author: ESHELMAN, S.J.,

text:
    Reading Society of Model Engineers v. Berks County Board of Assessment Appeals

      C.P. of Berks County,
    no. 98-8039.

      George A. Spohrer, for appellant.

      Edwin L. Stock, for appellee.
    December 15, 1999
   ESHELMAN, S.J.,

Reading Society of Model Engineers, appellant, made application to Berks County Board of Assessment Appeals, appellee, for exemption from payment of real estate taxes for the 1999 tax year on the basis of being an institution of purely public charity. Appellee denied appellant’s request for exemption and appellant filed an appeal. Appellant contends that exemption should be granted pursuant to the provisions of the “Institutions of Purely Public Charity Act” of November 26, 1997, 10 P.S. §371 et seq., Act 55. Appellee contends that the provisions of Act 55 violate the Constitution of Pennsylvania, and in the alternative, that appellant fails to meets the requirements of Act no. 55 for exemption as an institution of purely public charity.

FINDINGS OF FACT

(1) Appellant owns a tract of land (premises) of 25.22 acres in the Township of Alsace, Oley Valley School District, Berks County, consisting of two parcels, including a .15 acre tract assessed at $600 (pin no. 22-5329-02-56-0300), and a 25.07 acre tract assessed at $169,700 fair market value and $93,000 clean/green pursuant to the Pennsylvania Farmland and Forest Land Assessment Act of 1974, 72 PS. §5490.2 et seq. (Pin no. 22-5329-01-45-5327.)

(2) The improvements located on appellant’s premises consist of, inter alia, a 40 feet by 80 feet two-story building (clubhouse) which includes an explorer boy scout post room for “HO” gauge scale train layout, a combined meeting room and library, museum, kitchen, and machine shop, and a “O” gauge scale train layout modeled after the Reading Railroad; also located on appellant’s premises is a sheet metal building, station, two watchman shanties, screened picnic pavilion with kitchen, and a 15-inch gauge railroad track 4,000 feet in length with nine switches, passing tracks, roundhouse and turntable; the operable equipment used on the 15-inch gauge railroad track includes a diesel locomotive with seven cars and caboose modeled after the Reading Railroad, as well as other locomotives and railroad cars and equipment, some of which were constructed by appellant’s members and are depicted among picture exhibits 5A through L.

(3) Appellant was chartered as a nonprofit corporation by Berks County Court of Common Pleas on October 11, 1999, having been organized by a group of 10 Reading residents interested in preserving the history and tradition of the Reading Railroad, which played a vital role in the community for many years.

(4) Appellant’s membership consists of 83 persons classified as 28 active, 10 associate, 9 student, 11 contributing, and 25 participating, and of the total membership, 44 members reside in Berks County; some of the active members started as student members, became associate and finally active members.

(5) Appellant’s premises are accessible at any time to appellant’s members, each of whom has a key for access to the premises.

(6) Appellant’s members maintain and use the premises, construct, maintain and use the improvements, and construct, maintain, use and operate the equipment, all as described in findings nos. 1 and 2; appellant’s members use and maintain the machine shop located in the clubhouse for constructing and maintaining improvements and equipment and for instructing appellant’s members on proper usage of the machine shop, including instruction on maintenance and operation of steam engines and boiler construction and maintenance.

(7) Appellant sponsors and supervises a local boy scout explorer post which meets in the clubhouse, and under instruction by appellant’s members the scouts work on construction of the “HO” gauge train layout which also includes panels for an operating layout, stations, buildings and scenery; three of appellant’s members serve as leaders of the scouts, and appellant pays the membership fees for the scouts.

(8) The contents of the museum and library located in the clubhouse include, inter alia, memorabilia of Reading Railroad, exhibits demonstrating steam engine operations, plate glass negatives showing engines, slides showing locomotives, cars and stations of the Reading Railroad, 400 pen and ink original drawings of Reading Railroad locomotives and special cars, trade magazines, manuals for car builders, encyclopedias, rosters of locomotives, and artifacts including headlamps; visitors are allowed access to the museum and library without charge and certain of said museum and library contents may be borrowed without charge by non-members of appellant interested in engineering or historical research, or copies of certain items are provided by appellant to interested persons at cost of reproduction.

(9) Appellant is exempt from federal income tax under section 501(a) of the Internal Revenue Code as an organization described in section 501(c)(3) of the code.

(10) Articles of amendment of appellant, a nonprofit corporation, dated August 9, 1997 provide, inter alia, that no part of the net earnings of the corporation shall inure to the benefit of its members or other private parties, and that upon dissolution the corporation assets shall be distributed for one or more exempt purposes within the meaning of section 501(c)(3) of the Internal Revenue Code, or to federal, state or local government for a public purpose.

(11) The annual dues are $125 for appellant’s active members, $100 for associate members, and $25 for student members; other sources of income are donations and gifts.

(12) Appellant had total receipts of $14,000 in 1998, $12,000 in 1997 and slightly over $17,000 in 1996; in 1999 appellant’s receipts have exceeded expenditures by approximately $1,000, in 1998 receipts exceeded expenditures by $263, and in 1997 expenditures exceeded receipts by $947.

(13) No payments are made for services rendered by appellant’s members and any excess of receipts over expenditures is used for conducting appellant’s above described activities.

(14) Appellant’s premises are open to the public on the first Sunday of each month starting after Memorial Day to the first Sunday in September, and on two open house days held each year, during all of which times indoor and outdoor equipment is operated by appellant’s members for benefit of members of the public, including rides on the 15-inch gauge railroad; separate organized groups of members of the public such as a playground association, bible study groups, blind association members, the Historical Society of Berks County, are admitted to the premises occasionally by special arrangement for use of the facilities including the picnic pavilion and for rides on the 15-inch gauge railroad; prior to any train rides groups of visitors, including any children, are instructed as to safety precautions, and are also given general safety instructions pertaining to railroad crossings and staying off of railroad property.

(15) During the Christmas season starting Thanksgiving until New Year’s day appellant provides a “HO” gauge scale train layout for display at Gring’s Mill public park which is open to the public.

(16) Visits to appellant’s premises by members of the public on those days when open to the public, or to organized groups of persons by special arrangement, are without charge but voluntary contributions are invited by appellant.

(17) Appellant has a written policy that it does not charge for its services, the particular wording of such policy not having been disclosed by the evidence presented.

(18) Appellant advertises in the press and through Berks County tourist promotion agency that its facilities are open to the public, “admission by donation” or “admission free,” the frequency, nature, extent and content of such advertising not having been disclosed by the evidence presented.

DISCUSSION

Constitutionality of Act No. 55

Article Yin, Section 2(a) of the Constitution of the Commonwealth of Pennsylvania provides in part as follows: “The General Assembly may by law exempt from taxation:... (v) Institutions of purely public charity....”

The General County Assessment Law, 72 P.S. §5020-204(a)(3) provides that the following property shall be exempt from all county, city, borough, town, township, road, poor and school tax:

“All hospitals, universities, colleges, seminaries, academies, associations, and institutions of learning, benevolence, or charity including fire and rescue stations, with the grounds thereto annexed and necessary for occupancy and enjoyment of the same, founded, endowed, and maintained by public or private charity: Provided, that the entire revenue derived by the same be applied to the support and to increase the efficiency and facilities thereof, the repair and the necessary increase of grounds and buildings thereof, and for no other purpose: ....”

Until the enactment of the Institutions of Purely Public Charity Act on November 26,1997, the judiciary had the sole role of interpreting this tax exemption provision of the General County Assessment Law pertaining to “public or private charity.”

In Hospital Utilization Project v. Commonwealth, 507 Pa. 1, 22, 487 A.2d 1306, 1317 (1985), the Supreme Court of Pennsylvania established the following five requirements for qualification as a purely public charity: (1) advances a charitable purpose; (2) donates or renders gratuitously a substantial portion of its services; (3) benefits a substantial and indefinite class of persons who are legitimate subjects of charity; (4) relieves the government of some of its burden; and (5) operates entirely free from private profit motive.

Following the HUP decision of 1985 the Supreme Court and other Pennsylvania courts have been following this case and applying the standards set forth therein. However, effective November 26,1997 the General Assembly enacted Act 55, which tracks the language of the HUP standards but sets forth specific criteria for an institution to qualify as a purely public or private charity entitled to exemption from taxation pursuant to General County Assessment Law. The legislative intent of Act 55 is stated in 10 PS. §372(b) as follows:

“It is the intent of the General Assembly to eliminate inconsistent application or eligibility standards for charitable tax exemptions, reduce confusion and confrontation among traditionally tax-exempt institutions and political subdivisions and ensure that charitable and public funds are not unnecessarily diverted from the public good to litigate eligibility for tax-exempt status by providing standards to be applied uniformly in all proceedings throughout this Commonwealth for determining eligibility for exemption from state and local taxation which are consistent with traditional legislative and judicial applications of the constitutional term “institutions of purely public charity.”

Appellee contends that by enactment of Act 55 the legislature usurped the judiciary’s role of interpreting Article VIII, Section 2(a)(v) of the constitution authorizing the general assembly to exempt from taxation institutions of purely public charity. On the contrary, Article VIII, Section 2(a)(v) authorizes the legislature to enact laws exempting from taxation those institutions of purely public charity which the legislature desires to exempt, including legislative standards that must be met to qualify for such exemption. However, it is the responsibility, of the courts to determine the scope of Article VIII, Section 2(a)(v) and whether particular legislation can be accommodated as coming within the confines of this constitutional provision. See Community Option Inc. v. Board of Property Assessment, Appeals and Review, (Allegheny Cty., nos. GD97-7953, GD97-27, AD 98-499 (1999)).

When legislative enactments are challenged the courts give the legislature the benefit of the doubt. This approach is stated in In re Petition to Recall Reese, 542 Pa. 114, 119, 665 A.2d 1162, 1164 (1995) as follows:

“[A]ll legislative enactments are presumed to be constitutional, ... and this presumption can be rebutted only if the legislation clearly, palpably, and plainly violates the constitution. The party arguing the unconstitutionality of a legislative enactment has a heavy burden to sustain such a claim.” (citations omitted)

Prior to the enactment of Act 55, in the absence of specific legislative standards, the courts determined the scope of the provision of the General County Assessment Law authorizing the granting of exemptions from taxation of certain charitable institutions and determined the requirements for qualifying for such exemption. HUP, supra. If legislative standards had existed the courts would have addressed the constitutionality of such standards rather than unilaterally developing their own constitutional analysis. However, now that Act 55 has been enacted the question is not whether such legislation is consistent with judicial criteria created in the absence of legislation, but whether the legislation setting forth standards for exemption for an institution of purely public charity “clearly, palpably, and plainly violates the constitution.”

Appellee’s only contention challenging the constitutionality of Act 55 is that the legislature by establishing standards for tax exemption in Act 55 thereby usurped the judiciary’s role in interpreting Article VIII, Section 2(a)(v) of the constitution. Appellee does not challenge the constitutionality of any specific provisions of Act 55. Appellee’s contention is therefore denied.

Compliance with Act 55 Standards for Tax Exemption

Section 5 of Act 55, 10 P.S. §375, specifies the criteria for institutions of purely public charity in subsections (b), (c), (d), (e) and (f), and provides in subsection (a) that “An institution which meets the criteria specified ... shall be considered to be founded, endowed and maintained by public or private charity.”

Charitable Purpose

Subsection (b) entitled “charitable purpose” provides that this standard is satisfied if the institution is organized and operated primarily to fulfill any one or combination of six enumerated purposes. Appellant contends that among the enumerated standards, appellant qualifies under “(2) advancement and provision of education. . . .” and “(6) Accomplishment of a purpose which is recognized as important and beneficial to the public and which advances social... objectives.”

Appellant was organized for preservation of the history and tradition of the Reading Railroad, which played a vital role in the Reading community and Pennsylvania for many years. Appellant’s members maintain appellant’s premises and construct, maintain and operate the improvements and equipment on the site, and also make particular use of the machine shop for such construction and maintenance and for instruction of appellant’s members, with particular emphasis on boilers and steam engines.

Appellant’s members also maintain and utilize the museum and library located on the premises, which facilities contain, inter alia, memorabilia of the Reading Railroad, exhibits, slides, drawings, magazines, manuals for car builders, encyclopedias, rosters of locomotives, all pertaining to the history of railroading, and which museum and library, including copies of the various documents, are also available to and are used not only by appellant’s members but also non-members interested in engineering and research as well as members of the general public.

Appellant’s gradation of membership includes student and associate members who are able to progress to the higher classification of active membership. Appellant sponsors supervise and instmct the members of an explorer boy scout troop which is devoted to construction, maintenance and operation of an “HO” gauge train layout including panels, stations, buildings and scenery. During visits to the premises of appellant by members of the general public and by organized groups for rides on the 15-inch gauge railroad, visitors learn of the history of the railroad, view the various types of locomotives and railroad cars, and are instructed on safety measures pertaining to railroad crossings and property. Appellant also provides a “HO” gauge scale layout for display during the Christmas season at Gring’s Mill public park. Appellant is the only institution in Berks County offering such a broad educational program on railroading, which fulfills the charitable purpose of subsection (b)(2), that of “advancement and provision of education.”

The above mentioned participation by members of the general public, plus the visits by organized groups to the premises and usage not only of the train rides but also the picnic pavilion and kitchen, as well as visits to the museum and library, fulfill another aspect of charitable purpose as set forth in subsection (b)(6), that of “accomplishment of a purpose which is recognized as important and which advances social... objectives.”

Private Profit Motive

Subsection (c) entitled “private profit motive” provides that “[t]he institution must operate entirely free from private profit motive.” Appellant meets all the four requirements of this subsection in that none of the monies received inure to the benefit of any members or other individuals as interpreted under section 501(c)(3) of the Internal Revenue Code, appellant applies all revenues in excess of expenses to its charitable purpose, none of appellant’s members are compensated for services rendered, and appellant’s articles of incorporation prohibit the use of any surplus fund for private inurement to any person in event of dissolution. Appellee concedes that appellant complies with this subsection (c) standard.

Community Service

Subsection (d)(1) entitled “community service” provides that “[t]he institution must denote or render gratuitously a substantial portion of its services,” and that this criteria is satisfied if the institution benefits the community by actually providing any one of seven enumerated types of goods and services.

Appellant contends that it provides the following:

“(i) Goods or services to all who seek them without regard to their ability to pay for what they receive if all of the following apply:

“(A) The institution has a written policy to this effect.

“(B) The institution has published this policy in a reasonable manner.

“(C) The institution provides uncompensated goods or services at least equal to 75 percent of the institution’s net operating income but not less than 3 percent of the institution’s total operating expenses.”

Although appellant’s witness testified that appellant has a written policy that appellant does not charge for services (N.T. p. 36), neither a copy of such written policy, nor the contents thereof, were produced. Also, appellant’s witness testified that in appellant’s advertising it states that the policy is not to charge (N.T. p. 36), and that appellant advertises in the press and through Berks County tourist promotion agency that its facilities are open to the public, “admission by donation” or “admission free” (N.T. p. 32). However, the detailed content of such advertising, copies thereof, the frequency thereof, and the particular press medium utilized and the extent thereof, were not disclosed. Consequently, the evidence presented does not meet the requirements of subsections (A) and (B) that appellant has a written policy, the actual contents not having been disclosed, and that whatever written policy has been published in a “reasonable manner.”

As concerns subsection (C) requiring that the institution provide uncompensated goods and services at least equal to 75 percent of net operating income but not less than 3 percent of total operating expenses, no details of income and expenses were disclosed by the evidence other than annual surplus or deficit, but since all revenues are devoted to appellant’s maintenance and operations, this requirement is seemingly satisfied.

Inasmuch as the evidence is deficient as concerns subsection (A) and (B), appellant has failed to satisfy the requirements of the standard pertaining to community service.

Charity to Persons

Subsection (e)(1) entitled “charity to persons” provides that “[t]he institution must benefit a substantial and indefinite class of persons who are legitimate subjects of charity.” Subsection (e)(2) defines “legitimate subjects of charity” as “[tjhose individuals who are unable to provide for themselves with what the institution provides for them,” and defines “substantial and indefinite class of persons” as “[pjersons not predetermined in number, provided that, where the goods or services are received primarily by members of the institution, membership cannot be predetermined in number and cannot be arbitrarily denied by a vote of the existing members.”

Appellant contends that members of the general public, the explorer scouts, playground association, bible study and blind association groups are not in a position to provide for themselves the services, education and entertainment provided by appellant, and that research historians and engineers have no other source where they have access to Reading Railroad exhibits and memorabilia.

Although appellant requires no particular payment for visitors to access its premises and services, it does invite “admission by donation” or “admission free,” and thus appellant does serve at least some members of the general public, including children, with services at no charge. Further, visits to appellant’s premises are not confined to privileged individuals but are open to the indefinite public insofar as identity of persons is concerned.

However, although a particular number of persons who benefit from whatever extent of services is not controlling but the totality of circumstances must be taken into consideration, the evidence in this case does not establish that a “substantial” class of persons benefit and who are legitimate subjects of charity. Appellant’s premises are open to the general public only six days out of the year including the first Sunday of each month following Memorial Day to the first Sunday of September plus two days of open house, and are open occasionally to organized groups by special arrangement. Consequently, the persons who benefit primarily from the use of appellant’s premises, improvements and operations are, for the most part, appellant’s dues-paying members who have a key for access to the premises at any time.

Appellee’s primary function is therefore in the nature of a club for members interested in railroading rather than a charitable undertaking. Although making appellant’s premises, improvements and operations available to the general public on a very limited basis is commendable, appellant is not an institution that benefits a substantial and indefinite class of persons who are legitimate objects of charity as required by subsection (e)(1).

Government Service

Subsection (f)(1) entitled “government service” provides that “[t]he institution must relieve the government of some of its burden.” This criterion is satisfied if the institution meets any one of five categories. Appellant contends it meets category (4) in that it “[pjrovides a service to the public which directly or indirectly reduces dependence on government programs or relieves or lessens the burden borne by government for the advancement of social, moral, educational or physical objectives.”

As previously discussed in detail under the heading “charitable purpose,” appellant is the only institution in Berks County offering education, a library and museum, opportunity for research, and technical training concerning railroading, as well as recreational opportunities including rides on a 15-inch gauge railroad. The history of the contribution of the railroads to the economic development of the United States, and particularly the contribution of the Reading Railroad to the economic development of Pennsylvania including Berks County, is of vital importance as part of the education of both appellant members as well as the general public. The services provided by appellant therefore lessens the burden borne by government for the advancement of educational and social objectives as required by category (4).

CONCLUSIONS OF LAW

(1) Act 55 of November 26, 1997, known as Institutions of Purely Public Charity, 10 P.S. §372 et seq., is not in violation of Article VIII, Section 2, of the Constitution of Pennsylvania for the mere reason that Act 55 provides criteria or standards for an institution to be considered founded, endowed and maintained by public or private charity for purpose of exemption from local real estate taxation under provisions of the General County Assessment Law, 72 P.S. §5020-204(3).

(2) Appellant meets the criteria for institutions of purely public charity as required by Act 55 section 375(b) entitled charitable purposes, section 375(c) entitled private profit motive, and section 375(f) entitled government service, 10 P.S. §375(b), (c) and (f).

(3) Appellant fails to meet the criteria for institutions of purely public charity as required by Act 55 section 375(d) entitled community service, and section 375(e) entitled charity to persons, 10 P.S. §375(d) and (e).

(4) Appellant fails to meet all of the five criteria for an institution of purely public charity as required by Act 55 section 375(a), 10 P.S. §375(a), and therefore cannot be considered to be founded, endowed and maintained by public or private charity.

(5) Appellant and its property consisting of 25.22 acres, does not qualify for exemption from local taxation under the General County Assessment Law, 72 P.S. §5020-204(a)(3), as an institution of charity founded, endowed and maintained by public or private charity.

ORDER

December 15, 1999, it is ordered that the appeal of Reading Society of Model Engineers, appellant, from the decision of the Board of Assessment Appeals denying exemption from taxation of appellant’s property consisting of 25.22 acres, is hereby denied, whereby said property shall remain subject to local real estate taxation.


source: Caselaw Access Project

author: GARDNER, P.J.,

license: Public Domain

text:
    Sheftel v. Allentown Jewish Community Center

      C.P. of Lehigh County,
    no. 1997-C-0392.

      James E. Collerón Jr., for plaintiffs.

      Frank A. Baker III, for defendant.
    November 17, 1999
   GARDNER, P.J.,

This matter is before the court on the motion of defendant, Allentown Jewish Community Center for summary judgment, filed July 30,1999. Plaintiffs’ answer to defendant, Allentown Jewish Community Center’s motion for summary judgment was filed August 17,1999. Oral argument was held November 17, 1999.

Immediately upon conclusion of oral argument, in open court, on the record, and in the presence of counsel for the parties, we dictated the within bench opinion. For the reasons expressed below, we deny the motion for summary judgment.

This is a personal injury action brought on behalf of minor plaintiff, Samantha Brooke Sheftel. On July 24, 1995,6-year-old Samantha allegedly fell in a hole while running unsupervised at defendant’s day camp, where she was enrolled for a summer program. Her parents bring this action to recover for her personal injuries.

Defendant moves for summary judgment, arguing that plaintiffs have established merely the occurrence of an accident. Defendant contends that plaintiffs have failed to prove either the existence of a dangerous condition or that defendant had notice of such a condition. Defendant also contends that plaintiffs’ claims are barred under the Pennsylvania Recreational Use of Land and Water Act, 68 Pa.C.S. §§477-1 to 477-8. For the following reasons we disagree.

Minor plaintiff was an invitee at defendant’s camp. The duties owed by a possessor of land to an invitee concerning a dangerous condition of the land are enumerated in section 343, Restatement (Second) of Torts. This section has been adopted as the law of Pennsylvania in Blackman v. Federal Realty Investment Trust, 444 Pa. Super. 411, 664 A.2d 139 (1995). It provides that a possessor of land is subject to liability for physical harm caused to its invitees by a condition on the land if the possessor knows of, or by the exercise of reasonable care would discover, the condition; and should realize that it involves an unreasonable risk of harm to such invitees; and should expect that they will not discover or realize the danger, or will fail to protect themselves against it.

Plaintiff camper was 6 years old at the time of the alleged accident. She was participating in a camp activity known as eco-ball. In this activity, the children run around the camp, picking up as much garbage as possible. The camper who gathers the most refuse within the prescribed time limits wins a prize. The game is followed by an educational discussion of ecology and the cycle of life.

Plaintiffs have produced evidence, which, if accepted by the fact-finder, would establish that the camp had notice of, or by the exercise of reasonable care should have discovered, a condition of animal holes on their property.

Stewart “Ozzie” Irwin, the camp director, testified in his deposition that he had seen gopher holes and animal holes and things of that nature from time to time on the property, that they existed in 1995, and that he toured the campgrounds each day that year on foot. Terry D. Neff, executive director of the camp, testified in his deposition that he had seen gopher holes or animal holes on the property from time to time. Plaintiff Leslie B. Sheftel, Samantha’s mother, testified in her deposition that there were always animal holes at the campground, that the children complained about those holes for years, and that she specifically complained of those holes to the camp committee in the spring of 1995 prior to the commencement of camp.

In addition, the counselor manual for Day Camp 1995 requires counselors to commence a daily inspection of the camp area for safety reasons “to note any danger . .. so that campers and counselors may be made aware of them. Also, daily checks are important to clean away broken bottles, sharp sticks, etc.”

From the foregoing, the jury could conclude that defendant knew, or should have known, of potentially dangerous holes in its campground. Defendant disputes that such holes existed and that it had notice, or should have had notice, of them. However, this is a factual dispute for resolution by the jury.

We also reject defendant’s contention that it is immune from this lawsuit under the Pennsylvania Recreational Use of Land and Water Act. We find that the immunity provisions of that Act do not apply to defendant because the land was improved, because plaintiff’s activity on the land was not the type of recreational activity covered by the Act, and because the camp was not open to members of the general public free of charge for such recreational activity.

First, the bylaws of defendant Allentown Jewish Community Center provided that members pay dues. Moreover, the camp enrollment form provides that campers must be Jewish Community Center members in good standing.

In addition, campers were required to pay a fee to attend the eight-week summer day camp held on this 55-acre camp property. Defendant argues that the cost to attend the camp is incidental to entering the property and, accordingly, such fee does not deprive a defendant of its immunity under the Act. Defendant relies upon a number of cases cited in its briefs for this proposition.

We find those cases to be distinguishable. This issue is controlled by Mills v. Commonwealth of Pennsylvania, 534 Pa. 519, 633 A.2d 1115 (1993). The Mills case involved personal injuries to two patrons of Penn’s Landing in Philadelphia when they stepped into holes on the property while approaching activities there. Penn’s Landing is a three-acre tract of land along the west bank of the Delaware River in the City of Philadelphia. The area is open to the public free of charge. However, fees are assessed for entrance to various exhibits, concerts and activities. The court held that the owner was not entitled to immunity pursuant to the Act.

We also conclude that defendant is not entitled to immunity because defendant’s land was improved. It was not vacant woodland or gameland. The camp property contains 24 buildings and improvements, including camp buildings, a swimming pool and tennis courts. As indicated in Mills, supra, this type of improved property is not the type of property covered by the Recreational Use of Land and Water Act, even though the injuries may have occurred in an unimproved portion of the property.

Finally, the type of activity which plaintiff was engaged in does not meet the definition of “recreational purpose” in the Act. The Act defines recreational purpose as including “hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports, cave exploration and viewing or enjoying historical, archeological, scenic, or scientific sites.” 68 Pa.C.S. §477-2(3). Plaintiff’s participation in eco-ball, as described above, with its educational components and its competitive components, does not meet the definition of the Act.

Moreover, according to its publications and staff, defendant’s camp exists to foster the social, recreational and educational growth of its youngsters and provides an atmosphere for campers to learn Jewish history and culture. This, too, is different from the recreational purpose contemplated by the Act. See Mills, supra; Walsh v. City of Philadelphia, 526 Pa. 227, 585 A.2d 445 (1991); and Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo Inc., 510 Pa. 1, 507 A.2d 1 (1986).

For all the foregoing reasons, we deny the motion for summary judgment.

ORDER

Now, November 17, 1999, upon consideration of the motion of defendant, Allentown Jewish Community Center for summary judgment, filed July 30,1999; upon consideration of plaintiffs’ answer filed August 17,1999; upon consideration of the briefs of the parties; after oral argument held this date; and for the reasons expressed in the accompanying bench opinion, it is ordered that the motion for summary judgment is denied.

      . Notes of testimony of the deposition of Stewart Irwin, August 12, 1998, p. 58,11. 7-17. See exhibit I to plaintiffs’ answer to defendant, Allentown Jewish Community Center’s motion for summary judgment.

      . Notes of testimony of the deposition of Terry D. Neff, March 24, 1998, p. 125,11. 13-16. See exhibit D to plaintiffs’ answer.

      . Notes of testimony of the deposition of Leslie B. Sheftel, March 24, 1998, p. 27,1. 5 to p. 30,1. 17. See exhibit J to plaintiffs’ answer.

      . See exhibit U to plaintiffs’ answer, p. 65, item 3.

      . See article 3, section 1 of the bylaws of the Jewish Community Center of Allentown, Pennsylvania, exhibit T to plaintiffs’ answer, p. 2.

      . See terms of enrollment, ¶1, which is attached as exhibit A to plaintiffs’ memorandum of law in opposition to the motion of defendant Allentown Jewish Community Center to amend its answer/new matter, filed February 6, 1998.


author: BLACK, J.,

text:
    Ward v. Torchia
    C.P. of Lehigh County,
    no. 96-C-1540.

      Richard W Shaffer Jr., for plaintiffs.

      Patrick J. Reilly, for defendant.
    June 6, 2000
   BLACK, J.,

Now, May 30, 2000, fol-

lowing trial without jury, the court makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

(1) At all material times plaintiff Edmond Ward was the owner of a dwelling located at 7612 Chestnuthill Church Road, Coopersburg, Lehigh County, Pennsylvania.

(2) At all material times defendant Jasper A. Torchia was a real estate broker licensed to do business in the Commonwealth of Pennsylvania and trading as Re/Max Preferred Realty.

(3) Prior to May 26,1994, Ward engaged Torchia as a broker to list the property for sale.

(4) During the listing period Ward did not reside in the property, which was vacant.

(5) Torchia scheduled a showing of the property for Sunday, May 29,1994, during Memorial Day weekend.

(6) Ward spent this weekend on his boat in Maryland. Before leaving for Maryland, he notified Torchia of his intended whereabouts and provided a telephone number at which he could be reached in Maryland.

(7) In accordance with common practice among real estate brokers, a key to the property was kept in a lockbox at the property with the combination to the lockbox controlled by the real estate broker, in this case Torchia.

(8) On Thursday, May 26, 1994, Torchia authorized another person to enter the property and provided that person with the lockbox combination.

(9) Torchia claims that he has no record or recollection of the identity of the person he authorized to go through the property on May 26, 1994, and despite requests, he has failed to provide the identity of this person to Ward.

(10) The unidentified person who entered the property on May 26,1994, turned on the hot tub and then left without turning it off.

(11) On Saturday, May 28,1994, Alvin Brown, a real estate agent employed by Torchia, entered the premises to check on the property prior to the showing scheduled the following day.

(12) Brown discovered that the hot tub was still running, but he was unable to turn it off. He promptly informed Torchia of this problem by telephone that same day.

(13) Upon receiving the telephone information about the hot tub from Brown, Torchia telephoned Ward’s Lehigh County residence, even though he knew Ward was then in Maryland for the weekend. Torchia left a voice mail message for Ward that the hot tub had been left on, that the basement was getting damp, and that he was afraid damage might occur. Torchia also stated that if he did not hear from Ward, he (Torchia) would make arrangements for the tub to be shut off.

(14) Ward did not learn of this message until Monday, May 30,1994, when he called home to retrieve the messages on his answering machine.

(15) Torchia did not take any steps to arrange for the tub to be shut off on May 28,1994, or at any other time.

(16) When Ward returned home on May 30,1994, and inspected the property, he found that the basement had sustained considerable damage.

(17) The damage to the property, was in the amount of $34,613.61.

(18) Some of the damages may have occurred between May 26, 1994, and May 28, 1994.

(19) Ward was unable to reach Torchia until Wednesday, June 1, 1994, at which time Torchia claimed he did not know the identity of the person who had entered the property on May 26, 1994, and had no record of this person.

(20) As a result, Ward has been unable to ascertain the identity of the person who entered the property on May 26, 1994, and left without turning off the hot tub.

CONCLUSIONS OF LAW

(1) The unidentified individual who turned on the hot tub on May 26,1994, and left the property without turning it off, was negligent.

(2) From Torchia’s failure to identify that person, either through his business records or from his recollection, we infer that the unidentified person was either an employee of Torchia or a person who was unsuitable to enter the property without supervision.

(3) Torchia is legally responsible for the negligent acts of this unidentified individual, either vicariously if the individual was an employee of Torchia, or by direct negligence if he allowed an unsuitable person to enter the property unsupervised.

(4) Torchia’s aforesaid negligence was a substantial factor in causing damage to the property in the amount of $34,613.61.

(5) Torchia was also negligent in failing to maintain a record of the identity of the person whom he authorized to go through the property on May 26, 1994.

(6) Torchia’s aforesaid negligence was a substantial factor in causing harm to Ward, in that Ward has been unable to pursue this person for the damage to the property in the amount of $34,613.61.

(7) Torchia was also negligent on May 28,1994, after learning that the hot tub was still on (a) in leaving a voice mail message regarding this problem at Ward’s home in Lehigh County when Torchia knew that Ward was away that weekend in Maryland; and (b) in failing to take appropriate steps to arrange for the hot tub to be turned off when he did not hear back from Ward that same day.

(8) Torchia’s aforesaid negligence on May 28, 1994, caused substantial damage to Ward’s property.

(9) Since Torchia’s agent, Alvin Brown, was the only person to enter the property on May 28,1994, and Brown and Torchia were the only persons with knowledge on that date that the property may have been damaged, proof of the extent of damage existing as of May 28, 1994, if any, was within the exclusive control of Torchia and his agent, Brown. Therefore, Torchia has the burden of proving the extent of the damage that occurred on or before that date.

(10) Although some of the damage to the property may have occurred prior to May 28,1994, Torchia has failed to prove the amount of damages, if any, that occurred prior to this date. Therefore, he is liable to Ward for the entire damages of $34,613.61.

(11) Ward is not guilty of contributory negligence in causing the aforesaid damage.

(12) Judgment shall be entered in favor of Ward against Torchia in the amount of $34,613.61.

DISCUSSION

The unusual set of facts in this case raises some interesting legal issues. Torchia does not dispute the amount of the damage to the property or that this damage resulted from the failure to turn off the hot tub that had been turned on on May 26,1994. Nor does Torchia deny that he failed to take appropriate steps on May 28,1994, upon discovery of the problem, to notify Ward or to make arrangements to turn off the hot tub. Instead Torchia argues that he is not responsible for the actions of the unidentified person who entered the property on May 26, 1994; and that since some of the damages had already occurred prior to May 28, 1994, Ward cannot prove the amount of damages from Torchia’s inaction on that date.

Torchia’s argument is clever, but in the final analysis unconvincing. We believe there are three separate bases on which Torchia is liable to Ward.

First Basis of Liability

A cause of action for negligence, requires (a) the existence of a legal duty, (b) a breach of that duty, (c) damages, and (d) a causal connection between the breach of duty and the damages incurred. Martin v. Evans, 551 Pa. 496, 711 A.2d 458 (1998); Filter v. McCabe, 733 A.2d 1274 (Pa. Super. 1999). There can be no question but that the individual who turned on the hot tub on May 26, 1994, and left the premises without turning it off was negligent. We believe that Torchia’s failure to identify this individual creates an inference that disclosure of the identity of this person would be unfavorable to him. We find it incredible that a week after authorizing an individual to enter the premises, Torchia could not recall the indentity of that individual. His failure to provide this information, either through his business records or from his personal recollection, justifies our conclusion that disclosure of the identity of this person would be unfavorable to him.

It is well established in Pennsylvania that a party cannot benefit by withholding or destroying evidence. Where this occurs, an adverse inference may be drawn against the party responsible for the withholding or spoliation of evidence. Duquesne Light Co. v. Woodland Hills School District, 700 A.2d 1038, 1050 (Pa. Commw. 1997), allocatur denied, 555 Pa. 722, 724 A.2d 936 (1998). As long ago as 1898 this principle was set forth by the Pennsylvania Supreme Court in McHugh v. McHugh, 186 Pa. 197, 201, 40 A. 410, 411 (1898) as follows:

“The spoliation of papers and the destruction or withholding of evidence which a party ought to produce gives rise to a presumption unfavorable to him, as his conduct may properly be attributed to his supposed knowledge that the truth would operate against him. This principle has been applied in a great variety of cases, and is now so well established that it is unnecessary to do more than state it.”

In the instant case we infer from Torchia’s failure to disclose the identity of the person who entered Ward’s home on May 26, 1994, that this person was either an employee of Torchia, for whose negligent acts Torchia would be vicariously liable, or was a person not suitable to enter the home without supervision. Under either scenario, Torchia is liable for the damage caused to Ward’s property by the negligent acts of that individual.

Second Basis of Liability

A real estate listing agent is an agent of the homeowner and, like any other agent, owes a fiduciary duty to his principal with respect to matters within the scope of his agency. See Restatement (Second) of Agency §13 (1957) (“An agent is a fiduciary with respect to matters within the scope of his agency.”). In exercising his agency authority to show the house to potential purchasers and other agents, the listing agent has a duty to use reasonable care to prevent damage to the property from these activities. In fulfilling this fiduciary obligation, a very basic duty of a listing agent is to keep a record of those persons he has authorized to enter the property, so that in the event damage occurs, the person causing that damage can be held responsible.

“Unless otherwise agreed, an agent is subject to a duty to use reasonable effort to give his principal information which is relevant to affairs entrusted to him and which, as the agent has notice, the principal would desire to have and which can be communicated without violating a superior duty to a third person.” Restatement (Second) of Agency §381 (1957), quoted with approval in Merrill Lynch, Pierce, Fenner & Smith v. Perelle, 356 Pa. Super. 65, 183, 514 A.2d 552, 561 (1986).

In this case, Torchia clearly breached his fiduciary duty by failing to keep a written record of the person authorized to enter the home on May 26, 1994, and by failing to recall the identity of this person a week later. At trial Torchia testified that he thought it might be someone associated with the Patt, White Agency, a very respectable real estate firm in the Lehigh Valley. However, we find this disclosure at trial in May 2000, very suspicious. Torchia was unable to provide any information six years ago shortly after the incident. Since Torchia failed to provide Ward with any information about the identity of the person back in 1994, and since there were then operating in the Lehigh Valley literally hundreds of real estate agents, it is understandable that Ward has been unable to ascertain the identity of the person who entered the property on May 26,1994. Because of this inability, Ward could not bring legal action against that person to recover for the damage to the property.

We are aware that in Caldwell v. City of Philadelphia, 358 Pa. Super. 406, 517 A.2d 1296 (1986), allocatur denied, 517 Pa. 597, 535 A.2d 1056 (1987), the Pennsylvania Superior Court refused to sanction a suit by a pedestrian against the City of Philadelphia for injuries in a motor vehicle accident based on the theory that the police had failed to identify the driver before he left the scene. The difference between that case, however, and the instant case is that under Pennsylvania law the police do not have a duty to potential tort claimants to identify motor vehicle operators, whereas a real estate broker does have a clear duty to the property owner under principles of agency law.

This case is analogous to the spoliation cases where the destruction of evidence has affected adversely the right of a party to proceed with legal action. In Schroeder v. PennDOT, 551 Pa. 243, 710 A.2d 23 (1998), the Pennsylvania Supreme Court adopted the three-part test enunciated by the Third Circuit Court of Appeals in Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994), where spoliation of evidence is asserted. In determining the proper penalty, the court is to consider the following: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) the availability of a lesser sanction that will protect the opposing party’s rights and deter future similar conduct.” Schroeder, 551 Pa. at 250, 710 A.2d at 27, accord Pia v. Perrotti, 718 A.2d 321 (Pa. Super. 1998), allocatur denied, 558 Pa. 621, 737 A.2d 743 (1999). We believe these same factors should be considered here where Torchia has failed to produce a record or provide a recollection of the identity of the person he authorized to enter the property. The failure to provide this evidence is clearly Torchia’s fault; the prejudice to Ward is severe; and there is no lesser sanction than the imposition of liability that will protect Ward’s interest and deter similar conduct in the future.

Third Basis of Liability

On May 28, 1994, upon learning of the running hot tub, Torchia understood that he had a duty to take steps to remedy this problem. However, the steps that he took were obviously inadequate. He made one phone call to Ward at his Lehigh County home, even though he knew that Ward was away for the weekend in Maryland. Ward had given Torchia his Maryland telephone number. Moreover, in the voice mail message that Torchia left at Ward’s Lehigh County home, Torchia said he would take care of the problem if Ward did not get back to him. Since Ward did not call him back immediately, Torchia should have made arrangements for someone to enter the property and turn off the hot tub. He did not do so. Clearly, Torchia’s inaction on May 28,1994, was a failure to use due care in fulfilling his duties as listing agent.

Torchia attempts to evade liability by claiming that some of the stipulated damages of $34,613.61 may have already occurred on May 26 and May 27. He relies on testimony by Alvin Brown, who six years later recalls vaguely that when he entered the property on May 28, 1994, the walls and ceiling tiles were wet and doors were not closing properly. Significantly, Brown was never asked by Torchia in 1994 about any such damage, and Brown’s recollection six years after the fact is suspect. At trial he testified that he could not even remember if the tub was on or if he tried to turn it off himself on May 28, 1994.

Torchia argues that the damage to the property was caused by the unidentified person who was given access to the property on May 26, 1994, and that Ward cannot recover against Torchia unless Ward can prove the extent of the damages that occurred on or after May 28, 1994. However, Pennsylvania’s rules on “apportionment of damages are consistent with those expressed in the Restatement (Second) of Torts . . . .” Martin v. Owens-Corning Fiberglas Corp., 515 Pa. 377, 381, 528 A.2d 947,949 (1987) (applying Restatement (Second) of Torts §§433A-434). Ordinarily, a plaintiff has the burden of proving a causal connection between the damages sustained and the negligent action or inaction of the defendant. However, “[wjhere the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor.

Restatement (Second) of Torts §433B(2) (1965). The commentary to this rule states:

“The reason for the exceptional rule placing the burden of proof as to apportionment upon the defendant or defendants is the injustice of allowing a proved wrongdoer who has in fact caused harm to the plaintiff to escape liability merely because the harm which he has inflicted has combined with similar harm inflicted by other wrongdoers, and the nature of the harm itself has made it necessary that evidence be produced before it can be apportioned. In such a case the defendant may justly be required to assume the burden of producing that evidence, or if he is not able to do so, of bearing the full responsibility. As between the proved tortfeasor who has clearly caused some harm, and the entirely innocent plaintiff, any hardship due to lack of evidence as to the extent of the harm caused should fall upon the former. ” Restatement (Second) of Torts §433B cmt. d (1965). (emphasis added) Whether all potential tort-feasors are included in the pending action is “immaterial.” See Restatement (Second) of Torts §433A cmt. a (1965).

This rule is especially applicable where, as here, the ability to obtain information about the cause of the damages was within the exclusive knowledge and control of the defendant. Since Ward did not learn of the problem until Monday, May 30, 1994, it was impossible for him to inspect the property on May 28, 1994. On the other hand, Torchia’s agent, Brown, was actually at the premises on May 28, 1994, and apprised Torchia then of the problem. Therefore, if the damage award is to be reduced on the theory that some of the damage had already occurred by May 28, it was incumbent upon Torchia to produce evidence on that issue. We find that Torchia has not produced any credible evidence that would enable us to quantify the damage that may have existed already on May 28, 1994. Therefore, we decline to reduce the figure stipulated to by the parties as the amount of the total damage to the property.

Finally, we have not found Torchia negligent for failing to inspect the property on May 26, 1994, after the unidentified individual had left the property. It may well be that a real estate listing agent has a duty to make such an inspection to check whether any damage has been done. However, such a finding would require expert testimony from a real estate professional as to the standard of care in this situation. Absent such expert testimony, we do not believe we can find Torchia negligent for failing to inspect the property on May 26, 1994. However, with respect to the three alternative bases on which we have found Torchia liable, expert evidence as to the standard of care is not required. A listing agent’s responsibility to keep a record of persons authorized by him to enter the premises and his obligation to take reasonable steps to protect the property upon learning that such a person has created a risk of harm are manifestly clear and obvious. Expert testimony is not required to establish a deviation from the standard of care “where the matter under investigation is so simple, and the lack of skill or want of care so obvious, as to be within the range of the ordinary experience and comprehension of even nonprofessional persons.” Chandler v. Cook, 438 Pa. 447, 451 n.1, 265 A.2d 794, 796 n.1 (1970), quoted with approval in Welsh v. Bulger, 548 Pa. 504, 513 n.11, 698 A.2d 581, 585 n.11 (1997) and Matthews v. Clarion Hospital, 742 A.2d 1111, 1112 (Pa. Super. 1999).

For all the foregoing reasons, we find that judgment should be entered in favor of Ward against Torchia for the sum of $34,613.61.

ORDER

Now, June 6, 2000, after trial without jury, based on the findings of fact and conclusions of law set forth in the accompanying decision, it is ordered that judgment be entered in favor of plaintiff, Edmond Ward, against defendant, Jasper A. Torchia, in the amount of $34,613.61.

      . The parties have stipulated to the amount of the damages.

      . The parties have stipulated that any judgment in this case is to be entered in favor of the individual plaintiff, Edmond Ward, only. The claim of Erie Insurance Exchange as subrogee is withdrawn.

      . For a contrary decision, see Clemente v. State, 40 Cal.3d 202, 707 P.2d 818, 219 Cal. Rptr. 445 (1985) (holding that state could be sued when highway patrol officer allowed a motorcyclist who had struck a pedestrian to leave the scene without obtaining his identity).


author: CHESLOCK, J.,

text:
    Freudenvoll v. Stavros

      C.P. of Monroe County,
    no. 8 Civil 1998.

      Kimberly Freudenvoll, pro se.

      Carl J. Guagliardo, for defendant Stavros.

      James M. Wetter and David S. Smacchi, for defendant Mellon Bank.
    April 10, 2000
   CHESLOCK, J.,

On January 10, 1996, at approximately midnight, while exiting Stavros Pizza Place Inc., plaintiff took one step out the doorway when she allegedly slipped and fell on ice located on the sidewalk directly in front of the entrance/exit to the pizzeria. As a result, plaintiff severely injured her left ankle. Subsequently, she commenced this action by filing a complaint on June 2, 1998. Plaintiff filed an amended complaint, a second amended complaint, and a third amended complaint on January 8, 1998, February 12, 1998, and April 13, 1998, respectively. On February 2, 1998, defendant, Theodore Llewelyn, filed an answer with new matter. Defendant Llewelyn filed a complaint joining Mellon Bank Inc. as an additional defendant on March 6, 1998. On May 12, 1998, Mellon Bank filed an answer to said joinder complaint. Additional defendant, Mellon Bank filed a motion for summary judgment and a brief in support thereof on October 28, 1999 and October 30, 1999, respectively. Said motion was denied by a court order dated December 6, 1999. On February 7,2000, Mr. Llewelyn filed a motion for summary judgment and a brief in support thereof. Additional defendant, Mellon Bank, filed a motion for summary judgment and a brief in support thereof on identical grounds on March 16,2000. Oral argument was heard before this court on April 3, 2000. Defendant Llewelyn and additional defendant, Mellon Bank, were present. Plaintiff failed to appear but filed a memorandum contesting said summary judgment motions on February 22, 2000. We are now ready to dispose of both summary judgment motions.

When ruling on such a motion, the court may consider pleadings, depositions, answers to interrogatories, admissions, and supporting affidavits. Pa.R.C.P. 1035.1. The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 653 A.2d 688 (1995). This court will view the record in the light most favorable to the non-moving party and all doubts concerning the existence of a genuine issue of fact must be resolved in that party’s favor. Dublin by Dublin v. Shuster, 410 Pa. Super. 1, 598 A.2d 1296 (1991). Summary judgment is only properly granted in cases where the right to judgment is clear and free from doubt. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

After reviewing the pleadings and plaintiff’s deposition testimony, we conclude that plaintiff has failed to establish the element of duty essential to a prima facie case of negligence. Therefore, defendants are entitled to summary judgment.

Defendants contend that plaintiff, by walking over the known and obvious danger of the snow and ice accumulation on the sidewalk to the pizzeria, assumed the risk of slipping and falling. Therefore, defendants owe no duty to the plaintiff.

It is undisputed that plaintiff was a business invitee of the pizzeria. Pennsylvania has adopted the principles set forth in the Restatement (Second) of Torts §§343 and 343A (1965), which govern the possessor’s liability to an invitee with respect to conditions on the land which are known to or discoverable by the possessor. Carrender v. Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983); Chiricos v. Forest Lakes Council Boy Scouts of America, 391 Pa. Super. 491, 571 A.2d 474, 476 (1990). Under the Restatement, a possessor of land is subject to liability if he:

“(a) knows or by the exercise of reasonable care would discover the condition and should realize that it involves an unreasonable risk of harm to such invitee, and

“(b) Should expect that they will not discover or realize the danger, or fail to protect themselves against it, and

“(c) Fails to exercise reasonable care to protect them against the danger.” Restatement (Second) of Torts §343 (1965).

However: “[a] possessor of land is not liable to his invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness.” Restatement (Second) of Torts §343A (1965).

A danger is “obvious” when “both the condition and the risk are apparent to and would be recognized by a reasonable man, in the position of the visitor, exercising normal perception, intelligence, and judgment.” Carrender, 503 Pa. at 185, 469 A.2d at 124, quoting Restatement (Second) of Torts §343A cmt. b. To be “known,” a danger must be known to exist and be recognized as dangerous and the probability and gravity of the threatened harm must be appreciated. Carrender, at 185, 469 A.2d at 124, quoting Restatement (Second) of Torts §343A cmt. b.

Typically, the question of whether a danger is known or obvious is usually a question of fact for the jury. Carrender, at 186, 469 A.2d at 124. However, where reasonable minds could not differ as to the conclusion, a court may make the decision. Id.

In the case at bar, the record reveals that plaintiff is a high school graduate of normal perception, intelligence, and judgment. In addition, before proceeding into the pizzeria, plaintiff was clearly aware of the snow and ice accumulation at the entranceway. This premise is supported by the following testimony of the plaintiff:

“Q. What I want to know is, when you went into the pizzeria — you were walking, right? Correct?

“A. Yes.

“Q. Did you walk over the area where you later fell?

“A. Yes.

“Q. When you were walking into the pizzeria, did you notice anything about the sidewalk?

“A. There was — like the day before we got lots and lots of snow. So it was snow and ice everywhere. I did notice the phone booth. The snow was up to the bottom of the phone. That’s how deep the snow was....

“Q. I had asked you before, when you were walking into the pizzeria what were the conditions of the sidewalks on your way in?

“A. On my way in? There was snow and ice all over. They weren’t cleaned off. You know what it looked like? Like when you shovel and there is ice under the snow. That was all left there. Like packed snow from it sitting.

“Q. On your way in, was any part of the sidewalks icy?

“A. Yes.

“Q. Was any part of the sidewalks clear on your way in?

“A. No, I don’t believe so....

“Q. Would it be fair to say after you made it into the pizzeria, you knew that the sidewalks leading up to the pizzeria were snow and ice covered?

“A. Yes....

“Q. Did you ever — maybe you wouldn’t go into the pizzeria because of the condition of the sidewalks?

“A. No.” (See deposition transcript of Kimberly Freudenvoll, pp. 16, 19, 20-21, and 47-48.)

Furthermore, common sense dictates that walking on ice bears the risk of slipping and falling. Nevertheless, plaintiff proceeded across the icy sidewalk to enter the pizzeria knowing that she would have to recross the icy sidewalk to exit the pizzeria. Furthermore, even with this knowledge, plaintiff consumed two shots of brandy and approximately one bottle of beer during her 45-minute stay inside the pizzeria.

In addition, nothing in the record indicates that notwithstanding the obviousness of the danger, the defendants should have anticipated that the snow and ice covered sidewalks might go unnoticed by pizzeria patrons. To the contrary, plaintiff testified that anyone entering or leaving the pizzeria on January 10,1996 could easily see the snow covered and icy condition of the sidewalk:

“Q. Is it your position that anyone entering or leaving the pizzeria that evening could easily see that condition?

“A. Yes.

“Q. Including you?

“A. Yes.

“Q. Is that the case, that you were easily able to ascertain there was some snow and ice there?

“A. Yes.” (See deposition transcript of Kimberly Freudenvoll, pp. 47-48.)

The facts of the case at bar are substantially similar to two cases: (1) Carrender, 503 Pa. 178, 469 A.2d 120; and (2) Ott v. Unclaimed Freight Co., 395 Pa. Super. 483, 577 A.2d 894 (1990). In Carrender, the plaintiff parked her car over an ice patch on an inclined parking lot used by patients of a chiropractor’s office. Plaintiff testified that she was aware of the icy surface before she alighted from her car and that other parking spaces were free of ice and snow. Id.

Nonetheless, plaintiff safely crossed the parking lot to the chiropractic clinic but slipped and fell on her return to her parked vehicle. Id. Our Supreme Court concluded that the ice patch was a known and obvious danger and the chiropractic clinic could have reasonably expected patients to avoid the ice patch. Id. at 187, 469 A.2d at 125. Therefore, the plaintiff failed to establish the duty element of a prima facie case of negligence. Id. at 187, 469 A.2d at 125.

In Ott, 393 Pa. Super. 483, 577 A.2d 894, while walking to a train station, the plaintiff took a shortcut through a parking lot and slipped and fell on a patch of ice. Plaintiff testified that she could see the ice and could distinguish it from the bare ground. Id. In addition, the plaintiff knew that the ice was slippery and that she could slip and fall and be injured. Id. On these facts, the court held that the defendants owed no duty to the plaintiff to remove the snow and ice. Id. at 492, 577 A.2d at 898.

Like the plaintiffs in Carrender and Ott, Ms. Freudenvoll was aware of the snow and ice accumulation at the entranceway to the pizzeria. Nonetheless, she proceeded to walk across it. Therefore, we conclude that plaintiff assumed the risk of her injuries and defendants owed no duty to plaintiff.

Plaintiff argues that she was not aware of the ice and snow conditions, and if she was aware of said conditions, 45 minutes was a sufficient time in which to forget said conditions. Plaintiff also emphasizes the fact that she slipped and fell after taking only one step outside the doorway. Therefore, the assumption of risk doctrine is inapplicable.

Plaintiff relies upon Hardy v. Southland Corp., 435 Pa. Super. 237, 645 A.2d 839 (1994), in support. In Hardy, the plaintiff entered a 7-Eleven store on a rainy day. Id. On her first step onto a wet linoleum floor, she slipped and fell. Id. Just before stepping onto the floor, the plaintiff glanced down and saw that it was wet. The Hardy court held that the assumption of the risk doctrine was inapplicable because no evidence indicated that plaintiff ever interrupted her normal walking gait, noticed the wet floor, pondered the danger, and then proceeded anyway. Id. at 241-42, 645 A. 2d at 841.

Hardy is distinguishable from the instant matter. Here, plaintiff had safely traveled over the conditions precipitating her fall less than an hour prior to taking her first step to exit the pizzeria. Therefore, she was aware of the conditions. However, in Hardy, the plaintiff first encountered the slippery surface as she was falling. Essentially, there was no time for her to consider whether she was going to assume the risk of walking over the wet linoleum.

The assumption of the risk doctrine has not been formally abolished in Pennsylvania. In Howell v. Clyde, 533 Pa. 151, 620 A.2d 1107 (1993), it was retained as part of a duty analysis and not as a part of the case to be determined by the jury. This approach preserves the public policy against “recovery for ‘self-inflicted’ injuries” while at the same time alleviating the difficulty of instructing a jury on voluntariness, knowledge, and scope of the risk. Id.

Under this approach, the court may determine that no duty exists only if reasonable minds could not disagree that the plaintiff deliberately, and with the awareness of specific risks inherent in the activity, nonetheless engaged in the activity that produced the injury. Id. at 163, 620 A.2d at 1113. Otherwise, the case would be submitted to the jury on a comparative negligence theory. Thus, there are two components to the doctrine: (1) the risk must be perceived; and (2) the risk must be faced voluntarily. Barrett v. Fredavid Builders Inc., 454 Pa. Super. 162, 166, 685 A.2d 129, 131 (1996),

Here, reasonable minds could not differ that plaintiff assumed the risk of her injury. Contrary to plaintiff’s argument that she “did not fully appreciate the conditions,” her deposition testimony clearly indicates that she saw the snow and ice. In her words, it was “everywhere.” Thus, plaintiff perceived the dangerous condition. Furthermore, common sense dictates that walking over icy surfaces bears the risk of slipping and falling. “There are some dangers that are so obvious that they will be held to have been assumed as a matter of law despite assertions of ignorance to the contrary.” Howell, 533 Pa. at 159 n.9, 620 A.2d at 1111 n.9. “Ice always is slippery, and a person walking on ice always runs the risk of slipping and falling.” Barrett, 454 Pa. Super, at 167, 685 A.2d at 131.

Plaintiff also proceeded to face the risk voluntarily. She was not employed by the pizzeria and did not have to enter it for employment purposes. Rather, her presence at the pizzeria was purely a social one. Plaintiff made the choice to frequent the pizzeria, knowing that she would have to walk over snow and ice to enter and exit it.

Due to the aforementioned, we enter the following order:

ORDER

And now, April 10, 2000, defendant Theodore Llewelyn, d.b.a. Stavros Pizza Place Inc.’s motion for summary judgment is hereby granted. Furthermore, additional defendant Mellon Bank Inc.’s motion for summary judgment is hereby granted.

      . In the above caption the original defendant is labeled Theodore Stavros. Theodore Stavros, also known as Theodore Llewelyn, is the owner/operator of Stavros Pizza.

      . Defendant, Theodore Llewelyn, d.b.a. Stavros Pizza, and additional defendant, Mellon Bank Inc., are collectively referred to as the “defendants” throughout this opinion.

      . Additional defendant, Mellon Bank Inc., filed said motion for summary judgment on the basis that it was a landlord out of possession and therefore not liable for the injuries suffered by the plaintiff, a business invitee.


text:
    Reusswig v. Erie Insurance

      C.P. of Monroe County,
    no. 1697 Civil 2000.

      Jonathan J. Russell, for plaintiff.

      Daniel B. Huyett and Stacey A. Scrivani, for defendant.
    September 6, 2000
   CHESLOCK, J.,

On October 10, 1994, plaintiff, Michael P. Reusswig, was involved in an automobile accident in which he suffered personal injuries. The plaintiff subsequently brought suit against the driver of the other vehicle involved in the collision. Following a trial, on October 8,1999, a Monroe County jury awarded $88,840 in damages to the plaintiff. This jury verdict was then amended to add delay damages, bringing the total verdict to $111,330.06.

In response to the jury award, Allstate Insurance Company, the tort-feasor’s insurance carrier, tendered $100,000 to the plaintiff as its full policy limit on this matter. The plaintiff then submitted a claim for uninsured/underinsured motorist, UIM, benefits to his own liability insurance carrier, defendant, Erie Insurance Group, for $11,330.06. Defendant, however, denied the claim and refused payment.

Consequently, as required by the contract language of the insurance policy executed by the parties, plaintiff brought a UIM arbitration claim for the $11,330.06 of the jury verdict that was not paid by Allstate. In addition to the UIM arbitration claim filed against the defendant, plaintiff has also brought a bad faith action against the defendant pursuant to 42 Pa.C.S. §8371, which relates to actions involving insurance carriers and policies.

It is this bad faith claim that brings this matter before this court. Pleadings in this matter are closed. Currently, the parties are at the discovery stage but appear to have reached an impasse. The plaintiff has initiated the discovery process by filing 34 interrogatories upon the defendant and is seeking 11 documents. For various reasons, defendant objected to each interrogatory and each document listed in plaintiff’s motion to dismiss defendant’s objections to plaintiff’s interrogatories and request for production of documents. Plaintiff then filed this motion in response to defendant’s objections. Both parties filed memorandums of law as to this discovery dispute and this court heard oral arguments regarding this issue on August 7, 2000. This court is now ready to rule on plaintiff’s motion.

In the instant matter, Erie Insurance, defendant, seeks to prevent this matter from moving toward resolution by objecting to all 34 of plaintiff’s interrogatories and the 11 documents listed in plaintiff’s motion. As the objecting party, defendant bears the burden of establishing that the information and/or documents sought are non-disco verable and that the objections should be sustained, Schwab v. Milks, 8 D.&C.4th 557, 558 (Lackawanna Cty. 1990). For the reasons set forth below, this court finds that the defendant has not proven that the information and/or documents sought by the plaintiff are non-discoverable and therefore, the defendant is required to respond to plaintiff’s interrogatories and document requests.

In an effort to be clear and logical, the court shall address each of the defendant’s objections in turn. To begin, the court shall first dispose of defendant’s objection to all interrogatories and documents listed in plaintiff’s request for the production of documents on the grounds that such disclosure would be premature in light of defendant’s outstanding petition to stay the proceedings before this court regarding the case at bar. On July 20, 2000, the Honorable Jerome P. Cheslock of this court denied defendant’s petition to stay the proceedings in the case at bar while the UIM arbitration was still pending. As defendant’s petition to stay the proceedings in the case at bar is no longer outstanding, this objection to the requested information sought by plaintiff’s discovery motion is without merit. Accordingly, this objection is dismissed and as such, where the defendant failed to respond to the interrogatories or provide the requested documents based solely on the outstanding petition to stay these proceedings, defendant must now answer those interrogatories and provide the relevant documents.

The court now turns to interrogatories 12,13, 19 and 20 and no. 8 of plaintiff’s motion, which defendant has objected to on the grounds that the information sought and the documents requested exceed the scope of discovery permitted by the rules. In particular, the defendant contends that these interrogatories propounded by the plaintiff exceed the scope of permissible discovery allowed by the rules as well as the document demanded in no. 8 of the plaintiff’s request for production of documents.

Typically, the rules permit discovery that is broad and liberal. Consequently, to determine whether interrogatories 12,13, 19 and 20 and document request 8 exceed the scope of discovery permitted by the rules, the court must first examine the applicable language set forth in the rules regulating discovery. Specifically, Rule 4003.1 states, in relevant part:

“[A] party may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party . . .Pa.R.C.P. 4003.1.

Additionally, Rule 4003.3 provides, in pertinent part:

“[A] party may obtain discovery of any matter discoverable under Rule 4003.1 even though prepared in anticipation of litigation or trial by or for another party or by or for that other party’s representative, including by his or her attorney, consultant, surety, indemnitor, insurer or agent.” Pa.R.C.P. 4003.3.

Rule 4003.3 further states, by way of a limitation, that:

“The discovery shall not include disclosure of the mental impressions of a party’s attorney or his or her conclusions, opinions, memoranda, notes or summaries, legal research or legal theories. With respect to the representative of a party other than the party’s attorney, discovery shall not include disclosure of his or her mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.” Pa.R.C.P. 4003.3.

With respect to witness statements, Rule 4003.4 states, in pertinent part:

“Upon written request, a party is entitled to immediate receipt of a photostatic copy or like reproduction of a statement concerning the action or its subject matter previously made by that party, any other party or a witness.” Pa.R.C.P. 4003.4.

Finally, Rule 4003.5(a)(1) states, in relevant part:

“A party may, through interrogatories, require

“(a) any other party to identify each person who the other party expects to call as an expert witness at trial and to state the subject matter on which the expert is expected to testify and

“(b) the other party to have each expert so identified state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.” Pa.R.C.P. 4003.5.

Thus, as the above language indicates, discovery under these rules is generously allowed and generally, limitations and restrictions upon discovery are narrowly construed. See e.g., Schwab, 8 D.&C.4th at 558.

In further evaluating the scope the permissible discovery, this court notes that the standard for relevant interrogatories is greater than the standard applied at trial to determine the admissibility of evidence. See e.g., Rosen v. Philadelphia National Bank, 69 D.&C.2d 238, 239 (Philadelphia Cty. 1975). Additionally, the court finds that the rules allow parties to propound probative questions regarding expert witnesses in order to eliminate unfair surprise at trial. See e.g., Schwab, 8 D.&C.4th at 558 (indicating that an interrogatory inquiring as to how many times an expert has represented a defendant is acceptable because such information would disclose a possible bias or partiality on the part of the defendant’s experts). Based on the liberal language of the discovery rules and their broad application by other courts, this court finds plaintiff’s interrogatories and document requests to be reasonable and within the permissible range of discovery.

In applying the above language of the applicable rules in the instant matter, this court finds that interrogatories 12,13,19 and 20 and document request no. 8 are within the scope of permissible discovery. Because plaintiff’s interrogatories and document requests clearly ask for information and materials allowed by the rules of discovery, this court concludes that the defendant is required to provide answers to plaintiff’s interrogatories and produce copies sought in plaintiff’s document request Thus, this court dismisses defendant’s objection to interrogatories 12, 13, 19 and 20 and document request no. 8.

Defendant objects to interrogatories 19 and 20 and nos. 3,4,5 and 7 of plaintiff’s request for production of documents. Precisely, defendant alleges that these interrogatories and document requests are overly broad and burdensome and would require the defendant to make an unreasonable investigation into its files.

In determining whether interrogatories 19 and 20 and document requests 3,4, 5 and 7 require the defendant to make an unreasonable investigation into defendant’s files and is thereby overly broad and unduly burdensome, the court turns to the rules for guidance. While Rule 4011(b) states that “[n]o discovery or deposition shall be permitted which would cause unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party,” this court finds that the interrogatories and document requests at issue here are neither unreasonable nor overly burdensome upon the defendant.

First, the court notes that information pertaining to witness statements and expert witnesses is discoverable pursuant to Rules 4003.4 and 4003.5 respectively. Next, the court notes that plaintiff’s interrogatories and document requests are not boilerplate inquiries seeking irrelevant information, but rather, these questions are directly related to plaintiff’s 1994 motor vehicle accident and the defendant’s motivation for denying plaintiff’s uninsured/underinsured motorist benefits. Third, the court finds that these interrogatories and document requests are limited in scope in that plaintiff is not on a fishing expedition but merely inquiring into plaintiff’s own insurance policy record and claim file for the accident underlying this current matter. Finally, the court does not find that interrogatories 19 and 20 and document requests 3, 4, 5 and 7 constitute a burden or require defendant to make an unreasonable investigation as to plaintiff’s insurance policy and claim file. Thus, this court overrules defendant’s objection as to interrogatories 19 and 20 and document requests 3, 4, 5 and 7 and hold that defendant is obligated to answer or produce the information and/or documents that are the subject of these interrogatories and document requests.

Next, defendant objects to interrogatories 12, 13 and 16 on the grounds that the plaintiff has failed to identify what is meant by various terms included in the interrogatory. In essence, the defendant is inquiring as to what is meant by plaintiff’s request for “notes,” “memorandums,” and “reports.”

In analyzing this objection concerning the definition of various terms used throughout plaintiff’s motion, this court looks to Black’s Law Dictionary for guidance. Black’s Law defines “reports” as “[a]n official or formal statement of facts or proceedings.” “Reports” is also defined as “embod[ying the] result of [an] officer’s [or other individual’s] investigation not originally occurring within his personal knowledge.” Black’s Law Dictionary 1300 (6th Ed. 1990). Additionally, Black’s Law defines a “memorandum” as:

“An informal record, note or instrument embodying something that the parties desire to fix in memory by the aid of written evidence or that is to serve as the basis of a future formal contract or deed. A brief written statement outlining the terms of an agreement or transaction. [An] informal interoffice communication.” Black’s Law Dictionary 984 (6th Ed. 1990).

Black’s Law also defines the term “notes.” According to Black’s Law, the general definition of a “note” is that of a “brief written statement” or “an abstract; a memorandum; or an informal statement in writing.” Black’s Law Dictionary 1060 (6th Ed. 1990).

Relying on the above definitions provided by Black’s Law, this court concludes that plaintiff’s use of the terms “reports,” “memorandums” and “notes” was intended as a logical reference to those writings, both formal and informal, that were created for or included in defendant’s file regarding plaintiff’s 1994 motor vehicle accident. In these interrogatories, this court does not find that plaintiff’s usage of these terms to be so vague as to be overly broad or unduly burdensome.

Before each interrogatory inquiring as to reports, memorandums and notes, the preceding interrogatories concern defendant’s investigation into plaintiff’s 1994 accident and the subsequent claim for uninsured/ underinsured motorist benefits. Moreover, such information would be discoverable under the rules so long as the mental impressions, trial tactics, conclusions and opinions were omitted from these reports even if the information would not be admissible at trial. See e.g., Rosen v. Philadelphia National Bank, 69 D.&C.2d 238, 239 (Philadelphia Cty. 1975) (stating that when the information requested reasonably leads to the discovery of admissible evidence, the interrogatory generally will be permissible). Therefore, this court concludes plaintiff’s inquiry as to reports, memorandums and notes are additional questions about defendant’s investigation of plaintiff’s 1994 automobile accident. Thus, this court finds that defendant’s objection to interrogatories 12,13 and 16 is without merit and that defendant is required to provide suitable answers.

The court turns to defendant’s final contention that defendant need not respond to interrogatories 10,11,12 and 13 or produce the documents listed in nos. 1, 8 and 11 in plaintiff’s motion because the information and/or the documents demanded are protected by the attorney-client privilege and/or the attorney work-product doctrine. Specifically, the defendant asserts that the following interrogatories and documents sought by plaintiff’s request for production of documents calls for information in violation of the attorney-client privilege and the attorney work-product doctrine.

In ascertaining whether these interrogatories and document requests violate the attorney-client privilege and the attorney work-product doctrine, this court notes that the rules preclude discovery of the mental impressions, conclusions, opinions, summaries and notes of an attorney or representative of an adverse party. See Pa.R.C.P. 4003.3. Despite this limitation, this court holds that interrogatories 10,11,12 and 13 and document requests 1, 8 and 11 do not violate either the attorney-client privilege or the attorney work-product doctrine. In reaching this conclusion, this court finds that the protection found in Rule 4003.3 is applicable only to the litigation of the claim for which the impressions, conclusions and opinions were made. See Yohe v. Mutual Life Insurance Co., 7 D.&C.4th 300, 303-304 (York Cty. 1990). See also, Little v. Allstate Insurance Co., 16 D.& C.3d 110, 112 (Allegheny Cty. 1980). In other words, such protection does not extend to subsequent litigation that follows upon the resolution of a prior claim. See id.

In both the Yoke and Little cases, the plaintiffs filed a bad faith insurance claim against their respective insurance carriers when the defendant insurance carriers had refused to pay benefits under the plaintiffs’ insurance policies. See Yohe, 7 D.&C.4th at 300-301; Little, 16 D.&C.3d at 110-11. Also, in both cases, the plaintiffs sought information and documents relating to notes and materials prepared by the claims adjustor or investigator of the defendant insurance carriers. See Yohe, 7 D.&C.4th at 301; Little, 16 D.&C.3d at 111. Relying on the language of Rule 4003.3, the Little court held that the protection afforded by Rule 4003.3 applied only to the litigation or matter for which the materials, impressions, conclusions and opinions were prepared. See Little, 16 D.&C.3d at 112. Following the Little court’s example, the court in Yoke reached an identical result as to whether such materials deserved protection in subsequent litigation. See Yohe, 7 D.&C.4th at 304-305. Further, both courts found such information and materials to be relevant in that such knowledge could shed light on whether plaintiff’s claim was denied without a reasonable foundation. See Yohe, 1 D.&C.4th at 304-305; Little, 16 D.&C.3d at 111. Moreover, the inference to be taken from both the Yoke and Little decisions is that the materials sought could not have been prepared in anticipation of the subsequent action because at the time the information and/or documents were prepared for the original litigation, the defendant insurance carriers could not have foreseen the subsequent bad faith action.

With respect to the assertion that the attorney-client privilege precludes defendant’s response to interrogatories 10, 11, 12 and 13 and document requests 1, 8 and 11, the court finds that this objection is without merit. The attorney-client privilege protects only confidential information furnished by a client to his or her counsel in contemplation of representation. See MacQuown v. Dean Witter Reynolds Inc., 47 D.&C.3d 21, 24-25 (Allegheny Cty. 1987). This privilege also protects statements or writings from counsel to his or her client if the contents of those statements or writings would reveal a confidential communication by the client. See id. at 24. The privilege, however, “does not protect any information which counsel obtained from third parties in the course of the representation.” See id at 25. Consequently, this court fails to see how interrogatories 10, 11, 12 and 13 and document requests 1, 8 and 11 would violate the defendant’s attorney-client privilege in that the information and/or documents sought are otherwise discoverable. Thus, the court finds that the defendant’s assertion of the attorney-client privilege is improper.

In accordance with the Yohe, Little and MacQuown decisions, this court relies on the rationale and conclusion reached in both the Yoke and Little cases and find that the plaintiff is not seeking information privileged by the attorney-client or work-product privileges. Thus, this court dismisses defendant’s objection and concludes that the defendant is required to respond to interrogatories 10, 11, 12 and 13 and document requests 1, 8 and 11.

In conclusion, it has always been the policy of this court to liberally allow the free exchange of discoverable materials in an effort to expedite litigation and to adhere to the spirit of the discovery rules. Just as the plaintiff may not use discovery as a fishing expedition, the defendant may not assert boilerplate objections to valid interrogatories and document requests seeking information relevant to the underlying action. In the instant case, plaintiff’s request is reasonable and certainly relevant to the pending litigation and as such, this court grants plaintiff’s motion to dismiss defendant’s objections to plaintiff’s interrogatories and request for production of documents.

Accordingly, the court enters the following order:

ORDER

And now, September 6, 2000, plaintiff’s motion to dismiss defendant’s objections to plaintiff’s interrogatories and request for production of documents is hereby granted with the following conditions:

(1) In accordance with Rule 4006(a)(2), defendant has 30 days from the date of this order to answer plaintiff’s interrogatories;

(2) In accordance with Rule 4006(a)(2) and the discussion set forth above, defendant must provide full and complete responses to the plaintiff’s interrogatories;

(3) In accordance with Rule 4009.12(a)(2), defendant has 30 days from the date of this order to produce or make available those documents and/or things requested by the plaintiff; and

(4) The information disclosed and/or produced during such discovery is not to be disseminated to individuals or entities not directly involved with proceedings before this court.

      . The suit, in which plaintiff sued the driver of the other vehicle involved in the collision that occurred on October 10, 1994, is docketed at 6372 CV 1996.

      . The parties have submitted their monetary dispute for uninsured/ underinsured motorist benefits to a UIM arbitration panel as required by the language of the insurance contract/policy between the parties. The UIM arbitration is scheduled to take place on September 1,2000.

      . Because the court finds that the defendant’s objection on the grounds of the outstanding petition to stay these proceedings is without merit, the defendant must specifically answer interrogatories 1-9, 14,17-18 and 21-34 and provide the documents listed in numbers 2,6, 9 and 10 of the request for production of documents. The interrogatories and documents not listed above shall be addressed as the court disposes of defendant’s remaining objections to plaintiff’s interrogatories and document requests.

      . As stated in the explanatory note of 1978 to Rule 4003.3, “[a] signed statement of a witness is, of course, always discoverable no matter who took it or where it is filed.” Pa.R.C.R 4003.3. (Explanatory note of 1978.)

      . See 42 Pa.C.S. §8371 (relating to actions on insurance policies).

      . In reaching the conclusion that Rule 4003.3’s protection extended only to the litigation or matter for which the materials at issue had been prepared, the Little court set forth three reasons to support its rationale. First, the Little court stated that its conclusion “[was] consistent with the manner in which Rule 4003.3 [] balanced the interests of protecting a party’s work product against the interests of a party’s discovering relevant evidence.” See Little, 16 D.&C.3d at 112. Second, the court in Little found that the case law interpreting former Rule 4011(d), which had previously codified the work-product exception, “limited the ‘anticipation of litigation’ protection to the litigation for which the matters were prepared or secured [and that] if matters were prepared or secured in anticipation of litigation of a prior claim, these matters, if relevant to a subsequent action, were subject to discovery.” See id. at 113. Third, the Little court noted that the explanatory note accompanying Rule 4003.3 supported the conclusion that the work-product protection from discovery only applied to action for which it had been prepared. See id. at 114.

      . Pa.R.C.P. 4006(a)(2) provides that “[t]he answering party shall serve a copy of the answers, and objections if any, within 30 days after the service of the interrogatories.” Pa.R.C.P. 4006(a)(2).

      . Pa.R.C.P. 4006(a)(2) requires that “[e]ach interrogatory shall be answered fully and completely unless objected to, in which event the reasons for the objections shall be stated in lieu of an answer.” Pa.R.C.P. 4006(a)(2).

      . Pa.R.C.P. 4009.12 states that “[t]he party upon whom the request is served shall within 30 days after the service of the request produce or make available to the party submitting the request those documents and things described in the request to which there is no objection.” Pa.R.C.P. 4009.12(a)(2).