author: VOGEL, P.J.,

text:
    Commonwealth v. Zeigler

      Mark S. Miller, assistant district attorney, for the commonwealth. .

      Glenn A. Zeitz and George C. Brady III, for defendant.
    March 6, 1990
   VOGEL, P.J.,

On or about February 10, 1989, a search warrant' issued by a district justice was executed at the residence of the defendant, George Zeigler, 107 Hancock Place, North Wales, Pennsylvania, at which time certain suspected drugs and drug paraphernalia were seized whereby defendant was charged with a violation of the Controlled Substance, Drug, Device and Cosmetic Act.

An appropriate motion to suppress was filed on October 12, 1989, and after hearing and oral argument on January 3, 1990, January 31, 1990, and February 6, 1990 we sustained the same by our order of February 6, 1990 for the reasons set forth on the record at that time. On February 8, 1990, the commonwealth appealed to the Superior Court since said ruling effectively dissolved its case. Commonwealth v. Bosurgi, 411 Pa. 56, 190 A.2d 304 (1963). Hence this opinion.

At the hearing of January 3, 1990, it was stipulated between the parties that the sole issue at hand was the validity of application for search warrant and. affidavit, hereafter referred to as affidavit, of February 10, 1989, taken by the affiant, Trooper Dennis Rodriques, of the Pennsylvania State Police. No witnesses were called to testify and while the said affidavit speaks for itself, the following relevant facts are set forth.

The affiant received information from a member of the New Jersey Narcotic Strike Force, Sgt. Edward-Hoffman, Ocean County, that in the last week of November 1988, an undercover agent purchased an ounce of cocaine from one Walter Joseph Kinley, at the New Jersey residence of defendant, located at Mystic Island, Little Egg Harbor Township, New Jersey. The affiant received further information on February 6, 1989, from Trooper Hoffman that at a diner, Vincenttown Diner, Burlington County, New Jersey, an undercover agent of Ocean County purchased two ounces of cocaine from defendant Walter Kinley and a white male known as Mark. The individuals were operating a 1986. blue Chrysler which showed ownership to defendant’s wife, Fay L. Zeigler, 107 Hancock Place, North Wales, Pennsylvania, with registration NSM064.

At the request of New Jersey authorities, a surveillance was placed on defendant’s home on February 6, 1989, and at 0100 hours the three white males, as described by dress, were seen exiting.from a light-blue Chrysler bearing registration NSM064. At 0150 the individual identified as Mark exited the house, entered a red Camaro and exited the same. A continued surveillance of the scene showed three other vehicles which showed ownership to defendant and Fay L. Zeigler. The affiant was also advised by Hoffman that Zeigler had a New Jersey driver’s number not current with the Lansdale address.

A check of the criminal history of Kinley showed he had a record which included 21 arrests, 15 of them drug-related, in New Jersey at which time all drug transactions used prerecorded serialized money.

On February 9, 1989 the affiant received information that Zeigler made arrangements with an undercover agent of Ocean County to deliver five ounces of cocaine at Mayo’s Restaurant Lounge, Burlington County, New Jersey, at 1900 hours on February 10, 1989. After receiving this information the affiant set up a surveillance át defendant’s residence on February 10, 1989, and at 1750 hours that day observed Zeigler arrive at the residence. After a few minutes in the residence he was observed leaving with Kinley at 1759 hours and left in the light-blue Chrysler NSM064. Surveillance followed them to New Jersey and at 2025 the affiant received information that at 2015 hours Zeigler and Kinley were arrested by Ocean County detectives for drug violations. Found in their possession were five ounces of cocaine.

In reviewing the affidavit in the present proceeding and the facts asserted within, it has been hornbook law that the court must look to the four corners of the affidavit. Commonwealth v. Stamps, 493 Pa. 530, 427 A.2d 141 (1981). As stated in Commonwealth v. O’Shea, 328 Pa. Super. 104, 476 A.2d 911 (1984):

“Probable cause to issue a search warrant has been defined as those facts reasonably necessary to show (1) that the items sought are connected with criminal activity, and (2) that the items will be found in the place to be searched.” O’Shea at 111, 476 A.2d at 915.

While item (1) is satisfied, it is item (2) which is fatally defective in the present proceeding based on the holdings of Commonwealth v. Way, 342 Pa. Super. 341, 492 A.2d 1151 (1985); Commonwealth v. Kline, 234 Pa. Super. 12, 335 A.2d 361 (1975); and Commonwealth v. Davis, 225 Pa. Super. 242, 310 A.2d 334 (1973).

Initially, in the Davis case, supra, numerous visits to the home of the defendant by “four individuals throughout January and February 1969 who were reputed to be narcotics pushers, one of whom was from Columbus, Ohio” as well as a visit by an individual who gave a package to appellant’s wife who carried it into the house under her trench coat, along with other factors including the appellant’s “recent arrest on a narcotics charge” was held to be insufficient to sustain an affidavit, as stated by Judge Hoffman:

“In Commonwealth v. Dial, 218 Pa. Super. 248, 276 A.2d 314 (1971), we held that the mere detailing of an accused’s previous arrests for narcotics violations plus the occurrence of numerous meetings between an accused and known narcotics dealers and users was an insufficient basis from which a magistrate could conclude that the accused was in possession of narcotics. Similarly, in Commonwealth v. Prasnikar, 221 Pa. Super. 469, 292 A.2d 420 (1972), we held that such information did not afford a reasonable inference that criminal conduct existed, and could not, therefore, provide a sufficient basis for probable cause to issue a warrant. See Sibron v. New York, 392 U.S. 40, 62, 88 S.Ct. 1889, 1902 (1967); Spinelli v. United States, 393 U.S. 410, 414, 89 S.Ct. 584, 588 (1969).” Davis at 245, 310 A.2d at 336. .

Further, just as the affiant in the present proceeding might have a strong suspicion that the defendant and Kinley were engaged in criminal activity, such does not rise to probable cause. As stated in the Davis case, supra:

“We agree with' the commonwealth’s argument that such activity is not of an outwardly innocent character. We do not believe, however, that this fact is one which indicates a probability that drugs were present on the premises on the night the warrant was issued.” Davis at 246, 310 A.2d at 337.

Again, in Commonwealth v. Kline, supra, decided by His Honor, Judge Spaeth, the Superior Court sustained the defendant’s motion to suppress evidence which case seems to be even stronger than the initial proceeding. In that proceeding, along with other facts learned from an informant, two girls told police “they knew this person named Morgan Arthur who lives above the Junction Inn at Ninth and Robinson St[reets] and they knew that he was selling drugs. They asked him for some LSD and he went to his [apartment] at Ninth and Robinson and returned a few minutes later with two ‘Hits’ of ‘Blotter Acid.’ (LSD on small pieces of paper).” Kline at 14, 335 A.2d at 362.

As stated at page 17, 335 A.2d at 364:

“There is no indication of where the transaction took place, how long it took, how long Arthur was gone, or what led the girls to conclude that he had gone to his apartment. The information from the confidential informant does not corroborate their conclusion that Arthur kept drugs in his apartment, even though it does tend to estáblish that Arthur was a drug dealer.
“Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home. Judge Hess stated the matter well in his memorandum opinion: ‘In our opinion an allegation based on an assumption or supposition not supported by the facts is insufficient to support [an inference of] criminal activity in a premises, in spite of the fact that there are plenty of allegations alleged to relate to criminal activity of the individual who is alleged to have lived in the premises.’ ” (emphasis supplied)

Just as Judge Spaeth relied on Judge Hess’s statement, this court does the same in the present proceeding. As stated, requirement no. 2 “that the items will be found in the place to be searched” must fall. Indeed, unfortunately for the commonwealth, there is no nexus or tie between Zeigler’s alleged drug dealing in the State of New Jersey and criminal activity in his private home in Lansdale, Pa.

A review of the facts in the third case upon which this court relies, Commonwealth v. Way, supra, sets forth facts which once again would appear to be even stronger for the commonwealth than the instant proceeding. There, along with the customary surveillance, following the defendant to the residence at a particular intersection, an informant, Missimer, advising the police “that she has obtained methamphetamines on a number of occasions” as well as purchasing some from him on this particular occasion for $130 when he was followed to his residence at the northeast corner of Douglas and Glendale Roads by the police, the informant, Missimer, stated she would even “contact Way via telephone [telephone number] and would meet at a prearranged location for the drug transaction,” such averments were not sufficient and the evidence suppressed.

The Superior Court, in a well reasoned opinion by His Honor, Judge Olszewski, determined, even with a phone number supplied, which is not in our case, there was an illegal search and set forth once again the established principles which guide the undersigned:

“Probable cause to believe that a man has committed a crime on the street does not necessarily give rise to probable cause to search his home.
“The instant case is controlled by this court’s decision in Commonwealth v. Kline, 234 Pa. Super. 12, 335 A.2d 361 (1975). There Judge Spaeth, writing for the majority, affirmed an order suppressing evidence obtained pursuant to a search warrant. The court reasoned that, even though the affidavit contained facts sufficient to establish an individual was dealing in drugs, it failed to establish that the ' individual kept the drugs in his apartment. In Kline, the informants stated ‘they [had] asked him for some LSD and he went to his apartment at Ninth and Robinson and returned a few minutes later with two “hits” of “blotter acid” (LSD on small pieces of paper).’ 234 Pa. Super, at 14, 335 A.2d at 362. The Kline court considered that statement:
“ ‘[A]s far as appears from the affidavit, none of the informants said where the LSD was. The girls apparently concluded that it was in Arthur’s apartment. However, an affidavit must set forth how information leading to such a conclusion was obtained. Commonwealth v. Ambers, 225 Pa. Super. 381, 310 A.2d 347 (1973); Commonwealth v. Soychak, 221 Pa. Super. 458, 289 A.2d 119 (1972).’ 234 Pa. Super. at 17, 335 A.2d at 364.
“In the case at bar, the lack of a substantial nexus between the street crime and the premises to be searched renders the warrant facially invalid.” Way at 347, 492 A.2d at 1154. (emphasis supplied)

The commonwealth’s possible reliance in the instant proceeding on Commonwealth v. Frye, 242 Pa. Super. 144, 363 A.2d 1201 (1976) is misplaced. There the nexus to the defendant’s premises was firmly established by the defendant himself giving his home phone number to a third party and as stated by Judge Cercone in that case cited and distinguished in Way, supra:

“ ‘[T]he nexus between the evidence to be seized and the place to be searched was provided by Frye’s admission that he was conducting at least part of his unlawful operations from his home.’ Id., [242 Pa. Super.] at 149, 363 A.2d at 1204.” Way at 348, 492 A.2d at 1154.

Finally, we are cognizant that the commonwealth may seek to argue the “good-faith” exception to the exclusionary rule for improperly seized evidence relying on United States v. Leon, 468 U.S. 897 (1984). However, this court relies on the decision of Commonwealth v. Melilli, 521 Pa. 405, 555 A.2d 1254 (1989) in rejecting such contention in that proceeding:

“We leave for another day and another differing set of facts to determine whether a good-faith exception will be read into the law of this jurisdiction.”

Thus, while the establishment of a “good-faith” exception must rest with a higher authority, this court would be lax in failing to state that in its opinion the “good-faith” exception must fall in the instant case. Simply stated, to adopt the same and permit a search of defendant’s premises where, as set forth by our opinion, the affidavit is woefully lacking in probable cause would be making a mockery of the Way, supra; Kline, supra, and Davis, supra, decisions and significantly erode Article I, section 8 of the Pennsylvania Constitution.

Accordingly; our order of February 6, 1990, should be affirmed.


source: Caselaw Access Project

author: BOZZA, A.J.,

license: Public Domain

text:
    Rydzewski v. City of Erie

      George M. Schroeck, for plaintiff.

      Gerald Villella, for defendant City of Erie.

      Gery Nietupski, for defendants Louis J. Tullio, Patricia Liebel, Dennis DelPorto and James P. Ra-gen.
    April 19, 1990
   BOZZA, A.J.,

This matter comes before the court upon the preliminary objections to plaintiffs complaint filed by the defendant, City of Erie, and the individual defendants, Louis J. Tullio, Patricia Liebel, Dennis DelPorto and James P. Ragen, respectively. Defendant, City of Erie, and the individual defendants have filed preliminary objections in the nature of a demurrer to count I of the Complaint and a demurrer or a motion for more specific pleading as to count II of the complaint. The individual defendants have also filed a preliminary objection in the nature of a demurrer or motion to strike as to all counts set forth in plaintiffs complaint.

This case arose out of the alleged wrongful discharge of plaintiff, Norbert Rydzewski, from his employment as Chief Plumbing Inspector for the City of Erie. On August 31,1989, defendant Dennis DelPorto, the planning director of the City of Erie and Rydzewski’s immediate supervisor, directed Rydzewski to inspect the plumbing in the newly constructed football locker room facilities at Mercyhurst College. Rydzewski informed DelPorto that he had previously inspected the locker facilities on three different occasions and found that the plumbing was not in compliance with the Plumbing Code of the City of Erie since the work was not completed by a master plumber and he was unable to survey any other violations because the plumbing had already been covered. DelPorto then told Rydzewski that he would have to take a different approach toward Mercyhurst and again ordered Rydzewski to proceed to Mercyhurst to inspect the plumbing. Rydzewski again refused to complete his assignment while reiterating to DelPorto the fact that he could not approve the project based upon his previous inspections.

Rydzewski and DelPorto then proceeded to the office of defendant Patricia Liebel, the city administrator, where Rydzewski apprised Liebel and defendant James Ragen, the director of personnel, of the situation at Mercyhurst. DelPorto then ordered Rydzewski to carry out his assigned task of inspection in the presence of Liebel and Ragen, and Rydzewski again declined to proceed while voicing his position that his previous inspections were sufficient. DelPorto then informed Rydzewski that he was terminated effective immediately for gross insubordination and on September 5, 1989, Rydzewski was formally terminated by Mayor Louis J. Tullio.

Rydzewski filed a complaint setting forth two counts against his former employer and against the aforementioned employees of the city involved in plaintiffs termination. The first count of plaintiffs complaint alleges that plaintiff was wrongfully discharged and alleges further that his termination was violative of a public policy of the Commonwealth of Pennsylvania. In count II, plaintiff avers that he has been defamed as the result of the alleged false impressions arising from the publicity surrounding his discharge. In addition, plaintiff sets forth a deprivation of procedural due process in that he was not provided a hearing prior to his discharge.

Plaintiff, Norbert Rydzewski, worked as an at-will employee for the City of Erie as the chief plumbing inspector. The well settled rule in this commonwealth is that: “absent a statutory or contractual provision to the contrary, the law has taken for granted the power of either party to terminate an employment relationship for any or no reason.” Geary v. United States Steel Corporation, 456 Pa. 171, 175, 319 A.2d 174, 176 (1974); Betts v. Stroehmann Brothers, 355 Pa. Super. 195, 512 A.2d 1289 (1986); Banas v. Mathews International Corporation, 348 Pa. Super. 464, 502 A.2d 637 (1985). The at-will presumption, uniquely present in employment contracts, is that an employment agreement is presumptively terminable at-will by either party; meaning, an employee may leave a job for any or no reason and an employer may discharge an employee for any or no reason. Greene v. Oliver Realty Inc., 350 Pa. Super. 183, 504 A.2d 306 (1986).

Plaintiff has attempted to circumvent this general rule by invoking a public-policy exception. Rydzewski contends that his action was not insubordinate but rather a response to what he considered to be an unlawful order. It is the law in this commonwealth that, “when the discharge of an employee-at-will threatens public policy, the employee may have a cause of action against the employer for wrongful discharge.” Yaindl v. Ingersoll-Rand Co., 218 Pa. Super. 560, 422 A.2d 611 (1980). However, this exception is narrow and should be viewed within the context of the employer’s right to run his business as he sees fit. Martin v. Capital Cities Inc., 354 Pa. Super. 199, 222, 511 A.2d 830, 842 (1986); Turner v. Letterkenny Federal Credit Union, 351 Pa. Super. 51, 55, 505 A.2d 259, 261 (1985); Yaindl, 281 Pa. Super. at 577, 422 A.2d at 610. The employee must show that there has been a “violation of a clearly mandated public policy which ‘strikes at the heart of a citizen’s social right, duties, and responsibilities.’ ” Turner, 351 Pa. Super. at 55, 505 A.2d at 261, quoting Novosel v. Nationwide Ins. Co., 721 F.2d 894, 899 (3d Cir. 1983).

It is evident that where the public policy claimed to be violated is not clear, a cause of action for wrongful discharge has not been recognized. In Geary, supra, a former salesman for U.S. Steel commenced an action for his alleged wrongful discharge in apparent retaliation for his apprising his supervisors of what he considered to be the unsafe nature of tubular products being placed in the market. Geary attempted to circumvent the general at-will principle by asserting that he was acting in the best interests of public policy as well as of his employer in opposing the sale of a product that he considered defective. The court found that the fact that Geaiy’s motives were commendable did not detract from the company’s recognized interest in preserving the efficiency of its normal operational procedures which were subverted by Geary’s actions in by-passing his immediate supervisors and pressing his views on higher officers. The Geary court found that there was a legitimate reason for the termination of employment and no clear mandate of public policy was violated.

In Callahan v. Scott Paper Co., 541 F.Supp. 550 (E.D. Pa. 1987), the plaintiffs alleged that they were discharged by Scott in retaliation for their objection to and efforts to eliminate the illegal price discounts and promotional allowances which Scott extended to certain favored customers. The Callahan court, despite denoting the efforts of the plaintiffs as “praiseworthy” in redirecting what they perceived to be illegal activity in the antitrust field by Scott, concluded that “the employer’s interest was paramount where the employee objected to pricing decisions of his employer on the ground that they cause harm to competition.” 541 F.Supp. at 563.

Likewise, in Yaindl, supra, an employee’s discharge for bringing to the company’s attention defects in the manufacturing of pumps for an overseas company was held not to constitute a contravention of any stated public policy. A claim that the pumps presented a safety hazard was unsubstantiated and there was no indication that the company attempted to hide the defects in the pumps, or deny its responsibility.

There have been instances where the courts have found sufficient public policy interests to be violated by termination of an at-will employee. Relying on Geary, the Superior Court has held that a public employer may not deny employment on the basis of a conviction for which the offender has been pardoned, unless the conviction was reasonably related to fitness for the job, Hunter v. Port Authority of Allegheny County, 277 Pa. Super. 4, 419 A.2d 631 (1980), and that an employer may not discharge an employee because he accepts jury service, Reuther v. Fowler & Williams Inc., 255 Pa. Super. 28, 386 A.2d 119 (1978).

In the instant case, Rydzewski contends that he interpreted DelPorto’s statement that a different approach would have to be taken toward Mercyhurst to signify by implication the intention of his superiors to approve the plumbing regardless of Rydzewski’s judgment. Therefore, he avers that his failure to pursue DelPorto’s orders was in accordance with the public interest in that he refused an illegal order. The statement that “a different approach would have to be taken with Mercyhurst” is at worst ambiguous and does not clearly lead to a reasonable inference that Rydzewski’s superiors were requesting him to perform an illegal act. In fact, there is nothing in the pleadings to indicate that DelPorto’s orders were in any way improper. Rydzewski was simply directed to do and then re-do his job. There was no intimation that he wanted Rydzewski to act contrary to the Plumbing Code. Rydzewski was directed to inspect the locker room facilities and nothing more. Indeed it is entirely reasonable to conclude that Mr. Rydzewski’s superiors were simply dissatisfied with his work, or alternatively, that there was something unique about the project that required a deviation from customary practice.

While a professional employee has a dual obligation to follow the law and stay within the bounds of the applicable code of ethics, the employer should not be precluded from exercising its responsibilities where the employee’s judgment is unreasonable. McGonagle v. Union Fidelity Corp., 385 Pa. Super. 223, 556 A.2d 878 (1989). The City of Erie should not be prevented from carrying out timely and proper plumbing inspections because an employee has a subjective belief that a request for re-inspection is unlawful. Mr. Rydzewski’s’ three refusals to re-inspect the Mercyhurst project were acts of insubordination sufficient to justify his dismissal as an at-will employee. Therefore, plaintiff has failed to set forth facts which when accepted as true and viewed in a light most favorable to him, state a cause of action for wrongful discharge.

In count II of plaintiff’s complaint, it is averred that Rydzewski was deprived of his right to procedural due process since he was not provided a hearing at anytime to determine the merits of his dismissal. The Commonwealth Court has held that a property right exists in public employment only where the employee has an enforceable expectation of continued employment which can exist only if the employee, by statute or contract, has been granted some form of .guarantee. Amesbury v. Luzerne County Institution District, 27 Pa. Commw. 418, 366 A.2d 631 (1976). In this case, Rydzewski concedes that he was an at-will municipal employee with no statutory or contractual basis for continued employment for a definite term. If a person is hired for a government position terminable at the will of his superiors, the employee does not have a property interest in the position which mandates a procedure for determining the basis for his' termination. See Batson v. Montgomery County, 125 Pa. Commw. 251, 557 A.2d 65 (1989). Rydzewski has failed to set forth sufficient facts to support a “property interest” through an entitlement to continual employment and hence there has been no deprivation of procedural due process by the absence of a hearing prior to his termination.

Finally, plaintiff sets forth a claim for false-light publicity in count II of his complaint. In regard to the invasion of privacy torts, the Restatement (Second) of Torts, §§652B-652E, have provided an outline for their development in Pennsylvania. Harris by Harris v. Easton Publishing Co., 335 Pa. Super. 141, 483 A.2d 1377 (1984). The tort of false-light publicity is described in section 652E of the Restatement in pertinent part:

“One who gives publicity to a matter concerning another that places the other before the public in a false light is subject to liability to the other for invasion of privacy, if
“(a) the false light in which the other was placed would be highly offensive to a reasonable person, and
“(b) the actor had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.”

This court finds that Rydzewski has failed to set forth sufficient facts that would support a cause of action for false-light publicity. Defendants’ only action relating to the dissemination of publicity regarding this matter was a news release communicating the fact that Rydzewski was being relieved of his employment as chief plumbing inspector for gross insubordination in not following the orders of his superiors. The City of Erie did not act knowingly or recklessly in, disseminating false impressions regarding the publicity surrounding the termination of Rydzewski’s employment. Instead the City of Erie merely acted routinely in the course of the administration of its employee relations in releasing for public notice the. accurate grounds for the termination of Rydzewski’s employment. This falls far short of an actionable invasion of privacy for false-light publicity.

This court finds that plaintiff has failed to set forth causes of action for wrongful discharge, denial of procedural due process and false-light publicity. Therefore, the respective defendants’ demurrers to counts I and II of plaintiffs complaint shall be granted. Such an order shall follow.

ORDER

And now, April 19, 1990, in accordance with this opinion, this court’s order dated January 26, 1990 is hereby affirmed.


author: RUBRIGHT, J.,

text:
    Hopkins v. Donegal Mutual Insurance Company

      Edward F. Silva, for plaintiff.

      Daniel E.P. Bausher, for defendant.
    February 7, 1990
   RUBRIGHT, J.,

This matter is presently before the court on plaintiffs motion for ' summary judgment. Briefs have been submitted by the parties and we are now prepared to dispose of ‘the matter.

On November 12, 1988, plaintiff was a passenger in a motor vehicle being operated by Thomas Meadows. Meadows lost control of the vehicle, left the roadway and struck a tree. As a result, plaintiff suffered severe personal injuries and Meadows received injuries which resulted in his death.

Plaintiff made claim for his injuries against Meadows’ estate alleging that the injuries were due to Meadows’ negligence in the operation of the vehicle. The vehicle being operated by Meadows at the time of the accident was insured by State Farm under a policy providing bodily injury liability limits of $25,000 per person. State Farm has offered to settle the plaintiffs claim against Meadows’ estate for the policy limits.

At the time of the accident, William Hopkins Jr., d/b/a Bill’s Carpet Service, was insured under a policy of automobile insurance issued by defendant. The policy lists plaintiffs parents as the named insureds. The policy also provides uninsured and underinsured motorists insurance. Under that endorsement, an “insured” includes family members of the named insured. A “family member” is defined as “a person related to [the named insured] by blood, marriage or adoption who is a resident of [the named insured’s] household, including a ward or foster child.” Plaintiff has advised defendant of his intention to seek further recovery for his injuries pursuant to the terms and conditions of the under-insured motorists coverage of the policy issued to his parents. Defendant has taken the position that plaintiff is not an insured under the policy because its investigation has disclosed evidence that plaintiff did not reside with his parents at the time of the accident.

The underinsured motorist endorsement includes an arbitration clause. Plaintiff has taken the position that the issue of whether or not he is an insured is within the jurisdiction of the arbitrators and must be decided at arbitration. Defendant has taken the position that the issue should be decided by the court in a declaratory-judgment action. Therefore, plaintiff has filed a petition to compel arbitration which is the subject of the instant motion for summary judgment.

Pa.R.C.P. 1035, which governs motions for summary judgment, provides that:

“The judgment sought shall be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

Summary judgment is granted only in the clearest of cases where the right is clear and free from doubt. Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 365 (1969). The moving party has the burden of proving the non-existence of any genuine issue of fact. Kent v. Miller, 222 Pa. Super. 390, 294 A.2d 821 (1972). All doubts as to the existence of a genuine issue of a material fact must be resolved against the moving party. Ritmanich v. Jonnel Enterprises Inc., 219 Pa. Super. 198, 280 A.2d 570 (1971).

The uninsured/underinsured motorist insurance is contained. in Endorsement CA 21 06 of the Donegal policy which provides in section F.4:

“Arbitration”
“(a) If we and an insured disagree whether the insured is legally entitled to recover damages from the owner or driver of an uninsured motor vehicle or an underinsured motor vehicle or do not agree as to the amount of damages, either party may make a written demand for arbitration. . .”

Similar arbitration clauses have been broadly interpreted by the courts. In Allstate Insurance Co. v. Taylor, 434 Pa. 21, 252 A.2d 618 (1969), the plaintiff, who was a student at Lehigh University, was injured in a motor vehicle accident. The other person involved was an uninsured motorist at the time of the accident. Allstate was the insurer on a policy of automobile liability insurance purchased by the plaintiffs father, who lived in California. Allstate contended that the plaintiff was not entitled to uninsured motorist coverage under the policy because he was not a resident of his father’s home. The arbitration clause included in the insurance policy provided:

“If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an uninsured automobile because' of bodily injury to the insured, or do not agree as to the amount of payment which may be owing under this endorsement, then, upon written demand of either, the matter or matters upon which such person and the company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association. . .”

The court interpreted the arbitration clause to mean that all questions arising under the uninsured motorist coverage should be decided by arbitration and therefore the dispute as to whether the plaintiff was a resident of the named insured’s household should have been determined by arbitration rather than by the court in a declaratory-judgment action.

In Preferred Risk Mutual Insurance Co. v. Martin, 436 Pa. 374, 260 A.2d 804 (1970), an arbitration clause nearly identical to that involved in Allstate was involved and the court reiterated its position that all disputes arising under the uninsured motorist clause of the standard insurance policy must be settled by arbitration. The principle stated in National Grange Mutual Insurance Co. v. Kuhn, 428 Pa. 179, 326 A.2d 758 (1968), was quoted:

“The arbitration clause, in our view, indicates that the parties contemplated one method, and one method only, for the resolution of disputes under the coverage. That method was arbitration and all such disputes should be so decided.” 428 Pa. at 185, 236 A.2d at 761.

Based upon the prior cases, the court in Preferred Risk, supra, held that the question of coverage, specifically, whether a person comes within the definition of “insured” under the policy, is to be determined by arbitration.

In the instant case, the arbitration clause refers to “an insured,” while the clauses interpreted in Allstate and Preferred Risk refer to “any person.” Defendant argues that the distinction supports its position that the issue of whether plaintiff is “an insured” is not within the jurisdiction of the arbitrators. Although the question is not'easily decided, we find that the dispute is within the parameters of the arbitration agreement. We base our holding upon the case law which dictates that all disputes arising under the uninsured/underinsured motorist coverage are to be determined by arbitration.

Defendant also argues that, under the terms and conditions of the policy of insurance issued to William W. Hopkins Jr., d/b/a/ Bill’s Carpet Service, the exhaustion of claims against other potentially responsible tort-feasors is a precondition to proceeding to arbitration. The underinsured motorist coverage endorsement that is part of the insurance policy provides as follows:

“We will pay all sums the insured is legally entitled to recover as damages from the owner or driver of an underinsured motor vehicle only after all liability bonds or policies have been exhausted by judgments or payments.”

Defendant maintains that plaintiff is not entitled to arbitration since his parents, at whose premises a party attended by Meadows and plaintiff just prior to the accident was held, and Beverage Mart, which provided the beer for the party, are potentially responsible tort-feasors who may be liable for his personal injuries.

A similar insurance policy provision was involved in Rocca v. Pennsylvania General Insurance Co., 358 Pa. Super. 67, 516 A.2d 772 (1986). The insurance company raised an argument similar to that raised by defendant here regarding the plaintiffs compliance with conditions precedent to any right against the insurance carrier. The court held that it was really a dispute over the amount of damages to which the insured would be entitled and, therefore, it was specifically reserved in the arbitration clause .of the policy. The court stated that:

“The arbitrators may determine that the conditions precedent under the policy have not been satisfied, and thus abate the right to obtain damages until the contractual sine qua non has been met. However, it is for the arbitrators, and not the court to decide whether the procedural requisites have or have not been satisfied.” Rocca, supra, (emphasis supplied)

See also, Snyder v. Nationwide Mutual Insurance Co., 373 Pa. Super. 294, 541 A.2d 19 (1988), where the rationale underlying Rocca was applied to a similar factual situation.

In accordance with the foregoing, we enter the following

ORDER OF COURT

And now, February 7, 1990, it is hereby ordered that plaintiffs motion for summary judgment is granted.

It is further ordered that defendant shall appoint its arbitrator in accordance with the terms and conditions of the insurance policy within 10 days of notice of this order.

       Due to the difficulty of the question involved, we deny plaintiffs request for counsel fees.


author: MUNLEY, J.,

text:
    Ragona v. Preate

      Terrence R. Nealon, for plaintiff.

      Ernest D. Preate, attorney general, for the commonwealth.

      Linda C. Barrett and Louis J. Rovelli, deputy attorneys general, for the commonwealth.

      Lawrence M. Ludwig, for defendant Moses Taylor Hospital.

      Paul J. Walker, ad litem.

      Michael Barrasse and William H. Dunstone, for Michael Barrasee.
    November 30, 1990
   MUNLEY, J.,

Before the court is guardian Joseph Ragona’s action in declaratory judgment, pursuant to the Declaratory Judgments Act, 42 Pa.C.S. §§7531-7541, seeking authorization for the removal of a nasogastric feeding tube from his incompetent wife, Ruth Ragona. Ruth Ragona is a 64-year-old patient in a persistent vegetative state with no hope of recovery. Petitioner requests that the court recognize Mrs. Ragona’s constitutional and common-law right to refuse life-sustaining nutrition by artificial means.

Embarking on this task, we are mindful that Ruth Ragona’s right to self-determination is - our guiding principle; the court does not decide whether to withdraw the life-supporting treatment, rather our role is to determine and effectuate Ruth 'Ragona’s express intent. In re Jobes, 108 N.J. 394, 529 A.2d 434 (1987). In order to effectuate the wishes of Ruth Ragona, an incompetent individual who has not generated a written document containing those wishes, this court must rely upon relevant oral statements made by Ruth Ragona when she was competent. The petitioner must prove the manifestation of Ruth Ragona’s intent by clear and convincing evidence. Cruzan v. Director, Missouri Department of Health, _ U.S. _, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990). Further, this court can only decide what is before it. It will decide on legal principles alone. This court must not manage morality or temper theology. Its charge is to examine what law there is and apply it to the facts proven in this cause.

In the absence of legislation, the court must decide this case under the existing applicable case law, keeping in mind this is a unique case of first impression in this state. This court in suggesting that there is no law applicable in Pennsylvania will take care not to misallocate rights and obligations or create interpretations where none were intended. Though it is evident that the issues in this case are unique to Pennsylvania courts, they have been dealt with regularly by the courts of New Jersey, New York and other states in contexts which, if not identical, present the same questions dealt with here.

Although there is no Pennsylvania case law which has addressed this particular question under identical factual circumstances, nonetheless, there are Pennsylvania rulings which have discussed a competent individual’s right to discontinue life-sustaining systems.

The first reported case in Pennsylvania, In re Jane Doe, 45 D.&C. 3d 371 (1987), involved a request by an adult woman suffering from amyotrophic lateral sclerosis (Lou Gehrig’s Disease) to remove her life-sustaining support systems. After the hospital indicated that it was willing to accede to the patient’s wishes provided she obtained an appropriate court order, the patient brought an action for declaratory judgment.

Not unlike the Ragona case, Judge Lehrer observed in Jane Doe that there was no controlling precedent in Pennsylvania upon which he could rely in making his decision. After remarking that the state legislature had not yet adopted a legislative proposal concerning the issue, the Doe court reasoned that this inaction required immediate judicial intervention and stated:

“Scientific advancements have' prolonged life in many instances, while doing nothing to sustain the quality of that life. This fact, which is common knowledge', has raised legal issues and given need for legal intervention. Legislatures are often slow to act, and where the legislature has failed to act, the courts must respond to protect individual rights.” Id. at 371.

In resolving this difficult question, the Doe court stated: “First, the case law is clear that the right of a competent individual to refuse medical care or to have it withdrawn is a right under the common law doctrine of self-determination and a constitutional right of privacy.” Id. at 381.

The Doe decision is relevant to the matter sub judice to the extent that: (1) it recognizes a common-law right to self-determination based upon Pennsylvania law concerning informed consent; (2) it acknowledges a constitutional right to refuse unwanted medical treatment and life-sustaining procedures under both the U.S. and Pennsylvania constitutions commonly referred to as “right-to-die” issues; and (3) it establishes that the court must create case law governing these “right-to-die” issues in those situations where the legislature has not spoken.

Earlier this year, the Court of Common Pleas of Philadelphia County revisited the same issue decided in Doe. In Neuman Medical Center Inc. v. Popowich, D.O., no. 5663 January term, 1990, Neuman Medical Center filed a petition for emergency declaratory relief and expedited hearing seeking to discontinue the life-support systems maintaining Thelma Stussy, a victim of Lou Gehrig’s Disease. Since Ms. Stussy was conscious and apparently capable of communicating only by way of blinking her eyes, the trial judge and counsel were forced to question the patient personally to determine her wishes with reference to the life support. See The Philadelphia Inquirer (April 26, 1990, ed.), at 1-A, 17-A. On the same day that this hearing was conducted, Judge Nicholas M. D’Alessandro entered an order authorizing Neuman Medical Center to comply with Thelma Stussy’s request to discontinue her mechanical ventilator, without incurring any civil or criminal liability. Neuman Medical Center Inc. v. Popowich, D.O., supra.

More recently, in Commonwealth, Department of Public Welfare v. Kallinger,_Pa. Commw. —, 580 A.2d 887 (1990), a convicted murderer committed to a mental hospital for the criminally insane refused to accept nutrition and other medical treatment. His custodian, the Department of Public Welfare, sought court permission to force Kallinger to involuntarily receive food through a nasogastric tube. Although the trial court originally entered a preliminary order permitting DPW to do so, it later dissolved its preliminary order and determined that Kallinger could reject nutrition and hydration necessary to preserve his life.

The appellate court acknowledged that the Kallinger matter was “not , a ‘right-to-die’ case in the usual sense,” since Kallinger, as a convict in a prison setting, did not enjoy the same unfettered constitutional rights as a free person (i.e., such ás Ruth Ragona).

There is a plethora of precedent from other jurisdictions concerning the specific issue in this case and these courts have varied in the degree of specificity required before being guided by the prior expressed wishes of the patient. New York’s highest court, in In re O’Connor, 72 N.Y. 2d 517, 531 N.E.2d 607, 534 N.Y.S. 2d 886 (Ct. App. 1988, amended 1989), required a relatively high degree of specificity (e.g. “expressions were more than immediate reactions to the unsettling experience of seeing or hearing of another’s unnecessarily prolonged death.” 72 N.Y.2d at 532, 531 N.E.2d at 614). “Clear and convincing evidence” of a firm, settled decision was needed, and casual remarks, even if made repeatedly, were not sufficient. Furthermore, the statements had to be directly relevant to the patient’s current condition and the proposed treatment. In contrast, New Jersey’s highest court, in In re Conroy, 98 N.J. 321, 486 A.2d 1209 (1985), required less specificity regarding the patient’s wishes (e.g., “It might take the form of reactions that the patient voiced regarding medical treatment administered to others.” 486 A.2d at 1230). Indeed, where the wishes of the patient could not be directly established, the court required only that there be “some' trustworthy evidence” of the patient’s wishes, including “[ejvidence that, taken as a whole, would be too vague, casual, or remote” to provide direct evidence of the patient’s wishes.

Of course the recent holding of the U.S. Supreme Court in Cruzan, supra upheld Missouri’s use of the clear and convincing evidence standard to establish a patient’s previously expressed wishes. In that case, Nancy Cruzan’s parents sought a court order directing the withdrawal of their daughter’s artificial feeding and hydration equipment after she had digressed into a persistent vegetative state. Missouri law provided that such life-sustaining measures could be discontinued only if the petitioner demonstrated the incompetent’s express wishes as to the withdrawal of such treatment by “clear and convincing evidence.” After analyzing the state interests at stake, the “Supreme Court of Missouri held that because there was no clear and convincing, evidence of Nancy’s desire to have life-sustaining treatment withdrawn under such circumstances, her parents lacked authority to effectuate such a request.” Cruzan, supra, 110 S.Ct. at 2845.

In Cruzan, the only testimony produced by the petitioner consisted of the incompetent’s general statements made to a housemate that she would not want to live should she face life as a “vegetable.” Id. at 2855. In critiquing the paucity of relevant testimony furnished by the Cruzan petitioner, the U.S. Supreme Court distinctly stated that “[t]he observations did not deal in terms with withdrawal of medical treatment or of hydration and nutrition.” Id.

In short, the Cruzan court concluded that a state is free to adopt a standard of proof in these proceedings which requires clear and convincing evidence of the incompetent’s express wishes, although a state is equally at liberty to formulate less stringent standards. For purposes of the Ragona proceedings, the Cruzan holding is most helpful for its analysis of a patient’s common-law and constitutional rights to self-determination. ' In discussing a person’s common-law right to refuse unwanted medical treatment, the Cruzan court remarked: '

“Before the turn of the century, this court observed that ‘[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law. . . . Every human being of adult years and sound mind has a right to determine what shall be done with his own body;. . .” Id. at 2846-7. (citation omitted)

After reviewing case law addressing the principle of informed consent, the Cruzan majority determined that “[t]he legal corollary of the doctrine of informed consent is that the patient generally possesses the right not to consent, that is, to refuse treatment.” Id. at 2847.

The Cruzan court reasoned that a person has a constitutionally protected liberty interest in refusing unwanted medical treatment. Id. at 2851. Based upon its analysis of its 'earlier rulings, the United States Supreme Court concluded that a person has a “liberty interest” under the due process clause of the 14th Amendment of the United States Constitution which grants a person “a constitutionally protected right to refuse lifesaving hydration and nutrition.” Id. at 2851-2.

This court, in the matter sub judice, conducted an evidentiary hearing on November 5, 1990 wherein the court was confronted with the following circumstances: Ruth Ragona has been hospitalized at the Moses Taylor Hospital since February 8, 1990 as the result of a massive stroke that has left her paralyzed. Mrs. Ragona is currently receiving nutrition solely through a nasogastric feeding tube. It is important to note that artificial nutrition and hydration is a form of medical treatment; in general, its use or discontinuation is governed by the same principles and practices that govern all forms of life-sustaining medical treatment. Cruzan, supra; In re Guardianship of Browning v. Herbert, 59 U.S.L.W. 2191, n.6 (Fla. Supreme Court, September 13, 1990); In re Estate of Longeway, 133 Ill. 2d 33, 42, 139 Ill. Dec. 780, 784, 549 N.E.2d 292, 296 (1989); In re Conroy, supra. In the disposition of this matter, life-sustaining treatments, in and of themselves, do not have inherent legal significance and terms such as “extraordinary,” “ordinary” and “heroic” measures are of little value in making a life-sustaining treatment decision.

This court is concerned with two factual issues: (1) is Ruth Ragona in an irreversible, persistent vegetative state with absolutely no possibility of improvement? and (2) did Ruth Ragona express any previous intent concerning the use or non-use of artificial feeding tubes?

Historically, Ruth Ragona suffered an initial stroke in October 1984 and was hospitalized at Moses Taylor Hospital. Through rehabilitation. Mrs. Ragona gradually regained her ability to speak, but remained confined to a wheelchair due to partial paralysis on the right side of her body. On February 8, 1990, Mrs. Ragona suffered another stroke and was transported to Moses Taylor Hospital. On February 27, 1990, she was transferred to the Moses Taylor Skilled Nursing Facility where she remains hospitalized today. Mayur C. Maniar, M.D., a board-certified neurologist, diagnosed her condition on February 9, 1990 as: (1) a brain stem infarct resulting in a comatose state; (2) right focal motor seizure disorder secondary to her left hemispheric infarct; and (3) status post left frontal lobe infarct with residual spastic right hemiparesis; (4) prognosis is “grave.” (T.R. 16, 17; plaintiffs exhibit 2.) Following this evaluation by Dr. Maniar, Mrs. Ragona came under the primary care of Vithalbhai D. Dhaduk, M.D., a board-certified neurologist. Dr. Dhaduk’s clinical diagnosis of Mrs. Ragona’s condition has been: (1) permanent, persistent vegetative state secondary to cerebral Vascular strokes in both hemispheres of the brain; (2) seizure disorder secondary to the stroke in the left hemisphere; and (3) septicemia. (T.R. 32.) Dr. Dhaduk’s conclusion that Mrs. Ragona is in an irreversible, persistent vegetative state was based upon his treatment and evaluation of Ruth Ragona over the past nine months, coupled with the test results of the computer tomographic maze (CAT scan) and electroencephalogram (EEG). (T.R. 42, 71.) Dr. Dhaduk testified that Mrs. Ragona will never be able to appreciate or experience anything other than pain. (T.R. 42, 43.)-

In order to maximize the reliability of the medical evidence presented to this court via the treating physician, Dr. Dhaduk, the court heard the testimony of an independent medical expert, Charles T. Newton, M.D., a board-certified neurologist. Based upon his review of the hospital records, SNF reports, CAT scans, EEGs, as well as his physical examination of Mrs. Ragona, Dr. Newton opined that Ruth Ragona is in an irreversible persistent vegetative state. (T.R. 176, 177, 185, 194, 195.) Further, Dr. Newton acquiesces with Dr. Dhaduk’s assessment that Mrs. Ragona is able to feel some form of pain, although she has no recognition or awareness of it. (T.R. 35, 47, 48, 183, 184, 191, 194.)

Finally, Mrs. Ragona has been examined by a fourth board-certified neurologist, Homayoon Froozan, M.D. Dr. Froozan agrees that Mrs. Ragona is in an irreversible persistent vegetative state with absolutely “no likelihood of recovery of function.” (Plaintiffs exhibit 12.)

Thus four neurologists have examined Mrs. Ragona and arrived at the same medical prognosis: that Mrs. Ragona is in a persistent vegetative state, her condition is irreversible and there is no possibility she will ever improve. (November 20, 1990 — T.R. 44.) We are satisfied with the credible medical testimony presented by the neurologists appearing before this court in conjunction with the specialist’s medical reports which were also made available to the court. (Plaintiffs exhibits 2, 3, 4, 5, 6, 7, 8, 9.) We submit the physician’s prognosis that Ruth Ragona is in a persistent vegetative state with no prospect of recovery has been proven by clear and convincing evidence.

At this point, the opinion would have to turn to the question of the expressed intentions of Ruth Ragona. This question of expressed intent is dependent on the factual record established during the evidentiary hearing which focused on the testimony of individuals who were privy to relevant statements made by Ruth Ragona at a time when she had the requisite capacity. During the hearing Ruth Ragona’s husband of 43 years, Joseph, and her son Robert, 22 years old, testified at length with regard to her prior expressed wishes concerning the use of life support and artificial feeding tubes.

We are persuaded by the evidence of Ruth Ragona’s statements and conduct over a six-year span. First, we recognize Ruth Ragona’s conduct in dealing with her own mother’s illness as evidence, in and of itself, of her expressed intentions. In April 1984, Mrs. Ragona refused life-support for her mother who was in a “vegetative state.” (T.R. 92, 93, 94, 95, 121.) Further, the serious conversations with her son Robert that followed this incident clearly suggest that, given her present condition, she herself would not wish to continue in a “vegetative state.” Robert testified, “that she [his mother] stated, if she was ever in such a . situation as her mother was in, she would want nothing to prolong or sustain her life. She would want nature to take its course.” (T.R. 93.)

Also in 1984, after she suffered her first stroke, Mrs. Ragona again made statements to her family regarding her desire to live or die under certain circumstances. During rehabilitation Mrs. Ragona was exposed to other patients who were in a “vegetative state,” some with feeding tubes, and her reaction, according to the testimony, was always, “I don’t ever want to be like that. I never want that done to me.” She repeated these statements several times to her son and husband. (T.R. 96, 97, 116, 122, 123, 133, 135, 152.)

Of important distinction is the conversation Robert had with his mother in November 1986. We make special note of this particular conversation because of the absence of any emotional circumstances surrounding it. Robert and his mother were having a discussion about “death and.wills and stuff.” (T.R. 97, 98.) Robert asked, “If something should ever happen to you, what should we do?” Mrs. Ragona responded, “You know I don’t want to be kept on anything that would keep me alive.” (T.R. 97, 98.)

Finally, Robert testified that in the fall of 1988 his cousin Frank Sedlisky, who was dying from stomach cancer, had a major heart attack and the hospital attendants resuscitated him. (T.R. 99.) Robert stated, “his mother could not understand why if the poor man w.as dying . . . why would they bring him back to life? Why wouldn’t they just let him go.” (T.R. 100.) In addition Mrs. Ragona had numerous conversations with Frank’s wife Veronica during this time period, which prompted her to make comments to her son and husband distinctly and specifically with reference to artificial feeding tubes. According to the testimony, she stated, “Never' put those things in me.” (T.R. 100, 135, 136.) Mrs. Ragona’s son Robert further testified that his mother had said, “she could not understand why we would want to build up someone who was in that shape with this food and this water when they were only going to be in pain and suffer and waste away the way Frank was. And she absolutely unequivocally stated she did not want that done to her.” (T.R. 100.) “She more or less reinforced her comments that under no circumstances she wanted to have those tubes put in her like Frank had to have, to have her death prolonged like his was.” (T.R. 101.)

We feel reference must also be made to the brochure the Ragonas received from the American Association of Retired Persons in the winter of 1989 containing articles on the Cruzan case and living wills. (T.R. 103.) This newsletter prompted conversation between Ruth Ragona and her husband regarding living wills. Mrs. Ragona expressed a desire to secure a living will and responded to the advertisement. (T.R. 140, 141.) Although this document was never received and ultimately executed, the interest and intent to secure a living will bears directly upon Mrs. Ragona’s resolve to refuse life-sustaining treatment.

This court has carefully listened to, noted and reviewed the testimony of prominent medical specialists and persons most directly and intimately involved with the life of Ruth Ragona, her husband and son. The credibility of these witnesses has been examined, tested and weighed and in our judgment found to be highly persuasive. This record demonstrates a course of conduct and credible statements over a span of six years, prompted by different circumstances, consistent with Mrs. Ragona’s expressed intent to refuse life-sustaining treatment. The court finds this testimony to be clear and convincing evidence of an expressed intent to refuse medical treatment and this court will use its authority to accomplish those expressed intentions. In making this decision, the court is mindful that we are dealing in an area, of constitutionally protected rights. We recognize the right to refuse treatment embodied in the common-law doctrine of informed consent, a broad right to privacy that supports an unrestricted right to refuse treatment under Article I, section 9 of the Pennsylvania Constitution, and finally, a liberty interest under the due process clause of the 14th Amendment of the United States Constitution.

We believe that there is nothing inherently improper in the use of advanced medical technology. The “right-to-die” cases in the context outlined here reflect on the advances in medical technology providing life-supporting systems as well as the limits of medicine when faced with .the temporality of human existence. However, we submit a decision to refuse advanced medical technology is a constitutionally protected right that can only be abridged by a compelling state interest. The Attorney General, the chief law officer of the commonwealth, was named as a party to this action in order to represent the state’s interest in the preservation of life, the prevention of suicide, the protection of innocent third parties and the integrity of the medical profession. In re Jane Doe at 383.

We recognize that the right to refuse treatment is not absolute and must be weighed against those competing governmental interests. Deel v. Syracuse Veterans Administration Medical Center, 729 F.Supp. 231, 233 (N.D.N.Y. 1990); Gray v. Romeo, 697 F.Supp. 580 (D.R.I. 1988). However we also recognizé the state’s duty must encompass a recognition of an individual’s right to make decisions regarding the quality of life. Id. at 588. The commonwealth’s interest weakens and the individual’s right grows as the prognosis dims and the intrusiveness of the treatment increases. In re Jane Doe, supra, at 385; Brophy v. New England Sinai Hospital Inc., 497 N.E.2d 626, 637 (Mass. 1986). Consequently, when the individual is in an irreversible persistent vegetative state, to recognize the patient’s right to decide to terminate an artificial life-sustaining treatment in these narrow and extreme circumstances would not undermine the state’s interest. Foody v. Manchester Memorial Hospital, 482 A.2d 713, 718-9 (Conn. Super. 1984):

The state’s interest in the prevention of suicide is likewise inapplicable. Suicide by definition is “the deliberate termination of one’s existence.” Black’s Law Dictionary (5th ed. 1979). The removal of Ruth Ragona’s nasogastric feeding tube will permit her to die from the natural progression of her illness. In re Jane Doe at 386. Accord, Gray at 589 (state interest in the prevention of suicide is not an issue “as there is an obvious distinction between deliberately eroding a life by artificial means and allowing nature to take its course”). Finally, the state’s interest in the maintenance of the ethical integrity of the healthcare profession is not jeopardized by these proceedings since adherence to Ruth Ragona’s wishes is consistent with the ethics of the medical profession. In re Guardianship of Browning v. Herbert, supra. It is clear that Ruth Ragona’s constitutional right to refuse artificial nutrition is paramount to and outweighs any applicable state’s interest.

Ergo, this decision regarding removal of life-sustaining treatment is made more certain where the state’s interest gives way to Ruth Ragona’s right to self-determination. “Every human being of adult years and sound mind has a right to determine what shall be-done with his own body. . .” Cruzan at 2847. We feel it is also important to note that the Attorney General at no time expressed an adversarial interest in these proceedings, while advocating the necessity for the orderly development of the law in this area. (T.R. 10.)

Since Ruth Ragona is currently a patient at Moses Taylor Hospital, it has been named as an indispensable party to this proceeding in accordance with 42 Pa.C.S. §7540(a). We find Moses Taylor, also, never sought to challenge the relief requested in the instant case. (November 20, 1990 — T.R. 19.) In particular Moses Taylor Hospital urged the court to find that the plaintiffs testimony presented at the evidentiary hearing satisfied the standard of clear and convincing evidence. (November 20, 1990 — T.R. 15.)

The District Attorney of Lackawanna County, also an indispensable party to this action, asked that the court apply the clear and convincing evidence standard of proof to the matter sub judice, (November 20, 1990 — T.R. 36), and further provided by memorandum to the court, “If this honorable court enters an .order granting the relief requested . . . then the district attorney will not prosecute any charges against any individuals or entities which act in conformity with the order of court.” See memorandum, November 21, 1990.

The court-appointed guardian ad literfi, representing the interest of Ruth Ragona, stated he had no position as ’to what standard the court should apply, but it was his opinion that the petitioner had presented to the court clear and convincing evidence of Ruth Ragona’s expressed intent. (November 20, 1990 — T.R. 25.)

Finally, the family of Ruth Ragona (Joseph Ragona, her husband, and their children, Michael, Joseph Jr., Robert and Mary) signed a general release absolving any and all persons from any and all potential liability that there could feasibly or possibly be if the feeding tubes were removed pursuant to a court order. (T.R. 107; plaintiffs exhibit 14.)

We find there exists no unresolvable disagreement between the parties represented in this case and there is a general consensus regarding the appropriate result. '

The court is also cognizant of the fact that this case raises emotionally charged issues. In addition to the inevitable moral issues involved, there is the question of the wisdom and appropriateness of adjudicating a matter so private, yet of such public interest. The public policy question must begin with a discussion of whether the “right to die” is a violation of public policy. Unfortunately, the legislature has not directly addressed the question. Thus, this court finds that the “right-to-die,” in the absence of directly applicable legislation to the contrary, is not per se violative of any public policy of this state. The legislature remains free to deal with this most sensitive issue as it sees fit, subject only to constitutional constraints.

This court concludes and holds that the right to refuse artificial nutrition and hydration is valid and enforceable. We submit petitioner has presented to the court strongly persuasive, clear and convincing evidence of Ruth Ragona’s prior expressed intent to forego such artificial nutrition and hydration. Accordingly, we will issue an order specifically enforcing the expressed intent of Ruth Ragona.

ORDER

Now, November 30, 1990, having duly considered: the petition, evidence introduced at the hearing on November 5, 1990, memorandums of law, able counsels’ oral argument on November 20, 1990 and for the reasons set forth in the above opinion, the prayer of petitioner is hereby granted.

Further, it is specifically ordered and decreed that the Moses Taylor Hospital and the attending physicians, or their duly appointed representatives or agents, are authorized and empowered to adhere to Ruth Ragona’s expressed intent and remove the artificial nutrition and hydration tubes presently engaged and employed in her care and treatment, in conformity with the above opinion, without their incurring any criminal or civil liability under the laws of this commonwealth.

Lastly, the court will retain continuing jurisdiction of the matter sub judice.

      . Living will legislation is currently under consideration in Pennsylvania (e.g. Senate Bill no. 646, printer’s no. 2533).

      . The nasogastric feeding tube is a modality of medical treatment, it will neither arrest the underlying disease’s deterioration nor impede its process.

      . “The artificial provision of nutrition and.hydration is a form of medical treatment .. . analogous to other forms of life-sustaining treatment, such as the use of the respirator. When a patient is unconscious, both a respirator and an artificial feeding device serve to support or replace normal bodily functions that are compromised as a result of the patient’s illness.” Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology-125 (January 1989).

      . “Vegetative state describes a body which is functioning entirely in terms of its internal controls. It maintains temperature. It maintains heartbeat and pulmonary ventilation. It maintains digestive activity. It maintains reflex activity of muscles and nerves for low-level condition responses. But there is no behavioral evidence of either self-awareness or awareness of the surroundings in a learned manner.” Cruzan at 2845 n.l; In re Jobes at 438.

      . “Clear and convincing evidence is that which producefs] in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established, evidence so clear, direct and weighty and con-, vincing as to enable [the fact finder] to come to a clear conviction, without hesitancy of the truth of the precise facts in issue.” In re Jobes at 441.


author: REILLY, P.J.,

text:
    Huber v. Erie Insurance Exchange

      John R. Ryan, for plaintiff.

      Beth Ammerman Gerg, for defendant.
    April 27, 1990
   REILLY, P.J.,

The undisputed facts in this case are that on September 29, 1988, plaintiff, standing at the rear of his vehicle, was loading building materials onto his vehicle when he sustained injuries. At the time, he was insured by defendant under an automobile insurance policy. Plaintiff submitted a claim to Erie Insurance Exchange for first-party benefits which was denied. In issuing its denial, Erie relied on an exclusionary provision in the policy which provided that first-party benefits are not available to “any person sustaining injuries as a direct result of loading or unloading any motor vehicle except while occupying a vehicle.” The policy further defined “occupying” as follows: “Occupying means in or upon, getting into or getting out of.” Defendant argues that since plaintiff was not “occupying” his vehicle within the definition of the policy he is not entitled to the benefits he claims.

This court agreed and on February 16, 1990, entered an order granting defendant’s motion for judgment on the pleadings.

The current Motor Vehicle Financial Responsibility Law provides that first-party benefit coverage shall be made available with respect to “injuries arising out of the maintenance or use of a motor vehicle.” 75 Pa.C.S. §§1711 and 1712. The act, however, does not contain any specific definition of the phrase “maintenance or use.” By contrast, the predecessor statute, the No-fault Act, specifically excluded coverage for injuries sustained in the course of loading or unloading a motor vehicle unless the injury occurred while occupying, entering into or alighting from the vehicle, substantially the same language as stated in defendant’s contract with plaintiff.

Further, this court has been unable to locate any appellate court decision addressifig the issue directly. In his brief, plaintiff cites two cases which he claims to be on point, they being Omodio v. Aetna Life and Casualty, 384 Pa. Super. 544, 559 A.2d 570 (1989) and Callahan v. Federal Kemper Insurance Company, 390 Pa. Super. 201, 568 A.2d 264 (1989). In both Omodio and Callahan, however, it must be noted that the plaintiff was either in or upon the motor vehicle when the injuries occurred, while in the case at issue here, plaintiff was clearly not either in or upon his vehicle.

It appears to this court, therefore, that since neither the statute nor appellate decisions require anything to the contrary, the provisions of plaintiffs insurance contract, which he clearly accepted, must therefore govern in situations where they clearly apply, and herein must operate to exclude coverage under the facts set forth.

In view of the above, the court determined that plaintiffs policy of insurance clearly excludes coverage under the facts of this case and there being no statutory or appellate decision to the contrary, entered its order of February 16, 1990.


text:
    In re 105.92 Acres in Fee Situate Knox Township, Clearfield County, Pennsylvania

      John Sughrue, for petitioners.

      Richard A. Bell, for respondent.
    January 8, 1990
   REILLY, P.J.,

This matter comes before the court on preliminary objections filed by defendant above-named to a petition for appointment of viewers filed on behalf of petitioners above-named. Although the objections raised are numerous, this court will discuss only two in sustaining said preliminary objections and dismissing the petition for appointment of viewers.

The first issue to be discussed raises the question of whether the encroachment on petitioners’ property was caused by an independent contractor for which defendant Columbia Gas Transmission Corporation is not liable. From the record, it is clear that the pipeline was constructed by the Britain Contracting Company of Claysville, Pennsylvania, an independent contractor under contract with Manufacturer’s Light and Heat Company, defendant’s predecessor. Undisputed testimony on behalf of defendant also revealed that defendant Columbia performed none of the construction and that any deviation from the civil engineering performed by defendant was done without the knowledge or authority of defendant. As the Commonwealth Court of Pennsylvania stated in Deets v. Mountaintop Area Joint Sanitary Authority, 84 Pa. Commw. 300, 304, 479 A.2d 49, 51-2 (1984):

“However, where the deprivation of the use and enjoyment of property is the result of the negligent actions of an independent contractor acting without the authority or direction of an entity clothed with the power of eminent domain, we have held the property owner’s sole remedy is an action in trespass against the offending contractors. Espy, 63 Pa. Commw. at 99, 437 A.2d at 1271; cf. Culver v. Commonwealth, 346 Pa. 262, 29 A.2d 531 (1943). It is only where a landowner’s damages are the result of the actions of an entity clothed with the power of eminent domain that the landowner may seek compensation under the code. Where the actual intrusion is the result of the actions of independent contractors, the landowner must prove that the contractor’s actions were either authorized or directed by the entity clothed with eminent domain power to proceed under the code. Where the contractor deviates from a previously granted right-of-way, the landowner must prove the contractor’s deviation was either authorized or directed by the entity with eminent domain power. Here, the appellants failed to meet that burden.”

See also, Espy v. Butler Area Sewer Authority, 63 Pa. Commw. 95, 437 A.2d 1269 (1981). In this case, it is clear to this court that any deviation of the gas transmission line onto petitioner’s property was occasioned by the Britain Contracting Company and not authorized by or known to defendant, and therefore petitioner’s right of recovery lies solely in an action of trespass against the independent contractor.

The second issue which persuades this court to sustain the preliminary objections is the proposition that petitioners have no right to proceed to petition for appointment of viewers when the taking occurred prior to petitioners acquiring title.

In the instant case the taking occurred in 1951 and 1952. Petitioners acquired their interest in the property by deed in 1979. This deed clearly did not convey any ownership or any right to damages caused by the pipeline being constructed under the subject premises. Pennsylvania courts have consistently held that the right to damages belongs to the person owning the land at the time of the entry and injury, and while this right may be assigned, it does not pass by a conveyance of the land. As stated in Kaufmann v. Pittsburgh, 248 Pa. 41, 93 Atl. 779 (1915), “The right to such damages is personal, belonging to the owners of the land when the entry and injury takes place, and the damages do not run with the land nor pass by a subsequent conveyance of it although not specifically reserved.”

Again, in Breigel v. Breigel, 307 Pa. 93, 160 Atl. 581 (1932), the court held “The right to an award of damages in eminent domain proceedings is a personal claim of the person owning the property at the time the appropriation takes place ... It does not pass by a subsequent conveyance by deed, though it may be assigned as a chose in action.”

In view of the fact that petitioners were not the owners of the subject property at the time of the actual taking in 1951 and 1952, and further that no assignment of the right to seek damages for said taking appears on the record, this court must sustain the preliminary objections of defendant and therefore enters the following

ORDER

Now, January 8, 1990, following hearing, it is the order of this court that defendants’ preliminary objections to the petition for appointment of viewers filed on behalf of plaintiffs above-named, be and are hereby sustained and said petition dismissed.


author: GARB, P.J.,

text:
    Chamberlain v. Amoroso

      Shawn P. Markey, assistant district attorney, for the commonwealth.

      Robert Scandone, for appellant.
    February 15, 1989
   GARB, P.J.,

This is an appeal from our refusal of December 9, 1988 to authorize the filing of a private criminal complaint. Appellant filed a petition in this court seeking leave to file a private criminal complaint. The petition alleges that petitioner was struck unconscious by defendant as a result of which appellant filed a private criminal complaint before a district justice. It is further alleged that the district attorney refused the allowance of the private criminal complaint which gave rise to this petition. Essentially, however, the entire record before this court consists in the petition and its exhibits.

Rule of Criminal Procedure 133(a) provides as follows:

“When the affiant is not a law enforcement officer and the offense(s) charged include(s) a misdemeanor or felony which does not involve a clear and present danger to any person or to the community, the complaint shall be submitted to an attorney for the commonwealth, who shall approve or disapprove without unreasonable delay.”

Subparagraph (b) provides as follows:

“If the attorney for . the commonwealth
“(2) disapproves the complaint, the attorney shall state the reasons on the complaint form and return it to the affiant. Thereafter the affiant may file the complaint with a judge of a court of common pleas for approval or disapproval.”

In explaining the philosophy behind this rule of court, the Superior Court in Piscanio Appeal, 235 Pa. Super. 490, 344 A.2d 658 (1975) stated as follows:

“In considering the extent of the district attorney’s power, it is important to bear in mind that the district attorney’s function is to represent the commonwealth in criminal prosecutions. Commonwealth ex. rel. Specter v. Freed, 424 Pa. 508, 228 A.2d 382 (1987). In the capacity as the commonwealth’s attorney, the district attorney has traditionally fulfilled the obligation of investigation and prosecution of crime by initially evaluating complaints to determine whether a charge should be brought against a suspect. ‘A district attorney has a general and widely recognized power to conduct criminal litigation and prosecutions on behalf of the commonwealth, and to decide whether and when to prosecute and whether and when to continue or discontinue a case.’ Commonwealth v. DiPasquale, 431 Pa. 536, 540-1, 246 A.2d 430, 432 (1968). (emphasis omitted)
“The power granted the district attorney under rule 133(b) to approve or disapprove private criminal complaints is consistent with the authority regularly exercised by that office in deciding whether to initiate or to discontinue prosecutions.” Id. at 494, 344 A.2d at 660.

Therefore, rule 133 mandates that a person who is not a police officer desiring to file misdemeanor or felony charges against another which charges do not involve a clear and present danger to the community or to any person, must obtain the approval of such charges from the appropriate district attorney. The district attorney enjoys prosecutorial discretion as to whether to approve or disapprove a private criminal complaint, and the court should not interfere with that discretion unless there has been a gross abuse thereof. The rule permits a person to appeal a district attorney’s decision refusing to approve such charges to the court of common pleas and the provision of the rule allowing for such appeal constitutes sufficient checks and balances upon the district attorney’s actions so as to comply with constitutional due process requirements. Commonwealth v. Eisemann, 308 Pa. Super. 16, 453 A.2d 1045 (1982).

It is abundantly clear that the district attorney has broad discretion in deciding whether to charge a person with a criminal offense. This discretionary power of the district attorney in determining whether prosecution shall be commenced or maintained may well depend on matters of policy wholly separate and apart from the existence of probable cause. Therefore, the courts have been wary of interfering with or attempting to supervise the district attorney in the exercise of his function in controlling criminal prosecutions. Commonwealth v. Muroski, 352 Pa. Super. 15, 506 A.2d 1312 (1986). Both the district attorney and the trial court have a responsibility to prevent the misuse of judicial and prosecutorial resources in pursuit of futile prosecutions. Muroski, supra.

Lastly, the role of the court in reviewing the decision of the district attorney is severely limited. First of all, no hearing is required. In any event, the court’s role is not the functional equivalent of a preliminary hearing nor is the rule 133 judge acting as a district justice. This rule merely gives the complainant the opportunity to obtain a judge’s independent review of the complaint and of the district attorney’s exercise of discretion. In re Wood, 333 Pa. Super. 597, 482 A.2d 1033 (1984).

On the foregoing basis, there is absolutely no foundation upon which we can find an abuse of prosecutorial discretion in this case. There is no statement of probable cause, and therefore, we have no way of finding what the basis of this private criminal complaint really is other than the fact that there had been some kind of scuffle or fight between appellant and defendant. The district attorney indicated on the criminal complaint that he refused prosecution because he found this to be a mutual scuffle. There is no basis on which we can find that the district attorney had abused his discretion in making this determination and declining prosecution.

The foregoing represents the reasons why we refused appellant’s request for allowance of the filing of a private criminal complaint.

       We are puzzled by the appellant’s caption casting this as in the nature of a civil father than a criminal matter.


author: DINUBILE, Jr.,

text:
    In re Paoli Railroad Yard PCB Litigation

      Arnold E. Cohen, for plaintiffs.

      Michael H. Malin, for defendants.
    May 16, 1990
   DINUBILE, Jr.,

These actions, involving approximately 273 plaintiffs, were instituted (and consolidated under the above master docket) to recover personal injuries, and in some cases property damage, allegedly resulting from the use and disposal of dielectric fluid containing polychlorinated biphenyls (PCBs) used in transformers of railcars at the Paoli Railroad Yard in Chester County, Pennsylvania. Plaintiffs maintain that they were exposed to these PCBs either as residents adjacent to or as employees of the railroad yard. A number of defendants have been sued, including Monsanto Company, General Electric Company, SEPTA, Penn Central Corporation, Consolidated Rail Corporation (Conrail), National Railroad Passenger Corporation (Amtrak), Westinghouse Electric Corporation, the Budd Company and the City of Philadelphia. By order of January 12, 1990 these cases were assigned to this court by Administrative Judge Edward J. Blake. Pursuant to this assignment, the court has undertaken management of these cases; principally for discovery purposes. On April 19, 1990 the first discovery order was entered. In the meantime, defendants have petitioned this court to transfer venue to Chester County under the doctrine of forum non conveniens as provided for in rule 1006(d)(1) of the Pennsylvania Rules of Civil Procedure. This motion has been vigorously contested by plaintiffs’ counsel. The additional case of Donald L’Tainen (now included in the 273 total) has been transferred to this court for decision by The Honorable Samuel M. Lehrer by order of March 1, 1990. This same venue issue had been pending before him prior to Judge Blake’s order. Although this court remains deeply engaged in management and resolution of discovery disputes, the court held a hearing on May 7, 1990 on the forum non conveniens issue in accordance with rule 1006(d)(2) of the Pennsylvania Rules of Civil Procedure. During this hearing the testimony before Judge Lehrer in the L’Tainen case also was considered. After review of the record, arguments and briefs of counsel, the court orders that these cases be transferred to Chester County for disposition.

Prior to a discussion of the reasons for the removal, it must be noted that similar cases emanating from the Paoli Railroad Yard are presently in litigation in federal court. They have been assigned to The Honorable Robert F. Kelly, Judge of the District Court of the Eastern District of Pennsylvania. On November 28, 1988, Judge Kelly granted the defendants’ motion for summary judgment on the ground that there was insufficient acceptable scientific evidence presented by the plaintiffs either to prove that they had been exposed to PCBs in any greater degree than the rest of the general public or that any alleged injuries were caused by this exposure to PCBs. See In re Paoli Railroad Yard PCB Litigation, 706 F.Supp. 358 (E.D. Pa. 1988). This issue is presently on appeal before the Third Circuit Court of Appeals. A similar decision, not related to the Paoli Railroad Yard, but involving PCB exposure as a possible cause of colon cancer, was rejected by the Superior Court of New Jersey. See Rubanick v. Witco Chemical Corp., 542 A.2d 975 (N.J. Super. 1988). It is evident that regardless of the results of this venue issue, a decision of the Third Circuit concerning the validity of the plaintiffs’ claims will have significant bearing on the outcome of these suits in state court. However, this court’s opinion is limited solely to the issue of forum non conveniens.

The facts pertaining to this issue are not in dispute. Plaintiffs are divided into two categories, namely, those who live or lived adjacent to and those former or current employees of the railroad yard. Of the 273 plaintiffs before this court, 162 of them involve FELA claims. Of these 162 cases, 45 plaintiffs live in Philadelphia, or a total of 28 percent. Fifty-two live in Chester County, or a total of 32 percent. Of the remaining 40 percent of FELA cases, the plaintiffs live in several other surrounding counties of Philadelphia, as well as the states of New Jersey, Delaware, Maryland and Florida. Of the full total of 273 cases, 127 of the plaintiffs live in Chester County for a total of 47 percent. Fifty-two, or 19 percent, live in Philadelphia. Of 111 of the non-FELA cases, only seven defendants live in Philadelphia, or a total of 6 percent. The evidence contained in the record at the hearing indicated that both the counties of Philadelphia and Chester exert, a great deal of their efforts in the trial and disposition of criminal cases. Despite this fact, Chester County’s civil ready trial pool as of December 1989 consists of approximately 170 cases. The substantial majority of them are tried within six to 12 months. All but a small percentage of cases are tried within a year and a half. The numbef of cases on the civil trial list in Philadelphia as of April 2,1990 totals over 45,000, which includes approximately 6,553 asbestos cases. There has been a marked increase in the number of cases on the trial list from 1978 until 1989. In January 1978 there were approximately 7,000 cases available for trial. Today that figure has more than quadrupled. The time for disposition for a jury trial in Philadelphia on the major list would range anywhere from four to five and a half years.

The law involving the doctrine of forum non conveniens is clear-cut. The transfer is within the sound discretion of the trial judge. The standard on appeal is not whether the appellate court might have reached a different conclusion than that of the court below, but rather whether there was an abuse of this discretion. If there is any basis for the trial court’s decision, it must stand. Plaintiffs’ right to choose a forum must be given significant weight, but it is not absolute. The interest of the parties should be considered; including relative ease of access to sources of proof, availability of compulsory process, cost of litigation and view of the scene. Finally, the public interest is of major importance. It includes problems of court congestion and imposing jury duty upon people who have no substantial interest in the litigation. Litigation should not be piled up in congested centers rather than being handled at its place of origin. Brown v. Delaware Valley Transplant Program, 371 Pa. Super. 583, 538 A.2d 889 (1988); McReynolds v. Benner Township, 118 Pa. Commw. 215, 544 A.2d 566 (1988) and Petty v. Suburban General Hospital, 363 Pa. Super. 277, 525 A.2d 1230 (1987). Although there is little dispute as to these principles of law, the application of them has been litigated vigorously. The relative interests of the parties, such as ease of access, etc., are evenly balanced. The court’s ruling to transfer these cases is predicated upon the public interest element which it believes substantially outweighs plaintiffs’ right to choose a forum of their choice.

Both sides have asserted the interest of the parties in support of their respective positions. The arguments pro and con basically counterbalance each other. Plaintiffs assert that many of defendants have corporate offices in Philadelphia and that the attorneys themselves áre located here. Approximately 28 percent of plaintiffs in the FELA cases live in Philadelphia and 19 percent overall. Plaintiffs' further argue that many of the records of defendants are located here in Philadelphia. However, it is this court’s finding that service of process, access to proof,@id cost of litigation will be approximately the same regardless of where the case is tried. Many of the experts must come from all over the country, consequently; it would make little difference whether they had to appear in West Chester or Philadelphia. In this modern day and age, access to West Chester is certainly no more difficult for witnesses and litigants than it is to Philadelphia.

The compelling reason for the transfer, which overrides the plaintiffs’ right to choose the forum, is the present condition of the Philadelphia court system. It is extremely overburdened. This situation, coupled with the fact that the cause of action arose in Chester County, the railroad yard is located there and the vast majority of the plaintiffs, 47 percent, are residents of Chester County, tilts the scale in favor of transfer. Although it is true that Chester County is much smaller than Philadelphia, its present case load will enable it to more expeditiously handle them than if they were to remain here. Plaintiffs argue that the transfer would result in more than doubling Chester County’s inventory of cases. However, this assertion overlooks the fact that the cases at this time are not ready for trial. Moreover, they all share the common issue of whether plaintiffs can present sufficiently acceptable scientific evidence concerning liability. The cases can be assigned to one judge for the disposition of this issue as was done in federal court. If plaintiffs survive summary judgment, it is likely that they can be tried together on the extent of exposure and causation issues. If plaintiffs again prevail, there may not be a need for 273 separate jury trials on damages. Cases could be categorized or grouped together for trial based upon similarity of injury, thus diminishing considerably the number of jury trials which would be required. It may be argued that if the management procedure is as workable as stated by this court, then why transfer them in the first place? Plaintiffs assert that since this court already is familiar with these cases; having issued a discovery order, participated in case management and developed a general knowledge of the legal issues pertaining to liability, that it makes little sense to transfer the actions to Chester County. However, for the case to remain in this forum would mean that this court would have to devote much of its energies to this matter at the expense of numerous other cases already on our overcrowded docket which have a stronger basis for being tried here. Plaintiffs further maintain that, in effect, Philadelphia County has strong ties to these cases on a public interest basis because much of the decision-making process involving the Paoli Rail-yard took place in Philadelphia. Assuming this to be the case, the fact remains that the cause of action did not arise in Philadelphia and the overwhelming majority of plaintiffs do not live here.

Finally, plaintiffs argue, under the dictates of Pa.R.C.P. 2103(b), that the only venue for the City of Philadelphia is here. They further cite the case of Bortulin v. Harley-Davidson Motor Co., 115 Pa. Commw. 42, 539 A.2d 906 (1988) in support of their contention. However, this argument fails to take into consideration the JARA Constitutional Act of October 5, 1980, see 42 Pa.C.S. §20043 which provides that a political subdivision can be sued in a county other than where it is located. The act permits the governmental entity to be sued, inter alia, where the cause of action arose. In addition, Bortulin cannot be cited for the proposition that the only proper venue for the city in this case is Philadelphia. The Commonwealth Court merely stated in that case that proper venue was the county in which the governmental entity was located because it was also the county where the cause of action arose.

For the foregoing reasons, defendants’ motion for change of venue is granted. However, because of the particular nature of this litigation, coupled with the fact that some of the suits have been pending since January 1988, it is imperative that discovery continue in an expeditious fashion. Consequently, in the event this court’s decision is appealed, it shall retain jurisdiction of all matters in accordance with Judge Blake’s order until ruled otherwise by a higher court.