying distribution to spouses of brothers purely on the basis that they are not technically family. However, I would like to carry the inquiry further.

For instance, the statute provides that I “may consider the testamentary and inter vivos intentions of the incompetent insofar as they can be ascertained.”

Petitioners and the guardian ad litem point out that in this case David had never expressed any testamentary intentions and that because he was so young at the time of the accident, he probably had not formulated any testamentary intentions. Further, his estate before the accident was minimal, and he had established no pattern of giving. Thus, any effort to determine who David may have considered to be the proper objects of his bounty amounts to sheer speculation.

Petitioners apparently take the position that in the absence of any indication of the objects of David’s bounty, I should assume that David would have adopted any plan of giving that would reduce death taxes for his family as long as his care and comfort are not compromised. However, this argument sets no limits on the number of the degree of affinity of persons who should receive the gifts, and it opens the door to disbursements of an incompetent’s estate to distant relatives and strangers to the incompetent. If David were able to formulate a plan, I doubt that he would be quite so generous.

In my view, the purpose of estate planning is to save death taxes on behalf of the beneficiaries of the estate, or in this case, David’s heirs as named in the trust instrument. Thus it is reasonable to make these individuals the present beneficiaries of gifts in order to protect their future inheritance. David’s sisters-in-law are not entitled to any of David’s estate upon his death. Annual gifts to her or them would thus be in the nature of a windfall, as well as a diversion of funds from the proper heirs. However, the issue of David’s brothers are named in the trust instrument as contingent beneficiaries and thus, if any such issue emerge, they would be proper recipients of gifts from David’s estate.

I am not saying that gifts made pursuant to section 5536(b) should be restricted to the incompetent’s heirs in every case where there is no indication of the incompetent’s subjective intent as to the objects of his bounty. In this case, however, I find that the adoption of petitioners’ proposed plan would be a poor precedent, and would pave the way for unlimited demands upon an incompetent’s estate in future cases.

I would like to acknowledge with thanks the willingness of Louis N. Teti, Esq., to serve as guardian ad litem in this matter. He performed his services in an able and professional manner.

DECREE NISI

And now, January 12, 1989, upon consideration of the petition for substitution of judgment filed February 1, 1988, and after argument, it is hereby decreed that Daniel W. Marks and Continental Bank, co-guardians of the estate of David A. Marks, incompetent, shall amend paragraph second of the deed of trust of David A. Marks, settlor, dated May 28, 1986 to provide as follows: may distribute to or among such one, more or all of Daniel W. Marks, Shirley A. Marks, Daniel W. Marks Jr., Richard S. Marks, or to any of the issue of Daniel W. Marks Jr. or of Richard S. Marks, as shall be living at any such time of distribution, such amounts, equal or unequal, from the net income of this trust as the trustees, in their sole discretion, shall deem advisable; provided, however, that no such recipient of any such discretionary payments of income shall receive from the trust total distributions in excess of $10,000 per year; and provided further, that any such gifts made to a minor or disabled beneficiary shall be held in trust by the co-trustees, or some other person appointed by the court, until such time as the beneficiary attains the age of majority or some older age, as the court may determine, or until the disability of the particular beneficiary ceases. All additional income shall be accumulated and added to the principal.”

“Second: Terms of the Trust during the life of David A. Marks: During the life of David A. Marks, the trustees shall apply for his benefit so. much of the net income as is necessary, in the sole discretion of the trustees, for his comfortable support, health, maintenance and welfare. In addition, following the payment of all such expenditures necessary for the comfortable support, health, welfare and maintenance of David A. Marks, if sufficient income still remains at the end of any calendar year, the trustees

This decree nisi shall become the final order of this court unless exceptions hereto are filed within 10 days of this date.

       I can’t refrain from commenting on the irony of achieving a settlement for David which produces more money than he will ever need. Part of my concern in this case lies with the larger questions raised by this settlement: Who is being served? Who benefits? What has been achieved for David? Presumably this settlement was obtained and approved on his behalf because he needed this money — it was his compensation for his loss. At the very least, we should be slow to spread it around among relatives and in-laws. This is a very disturbing case, but I have no solution to offer other than what I have said.


author: MELODY, Jr., J.,

text:
    Snyder v. Life Insurance Company of North America

      James Dunworth, for plaintiff.

      Andrew J. Forbes, for defendant.
    October 23, 1989
   MELODY, Jr., J.,

This action in assumpsit concerns the claim of plaintiff for compensation pursuant to the terms of an insurance policy issued to the Phoenixville Volunteer Firemen’s Relief Association by defendant. Plaintiff, a volunteer fireman with the Friendship Fire Company, was injured when he fell from a ladder while repairing the roof of a building owned by the fire company. By stipulation of counsel, the insurance policy became part of the record, and by the same stipulation, it was agreed that said policy was in force at all times relevant to the litigation.

The June 9, 1988, amended answer of defendant added the following to his original answer:

“New Matter”

“(18) On July 24, 1986, a three-member panel of the Commonwealth Court of Pennsylvania, in the case of Clinton Snyder v. Workmen’s Compensation Appeal Board (Friendship Fire Company), no. 10 C.D. 1985, arising from a compensation claim filed on behalf of the instant plaintiff against the Friendship Fire Company, .concluded that plaintiff was not in any way a volunteer at the time of his accident, but rather was serving as an independent contractor .. . not acting in his capacity as a volunteer fireman. .. . As a consequence, it was ruled that plaintiff was not entitled to compensation benefits.

“(19) By reason of the foregoing, plaintiff is precluded from recovery in the instant action by reason of the doctrine of collateral estoppel and/or res judicata.”

No reply to this amended answer was filed.

On the date of the filing of said amended answer, defendant also filed a motion for summary judgment. Plaintiff filed an answer to this motion.

The basis for this motion was that the denial of plaintiffs claim, under the Workmen’s Compensation Act, was dispositive of his claim under the insurance policy by reason of the doctrine of collateral estoppel.

We rejected defendant’s position. By our opinion and order of February 23, 1989, we denied the motion for summary judgment. In our opinion, we noted that the Commonwealth Court in the collateral matter was concerned with the interpretation of a statute, 77 P.S. §1031. We noted that the matter before this court concerned the interpretation of an insurance contract. For this reason, we held that there was not sufficient identity of issues to apply the doctrine of collateral estoppel.

Approximately two months later, on April 20, 1989, the Superior Court filed its opinion in Frederick v. American Hardware Supply Company, 384 Pa. Super. 72, 557 A.2d 779 (1989).

The Superior Court in Frederick upheld a trial court decision that an earlier decision of the unemployment compensation referee denying compensation because of willful misconduct which was later affirmed by the Board of Review and the Commonwealth Court, collaterally estopped employees from asserting that they had been wrongfully discharged from their employment in a contract claim. The former action involved the application of the statutory language “willful misconduct” and the latter involved the application of an implied contract based on an employee handbook which would limit the employer to discharging an employee for “good cause.” The Superior Court approved the trial court’s disposition and stated:

“In effect, the trial court held that the referee’s finding that the employees had been discharged for willful misconduct and were ineligible, for unemployment compensation (43 P.S. §802(e)) was equivalent to the finding that the employer had not wrongfully dismissed the employees, and therefore the issue which had already been adjudicated in a prior administrative proceeding was precluded by the doctrine of collateral estoppel.” (emphasis supplied)

In light of this Superior Court opinion, defendant made an oral motion for summary judgment on September 5, 1989. Immediately following defendant’s motion, oral argument was heard.

In the case sub judice the collateral matter involved a determination by the Workmen’s Compensation Board as to whether plaintiff was an “employee” within the meaning of the applicable statute. 77 P.S. §1031 states:

“§1031. Employees defined; computation of compensation; presumption
“(a) In addition to those persons included within the definition of the word ‘employee’ as defined in section 104, ‘employee’ shall also include:
“(1) members of volunteer fire departments or volunteer fire companies, including any paid fireman who is a member of a volunteer fire company and performs the services of a volunteer fireman during off-duty hours, who shall be entitled to receive compensation in case of injuries received while actively engaged as firemen or while going to or returning from a fire which the fire company or fire department attended including travel from and the direct return to a fireman’s home, place of business or other place where he shall have been when he received the call or alarm or while participating in instruction fire drills in which the fire department or fire company shall have participated or while repairing or doing other work about or on the fire apparatus or buildings and grounds of the fire company or fire department upon the authorization of the chief of the fire company or fire department or other person in charge or while answering any emergency calls for any person or while riding upon the fire apparatus which is owned or used by the fire company or fire department or while performing any other duties of such fire company or fire department as authorized by the municipality or while performing duties imposed by section 15, Act of April 27, 1927 (P.L. 465, No. 299), referred to as the Fire and Panic Act.” (emphasis supplied)

The board determined that plaintiff was not an “employee.” The Commonwealth Court affirmed and stated:

“Snyder admits that he was partially remunerated for the work, but argues that his work was also, in part, volunteer. No definition of the word ‘volunteer’ appears in the act. Terms not defined in a statute are to be construed according to their common and approved usage. Section 1903 of the Statutory Act. ‘Volunteer’ is defined as a person who gives his services without any express or implied promise of remuneration. Glearly, Snyder was not a volunteer when he contracted to perform the roof repair work, despite his relatively low wage. The record contains ample evidence that Snyder was serving as an independent contractor at the time of his injury and therefore assumed the risks of that activity. The board properly concluded that Snyder was not acting in his capacity as a volunteer fireman at the time of the injüry, and hence, was not an employee within the meaning of section 601 of the act.” Snyder v. Workmen’s Compensation Appeal Board (Friendship Fire Company), Pa. Commonwealth Court, no. 10 C.D. 1985 (filed July 24, 1986).

In order to qualify for coverage by the insurance policy, plaintiff must demonstrate that he was engaged in a “covered activity” within the meaning of the insurance policy at the time of his accident. The policy states:

“Covered Activity — means any activity of an insured member in the performance of his duties as an insured member, provided such activity is performed at the direction of an officer of the policyholder or is performed at the scene of an emergency activity.’’(emphasis supplied)

Thus, a “covered activity” is an activity of an “insured member.” The policy further states:

“Insured Member —means a volunteer fireman, volunteer policeman, or a member of a rescue or ambulance squad or other emergency unit belonging to the policyholder; a paid driver or other person regularly employed by the policyholder; or a bystander present at the scene of an emergency, deputized by the officer in charge to assist in fighting a fire or perform first aid or emergency squad duties.” (emphasis supplied)

Thus, a “covered activity” is an activity of a “volunteer fireman” which is “in the performance of his duties” as a “volunteerfireman”

The Workmen’s Compensation Appeal Board, after hearing evidence, determined that plaintiff was not acting as a volunteer fireman at the time of the accident. The Commonwealth Court, in the portion of its opinion set forth above, applied “common and approved usage” in interpreting the term “volunteer” as it appears in the statute. This court applies the same usage in interpreting the term “volunteer” as it appears in the contract. We therefore hold that the finding of the Workmen’s Compensation Appeal Board (as upheld by the Commonwealth Court) was equivalent to a finding that he was not a “volunteer fireman” at the time of the injury and thus not engaged in a “covered activity” within the meaning of the contract of insurance.

Defendant’s motion is granted, and judgment is entered in favor of defendant.

ORDER

And now, October 23, 1989, after consideration of the motion for summary judgment of defendant, the response of plaintiff, the briefs of counsel, and the record in this matter, defendant’s motion for summary judgment is granted. Judgment is entered in favor of defendant and against plaintiff in no amount.

      . The complaint was filed on April 4, 1979. Defendant filed an answer on August 24, 1979. On June 12, 1980, defendant filed a motion for summary judgment. On August 14,1980, this motion was denied by Judge Wood. No further action was taken in this matter until June 27, 1986, at which time counsel for plaintiff filed a certification of active status which states:
      “In accordance with C.C.R.C.P. 249.2, I hereby certify that the above case is still in active litigation because an ancillary but controlling matter is before the Commonwealth Court for disposition and should not be subject to termination.”
      No further action was taken by either party until June 9, 1988, when defendant filed an amended answer to the complaint.

      . The amended answer was not endorsed with a notice to plead thus no reply was necessary. Pa.R.C.P. 1026.

      . Said motion was made in open court without objection by plaintiff.
      We note that although plaintiff did not oppose the defendant’s making of this oral motion, plaintiff did argue against the merits of the motion and against the granting of the relief sought by the motion.

      . In light of the Superior Court’s opinion in Frederick.

      . That plaintiff was not acting as a “volunteer” fireman when he was injured and thus not an “employee” within the meaning of 77 P.S. §1031.


author: FRAMPTON, J.,

text:
    Theofilos v. City of Hermitage

      James Nevant II, for plaintiff.

      Timothy R. Bonner, for defendant.
    June 7, 1989
   FRAMPTON, J.,

This case is before the court on preliminary objections filed by defendant, the City of Hermitage. By way of demurrer and motion to strike, defendant objects to the complaint filed by plaintiff, Alex Theofilos, on grounds that it fads to state a valid cause of action under the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. Defendant further contends that even if its objections under the act are not successful, the allegations of negligence were not the proximate cause of plaintiff’s injuries.

In his complaint plaintiff alleges that on October 27, 1986, he was doing yard work when he tripped and fell backwards over a cement block which was placed in his driveway by servants, employees or agents of defendant. Plaintiff claims that the cement block originally abutted his driveway for purposes of preventing automobiles from getting stuck in a drainage ditch running through, his property. He alleges, further, that defendant possessed, controlled, and supervised the drainage ditch running through his property, and that at some time prior to October 27, 1986, servants, employees and/or agents of defendant removed the cement block from its original location for purposes of cleaning the drainage ditch. Plaintiff contends that the servants, employees and/or agents of defendant failed to replace the cement block to its original location, leaving it instead on the driveway where it eventually became camouflaged by fallen leaves. Plaintiff alleges that as a result of such action by defendant’s servants, employees and/or agents, he later tripped and fell backwards over the cement block causing serious, severe, and permánent injury to his back.

DISCUSSION

By preliminary objection, defendant argues; (1) that plaintiffs failure to allege a dangerous condition “of’ the facilities of sewer or water “owned” by defendant, places the claim outside the enumerated exceptions to governmental immunity found in the act, and, therefore, does not state a valid cause of action; (2) that, even if a valid cause of action exists, defendant’s action through its servants, employees and/or agents, was not the proximate cause of plaintiffs injuries, and, therefore, no liability may be imposed; and (3) that, even if proximate cause is established, defendant’s liability, as a governmental agency, is limited to acts of negligence, and may not be expanded to include gross negligence, recklessness and/or willful and wanton misconduct.

Defendant’s first argument, as stated above, contains two components: (a) whether the cement block was actually a condition “of’ the facilities of sewer or water, and (b) whether such facilities are “owned” by defendant. Defendant contends that the only exception to governmental immunity available to plaintiff is section 8542(b)(5) of the act for torts involving utility service facilities. Under section 8542(b)(5) liability is imposed where there exists “a dangerous condition of the facilities of steam, sewer, water, gas or electric systems owned by the local agency.” 42 Pa.C.S. §8542(b)(5). (emphasis supplied) Without admitting that the cement block constituted a dangerous condition, defendant argues that plaintiffs complaint must fail, because the cement block was not a condition “of’ the facilities of sewer or water.

Defendant argues that a distinction can be made between conditions “of’ a facility, and conditions found “upon” a facility. To support its contention, defendant cites a number of cases involving govemmentally owned streets and sidewalks where the courts recognized such a distinction. See Ambacher v. Penrose, 92 Pa. Commw. 401, 499 A.2d 716 (1985) holding that a fallen fence on a municipal sidewalk was a condition “on” the sidewalk and not a condition “of’ the sidewalk, and thus, the city could not be held liable under the act. Defendant argues that, since the act’s language for the utility system exception to governmental immunity is significantly similar to its language for the sidewalks and streets exception to immunity, the distinction between conditions “on” and conditions “of’ applies to utility systems under section 8542(b)(5) as well. While defendant’s argument is well taken, we are unable, at this time, to determine whether the cement block was a condition “of’ the utility system.

Neither party has alleged facts indicating how the cement block originally came to be located abutting plaintiffs driveway. If the cement block was originally placed along the driveway by defendant, it could then be considered a condition of the utility service facility, and liability could possibly be imposed under section 8542(b)(5) of the act. However, if the cement block was originally placed along the driveway by plaintiff, it could not be considered a condition of the utility service facility, since it was never a part of the facility and was placed beside the driveway by plaintiff for his own convenience. As a result no liability could be imposed through section 8542(b)(5) of the act.

Furthermore, if the cement block had been placed beside or abutting the driveway by plaintiff, it would more appropriately be considered plaintiffs personal property. Although section 8542(b)(2) of the act provides an exception to governmental immunity involving care, custody, or control of personal property in possession or control of a local agency, the only recoverable damages under that section are those property losses suffered with respect to the personal property in the possession or Control of the local agency. 42 Pa.C.S. §8542(b)(2). Therefore, because no personal injury damages are recoverable under section 8542(b)(2), if the cement block had been originally placed beside the driveway by plaintiff, he would have no cause of action against defendant.

Consequently, since plaintiff has not alleged that the cement block was a condition “of’ the utility system, we grant defendant’s demurrer for failure to state a cause of action. We will, however, grant plaintiff time to file an amended complaint consistent with this opinion.

In that we have granted the requested demurrer we could stop at this point and not deal with any of the other preliminary objections. However, so as to avoid a delay in the proceedings if plaintiff can amend his complaint as set above, we shall deal with the remaining issues.

The second component of defendant’s first argument concerns plaintiff’s failure to allege defendant’s “ownership” of the sewer or water facility in question. Defendant contends that under section 8542(b)(5) of the act such an omission is fatal to plaintiff’s complaint, and that the complaint, therefore, fails to state a cause of action.

The same issue was before this court on preliminary objections in Fleming v. The City of Hermitage, no. 623 C.D. 1988, Mercer County Court of Common Pleas, Frampton, ]., January 24, 1989. There, as here, plaintiff alleged possession and control, but failed to specifically allege ownership on the part of defendant. As we stated in Fleming, “though such failure may be technically fatal, the ambiguity of the statute and the case law surrounding it compel this court in the interest of justice to allow the (plaintiff) an opportunity to amend [his] complaint.” Id. at 12. Therefore, while defendant’s preliminary objections concerning plaintiff’s failure to allege ownership are granted, plaintiff shall have the right to amend his complaint to comply with the statute requirements.

In defendant’s second argument, as set forth above, it contends that even if a cause of action may be established, its action, through its agents, servants or employees in relocating the cement block, was not the proximate cause of plaintiffs injuries. Proximate cause is an essential element to any claim of negligence. Hanrahan v. McClatchy, 384 F.Supp. 16, 21 (E.D. Pa. 1974), affirmed 506 F.2d 1051. The mere existence of negligence and the occurrence of an injury is insufficient to impose liability; a causal connection between the alleged negligent act and the alleged injury must be established. Cuthbert v. City of Philadelphia, 417 Pa. 610, 614, 209 A.2d 261, 263 (1965); and Ostrowski v. Crawford Door Sales Co. of Scranton, 207 Pa. Super. 424, 431, 217 A.2d 758, 762 (1966). Causation involves two separate and distinct concepts: cause in fact and legal, or proximate cause. E.J. Stewart Inc. v. Aitken Products Inc., 607 F.Supp. 883, 888 (E.D. Pa. 1985). The concept of cause in fact exists where the harmful result would not have come about “but for” the alleged negligent conduct, thereby establishing a direct causal connection between the two events. Id. at 889. In addition to cause in fact, in order to establish liability, plaintiff must demonstrate legal or proximate cause as well. The concept of proximate cause denotes more than mere causation in fact, it serves as a means by which courts are able to place practical limits on liability as a matter of policy. Herman v. Welland Chemical Ltd., 580 F.Supp. 823, 827 (D.C. Pa. 1984); see also, Estate of Flickinger v. Ritsky, 452 Pa. 69, 74, 305 A.2d 40, 43 (1973). It is a term of art denoting the point at which legal responsibility attaches for harm to another arising out of some act of defendant. Hamil v. Bashline, 481 Pa. 256, 265, 392 A.2d 1280, 1284 (1978). Proximate cause is established by evidence that defendant’s negligence was a substantial factor in bringing about plaintiffs harm. Id.

To impose liability both concepts, factual and legal causation, must be established. Here, defendant argues that plaintiff has failed to establish the second concept: proximate cause. Defendant contends that, if any negligence on its part exists, it was not a substantial factor in bringing about plaintiffs harm. More specifically defendant suggests that the fallen leaves which camouflaged the cement block, and plaintiffs failure to inspect his property, were a superseding cause constituting a new and independent event breaking the causal connection between its alleged negligence and the alleged injuries to plaintiff.

Defendant’s argument raises the proximate cause distinction between intervening causes and superseding causes. An “intervening” cause arises after the alleged negligence of defendant, but does not relieve defendant’s liability because the intervening cause was either foreseeable or was a normal incident of the risk created. Vattimo v. Lower Bucks Hospital Inc., 502 Pa. 241, 253, 465 A.2d 1231, 1237 (1983). A “superseding” cause also arises after defendant’s alleged negligence, however, it acts to relieve defendant of liability due to the remoteness of the harm from the original negligence of defendant. Id. Here, remoteness refers not to time, but rather to the difference in kind of the risk of harm created by defendant’s original negligence, and the harm ultimately sustained. Bleman v. Gold, 431 Pa. 348, 353, 246 A.2d 376, 380 (1968).

This distinction is made clear by the Pennsylvania Supreme Court’s analysis that “an intervening act . . . does not become a superseding cause unless, looking retrospectively from the harm through the sequence of events by which it was produced, it is so extraordinary as not to have been reasonably foreseeable.” Vattimo, supra, at 253, 465 A.2d at 1237. Applying this standard to the facts before us, we find that defendant’s alleged liability was not relieved by a superseding cause as a matter of law to relieve liability at this point.

Though fall is an aesthetically extraordinary season, the actual falling of leaves is not an extraordinary force or act of nature. Moreover, it is reasonably foreseeable that leaves, having fallen, might gather to cover and camouflage an object on the ground. Furthermore, the injuries allegedly suffered by plaintiff in this case are not of a different kind from that which defendant’s alleged negligence threatened. Therefore, the falling leaves, though an intervening act of nature, were not a superseding cause which would relieve defendant of liability. In addition, plaintiff’s alleged contributory negligence in failing to inspect his property, though a factor to be considered at a later date, is not a sufficient ground to dismiss the cause of action on preliminary objections. Consequently, we find that proximate cause has been established by plaintiff.

Defendant’s third and final argument as set forth above asserts that, even if proximate cause is established, its liability, as a government agency, is limited to acts of negligence, and may not be expanded to include gross negligence, recklessness and/or willful and wanton misconduct. Defendant’s argument is well taken.

Section 8542(a)(2) of the act expressly limits liability imposed on political subdivisions to acts of negligence. 41 Pa.C.S. 8542(a)(2). “[I]ntentional acts of an employee acting within the scope of his office are specifically excluded from imposing liability upon the local agency by the language of section 8542(a)(2).” Steiner by Steiner v. City of Pittsburgh, 97 Pa. Commw. 440, 444, 509 A.2d 1368, 1370 (1986).

Although plaintiff argues that section 8550 of the act imposes liability for intentional torts, it has been held that, “[wjhile section 8550 indeed waives four specific immunities for willful misconduct, each of the waived immunities exposes municipal employees to personal liability ‘without dissolving the shield of general immunity retained by municipalities.”’ Id. at 444, 509 A.2d at 1370 (emphasis in original), citing Buskirk v. Seiple, 560 F.Supp. 247, 252 (E.D. Pa. 1983).

Therefore, although plaintiff may file suit against employees of defendant individually for such alleged intentional torts, he may not bring such action against defendant.

Hence this

ORDER

And now, June 7, 1989, it is hereby ordered that defendant’s preliminary objection in the nature of a demurrer on grounds of plaintiff’s failure to state a cause of action under 42 Pa.C.S. §8542(b)(5), is granted. Plaintiff shall be given 30 days from the date of this order to amend his complaint to allege sufficient facts to establish liability under the Political Subdivision Tort Claims Act.

      . This argument combines issues 1 and 3 set forth in defendant’s brief.

      . Though ordinarily it is presumed that the question of proximate cause is a question for the jury, we note that where, as here, the relevant facts are not in dispute, and the remoteness of the causal connection between the alleged negligence and the alleged injury is clear, the issue is one of law. Cotter v. Bell, 417 Pa. 560, 562-3, 208 A.2d 216, 218 (1965) (reversed on other grounds). Moreover, see Estate of Flickinger v. Ritsky, 452 Pa. 69, 74, 305 A.2d 40, 43 (1973) which states that the issue of proximate cause is essentially a problem of law for the court.


author: KUHN, J.,

text:
    Old Guard Mutual Insurance Company v. Quigley

      Peter J. Speaker, for plaintiff.

      Douglas P. France, for defendants Noreen Quigley and Charles Staub.
    January 31, 1990
   KUHN, J.,

FINDINGS OF FACT

(1) Plaintiff is Old Guard Insurance Company.

(2) Defendants are Noreen Quigley and Charles Staub, who live at R.D. no. 1, East Berlin, Pennsylvania, and Lisa Hill, individually and as natural guardian of Summer Hill, who resides at P.O. Box 342, East Berlin, Pa.

(3) In an action docketed at 88-S-95, Hill filed suit against Quigley and Staub for injuries received by Summer Hill on June 8, 1987 when bitten by a wolf-hybrid dog owned by Quigley and Staub.

(4) At the time of the aforesaid incident Quigley was insured under a policy issued by plaintiff which specifically excludes coverage for personal liability for bodily injury “arising out of business pursuits by any insured” except “activities which are ordinarily incident to non-business pursuits.”

(5) Plaintiff has refused to defend the action at 88-S-95 by asserting that Hill’s injuries arose out of Quigley’s business pursuits of breeding and selling wolf-hybrids.

(6) The dog involved in the incident was Teddy Bear, a/k/a Wolfen’s Nakisha, who is 31/32 wolf.

(7) Quigley has owned wolf-hybrids since acquiring Wolfen’s Jack in 1979.

(8) Quigley has been a member of the United States Wolf Hybrid Association and a registered breeder since 1981.

(9) Quigley became vice-president of USWHA after June 1987.

(10) At the time of the incident Quigley had a Pennsylvania Wildlife Dealer Permit for the purpose of maintaining wolf-hybrids.

(11) At the time of the incident Quigley owned four to five wolf-hybrids and maintained four separate kennels.

(12) Before and after the incident Quigley would show, breed and sell, retain or give away the offspring of her wolf-hybrids.

(13) Quigley advertised each of her wolf-hybrid litters in local newspapers and the USWHA newsletter although she would never run continuous advertisements for the sale of puppies.

(14) From 1983 to June 1987, Quigley bred four litters with from four to six puppies each and subsequent to the incident she bred three litters which produced a total of nine puppies, of which four were sold, four were given away and one was kept.

(15) Quigley generated from $150 to $350 for the sale of puppies despite a market price as high as $2,000 to $3,000 in certain parts of the country.

(16) Pursuant to order of court dated August 8, 1989, it is inferred that Quigley’s and Staub’s income táx records and records of the USWHA prior to the incident would show that they were engaged in a business pursuit of raising, breeding, buying and selling wolf-hybrids.

(17) Quigley’s primary full-time employment for the past eight years has been with the Pennsylvania Department of Agriculture as a poultry and egg inspector and in 1987 she earned $24,620 in that capacity.

(18) Quigley’s 1987 income tax return lists no income or expenses related to breeding, raising and selling wolf-hybrids.

(19) Quigley’s kennels are known as Wolfen Kennels, however, there is no sign identifying the premises, no kennel stationery, ledger books, checking accounts, charge accounts, separate tax number, employees or registered fictitious name.

(20) Quigley has never sold supplies or literature regarding wolf-hybrids nor boarded dogs for others.

(21) Annually, Quigley’s expenses exceed her income on sales of dogs.

(22) Staub has been living with Quigley and involved with breeding and showing wolf-hybrids since the fall of 1985.

(23) Staub’s primary full-time employment was at New Oxford Container at the time of the incident.

(24) Quigley and Staub continue to own, breed, raise, show and sell wolf-hybrids.

(25) Quigley’s primary purpose in breeding wolf-hybrids is to produce a better show dog for herself.

CONCLUSIONS OF LAW

(1) This court has jurisdiction.

(2) Quigley and Staub did not engage in a business pursuit on June 8, 1987 which would exclude them from coverage under plaintiffs policy.

(3) Quigley and Staub are entitled to plaintiffs insurance coverage.

DISCUSSION

For purposes of this declaratory action, it is agreed that but for the “business pursuit” exclusion, plaintiff owes a duty to defend under its policy. The burden of proving the exclusion is upon the insurer. Rothstein v. Aetna Insurance Company, 216 Pa. Super. 418, 423, 268 A.2d 233, 235 (1970).

Plaintiff has been hampered in its discovery efforts to secure income tax and business records for Quigley and Staub and USWHA records regarding ownership of registered wolf-hybrids in their name. Therefore, sanctions were imposed by the order of August 8, 1989 providing that those records contained information from which an inference could be drawn that Quigley and Staub were engaged in a business pursuit of raising, breeding, buying and selling wolf-hybrids. An inference, of course, is not binding and may fade away when weighed against other contrary evidence.

Plaintiff was also able to establish that Quigley was paid money for selling several puppies from 1983 to the date of the incident and that she advertised those animals in various newspapers and magazines. However, in light of all the contrary evidence suggesting that Quigley and Staub were not engaged in a business pursuit, we find that plaintiff has failed to sustain its burden.

Quigley’s homeowners insurance policy coverage specificafiy does not apply to bodily injury:

“(b) arising out of business pursuits of any insured ...”

However, the exclusion does not apply to:

“(1) activities which are ordinarily incident to non-business pursuits.”

The “business pursuits” exclusion has become a standard feature of homeowner’s insurance policies. The wording set forth above is typical. Camden Fire Insurance Association v. Johnson, 294 S.E.2d 116, 117 (W. Va. 1982). Based upon our research the only Pennsylvania case to interpret a “business pursuits” exclusion is Bullock v. Pariser, 311 Pa. Super. 487, 457 A.2d 1287 (1983). However, that court was able to decide the case without discussing the meaning of the phrase “business pursuits.”

Nevertheless, the “business pursuits” exclusion has been the subject of a significant number of cases nationwide. See 48 ALR 3d 1096 (1973). From this body of law we have ascertained that the majority view is that the term “business pursuits” contemplates two elements — continuity and a profit motive. Allied Mutual Casualty Co.v. Askerud 94 N.W.2d 534 (Minn. 1959); Home Insurance Co. v. Aurigemma, 45 Misc. 2d 875, 257 N.Y.S.2d 980 (1965); Crane v. State Farm Fire & Casualty Co., 14 Cal.App.3d 727 (1971); American Family Mutual Insurance Co. v. Bentley, 352 N.E.2d 860 (Ind. App. 1976); O’Connor v. Safeco Insurance Co. of North America, 352 S.E.2d 1244 (Fla. App. 1977); Beitler v. Employers Insurance of Wausau, 271 N.W.2d 603 (Wis. 1978); State Farm Fire & Casualty Co. v. Moore, 430 N.E.2d 641 (Ill. App. 1981); Krings v. Safeco Ins. Co. of America, 628 P.2d 1071 (Kan. 1981); Camden Fire Insurance Assoc, v. Johnson, supra; Industrial Indemnity Co. v. Goettl, 674 P.2d 869 (Ariz. App. 1983); Frankenmuth Mutual Ins. Co. v. Kompus, 354 N.W.2d 303 (Mich. App. 1984); Heggen v. Mountain West Farm Bureau Mutual Ins. Co., 715 P.2d 1060 (Mont. 1986); Haley v. Allstate Ins. Co., 529 A.2d 394 (N.H. 1987); Moncivais v. Farm Bureau Mutual Ins. Co., 430 N.W.2d 438 (Iowa 1988); Black v. Fireman’s Fund American Ins., 767 P.2d 824 (Idaho App. 1989). We adopt the majority view.

Words of an insurance policy which are unambiguously written should be construed according to their plain and ordinary meaning and be given effect. However, if the language is ambiguous, obscure, uncertain or susceptible of more than one construction, it will be interpreted most favorably to the insured and against the insurer. Musisko v. Equitable Life Assur. Society, 344 Pa. Super. 101, 496 A.2d 28 (1985); Techalloy Co. v. Reliance Ins. Co., 338 Pa. Super. 1, 487 A.2d 820 (1984). This policy defines “business” to include a “trade, profession or occupation.” Common dictionary definitions of these terms contemplate the continuity and profit-motive elements adopted by the majority view.

As to the continuity element, there must be a customary engagement or a stated occupation. As to the profit-motive element, one must show the activity as a means of livelihood, gainful employment, means of earning a living procuring subsistence or profit, or commercial transaction. Camden Fire Insurance Assoc. v. Johnson, supra, 294 S.E.2d at 118. This definition is not limited to the insured’s principal business, trade, profession or occupation. Industrial Indemnity Co. v. Goettl, supra, 674 P.2d at 873. It can include both full and part-time activity. Reinsurance Assoc. of Minnesota v. Patch, 383 N.W.2d 708, 712 (Minn. 1986). The issue is profit motive, not actual profit. Saha v. Aetna Casualty & Surety Co., 427 So.2d 316 318 (Fla. App. 1983); Wiley v. Travelers Insurance Co., 534 P.2d 1293 (Okla. 1974). Compensation alone is not determinative of a profit motive. Camden Fire Insurance Assoc. v. Johnson, supra, 294 S.E.2d at 120.

Of course, whether a particular activity comes within the definition of “business pursuits” must.be decided on a case-by-case basis. Plaintiff contends that we should be guided by the case of Wiley v. Travelers Insurance Co., Id. There Wiley went to Geibe’s home in response to a classified ad to purchase a St. Bernard puppy. Geibe held a full-time job as a salesman, however, he also raised St. Bernard puppies at his home. He renovated a bam as a kennel and fenced his yard. He sold puppies for $75-$300 each and also gave some away. He ran classified ads and erected a large sign in his yard. He intended to retire raising puppies. Based on these facts the Oklahoma Supreme Court concluded that Geibe was engaged in a business pursuit. At first glance this case seems to resolve the case sub judice. However, we believe the instant case has subtle distinctions.

Other significant factors to consider include the insured’s treatment of his income and expenses for income tax purposes, Heggen v. Mountain West Farm Bureau Mutual Ins. Co., supra, and maintenance of a trade name, stationery, business cards, business checkbook, and business record book. Reinsurance Assoc. of Minnesota v. Patch, supra.

In the case sub judice continuity is established by the record. Factors suggesting a profit motive include: (1) some dogs were sold for $150 to $300 each; (2) litters were advertised in local newspapers and USWHA newsletters; (3) an inference was imposed by sanction that tax records would show that Quigley engaged in a business of raising, breeding and selling wolf-hybrids; (4) the kennel line is known as Wolfen Kennels. Factors mitigating against a profit motive include (1) advertising space in USWHA newsletters is free to members; (2) oyer four years prior to the incident Quigley only bred four litters; (3) many puppies were either given away or were sold far below available market price; (4) both Quigley and Staub had full-time employment; (5) the 1987 tax records prepared before suit was filed listed no income or expenses relating to the dogs; (6) Quigley maintained no business sign, stationery, ledger books, checking accounts, charge accounts, employees or registered fictitious name; (7) Quigley’s stated purpose for breeding was to develop a good show dog and in selling or giving away puppies she was most concerned about securing a good home for them; and (8) the price of food alone substantially exceeded any income Quigley would have generated from the sale of puppies.

Although this case is extremely close we conclude that there are sufficient differences to distinguish this case from Wiley, supra. Therefore, we find that Quigley and Staub were not engaged in a business pursuit.

Furthermore, even if we were to find the activity to be a business pursuit, we would be inclined to hold that the activity was one which was ordinarily incident to non-business pursuits and therefore covered. The dog in question, Teddy Bear, a/k/a Wolfen’s Nakisha, was bom on May 1, 1984. At the time of the incident the dog was leashed on the front yard of the Quigley-Staub residence. The four-year-old victim ran through the area where the dog was leashed and was bitten. Thus, the injury was in no manner related to the business of breeding or selling dogs, as in Wiley, supra, but was one which is ordinarily incident to the non-business pursuit of owning the family pet.

Accordingly, we enter the attached

ORDER OF COURT

And now, January 31, 1990, the court finds that declaratory judgment be entered against plaintiff.

       Plaintiff suggested that Quigley’s wildlife permit issued by the Game Commission is also significant. We find this factor to be neutral on the basis of the record presented. Pursuant to 34 Pa.C.S. §2962, adopted and made effective after the date of the incident, the Game Commission may issue a permit to a person to act as an exotic wildlife dealer for possessing, buying, selling, donating, giving away or otherwise disposing of exotic .wildlife. The phrase exotic wildlife includes wolves, 34 Pa.C.S. §2961. Thus, even one possessing or giving away a wolf must have a permit or suffer imposition of a penalty for summary offense of first degree!


author: O’MALLEY, J.,

text:
    Naughton v. Mercy Hospital

      John M. McClure and Sharon Brass Corey, for plaintiffs.

      John J. Aponickjr., for Lenahan & Dempsey P.C. and Timothy Lenahan.
    October 17, 1989
   O’MALLEY, J.,

This matter is before us by reason of a suit brought by plaintiffs, John Naughton and Ann Naughton, his wife, against Mercy Hospital and a host of other defendants including Lenahan & Dempsey, P.C. and Attorney Timothy G. Lenahan. The suit involves certain physical and mental ailments allegedly inflicted upon Naughton by defendants through improper care or treatment of injuries received by him of a heart condition and injuries sustained by him in a motor vehicle accident while in the course of his employment with Mercy. These defendants that we are concerned with here are in the picture by reason of the attendant workers’ compensation matter which Naughton instituted, the result of the accident.

It is averred that Lenahan & Dempsey, P.C. provides legal services to Mercy and defendant NRM, the latter Mercy’s alleged compensation carrier. Defendant Lenahan, it is claimed, is employed by the legal firm of Lenahan & Dempsey, P.C. and, at the pertinent times, was acting for himself and as the co-venturer and/or agent of defendants Mercy and NRM. Liability is sought to be imposed because of defendants’ handling of the workers’ compensation claim in conjunction with others, specifically that defendant law firm and Attorney Lenahan engaged in a conspiracy to deprive Naughton of monetary payment for medical treatment and intentionally harassed and abused him with the specific intention of inflicting emotional distress upon him.

Six counts are contained in the complaint and defendants are included in three of them: count IV — conspiracy; count V — intentional infliction of emotional distress; and count VI — loss of consortium. Defendants base their preliminary objections on two grounds, a demurrer and a motion for a more specific pleading. Defendants mention three items under demurrer:

(1) Paragraph 125, under count IV, which alleges that the wrongful acts and/or. omissions of defendants were extreme and outrageous, foreseeable, and in reckless disregard of and/or recklessly indifferent to the rights and interest of Naughton. Punitive damages are asked for. Defendants say the complaint fails to set forth a claim for punitive damages because no facts are set forth therein which clearly demonstrate that defendants’ conduct was so outrageous in character or extreme in degree as to go beyond all possible bounds of decency.

(2) Defendants argue that, in count V, it is alleged that their conduct was intentional and/or reckless and caused emotional distress and physical harm to Naughton while the complaint fails to allege a claim for intentional infliction of emotional distress since the facts set forth in it fail to demonstrate that the conduct of these defendants was so extreme and outrageous as to permit a recovery thereon.

(3) Defendants contend count IV of the complaint, concerning conspiracy, fails to state a claim against them. They say the facts averred in the complaint are inadequate to state a cause of action for conspiracy between Lenahan, the firm and the client who determined to contest Naughton’s workers’ compensation claim. Under the topic of a motion for more specific pleading, defendants argue that the complaint, pointing to paragraphs 123 and 131, fails to sufficiently aver items of special damage for medical care, nursing care, medicine and hospital care which is contrary to Pa.R.C.P. 1019(f).

Demurrer

While a pleading is construed strictly against the pleader, the party defending against the imposition of a demurrer is favored by the policy against the entry of a summary judgment of demurrer. Comm. Shopping Centers v. Barnes Development Co., 56 Delaware Rep. 160 (1968). Since defendants have chosen to file preliminary objections in the nature of a demurrer, every material and relevant fact well-pleaded and every inference fairly deducible therefrom are to be taken as true. Commonwealth v. Musser Forest Inc., 394 Pa. 205, 146 A.2d 714 (1958). A demurrer will not be sustained unless the law says with certainty that no recovery is possible. Rok v. Flaherty, 106 Pa. Commw. 570, 527 A.2d 211 (1987).

Plaintiffs’ complaint begins with an identification of the parties with a section entitled “Facts” beginning at its paragraph 24. It is alleged that Naughton suffered an initial heart attack in 1982 and underwent medical treatment at Mercy which resulted in his recovery. Thereafter, in June 1984, he became employed by that hospital as an ambulance driver, security officer and emergency medical technician. While so employed, he was involved in a motor vehicle accident on September 7, 1986. He alleges he incurred upper body injuries from the accident. He also avers that, after the accident, he suffered a series of myocardial infarctions; one on October 15, 1986, another on February 27, 1987, and a possible one on November 11, 1987.

Defendant, Lenahan & Dempsey, P.C., is identified as a law firm located in Scranton, Pennsylvania, engaged in the practice of law and providing legal services to, inter alia, defendants, Mercy Hospital and NRM; that attorney Lenahan is employed by the law firm and at all material times was acting for himself and as the co-venturer and/or agent of Mercy and NRM; that, because of injuries suffered in the motor vehicle accident, Naughton began to receive total disability payments from Mercy’s workers’ compensation carrier NRM; that on or about February 10, 1987, Dr. Samuel Todaro, an orthopedist and another defendant, gave as his opinion that Naughton’s right shoulder was in a partially frozen condition; that on February 11, 1987, Naughton underwent emergency surgery to reconstruct an artery bypass; that subsequent to the myocardial infarction of February 27, 1987, Dr. Ruggiero, Naughton’s family doctor and another defendant, diagnosed a tom right rotator cuff with concomitant chronic pain of right shoulder, elbow, wrist and hand; that subsequent to Naughton’s infarction of October 15, 1986, he was diagnosed as suffering from C-3, 4, 5 and 6 cervical radiculopathy with concomitant chronic pain syndrome; that in early June 1987, plaintiffs’ counsel notified counsel for NRM, defendant Lenahan, of the condition of Naughton’s right arm and his claim for specific loss benefits under the Workers’ Compensation Act and Lenahan was provided with “numerous medical reports, all of which were generated by defendant Mercy’s physicians, establishing total loss of use of [Naughton’s] right arm”; that on or about June 15, 1987, Naughton received an orthopedic evaluation from Dr. A.G. Zale who had been hired by Attorney Lenahan and “who rendered a medical opinion not inconsistent with the numerous medical reports provided in support of plaintiff’s claim by counsel for plaintiff”; that on or about August 24, 1987, Naughton came under the care of James F. McAndrew, Ph.D., licensed psychologist and director of the Department of Behavioral Medicine at the defendant Mercy who diagnosed him as suffering from chronic pain of the neck, back and right shoulder and depressive neurosis, said doctor immediately instituting a psychotherapy and chronic pain management program in which Naughton has continued to participate; that in correspondence to attorney Lenahan dated October 8, 1987, Naughton’s counsel “again demanded, in light of the cumulative medical evidence, that specific loss benefits be paid to plaintiff,” attorney Lenahan refusing and plaintiff then filing a petition for same with the Department of Labor and Industry on or about December 16, 1987; that on November 11, 1987, plaintiff suffered a possible myocardial infarction and Dr. Gerald Tracey (his cardiologist), on November 16, 1987 submitted a report in which he gave the opinion that “plaintiff suffered phenomenal stress” from the workers’ compensation litigation; that the said stress might be triggering coronary spasms and that the same acted as a catalyst in Naughton’s failure to recover and that Lenahan, Mercy and NRM were informed of this opinion; that after the above petition was filed, attorney Lenahan notified Naughton’s counsel that the plaintiff and his lawyer should go through Lenahan and not communicate with NRM “despite defendant NRM’s position as coordinator of plaintiffs medical treatment”; that “[d]uring a January 1, 1988 telephone conversation counsel for plaintiff was informed by defendant Lenahan that he was ‘weighing plaintiff’s life expectancy’ in his decision to grant plaintiffs demand for specific loss benefits”; that on or about January 21, 1988, Dr. McAndrew rendered an opinion which stressed that plaintiff was demonstrating severe emotional reactivity and cardiovascular symptomatology to what Naughton perceived to be harassment and procrastination by defendants Lenahan and NRM in the compensation proceeding but despite this opinion, “defendant Lenahan took no steps whatsoever to expedite the proceedings”; that on or about February 24, 1988, Dr. McAndrew notified NRM that Naughton was unable to adapt to his chronic pain syndrome and requested NRM to make a funding pre-determination for plaintiff to undergo testing at a chronic pain management center and that, despite repeated requests directed to defendants NRM and Lenahan, they have refused to pre-determine this finding and have failed to give any legal reason for their attitude; that “plaintiff has been unable to adapt to his chronic pain syndrome, but has nevertheless been denied by defendants Lenahan and NRM the treatment specifically prescribed by Dr. McAndrew” and “by their reckless delay or deliberate procrastination in failing to pre-determine funding for said treatment [they] have prevented plaintiff from seeking other funding for same”; and that the workers’ compensation litigation has gone on despite the failure of defendants NRM and Lenahan to provide Naughton with a medical opinion “to support their contest of plaintiffs legitimate claim for specific loss benefits and; that [these defendants] have not, to this day offered any explanation or reason for their failure to answer the multiple requests ... for pre-determination of funding for chronic pain testing and treatment.”

The brief filed by defendants only loosely follows the preliminary objections they have set forth. Basically, under their demurrer they argue (1) that attorney Lenahan was just doing his job in representing Mercy and NRM in the compensation matter and therefore these defendants cannot be held liable to Naughton so long as they were serving the interests of their clients; (2) that, under count V, even accepting plaintiffs allegations as true, the complaint fails to state a cause of action for intentional infliction of emotional distress; and (3) that the request for punitive damages set forth in paragraphs 125 (count IV — conspiracy) and 133 (count V — intentional infliction of emotional distress) are not sufficiently supported by pleaded facts and inferences that can be deduced therefrom both with regard to attorney Lenahan’s conduct and the alleged conspiracy.

Taking all well pleaded material facts as well as all inferences therefrom as admitted for the purpose of its consideration, we do not believe the granting of a demurrer is warranted here. Commonwealth, Dept. of Transportation v. Bethlehem Steel Corp., 33 Pa. Commw. 1, 380 A.2d 1308 (1977).

I

Although not generally liable for negligence, an attorney is personally liable to a third person sustaining injury in consequence of his wrongful acts or improper exercise of authority where he has been guilty of fraud or collusion, or of a malicious or tortious act. The mere fact that one is an attorney acting in a professional capacity does not immunize him from responsibility for his wrongful acts. An attorney is liable where he and his client fraudulently conspire to do an illegal act, or where he acts dishonestly with some sinister view or for some improper purpose of his own which the law considers malicious. 7A C.J.S. Attorney & Client, §142. If an attorney is actuated by malicious motives or shares the illegal motives of his client, he may be personally liable with the client for damage suffered by a third person as a result of the attorney’s actions. 7 Am. Jur. 2d Attorneys at Law, §233; Smith v. Griffiths, 327 Pa. Super. 418, 476 A.2d 22 (1984). An attorney is not liable with his client unless it can be shown that he has gone beyond the strict law of his duty. Stein v. Schmitz, 61 A.2d 260 (N.J. 1948).

The law on this subject was clearly spelled out in Adelman v. Rosenbaum, 133 Pa. Super. 386, 3 A.2d 15 (1938) which involved both the charge of malicious abuse of legal process by an attorney and a claim for punitive damages.

“The defendant cannot invoke the plea of privilege as an attorney acting for a client. The plaintiff’s evidence, accepted by the jury, disclosed malice, and malicious action is not sheltered by any privilege. An attorney is personally liable to a third party when he is guilty of fraud, collusion, or a malicious or tortious act, and he is liable, as anyone else, when he encourages and induces another to commit a trespass.”

So, an attorney is personally liable to a third party who sustains an injury in consequence of his wrongful act or improper exercise of authority where the attorney has been guilty of fraud or collusion or of a malicious or tortious act, or where the conduct of the attorney extends beyond the scope of his honorable employment. 7A C.J.S., §142. An attorney at law who is an officer of the courts, of all persons, should not be allowed to run rampant over the rights of others. Haggerty v. Moyerman, 321 Pa. 555, 184 Atl. 654 (1936).

Matters are still in early days in this case and whether the allegations will ultimately prove true is something else. However, they are serious and, as they are spelled out in the complaint, there is enough to defeat the requested demurrer.

For the argument that plaintiffs have not made out a charge of conspiracy, attention is directed to the discussion in the earlier opinion of this court regarding the Mercy Hospital and its employees. It is alleged that beginning on or about September 7, 1986 and continuing to the present, certain defendants, Attorney Lenahan with his firm among them, acting individually and in concert as co-conspirators met and spoke by telephone and in person embarking on a scheme to (a) deprive Naughton of the medical treatment, care and monetary payment to which he was entitled and (b) to cover up, hide, and/or conceal Mercy’s wrongful and/or negligent acts which had caused his second and third heart attack and (c) to discourage Naughton from filing a claim for malpractice and (d) to otherwise harm him. The aforesaid pleading is sufficient to escape the demurrer.

II

These defendants next take issue with plaintiffs’ claim for the intentional infliction of emotional distress arguing that section 46 in the Restatement (Second) of Torts (1965) has not been adopted in Pennsylvania and that, even if it has, the complaint does not allege the degree of severity necessary to constitute a cause of action.

It is true that confusion does exist about whether section 46 per se does obtain in Pennsylvania. The federal and Pennsylvania Superior Courts determined that it did and proceeded on that assumption. See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979); Banyas v. Lower Bucks Hospital, 923 Pa. Super. 122, 437 A.2d 1236 (1981). Then, in 1987, came the Pennsylvania Supreme Court case of Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988 (1987). Initially in the opinion, the court pointed out that it had acknowledged but never had occasion to specifically adopt section 46 as the law in Pennsylvania and that, because the evidence adduced in that matter did “ . . . not establish a right of recovery under the terms of the provision as set forth in the Restatement ...” the court left to another day the question. of the viability of section 46 in Pennsylvania. Later in the opinion the court points out that it is this section 46 upon which the plaintiffs therein were relying and quotes extensively from it including the Restatement’s definition of extreme and outrageous conduct and also the following:

“§46. Outrageous Conduct Causing Severe Emotional Distress
“(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.” Kazatsky, supra.

, Still further on the court makes the statement that: -

“[T]he requirement of siome objective proof of severe emotional, distress will not present an unsurmountable obstacle to recovery. Those truly damaged should have little difficulty in procuring reliable testimony as to the nature and extent of their injuries. We therefore conclude that if section 46 of the Restatement is to be accepted in this commonwealth, at the very least, existence of the alleged emotional distress must be supported by competent medical evidence.” Kazatsky, supra

From this decision and others we may conclude that, although section 46 has never been adopted here by name, its spirit does wander abroad in this commonwealth, at least if the emotional distress intentionally inflicted manifests itself in some physical disorder. See Dawson v. Zayre Dept. Stores, 346 Pa. Super. 357, 499 A. 2d 648 (1985), “An action for the intentional infliction of emotional distress has been recognized in Pennsylvania.” Dawson at 364, 499 A.2d at 651, citing cases. (Olszewski, J.„ dissenting); Daughen v. Fox, 372 Pa. Super. 405, 359 A. 2d 858 (1988) (“Assuming that section 46 of the Restatement (Second) of Torts were to become the law of Pennsylvania. . . . ”); Rose v. Wissinger, 294 Pa. Super. 265, 439 A.2d 1193 (1982); Boarts v. McCord, 354 Pa. Super. 96, 511 A.2d 204 (1986).

Believing that an action for intentional infliction of emotional distress does exist in Pennsylvania, we also believe that such a cause of action has been set forth in the complaint.

The rule in this area is that there is liability for conduct exceeding all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind. The extreme and outrageous nature of the conduct may arise not so much from what is done as from abuse by the defendant of some relation or position which gives the defendant actual or apparent power to damage the plaintiffs interests. The result is something like extortion. From a position of power, the defendant employs outrageous bullying tactics to gain his ends. Still another basis on which outrageous conduct can be found from the defendant’s behavior is the latter’s knowledge that the plaintiff is especially sensitive, susceptible and vulnerable to injury through mental distress from the particular conduct. Sick people fall into this category. Generally speaking, it has been noted that in the great majority of the cases allowing recovery, the genuineness of the mental disturbance has been evidenced by resulting physical illness of a serious character. Prosser and Keeton on Torts at 60-4. (5th ed. 1984)

In the instant case, plaintiffs have alleged that Naughton, in ill health to begin with, has suffered further exacerbation of his heart condition because of Attorney Lenahan’s conduct in the workers’ compensation proceeding. Where the plaintiff produces a prima facie case, the question of whether the defendant’s conduct was sufficiently outrageous is for the jury. Martin v. Municipal Publications, 510 F.Supp. 255 (E.D. Pa. 1981).

Ill

These defendants demur to plaintiffs’ claim for punitive damages against them. They argue that the court cannot conclude that plaintiffs have stated a prima facie case which would warrant a jury determination that attorney Lenahan’s conduct, as stated in the complaint, was done with a reckless indifference so great as to make it highly probable that harm to Naughton would follow. We do not agree.

Pennsylvania has embraced the guidelines of section 908(2) of the Restatement (Second) of Torts regarding the imposition of punitive damages. They may be awarded for conduct that is outrageous because of the defendant’s evil motive or his reckless indifference to the rights of others. Punitive damages must be based on conduct which is malicious, wanton, reckless, willful or oppressive. Further, one must look to the act itself together with all the circumstances including the motive of the wrongdoers and the relations between the parties. Feld v. Merriam, 314 Pa. Super. 414, 485 A.2d 742 (1984).

Whether or not punitive damages on the theory of outrageous conduct can be proved is not in issue at this time. Rather the issue which we must decide is whether the allegations with respect to punitive damages are sufficient. Dunkovitch etc. v. Robbins & Myers Inc. et al., 59 Washington Rep. 101 (1978). We have set forth the allegations pertaining to defendants’ conduct prior hereto. Plaintiffs allege that “[t]he wrongful acts and/or omissions . . . were extreme and outrageous, foreseeable, and in reckless disregard of and/or recklessly indifferent to the rights and interests of plaintiff.” Two standards must be kept in mind concerning a demurrer. First, specific particularity is not required, but rather, based upon the facts averred, whether the law says with certainty there can be no recovery; and second, where a doubt exists as to the sustaining of a demurrer, it should be resolved in favor of overruling it. Clevenstein v. Rizzuto, 439 Pa. 397, 266 A.2d 623 (1970). There is no certainty here that no recovery may be possible. Hence, the demurrer as to punitive damages must be overruled.

Motion for a More Specific Pleading

These defendants move for more specific pleading under Pa.R.C.P. 1019(f) claiming that the complaint’s paragraphs 123 and 131 fail to sufficiently aver items of special damage for medical care, nursing care, medicine and hospital care. This motion will be denied.

Naugh ton’s maladies are set forth in the complaint and are included in the subject counts through incorporation. Paragraphs 123 and 131 relate that because of the wrongful, acts and/or omissions of defendants, Naughton has required, does require and will, in the future, require additional hospital care and other medical care and attention and, likewise, has been, is, and will be obliged to expend sums of money for medical care.

A complaint in trespass need not, under rule 1019(f), state the nature of the injuries complained of more specifically than reasonably to advise the defendant of the nature thereof, nor need it specify when and to whom the medical expenses claimed were paid. Davis v. Carr, 61 D.&C. 479 (1948). If defendants wish more information along these lines, discovery is available. See First Pennsylvania Bank v. Seiser, 9 D.&C. 3d 89 (1979).

ORDER

Now, October 17, 1989, for the reasons set forth in the accompanying opinion, it is hereby ordered that defendants’, Lenahan and Dempsey, P.C. and Timothy G. Lenahan, Esq., preliminary objections in the nature of a demurrer and motion for a more specific pleading are denied; said defendants will be granted 30 days to file responsive pleadings to the complaint filed herein.

      Despite this language, the Superior Court, in Ford v. Isdaner, 374 Pa. Super. 40, 542 A. 2d 137 (1988) states that Kazatsky “makes clear” that the tort of intentional infliction of emotional distress is not recognized in Pennsylvania. The decision then goes on to say that the court is not “ ... inclined to embrace section 46 of the Restatement under the circumstances of the instant case.”