author: SHEELY, P.J.,

text:
    Long Estate

      Steven J. Fishman, for estate.

      Hubert X. Gilroy, for petitioners.

      Gary E. French, for Teresa Ann Long.
    August 17, 1990
   SHEELY, P.J.,

Lloyd F. Long (decedent) executed a will on January 12, 1983. At the time of execution, decedent was married to Mary M. Long. The decedent provided, through the will, for his entire estate to be distributed equally among three individuals: one-third of the estate to decedent’s wife, Mary Long; one-third to Paul Miller, his stepfather and named executor of the will; one-third to Elva M. Kennedy, his aunt and objector in these proceedings.

Decedent was subsequently divorced from Mary Long on November 29, 1983, and then married Teresa Ann Long on August 16, 1987. After only two and one-half months of marriage, decedent died November 5, 1987, leaving neither issue nor parents. Decedent did not, subsequent to his divorce from Mary Long in 1983, make a new will; therefore, his 1983 will was offered for probate. Pursuant to 20 Pa.C.S. §2203, Teresa Ann Long filed of record an election against the will.

In making a final accounting, the executor, Paul Miller, followed the mandates of the Probate, Estates and Fiduciaries Code (PEFC). Section 2507(3) of the PEFC reads:

“(3) Marriage. If the testator marries after making a will, the surviving spouse shall receive the share of the estate to which he would have been entitled had the testator died intestate, unless the will shall give him a greater share.” 20 Pa.C.S. §2507(3).

The executor correctly determined that section 2507(3) was applicable because decedent married after making his will. Therefore, his surviving spouse, Teresa Long, was entitled to a share equal to what she would have received had decedent died intestate. The executor then correctly applied 20 Pa.C.S. §2102(1), governing intestate succession, which grants the surviving spouse the entire estate if the decedent dies intestate, leaving no surviving issue or parent. Accordingly, the executor’s final accounting proposed a 100-percent distribution of the estate to Teresa Long. Both Paul Miller and Elva Kennedy were effectively denied their one-third shares under the will.

Objections were filed on behalf of Elva Kennedy and an auditor’s hearing was held on April 23, 1990. It became appárent during the hearing that there was little if any factual dispute. The hearing ended without testimony and the issues were then presented in Argument Court on July 18, 1990.

DISCUSSION

At issue in this case is the constitutionality of section 2507(3) of the PEFC which provides that if a decedent marries after making a will, and never changes that will, the surviving spouse is entitled to the share she would have received had the decedent died intestate.

Elva Marie Kennedy (objector) argues that because section 2507(3) invalidates testamentary provisions and creates an irrebuttable presumption that decedent would have wanted his current spouse to share in his estate, the statute denies her due process and is therefore unconstitutional under the Fifth and 14th Amendments to the United States Constitution.

Objector also claims that section 2507(3) violates the Equal Protection Clause of the 14th Amendment because it impermissibly creates two classifications for surviving spouses: one where the surviving spouse’s husband executed a will before marriage; the other where the husband executed a will subsequent to marriage.

For the reasons described below, we reject both of objector’s arguments.

I

Due Process

We start with the well established maxim that there exists a strong presumption of constitutionality of all statutes enacted by the legislature, Estate of Cox, 327 Pa. Super. 479, 485, 476 A.2d 367, 370 (1984), and that the moving party “bears the burden of demonstrating that the statute ‘clearly, palpably and plainly’ violates the constitution.” Id. (quoting Hayes v. Erie Insurance Exchange, 493 Pa. 150, 154, 425 A.2d 419, 421 (1981)): All doubts are to be resolved in favor of sustaining the legislation. Cox at 485, 476 A.2d at 371.

'The 14th Amendment prohibits the state from depriving a person of life, liberty, and property without due process of law. U.S. Const, amend. XIV; Ingraham v. Wright, 430 U.S. 651, 672 (1977). The concept of due process is rather flexible. It is, however, fundamental that except in emergency situations, “due process requires that when a state seeks to terminate [a protected] interest. . ., it must afford ‘notice and opportunity for hearing appropriate to the nature of the case’ before the termination becomes effective.” Bell v. Burson, 402 U.S. 535, 542 (1971). (citations omitted; emphasis in original)

An examination of a due-process problem requires a two-stage analysis: first, the court' must identify whether the asserted individual interest is a protected one, encompassed within the 14th Amendment’s protection of life, liberty or property. Ingraham v. Wright, 430 U.S. 651, 672 (1977). Then, if a protected interest is implicated, the court must determine what procedures constitute “due process of law.” Id.

Because we conclude that the objector has not asserted an interest which is encompassed within the 14th Amendment’s protections, we need not even reach the question of what procedures are necessary to protect her due process rights.

As enunciated in Board of Regents v. Roth, 408 U.S. 564 (1972):

“The requirements of procedural due process apply only to the deprivation of interests encompassed by the 14th Amendment’s protection of liberty and property. . . . [T]he range of interests protected by procedural due process is not infinite.” Id. at 569-70.

In order to have a property interest in something, it is important to point out that one “clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Id. at 577. The objector in this case did not have a legitimate claim of entitlement to one-third of decedent’s estate. Instead, she merely had an expectation that she would take under decedent’s will.

In In re Estate of Cavill, 459 Pa. 41, 329 A.2d 503 (1974), our Supreme Court held that the Mortmain statute in this Commonwealth’s Wills Act was unconstitutional. Because the majority opinion held the statute violated the Equal Protection Clause, it did not have occasion to rule on the claim that it was violative of the Due Process Clause. Justice Pome-roy’s dissenting opinion, however, disagreed with the majority’s analysis of the Equal Protection Clause and proceeded to address the due process argument. Justice Pomeroy started with the proposition that the right to receive property by will is not a natural right but one conferred by the legislature. Id. at 426, 329 A.2d at 511 (Pomeroy, J., dissenting), citing Tack’s Estate, 325 Pa. 545, 191 Atl. 155 (1937). And since the legislature determined that charitable and religious organizations have no right to inherit property unless the decedent survives for 30 days after making his will, the “[fjailure to grant a right which is broader is not a denial of due process of law.” Cavill at 426, 329 A.2d at 511 (Pomeroy, J., dissenting).

We find Justice Pomeroy’s opinion persuasive to the issue we resolve here. There is no natural right to receive property through a will. Any inheritance is accomplished through the legislature granting a person the power to will his property to another. In fact, it is even possible for the state to declare an escheat of all a decedent’s property. See Tack’s Estate at 548, 91 Atl. at 156. Furthermore, objector merely had an expectation that she would receive one-third of decedent’s property. She had no present interest in decedent’s estate. She had no title or right to sell the property. She merely expected to receive the property upon decedent’s death. Aside from the application of 20 Pa.C.S. §25407(3), granting decedent’s new wife an intestate share of the estate, a number of other unpredictable events could have occurred which would have invalidated objector’s gift. The most obvious event would be decedent changing his. will. Also, had objector predeceased decedent, objector’s part of the estate would have been shared by the remaining two beneficiaries. Any one of these possibilities, including the possibility of 20 Pa.C.S. §2507(3) being invoked, as it was, leads us to the conclusion that objector did not have a property interest in her share of decedent’s estate. Instead, she had merely an expectation of receiving a property interest. Although “the property interests protected by procedural due process extend well beyond actual ownership of real estate chattels, or money,” Board of Regents v. Roth, 408 U.S. 564, 571-2 (1972), citing Connell v. Higginbotham, 403 U.S. 207, 208 (1971), we do not believe due process protections extend to such a tenuous interest as that held by objector. The Due Process Clause was not intended to protect an individual’s expectation in receiving property. See Board of Regents v. Roth, 408 U.S. at 577. Hence, objector’s argument on this ground must be rejected.

II

Equal Protection

Objector further attacks the constitutionality of 20 Pa.C.S. §2507(3) based on the Equal Protection Clause of the 14th Amendment to the United States Constitution.

In analyzing an equal protection question, we must first determine whether the state has created a classification for the unequal distribution of benefits or imposition of burdens. See Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1986). Objector claims that 20 Pa.C.S. §2507(3), which creates two classifications of surviving spouses (one where the surviving spouse marries the decedent and the decedent fails to execute a new will; the other where the decedent does execute a new will), ultimately creates unconstitutional classifications of other beneficiaries. Under the first classification, if the decedent does not update his will subsequent to marriage, the surviving spouse is entitled to receive the share she would have received had the decedent died intestate. This situation may result in, as it did in the present case, the invalidation of gifts to other beneficiaries. We find that the legislature has in fact created a classification scheme which treats surviving spouses differently and which may ultimately injure other named beneficiaries in a decedent’s will. However, the Equal Protection Clause does not deny states the power to treat different classes of persons in different ways, providing that classification passes the applicable degree of scrutiny. Estate of Cox, 327 Pa. Super. 479, 486, 476 A.2d 367, 371 (1984).

The next step in our analysis, therefore, is to determine the appropriate degree of scrutiny to which the statute is to be subjected. Commonwealth v. Bell, 512 Pa. 333, 516 A.2d 1172 (1986); Estate of Cox, 327 Pa. Super. 479, 486, 476 A.2d 367, 371 (1984). We must choose between three classification schemes, each one calling for a different level of scrutiny. If the challenged statute threatens a fundamental right or liberty or affects a suspect class, the court undertakes a strict scrutiny of the statute. Eisenstadt v. Baird, 405 U.S. 438, 447, n.7 (1972); Estate of Cox, 327 Pa. Super. 479, 486, 476 A.2d 367, 371 (1984). The second level of scrutiny, sometimes referred to as “heightened scrutiny,” Id., is employed if the statute threatens an important, but not fundamental, interest, or affects a “quasi-suspect” class. See Craig v. Boren, 429 U.S. 190 (1976); Commonwealth v. Bell, 512 Pa. 333, 516 A.2d 1172 (1986); Estate of Cox, 327 Pa. Super. 479, 476 A.2d 367 (1984). Finally, if the statute threatens neither a fundamental nor important right nor affects a suspect or quasi-suspect class, a minimal amount of scrutiny is to be applied. Hodel v. Indiana, 452 U.S. 314 (1981); Pennsylvania Liquor Control Board v. Spa Athletic Club, 506 Pa. 364, 485 A.2d 732 (1984).

Objector admits that this last level of review is applicable. Cf. In re Estate of Cavill, 459 Pa. 411, 329 A.2d 503 (1974) (employing lowest level of scrutiny to determine constitutionality of Mortmain statute); Estate of Cox, 327 Pa. Super. 479, 476 A.2d 367 (1984) (employing lowest level of scrutiny to determine constitutionality of part of Commonwealth’s intestate statute). See also, Commonwealth v. Hicks, 502 Pa. 344, 466 A.2d 613 (1983) (lowest level of scrutiny employed in distribution of economic benefits). Therefore, our review is limited to determining whether section 2507(3) is rationally related to a legitimate state purpose. Dandridge v. Williams, 397 U.S. 471 (1970); Lewis v. School District of Philadelphia, 517 Pa. 461, 538 A.2d 862 (1988); Commonwealth v. Parker White Metal Co., 512 Pa. 74, 515 A.2d 1358 (1984). In other words, we must inquire “only into the existence of a proper purpose and means rationally designed to further that goal.” Estate of Cox, 327 Pa. Super. 479, 487, 476 A.2d 367, 371 (1984).

Our next step then, is to determine whether the Commonwealth had a legitimate purpose in enacting section 2507(3). The most obvious purpose behind section 2507(3) is to protect a surviving spouse from the negligence of the decedent in failing to update his will after marriage. The statute makes a presumption that had the decedent thought about it, or had the chance, he would have provided for his current spouse. It is clear that this is a legitimate purpose. “A legislature has the power to enact all manner of legislation with respect to wills and trusts subject, of course, to the rights and limitations ordained in the Constitution of the United States and the Constitution of Pennsylvania.” In re Estate of Scott, 418 Pa. 332, 336, 211 A.2d 429, 431 (1965). See also, Labine v. Vincent, 401 U.S. 532, 537 (1971) (the rules for intestate succession “may or may not reflect the intent of [decedents]. . . . But the choices reflected by the intestate succession statute are choices which it is within the power of the state to make”); Harris v. Zions Bank Co., 317 U.S. 447, 450 (1943) (“the settlement and distribution of decedent’s estates, and the right to succeed to the ownership of realty and personalty are peculiarly matters of state law. . .”).

The only question left to be decided is whether the means employed in section 2507(3) are rationally related to the goal of protecting the surviving spouse. The United States Supreme Court has de-. fined this task in the following terms: “We will not overturn ... a statute unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” Vance v. Bradley, 440 U.S. 93, 97 (1979).

Objector fails to comprehend the nature of the rational-basis test. In her brief, objector rhetorically asks the following questions:

“Is it rational to benefit a spouse who happens to mariy her husband after his will has been executed to the tune of 100 percent of the estate? What rational basis does the legislature have in completely disregarding a testator’s intentions and desires by granting a surviving spouse 100-percent share [sic] of the estate in complete contradiction to the testator’s will?” Objector’s brief at 12. (emphasis in original)

The test, however, is not whether the goal of the legislature is rational; the legislature’s goal need only be “legitimate.” See Dandridge v. Williams, 397 U.S. 471 (1970), As noted before, the protection of surviving spouses and the regulation of inheritance are legitimate goals for the legislature to act upon. Instead, it is the means employed by the statute which must be rationally related to the legislature’s goal. Id.

We conclude that the means employed in section 2507(3) are rationally related to achieving protection of surviving spouses not provided for in a decedent’s will. By providing a surviving spouse with an intestate share of the decedent’s estate, the legislature has chosen adequate means to protect surviving spouses. Though this may ultimately invalidate other beneficiary’s gifts, as it did in the present case, and mqy not always represent the intentions of decedents, these means are certainly rationally related to the legislature’s ultimate goal.

Objector suggests there may be better means to protect surviving spouses and that section 2507(3) ignores the possibility that decedent may have provided for his surviving spouse by other means. However, as the court in Estate of Cox, 327 Pa. Super. 479, 476 A.2d 367 (1984), made clear:

“Where a legitimate purpose has been identified and a rational relationship between that purpose and the means chosen to foster it has been established, our inquiry into whether the statute violates the equal protection clause is at an end. . . . It is beyond our scope of review to ascertain whether an alternative means would have more appropriately served the sovereign’s purpose.” Id. at 489, 476 A.2d at 371-2. (citations omitted)

. We, therefore, conclude that 20 Pa.C.S. §2507(3) does not violate the Equal Protection Clause of the 14th Amendment.

CONCLUSION OF LAW

Teresa Ann Long, the surviving spouse of Lloyd F. Long, deceased, is entitled to receive 100 percent of the estate of the decedent.

FINAL DECREE

And now, August 17, 1990, the objection of Elva Kennedy to the first and final account of Paul Miller, executor of the estate of Lloyd F. Long, is dismissed. Upon presentation to the court, the court will confirm the first and final account and schedule of distribution which proposes to give the entire estate to Teresa Ann Long, the surviving spouse of Lloyd F. Long.

      . 20 Pa.C.S. §2507(1) (repealed). The Mortmain statute mandated the invalidation of any bequests or devises to religious or charitable organizations if the decedent’s will was executed within 30 days of his death and someone who would benefit by the invalidation of the will objects.

      . Decedent’s will reads: “In the event any of said beneficiaries shall predecease me, I direct his or her share be divided equally between the survivors thereof.”

      . Objector similarly argues that section 2507(3) violates the Pennsylvania Constitution. We, however, need not specifically address this issue because our Supreme Court has held that the content of the Equal Protection Clause embodied in the United States Constitution is not significantly different from the prohibition against special laws embodied in the Pennsylvania Constitution. Baltimore & Ohio R. Co. v. Commissioner, Dept. of Labor, 461 Pa. 68, 83, 334 A.2d 636, 643 (1975).


source: Caselaw Access Project

author: SUBERS, J.,

license: Public Domain

text:
    Commonwealth v. Rubei

      Patricia Ranieri, assistant district attorney, for the Commonwealth.

      Craig M. Kellerman, for defendant.
    January 19, 1989
   SUBERS, J.,

This is Guy Frank Rubei’s appeal from our denial of his petition for allowance of appeal nunc pro tunc. The facts may be briefly stated: On December 1, 1986 the Whitpain Township Police Department cited petitioner for driving without a valid operator’s license. Again, on December 16, 1986 the Pennsylvania State Police cited petitioner for driving without a valid license. Petitioner pled guilty to both charges by paying the fine before the district justice. He then filed the instant petition for allowance of appeal nunc pro tunc on July 15, 1988. Following oral argument, we denied the petition on October 3, 1988. The instant appeal followed.

ISSUE

Whether petitioner should have been granted leave to appeal nunc pro tunc.

DISCUSSION

Appeals from summary convictions are to be filed within 30 days pursuant to Pa.R.Crim.P. 86(a). It is well established that to grant a petition for leave to appeal nunc pro tunc the court must find that the failure to file a timely appeal was caused by “fraud or its equivalent” or because of a breakdown in the court’s operation. Commonwealth v. Englert, 311 Pa. Super. 78, 457 A.2d 121 (1983). Judicial extensions in the absence of fraud are prohibited by the Judicial Code. 42 Pa.C.S. §5504. It is petitioner’s burden to prove fraud or a breakdown in the court’s operation. Petitioner has clearly not met his burden. No excuse was given for petitioner’s failure to file a timely appeal. Indeed, petitioner presented no testimony to support his petition nor could he point to any fraud or breakdown in the court’s operation, in oral argument or in the petition itself.

In his petition, Mr. Rubei claims that there was no conviction at the district justice level and, even if there was, the conviction is illegal because he was licensed to drive. These claims go to the merit of the underlying conviction; they do not provide a basis for finding that there was fraud or a breakdown in the court’s operation that would excuse his failure to file a timely appeal.

Nevertheless, there clearly was a conviction before the district justice. By paying the fine, petitioner pled guilty. See 75 Pa.C.S. §650(b). On this ground alone, we could have dismissed the petition since it is doubtful whether there is any right to appeal following a plea of guilty to a summary offense. See Commonwealth v. Meshey, 278 Pa. Super. 73, 419 A.2d 1363 (1980), citing Commonwealth v. Kauffman, 249 Pa. Super. 600, 377 A.2d 986 (1977). In the absence of a rule of procedure providing for the waiver of a hearing before the district justice on a summary offense and an immediate transferral of the case to common pleas court, the entry of a guilty plea and thereafter filing an appeal is improper and will not be permitted.

CONCLUSION

Based upon the foregoing analysis, our denial of the petition for leave to appeal was proper and should be affirmed.

      . There are no notes of testimony from our hearing on this petition because there was no testimony presented. Both petitioner and the Commonwealth presented argument from which we garnered the facts as stated.

      . 75 Pa.C.S. §1501(a).


author: YOHN, J„

text:
    Downing v. Harleysville Insurance Co.

      Philip H. Baer, for plaintiff.

      William H. Pugh IV, for defendant.

      August 6, 1990
   YOHN, J„

Plaintiff, Reginald Downing, was seriously injured in an automobile accident. He seeks to recover first-party benefits as an “occupant” under the,Pennsylvania Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq.

On December 14, 1984, plaintiff was a passenger in a vehicle operated by Gerald W. Hartley, insured by the Prudential Insurance Company. While traveling north on Pa. Route 113 in Montgomery County, Hartley and plaintiff noticed a disabled vehicle and stopped to render assistance. The disabled vehicle, insured by defendant, Harleysville Insurance Co., was owned by John B. Arnold and had been immobilized by a flat tire. Both plaintiff and Hartley exited their vehicle to help repair the tire. While standing adjacent to the disabled vehicle, plaintiff was struck by another vehicle operated by Grant L. Gaugler. Gaugler was subsequently found to be an uninsured motorist who was driving while under the influence of alcohol. At the time of the. impact, the trunk of the disabled vehicle was open and Hartley was in the process of gathering additional tools from inside the trunk.

Plaintiff sustained extremely serious injuries, including cerebral hypoxia and fracture and crush injuries to his right leg. He has remained comatose since the accident and his right leg has been amputated. Plaintiff’s subsequent medical expenses have been substantially in excess of $100,000.

On May 27, 1986, plaintiff, joined by his wife and guardian, Billie Jean Downing, commenced a civil action against both Prudential and Harleysville for first-party benefits. The medical benefit coverage under the Prudential policy is $10,000 and under the Harleysville policy is $100,000.

Prudential subsequently paid plaintiff the maximum amount of its coverage, $10,000, plus interest and counsel fees and was dismissed from this action.

Plaintiff thereafter filed a motion for summary judgment against defendant Harleysville. Harleys-ville answered plaintiff’s motion for summary judgment and filed a cross-motion for summary judgment.

On March 7, 1990, summary judgment was granted in favor of plaintiff as to liability only for first-party benefits in accordance with section 1713(a)(3) of the act. The court concluded that Reginald Downing was an “occupant” under the act of both the Hartley vehicle in which he had been a passenger and the disabled Arnold vehicle which he was then assisting. As a result, plaintiff was entitled to multiple coverage under section 1713(a)(3) by both insurance companies with their rights of contribution to be determined under the provisions of section 1713(b) of the act.

The parties thereafter agreed that the total medical expenses sustained by plaintiff in the accident were in excess of $100,000. Based on this record the court then entered judgment in favor of plaintiff and against defendant, Harleysville, in the amount of $90,000 plus interest. The maximum coverage under the insurance policy with Harleysville was in the amount of $100,000. Prudential having already paid $10,000 toward first-party benefits, the $90,000 judgment represented the balance of coverage available to the plaintiff. Defendant Harleysville appealed the entry of judgment.

DISCUSSION

The issue on appeal is whether plaintiff was an “occupant” under the terms of the act of the disabled vehicle insured by defendant Harleysville and is thus entitled to multiple coverage for first-party benefits under section 1713(a)(3) of the act.

The Pennsylvania Motor Vehicle Financial Responsibility Law outlines who is liable for the payment of first-party benefits, as follows:

“§1713. Source of benefits.

“(a) General rule — Except as provided in section 1714 (relating to ineligible claimants), a person [injured in a motor vehicle accident] who suffers injury arising out of the maintenance or use of a motor vehicle shall recover first-party benefits against applicable insurance coverage in the following order of priority:

“(1) For a named insured, the policy on which he is the named insured.

“(2) For an insured, the policy covering the insured.

“(3) For the occupants of an insured motor vehicle, the policy on that motor vehicle.

“(4) For a person who is not the occupant of a motor vehicle, the policy on any motor vehicle involvecl in the accident. For the purposes of this paragraph, a parked or unoccupied motor vehicle is not a motor vehicle involved in an accident unless it was parked so as to cause unreasonable risk of injury.

“(b) Multiple sources of equal priority — The insurer against which a claim is asserted first under the priorities set forth in subsection (a) shall process and pay the claim as if wholly responsible. The insurer is therefore entitled to recover contribution pro rata from any other insured for the benefits paid and the costs of processing the claim. If contribution is sought among insurers responsible under subsection (a)(4), proration shall be based on the number of involved motor vehicles.”

Plaintiff was clearly an “occupant,” under section 1713(a)(3) of the act, of the Hartley vehicle insured by Prudential. Indeed, Prudential has paid the limit of its insurance coverage ($10,000) to plaintiff. If plaintiff is also an “occupant” under section 1713(a)(3) of the act of the disabled Arnold vehicle insured by Harleysville he is likewise entitled as a result of this multiple coverage to the limit of that company’s coverage ($100,000) less the amount paid by Prudential.

In Utica Mutual Insurance Company v. Contrisciane, 504 Pa. 328, 473 A.2d 1005 (1984), our Supreme Court analyzed the definition of the term “occupying” contained in an insurance policy when the policy itself defined the term as “in or upon or entering into or alighting from” the vehicle. Although the legal issues in that case were somewhat different from those in the instant case, the factual situation in the Contrisciane case, in which the. decedent was struck and killed by a passing car while he stood adjacent to a police car after being instructed to provide information to a police officer at the scene of the accident, is strikingly similar to that of the instant case.

The Supreme Court considered a strict literal approach to the definition of “occupying” using the specific language of the insurance policy and rejected that approach as being a “narrow and restrictive interpretation.” Instead, it adopted a more “liberal interpretation” of the policy language because this view emphasized “whether the person claiming benefits was performing an act (or acts) which is (are) normally associated with the maintenance of an automobile.” Contrisciane at 335, 473 A.2d at 1009.

The court in Contrisciane further determined that there were four criteria which would determine whether or not a person was occupying a vehicle. The court held that a person will be considered to be “occupying” a vehicle within the meaning of an insurance policy if the following conditions exist:

“(1) there is a causal relation or connection between the injury and the use of the insured vehicle;

“(2) the person asserting coverage must be in a reasonably close geographic proximity to the insured vehicle, although the person need not be actually touching it;

“(3) the person must be vehicle oriented rather than highway or sidewalk oriented at the time; and

“(4) the person must also be engaged in a transaction essential to the use of the vehicle at the time.” Contrisciane at 336, 473 A.2d at 1009. See Rau v. Liberty Mutual Insurance Co., 21 Wash. App. at 334, 585 P.2d at 162.

The regulations adopted by the Insurance Department, pursuant to the act, contain the minimum requirements for an insurance policy with reference to a basic loss benefits endorsement. The endorsement must, at a minimum, contain a definition of “occupant” identical to that contained in the Con-trisciane case. 31 Pa. Code §66.102. This definition is fairly standard in the insurance industry. Contrisciane at 334, 473 A.2d at 1008. Evidence was presented in this case with reference to the definition of the term in the applicable insurance policy so the court has assumed that it includes the minimum standard under both the Pennsylvania Motor Vehicle Financial Responsibility Law and the regulations of the Insurance Department. Since this court has ruled that the plaintiff can recover under the minimum standards, a more broadly written policy would have no effect other than to buttress the decision.

Since the definition of “occupant” in the instant case is the same as in Contrisciane, when viewed through the Contrisciane standards, it is clear that the plaintiff has met those criteria for both the Harleysville vehicle and the Prudential vehicle. An analysis of the instant claim against Harleysville through the Contrisciane standards reveals the following:

(1) since the plaintiff was engaged in replacing the left rear tire of the Harleysville vehicle and was severely injured while doing so by the vehicle operated by Grant L. Gaugler Jr., a causal relation existed between his injury and the use of the insured vehicle;

(2) the plaintiff, although not actually touching the Harleysville vehicle, was in very close geographical proximity to the Harleysville vehicle at the time he was struck;

(3) the plaintiff was vehicle oriented, rather than highway oriented at the time of the accident since he was assisting in the replacement of the flat tire; and

(4) the plaintiff was engaged in changing the tire of the Harleysville vehicle, a transaction essential to the operation and use of the vehicle at the time since it was disabléd without the replacement of the tire.

Although it would seem clear that each of these standards has been met, defendant asserts that the Contrisciane standards contain an implied assumption that the claimant must have been inside the vehicle at some particular time in order to be deemed an “occupant.” However, nowhere in that opinion is such an assumption suggested. In addition, the second standard set forth in the opinion relates to the claimant being in “reasonably close geographical proximity to the insured vehicle although the person need not be actually touching it.” Contrisciane at 336, 473 A.2d at 1009. This standard does not state that the person must have been inside the vehicle previously. In the event that the court intended to add a requirement that the person be inside the vehicle at some particular time this standard would certainly have included that requirement since the court considered and articulated the necessity of the person being “reasonably close” to the vehicle but did not require the person to be “in” the vehicle or even “actually touching it.”

There have been several analogous cases which utilize the Contrisciane standards while construing the term “occupant” pursuant to section 204 of the former Pennsylvania No-fault Motor Vehicle Insurance Act.

The facts involved in Porter v. CNA Insurance Co., 14 Phila. Rep. 276 (1982), are almost identical to the ones at issue in the instant case except that the claimant in Porter jumped on the hood of the disabled vehicle immediately prior to impact. 14 Phila. Rep. at 277. The Honorable Abraham J. Gafni found in Porter that these facts met the Contrisciane standards and plaintiff could recover first-party benefits from the insurance carrier for the disabled vehicle. Surely the fact that the plaintiff in that case jumped on the hood of the vehicle to avoid the impact, whereas in the instant case the plaintiff did not have time to take any evasive action, should not be a distinction on which insurance coverage rises or falls. See also, Tyler v. Insurance Co. of North America, 311 Pa. Super. 25, 457 A.2d 95 (1983) (passenger of a bus that had stopped five feet from shoulder of road who was struck by a motorcycle passing the bus on the right side was deemed an “occupant” of the bus under the No-fault Act.) Schultz v. Nationwide Insurance Co., 295 Pa. Super. 146, 541 A.2d 391 (1988) (woman who was injured while putting gasoline in her uninsured car when third party struck parked vehicle which in turn struck woman who was “driver and occupant” of the uninsured vehicle under the Contrisciane standards).

It is important to note that the court, when interpreting a statute, must utilize the Statutory Construction Act, 1 Pa.C.S. §1901 et seq. This statute directs that “remedial legislation,” such as the act in the instant case, “shall be liberally construed to effect [its] objects and to promote justice.” 1 Pa.C.S. §1928. Furthermore, the appellate courts of this state have often stated that “since insurance statutes are not among those types of statutes designated by our legislature as requiring strict construction, we are to construe them liberally in order to effect their purpose.” Mattia v. Employers Mutual Companies, 294 Pa. Super. 577, 440 A.2d 616 (1982).

When the words of a statute are not explicit, the consequences of a particular interpretation may also be considered when determining the intent of remedial legislation. 1 Pa.C.S. §1921(c)(6). The consequences of a liberal interpretation of section 1713(a)(3) in the instant case would parallel the past interpretations of the Uninsured Motorist Act. Sands v. Granite Mutual Insurance Co., 232 Pa. Super. 70, 331 A.2d 711 (1974); Marchese v. Aetna Casualty and Surety Co., 284 Pa. Super. 579, 426 A.2d 646 (1981); State Farm Insurance Co. v. Bul lock, 316 Pa. Super. 475, 463 A.2d 463 (1983); see also 1 Pa.C.S. 1928.

In Sands, the court held that the Uninsured Motorist Act requires “a liberal construction . . . and a pronounced propensity on part of the court to find coverage unless equally strong or equitable considerations to the contrary are present.” Sands at 80, 331 A.2d at 717. A similar liberal construction should be afforded to the act in the instant case to assure the plaintiff receives adequate first-party loss benefits from the defendant under section 1713(a)(3).

Moreover, the intent of the act in the instant case is analogous to that of the Uninsured Motorist Act, which has been construed to “protect those persons who while using the highways themselves suffer grave injuries through the negligent use of those highways by others.” Patiani v. Keystone Insurance Co., 426 Pa. 332, 328, 231 A.2d 402, 404 (1967), quoting Katz v. American Motorists Insurance Co., 244 Cal. App. 2d 886, 53 Cal. Rptr. 669 (1966). There is little doubt that plaintiff in the instant case was an individual who suffered grave injuries through the negligent use of the highway by another.

Defendant also contends, however, that there cannot be a “stacking” of coverage under the various subsections of section 1713(a) of the act. This is correct. Under Laguna v. Erie Insurance Group, 370 Pa. Super. 308, 536 A.2d 419 (1988), once there is recovery under one of the subsections in section 1713(a), the claimant cannot proceed against an insurance company which is responsible under one of the other subsections. However, La-guna also reaffirms the principle that there can be multiple insurance coverage within the same priority levels of section 1713(a). Laguna states that section 1713(a) “creates a clear order of priority of first-party benefits coverage. The provision of section 1713(b) regarding procedures to be followed in the event of multiple sources of coverage is limited to sources of equal priority.” Laguna, supra.

The multiple coverage sought in the instant case is in accord with the Laguna holding since both sources of coverage (Prudential and Harleysville) are of an “equal priority level” under section 1713(a)(3). Therefore, there is no “stacking” of coverage involved in the instant case. The practical result of the prohibition against stacking is that the plaintiff cannot recover the full amount of coverage from both insurance companies; i.e., $10,000 plus $100,000 for a total of $110,000. Plaintiff is restricted under the multiple coverage to recovering the. maximum amount under either of the policies; i.e., $100,000, in this case and then the two insurance companies are to prorate that amount under section 1713(b) of the act.

This conclusion is further confirmed by the language of the Insurance Department Guidelines. Guideline B-9 clearly contemplates multiple coverage in section 1713(a)(3) situations since it provides for contribution among the insurance companies in that event. In addition, Guideline B-16 provides in its entirety that the claimant can only recover from one of the four classes of priority but does not limit the claimant to only one insurance policy within a particular class. Therefore, it too contemplates multiple coverage within a single level of priority.

Finally, there is a general principle in insurance law that where there is a question of coverage, the courts will err in favor of concluding that there is coverage because the insurance policies are written exclusively by the insurance companies without negotiation with the insured so that they should be construed against the insurance company to the extent justified by the language of the policy. Allstate Insurance Co. v. Heffner, 491 Pa. 447, 421 A.2d 629 (1980).

In. Heffner, the Supreme Court stated that “[historically, the courts of this Commonwealth have routinely followed this spirit and found coverage for the insured in close or doubtful insurance cases. The tendency has been that if we [the courts] should err in ascertaining the intent of the legislature or the intent of an insurance policy, we should err in favor of coverage for the insured.” Heffner at 455, 421 A.2d at 663.

CONCLUSION

For all the foregoing reasons the judgment entered in favor of plaintiff on May 31, 1990 should be affirmed.

      . Plaintiff neither owned a car nor lived with any relative that owned a car.

      . Any insurer which pays a claim for first-party benefits is thereafter entitled to recover contribution pro rata from any other insurer in the same priority class for the benefits paid and the costs of processing the claim. If the priority class is (1), (2) or (3),'contribution shall be pro rata by limits. For priority class (4) contribution is pro rata by the number of motor vehicles involved in the accident. The total amount paid by any insurer as first-party benefits to the injured person or personal representative and as contribution to other insurers for benefits paid shall not exceed the company’s limit of liability.

      . A person who suffers injury arising out of the maintenance or use of a motor vehicle may not recover first-party benefits from policies in more than one priority class. There shall be no payment under a policy if there is another insurer at a higher level of priority. The highest priority level listed in section 1713(a) is the first level which provides benefits to the name insured.


author: CASSIMATIS, J.,

text:
    Yohe v. Nationwide Mutual Life Insurance Co.

      Daniel M. Fennick, for plaintiffs.

      Rees A. Griffiths, for defendant.
    July 19, 1990
   CASSIMATIS, J.,

This matter is before the court pursuant to the motion of plaintiffs, Wayne B. Yohe and Donna M. Yohe, to compel discovery. For the reasons set forth below; the motion is granted.

Plaintiffs’ house, insured under a fire insurance policy issued by defendant, Nationwide Mutual Fire Insurance Company, burned down in August 1987. Following an investigation, defendant denied plaintiffs’ claim for policy proceeds, alleging arson by plaintiffs. Plaintiffs then filed a complaint, requesting policy proceeds as well as triple damages under the Pennsylvania Consumer Protection Law for defendant’s alleged bad-faith denial of the claim.

At issue here is whether certain notes and materials prepared by defendant’s claim adjuster while investigating plaintiffs’ claim are protected from discovery. Plaintiffs filed a request for production of documents, seeking these notes and materials, to which defendant did not object. Defendant now asks the court to enter a protective order, barring the disclosure of the notes and materials prepared by its claims adjuster.

Plaintiffs assert that by not promptly objecting to the request for production, defendant has waived its right to object or seek a protective order. Alternatively, plaintiffs contend that even if defendant has not waived its right to object or seek a protective order, defendant’s objections are meritless and, consequently, the motion to compel should be granted.

Conversely, defendant maintains that its failure to promptly object does not constitute a waiver of its right to seek a protective order. Defendant claims that the sought-after discovery is protected because it involves the mental impressions of its claims adjuster. In the alternative, defendant submits that should the court conclude that the adjuster’s notes are relevant to the issue of bad faith, the court should reserve its ruling on the motion to compel and sever plaintiffs’ claim for policy proceeds from their bad-faith claim and dispose of the bad-faith claim only if plaintiffs prevail on their claim on the policy.

In this case, it is clear that defendant did not promptly file its objections to plaintiffs’ request for production. A failure to do so, however, is not fatal to defendant’s right to seek a protective order. As the court stated in Northampton Municipal Authority v. Remsco:

“[Wjhile rule 4006(a)(2) provides that objections to interrogatories shall be filed within 30 days, nothing suggests that objections not raised within the 3,0-day period are waived. Rule 4019(a)(2) contains the only waiver provisions within the rules of discovery. Under this rule, failure to answer written interrogatories is objectionable only if a party has filed objections or applied for a protective order. Furthermore, this rule permits objections to be raised through an application for a protective order and rule 4012 sets forth no time period within which a protective order must be sought.” 22 D.&C. 3d 541, 547 (1981).

In concluding that there was no waiver as a result of a failure to object within 30 days, the court distinguished between objections based on the form of the interrogatories and those objections relating to the content and substance of the interrogatories. The court concluded that objections as to form are waived if not raised within 30 days, but that objections regarding substance are not waived by a failure to promptly object.

To be sure, we are presently concerned with a request for production and not interrogatories, yet the rationale set forth above is aptly applied to this situation. Defendant’s objection that the notes of its claims adjuster are protected because they contain mental impressions of the adjuster, goes to the substance of the requested discovery. As a result, defendant has not waived its right to object and, accordingly, defendant is not barred from seeking a protective order.

Whether defendant is entitled to the protective order is an entirely different matter. In resolving this question, the court is guided by the learned analysis of Judge Wettick in Little v. Allstate Insurance Company, 16 D.&C. 3d 110 (1980). Here, plaintiff sued for no-fault benefits and statutory attorney’s fees. Prior to rejecting plaintiff’s claim for no-fault benefits, defendant conducted an investigation of the claim. Plaintiff filed a motion to produce all documents prepared in connection with this investigation. Defendant produced the documents, but deleted all references to the investigator’s opinions as to the merits of plaintiff’s claim.

Plaintiff then moved to compel the production of the deleted portions of the documents. This material was relevant to plaintiff’s claim for counsel fees under the No-fault Act. That claim raised the issue of whether defendant denied the claim without reasonable foundation and evidence relating to the scope of defendant’s investigation, its evaluation of the evidence and its reasons for denying the claim as directly related to whether the claim was denied with or without reasonable foundation. The court reasoned that since the material was relevant and not privileged, it was discoverable unless explicitly protected under another discovery rule.

In its opinion, the court cited Pa.R.C.P. 4003.3, which both parties to the instant case rely on. It provides:

“Subject to the provisions of rules 4003.4 and 4003.5, 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 his attorney, consultant, surety, indemnitor, insurer or agent. The discovery shall not include disclosure of the mental impressions of a party’s attorney or his conclusions, opinions, mem-oranda, 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 mental impressions, conclusions or opinions respecting the value or merit of a claim or defense or respecting strategy or tactics.”

The court then noted that although the rule protects the mental impressions, conclusions and opinions of a party’s representative in anticipation of litigation, “it is not clear from a reading of the rule whether the protection is limited to the litigation of the claim for which the impressions, conclusions and opinions were made or whether it extends to the litigation of claims which the impressions, conclusions or opinions do not address. ” Little, 16 D.&C. 3d at 112. (emphasis supplied)

The court then concluded that rule 4003.3’s protections apply only to the litigation of the claim for which the impressions, conclusions and opinions were made. It based its decision on the rationale set forth in Harvey v. Whatley, 2 Philadelphia Rep. 443 (1979), which held that rule 4003.3’s protections against discovery of impressions, conclusions or opinions prepared in anticipation of litigation did not extend to subsequent litigation in which such matters were relevant. In Harvey, an action against an insurance company for allegedly representing an insured in bad faith, the court permitted the discovery of opinions in the insurance company’s file made in anticipation of the litigation in which the insurance company allegedly acted in bad faith because such opinions were necessary to prove the bad faith claim. In Little, Judge Wettick reasoned that because the matters deleted from the documents which defendant provided were relevant to the issue of whether plaintiff’s claim was denied without reasonable foundation, they were not protected.

Application of the foregoing principles to the case at bar compels the conclusion that defendant’s claims adjuster’s notes are not protected from discovery. As stated above, rule 4003.3’s protections apply only to the litigation of the claim for which the impressions, conclusions and opinions were made. In the instant case, defendant’s adjuster’s notes were made for the purpose of investigating plaintiffs’ claim on the policy. The adjuster’s notes were not prepared in anticipation of plaintiffs’ allegations of bad faith. Therefore, the adjuster’s notes are not protected by rule 4003.3. As the material is relevant on the bad-faith issue, not privileged or protected by rule 4003.3 or any other rule, it is discoverable. Consequently, defendant’s request for a protective order will be denied and plaintiffs’ motion to compel will be granted.

With regard to defendant’s contention that the court should sever the claim on the policy from the bad-faith claim, it is rejected. In essence, defendant seeks to have this trial bifurcated. As the questions of whether plaintiffs are entitled to recover on the policy and defendant’s alleged bad faith are closely related, judicial economy dictates that the two be heard in the same setting. Moreover, defendant has failed to make any formal motion or petition for a bifurcation of the two issues other than to include it as part of its response to plaintiffs’ motion to compel. As a result, the court will not order a bifurcation.

Lastly, plaintiffs maintain that they are entitled to attorney’s fees. This request will be denied. Defendant’s conduct simply does not rise to the level warranting imposition of attorney’s fees. To date, no court order has been disobeyed by defendant. In addition, defendant’s objection to the sought-after discovery was not in the least bit frivolous, given the sparsity of case law on the issue. Therefore, we decline to award plaintiffs’ counsel fees. Accordingly, we enter the following

ORDER

And now, July 19, 1990, the motion of plaintiffs, Wayne B. Yohe and Donna M. Yohe, to' compel discovery is granted. Defendant, Nationwide Mutual Fire Insurance Company, shall provide plaintiffs the notes of its claims adjuster(s) who investigated plaintiffs’ claim within 30 days of the date of this order.

Defendant’s motion for a protective order is denied as is defendant’s request for a severance.

Plaintiffs’ request for attorney’s fees is denied.

The prothonotary is directed to provide notice of the entry of this opinion and order as required by law.

      . Defendant has indicated that it will supply plaintiffs with the other discovery they seek.

      . Pursuant to the No-fault Act, 40 P.S. §1009.107, attorney’s fees may be awarded where the insurer denied the claim without “reasonable foundation.”


author: ACKER, P.J.,

text:
    Bish v. Greenville Hospital

      Harvey L. Daniels, for plaintiff.

      James A. Wood, for defendant John P. Scullin, M.D.

      December 22, 1989
   ACKER, P.J.,

This matter comes for consideration upon defendant Dr. Scul-lin’s motion for summary judgment.

This action is in negligence filed by plaintiff against defendant, Greenville Hospital and Dr. John Scullin, following surgery performed on April 19, 1984. Defendant doctor had performed a bilateral total hip replacement on plaintiff at defendant hospital. Plaintiff alleges that during the surgery a ground plate was applied to plaintiff’s back from which she sustained third-degree burns. Valleylab was joined as an additional defendant in a complaint by defendant hospital which alleged that the surgical unit supplied by Valleylab was defective and caused plaintiff’s injuries. Subsequently, defendant hospital and plaintiff reached a settlement as to plaintiff’s cause of action against the hospital and a joint tort-feasor release was executed by plaintiff to the hospital.

Defendant doctor argues that summary judgment should be granted in his favor since there is no genuine issue of material fact that would prove him responsible for the events in the operating room which caused plaintiff’s injuries. In addition, defendant doctor claims that since plaintiff has recovered $35,000 from defendant Greenville Hospital, defendant Scullin cannot be held vicariously liable for plaintiff’s injuries in that plaintiff has already recovered for such injury.

Summary judgment can only be granted when in a matter of law the issue is free and clear from doubt. Billman v. Billman v. Pennsylvania Assigned Claims Plan, 349 Pa. Super. 448, 502 A.3d 932 (1986). The burden of proof in establishing that there is no genuine issue of material fact and that the moving party is entitled to a summary judgment rests upon the moving party. Bertani v. Beck, 330 Pa. Super. 248, 479 A.2d 534 (1984).

“A motion for summary judgment may properly be granted only ‘if the pleadings, depositions, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue of any material fact, and that the moving party is entitled to judgment as a matter of law.’ ” Washington Federal Savings & Loan v. Stein, 357 Pa. Super. 286, 515 A.2d 980 (1986); see also, Overly v. Kass, 382 Pa. Super. 108, 554 A.2d 970 (1989). However, parties seeking to avoid summary judgment may not rest on the averments contained in their pleadings. To the contrary, the adverse party may serve opposing affidavits as authorized by rule 1035(d) to show that there is an issue of fact. Washington Federal Savings & Loan v. Stein, supra at 288, 515 A.2d at 981. Any doubt must be resolved against the moving party. Id.

The court in response to the motion for summary judgment does not decide issues of fact but only whether there is an issue of material fact to be tried. Boyd v. Albert Einstein Medical Center, 377 Pa. Super. 609, 547 A.2d 1229 (1988); Schacter v. Albert, 212 Pa. Super. 58, 239 A.2d 841 (1968). The fact is material if it directly affects disposition of the case. Commonwealth v. Insurance Company of North America, 62 Pa. Commw. 379, 436 A.2d 1067 (1981); Allen v. Colautti, 53 Pa. Commw. 392, 417 A.2d 1303 (1980).

Defendant Scullin raises two contentions in reliance on his motion for summary judgment. His first contention is that he was not responsible under a “captain of the ship” theory for activities in the operating room which may Have led to plaintiff’s injuries. We disagree.

The “captain of the ship” doctrine imposes liability on a surgeon in charge of an operation for the negligence of his assistants during the period when the assistants are under the surgeon’s control. Thomas v. Hutchison, 422 Pa. 118, 275 A.2d 23 (1971). It establishes vicarious liability of the surgeon for the negligence of those operating under his direction. Easter v. Hancock, 237 Pa. Super. 31, 346 A.2d 323 (1975). The essential question is whether one is subject to the control of another not only as to the work to be done but also the manner of performing it. Grubb v. Albert Einstein Medical Center, 255 Pa. Super. 381, 387 A.2d 480 (1978). This determination of whether an assistant is the servant of a surgeon is a factual issue to be determined by the jury. Thomas v. Hutchinson, supra. In Grubb v. Albert Einstein Medical Center, supra, the court sets down a number of factors the jury must consider, including whose work was being done, who had the right to control the work and the manner doing it, who- received the benefit, and had the right to receive the benefits from the performance of the work.

There are many issues of material fact which make the granting of such a motion not free and clear from doubt. Questions such as the extent of defendant doctor’s control over the work to be done and its performance must be resolved.

Therefore, because the “captain of the ship” doctrine may be applicable, summary judgment on this contention must be denied. Defendant Scullin’s second contention in support of a motion for summary judgment is that since defendant Greenville Hospital and plaintiff settled for $35,000, defendant Scullin can no longer be liable to plaintiff. We disagree.

The appellate courts of Pennsylvania have not considered the issue of whether the release of a hospital employer does or does not work as a release of a doctor/employee. We conclude that it does not. The decision can be supported by two different theories of law.

First, we can apply the law in Pennsylvania on the subject of joint tort-feasors. Title 42 Pa.C.S. §8325 states that the recovery of a judgment by the injured party against a joint tort-feasor does not discharge the other joint tort-feasor. Defendant Scullin argues that the hospital and himself are not joint tort-feasors but are linked together by vicarious liability and thus 42 Pa.C.S. §8325 does not apply. We disagree based on the holding in Mazer v. Lipshutz, 360 F.2d 275 (1966).

The facts in Mazer are almost identical to the instant case. The plaintiff was suing both the hospital and the doctor for injuries he received. The hospital eventually settled with plaintiff for $60,000 and the doctor moved to be released from any further liability. The court denied the request and held that the plaintiff had mistaken the positions of the hospital and of the doctor. The plaintiff mistakenly believed that only the hospital was vicariously liable for the doctor’s actions and therefore since the principal party who was vicariousíy liable had paid for the plaintiff’s damages, the plaintiff could not recover a second time from the doctor. In reality, both the doctor and the hospital were vicariously liable, and therefore were both joint tort-feasors. The hospital \yas vicariously liable for the doctor's actions and the doctor was vicariously liable for his operating team’s actions. Mazer v. Lipshutz, 360 F.2d 275 (1966). “It has long been held that two parties who are each secondarily liable are considered joint tort-feasors as between each other.” Rutherford v. Gray Line Inc., 615 F.2d 944 (1980).

We have the same set of circumstances present in our case. Greenville Hospital is vicariously liable to the actions of Doctor Scullin and Dr. Scullin is vicariously liable to the actions of his operating team. Therefore, Greenville Hospital and Dr. Scul-lin do fit under the Uniform Contribution Among Tort-feasors Act. Any release of the principal Greenville Hospital does not prevent further recovery from its agent, Dr. Scullin. Dr. Scullin’s liability, if any, will of course be limited to the amount of any judgment in excess of the amount already paid by the hospital. 42 Pa.C.S. §8326; Capone v. Donovan, 332 Pa. Super. 185, 480 A.2d 1249 (1984).

It is important to this decision to point out that Dr. Scullin has wrongly applied the holding of Mamalis v. Atlas Van Lines Inc., 522 Pa. 214, 560 A.2d 1380 (1989), to the facts of this case. In Mamalis, only the principal was vicariously liable for the tort committed and the agent was in fact the party directly responsible for the tort. The agent and the principal could not therefore be .classified as joint tort-feasors under the Uniform Contribution Among Tort-feasors Act. 42 Pa.C.S. §8321. Additionally, it was the agent who was released in Mamalis and not the principal. In the instant case, Dr. Scullin readily admits that it is the principal Greenville Hospital who has been released from further liability and not the agent, Dr. Scullin. The instant case is the exact opposite of Mamalis.

A second theory for denying Dr. Scullin’s motion for summary judgment is that the case involves a master/servant relationship between the hospital and Dr. Scullin. The premise being that the employer hospital was vicariously liable for its employee, Dr. Scullin’s alleged negligence in supervising an operation. The release of the one not legally liable to the injured party does not work as a release of any tort-feasor. Smith v. Fenner, 399 Pa. 638, 161 A.2d 153 (1960), quoted in Augustine v. Sokol, 41 D.&C. 3d 236 (1985). “If there was no community of fault, there was no joint tort; hence a release of one not shown legally liable would not release a tort-feasor.” Wilbert v. Pittsburgh Consolidated Coal Company, 385 Pa. 151, 122 A.2d 407 (1956), cited in Augustine v. Sokol, supra. “A release of one who is not legally liable for an injury to another does not operate to release the culpable tort-feasor.” Koller v. Pennsylvania Railroad, 351 Pa. 63, 40 A.2d 91 (1944), quoted in Augustine v. Sokol, supra.

The two legal theories are somewhat different to each other in that the first theory deals with release of multiple tort-feasors while the second theory deals with releases between tort-feasors, injured parties and those parties “not legally liable.”

The end result under both theories is, however, the same. Under the Uniform Contribution Among Tort-feasors Act, a release of one multiple tort-feasor would not bar suit against another. Under the master/servant theory, where there is no “community of fault,” a release of one “not legally liable” would not bar suit against an alleged tort-feasor.

Hence, this

ORDER

And now, December 22, 1989, it is hereby ordered and decreed that defendant Scullin’s motion for summary judgment is denied.


author: BRODY, J.,

text:
    Spencer v. Absco Inc.

      Timothy Hough, for plaintiffs.
    ■ Theodore Chylack, for defendant Commonwealth of Pennsylvania.
    July 12, 1990
   BRODY, J.,

This case arises from an auto accident on June 29,1982, at the intersection of Pennsylvania Route 309 and Hartman Road in Montgomery County. This court’s order of March 20, 1990, granted a motion for summary judgment for the defendant Commonwealth of Pennsylvania. Plaintiffs have appealed this order to Commonwealth Court.

BACKGROUND

On June 29, 1982, the decedent, Roseann Spencer, was traveling in the left-hand southbound lane of Route 309. Deféndant Margaret Hughes was stopped in the left-hand lane just over the crest of a hill waiting to make a left turn onto Hartman Road. Defendant Greg Pavlik, traveling just ahead of the decedent, swerved to avoid hitting Hughes’ stopped car. As the decedent approached the crest of the hill, she encountered Pavlik’s car colliding with Hughes’ stopped vehicle. The decedent swerved to the left, entering the northbound lanes of Route 309. A tractor-trailer owned by defendant Absco Inc. struck the car driven by the decedent, fatally injuring her. Plaintiffs brought suit against Pavlik, Absco

Inc., and its driver. Margaret Hughes and the Commonwealth of Pennsylvania were joined as additional defendants.

Plaintiffs sought damages against defendants, including the Commonwealth, under the Wrongful Death Act, 42 Pa.C.S. §8301, and the Survival Act, 42 Pa.C.S. §8302. In plaintiffs’ brief they allege that negligent road design and traffic control caused an unsafe condition on the roadway where the accident occurred. Plaintiffs attempted to use the highway exception of 42 Pa.C.S. §8522(b)(4),(5) as the basis for their claim of liability against the Commonwealth. Plaintiffs contend that evidence of prior accidents at the intersection of Route 309 and Hartman Road would establish that the Commonwealth had knowledge of the allegedly dangerous condition, and could therefore be found liable under one of the exceptions.

On the first day of trial, defendant Commonwealth moved for summary judgment based on sovereign immunity, specifically plaintiff’s failure to name a “Commonwealth party” as a defendant as required by 42 Pa.C.S. §8522. Plaintiffs opposed the motion, asserting that defendant had waived this defense and alternatively that the Pennsylvania Department of Transportation had been effectively involved in all stages of litigation, and that therefore plaintiffs should be permitted to amend the caption to name PennDOT as a defendant. Defendant’s motion for summary judgment was granted on March 20, 1990.

DISCUSSION

Summary judgment may properly be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits,'if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Pa.R.C.P. 1035(b); Toth v. City of Philadelphia, 213 Pa. Super. 282, 247 A.2d 629 (1968). The legal issue presented for determination was whether summary judgment should be granted in favor of the Commonwealth of Pennsylvania, an improper party because of its immunity from suit, in light of plaintiff’s contention that the immunity was waived and that the allegedly proper defendant (PennDOT) had participated in the litigation. This court determined that the grant of summary judgment in favor of the Commonwealth of Pennsylvania was appropriate.

The Commonwealth, pursuant to Pa. Constitution, Article I, §11 and 1 Pa.C.S. §2310, is absolutely immune from any suit. Sovereign immunity may only be waived by specific words from the General Assembly.

Title 42 Pa.C.S. §8522 enumerates certain exceptions to sovereign immunity, but only as to the liability of a “Commonwealth party,” not the Commonwealth itself.

“(a) Liability imposed — The General Assembly, pursuant to section 11 of Article I of the Constitution of Pennsylvania, does hereby waive, in the instances set forth in subsection (b) only and only to the extent set forth in this subchapter and within the limits set forth in section 8528 (relation to limitations on damages), sovereign immunity as a bar to an action against Commonwealth parties, for damages arising out of a negligent act where the damages would be recoverable under the common law or a statute creating a cause of action if the injury were caused by a person not having available the defense of sovereign immunity.” 42 Pa.C.S. §8522(a). (emphasis supplied)

The Commonwealth retains absolute sovereign immunity, but liability may be imposed on “Commonwealth parties.” The General Assembly has defined a Commonwealth party as “a Commonwealth agency and any employee thereof, but only with respect to an act within the scope of his office or employment.” 42 Pa.C.S. §8501. The Commonwealth is a entity distinct from those Commonwealth agencies and employees, and remains immune from suit under sovereign and official immunity. Hall v. Acme Markets Inc., 110 Pa. Commw. 199, 532 A.2d 894 (1987). On this basis, the Commonwealth’s motion for summary judgment was granted.

Sovereign Immunity A Non-Waivable Defense

In arguing against the motion for summary judgment, plaintiffs contend that the Commonwealth has effectively waived the defense of sovereign immunity by its failure to assert it prior to the first day of trial. Sovereign immunity, however, is a non-waivable defense. In re Upset Sale of Properties (SKIBO), 522 Pa. 230, 560 A.2d 1388 (1989). In SKIBO, the Pennsylvania Supreme Court stated that:

“Defense of governmental immunity is an absolute defense . . . and is not waivable, nor is it subject to any procedural device that could render a governmental agency liable beyond the exceptions granted by the legislature. . . .

“[A] governmental agency cannot be put at the mercy of negligent or agreed waiver by counsel of a substantive right designed to protect its very existence. Such negligence can spread, pebble in pond, until the governmental agency would be engulfed in a tidal wave of liability.” 522 Pa. at 232, 560 A.2d at 1389.

Therefore, the Commonwealth did not waive its sovereign immunity by its failure to raise the defense prior to the first day of trial.

Prejudice /Amendment to Caption

Plaintiffs assert that PennDOT will not be prejudiced by an amendment to the caption at this stage because PennDOT effectively participated in all phases of litigation. The Commonwealth contends, and this court agrees, that PennDOT is a separate and distinct party from the Commonwealth and was never part of this litigation. Rule 1033 of the Pennsylvania Rules of Civil Procedure provides that “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.” Pa.R.C.P. 1033. The Pennsylvania Supreme Court, in Saracina v. Cotoia, 417 Pa. 80, 208 A.2d 764 (1965), limited this broad rule by stating: “An amendment of the complaint, after the statute of limitations has run, to bring in a new and distinct party to the action cannot be permitted.” Id. at 83, 208 A.2d at 766 (1965).

In Bainbridge v. Commonwealth of Pennsylvania, 125 Pa. Commw. 406, 557 A.2d 456 (1989), the Commonwealth Court addressed the issue of whether PennDOT could be substituted for the Commonwealth in a case where liability was based on the highway exception. The court affirmed the decision of the trial court, dismissing PennDOT and the Commonwealth as parties. In Bainbridge, as in the present case, the Commonwealth was named as a defendant; neither the Secretary of Transportation, PennDOT nor any other Commonwealth party were named as defendants, and the statute of limitations had run. The appellant attempted to show participation by PennDOT through seven letters allegedly exchanged between them and the Tort Claims Unit of the Department of General Services. The court concluded that the record did not reveal that PennDOT had participated in the litigation and any attempt to amend the complaint to name Penn-DOT, a new and distinct party, would be prejudicial to PennDOT. Unlike the present case, the Commonwealth in Bainbridge filed preliminary objections including a motion to dismiss for lack of jurisdiction. The Commonwealth’s failure in this case to raise the defense of sovereign immunity prior to the first day of trial is not determinative since, as discussed earlier, the defense of sovereign immunity is a non-waivable defense.

In Hall v. Acme Markets Inc., 110 Pa. Commw. 199, 532 A.2d 894 (1987), the Commonwealth Court allowed an amendment to the complaint to include PennDOT. Since the Secretary of Transportation was actually named in the initial complaint along with the Commonwealth, the court determined that PennDOT would' not be prejudiced by such an amendment since PennDOT effectively had been involved in all stages of the litigation process.

The present case is analogous to Bainbridge in that neither PennDOT nor the Secretary of Transportation were named as defendants. Plaintiffs cite to the joinder complaint where they identify three separate references to PennDOT in the body of the complaint and in the ad damnum clause. These, like the letters in Bainbridge, do not justify the claim that PennDOT was a participant in the litigation. In this case, it would be prejudicial to allow a substitution of parties. An amendment to substitute Penn-DOT for the Commonwealth after the statute of limitations has run, with no named party such as the Secretary of Transportation to protect the interest of PennDOT, would be unjust.

In Verna v. Commonwealth, no. 843 C.D. 1988 (mem. op., Pa. Commw. April 28, 1989, alloc. den. December 21, 1989), the Commonwealth Court dealt with a remarkably similar set of circumstances. Although the decision in Verna is not precedential, this court is persuaded by Judge Palladino’s reasoning that, after the statute of limitations has run, and neither the Secretary of Transportation nor Penn-DOT were named as parties, a substitution of Penn-DOT in place of the Commonwealth would be prejudicial to PennDOT. In Verna, plaintiffs cited references to PennDOT in the body of the complaint, as well as in letters from the Tort Claim — Pre-Litigation Division of the Department of General Services. The court determined that these references were not sufficient to assert that PennDOT had actively participated in the litigation. The references in the present case, similar to those in Verna, do not support the proposition that PennDOT has been involved in the litigation. As in Verna, to allow PennDOT to be substituted for the Commonwealth would be prejudicial to PennDOT, a new and distinct party.

Plaintiffs’ failure to name PennDOT as a defendant in the instant case was a fatal error. The Commonwealth Court in Bainbridge asserted that the failure to name a Commonwealth party was inexcusable. The court stated:

“This is not an instance where it is difficult for an injured party to know what Commonwealth party should be named in an action for damages. Clearly the failure to name DOT as a party in this case is not a technical defect that may be remedied after the applicable statute of limitations has run. To permit DOT to be named as a party at this point in the litigation of this case would be prejudicial to DOT.” Bainbridge, 125 Pa. Commw. at 410, 557 A.2d at 458.

As in Bainbridge, it should have been clear to plaintiffs that PennDOT was the potentially responsible Commonwealth agency. Allowing PennDOT to be substituted for the Commonwealth would act as a joinder of an additional party, not just a change in name. This joinder is precluded by the statute of limitations. The statute of limitations for an action to recover damages for personal injuries is two years. 42 Pa.C.S. §5524(2). Although the Commonwealth was sued as an additional defendant within six months of the 1982 accident that gave rise to the suit, PennDOT was not joined within the statutory requirement. The statute of limitations has run and any attempt to amend the complaint to substitute PennDOT for the Commonwealth is untimely.

CONCLUSION

For the reasons stated above, this court’s order of March 20, 1990, granting summary judgment to defendant Commonwealth, should be affirmed.

      . Plaintiffs filed a petition for reconsideration which was argued and denied on April 18, 1990.

      . Plaintiffs’ motion to amend the caption was made orally at the time of the argument on defendant’s summary judgment motion, and is not in the record. If the entry of summary judgment in defendant’s favor is reversed, plaintiffs shall not be precluded from raising their motion to amend the caption.

      . “All Courts shall be open; . . . Suits may be brought against the Commonwealth in such manner, in such courts and in such cases as the Legislature may by law direct.”

      . “[I]t is hereby declared to be the intent of the General Assembly that the Commonwealth, and its officials and employees acting within the scope of their duties, shall continue to enjoy sovereign and official immunity and remain immune from suit except as the General Assembly shall specifically waive the immunity. . .


author: DOYLE, J.,

text:
    McGonigle v. Currence

      Paul M. Daniels, for plaintiffs.

      Ray F. Middleman, for defendants.
    October 26, 1988
   DOYLE, J.,

On March 16, 1987, plaintiffs filed a complaint (civil action) sounding in assumpsit and trespass. An answer and new matter was filed by defendants and an answer (sic) to the new matter was filed by plaintiffs. A board of lawyer-arbitrators was empanelled, and on October 8, 1987 assembled to hear and determine the matter. Plaintiffs did not appear before the board to pursue their claims and the arbitrators entered an award for defendants.

On October 16, 1987, plaintiffs filed an appeal for trial de novo from the award. On July 19, 1988, the case was listed in the Pittsburgh Legal Journal, the official “notice” newspaper for lawyers and the court system of Allegheny County, Pennsylvania, for trial on September 13, 1988. On September 13, 1988, both counsel appeared when the case was called for trial. Counsel for defendants moved to dismiss the appeal for failure óf plaintiffs to appear at the arbitration hearing and present their case to the arbitrators. That motion was granted and the appeal was dismissed by order dated September 13, 1988.

Plaintiffs did not file any motion for post-trial relief under Pa.R.C.P. 227.1. On September 16, 1988, plaintiffs appealed the matter to the Superior Court of Pennsylvania at no. 1389-PGH-1988.

On September 23, 1988, defendants filed their motion to strike plaintiffs’ motion for reconsideration. Plaintiffs’ motion to reconsider and defendants’ motion to strike the same were listed for argument before the trial court on Friday, October 14, 1988, at which time plaintiffs’ counsel was advised that his motion would be denied. By order dated Monday, October 17, 1988, plaintiffs’ motion for reconsideration was denied and defendants’ motion to strike was dismissed.

That section of the Judicial Code which relates to judicial arbitration of civil matters which are referred to boards of arbitration under court rule (Pa. R.C.P. 1301 et seq. and Local Rule 1301 et seq.), provides:

“§7361(d). Appeal for trial de novo

“Any party to a matter shall have the right to appeal for trial de novo in the court. The party who takqs the appeal shall . . . comply with such . . . procedures as shall be prescribed by general rules. ...”

Whether vel non plaintiffs’ appeal relates to “an appealable order” under the Rules of Appellate Procedure is a matter with respect to which we are coram non judice and, if decided, will be decided by the Superior Court.

Whether vel non this court, under the circumstances, was authorized to entertain and/or decide the post-appeal motion for reconsideration under Pa.R.A.P. 1701(b), if decided, will be decided by the Superior Court.

We are of the opinion that the “reconsideration” provided for in 42 Pa.C.S. §5573 is not applicable to the matter in controversy.

Our decision of September 13, 1988 (dismissing plaintiffs’ appeal from the award) is based upon the legal theory that a party to litigation (particularly a plaintiff who commenced the litigation) who, being notified, does not appear at the appointed time and place before a tribunal authorized by law to hear evidence and determine the case or controversy, impliedly acquiesces in the decision or award rendered by that tribunal. Tribunal, used in 42 Pa.C.S. §7361(d), is defined in 42 Pa.C.S. §102; appeal from appointive judicial office is specified in 42 Pa. C.S. §5101(a)(3); appointive judicial officer includes arbitrators (42 Pa.C.S. §102). Such delinquent is in the same position as a citizen who does not vote at an election of public officials. He is assumed to impliedly posit that he accepts any result of that election.

Our decision also applies the theory that by impliedly acquiescing in the award, the voluntary non-participant, a fortiori, impliedly waives his right to appeal from that award. This is a necessary sequent to the conclusion anent implied acquiescence in the award.

The right to appeal from compulsory/judicial arbitration under section 7361, supra, was inserted into the Judicial Code to avoid conflict with Pennsylvania Constitution, Article I, section 6 (relating to trial by jury). However, whether based on common law, constitution, legislation, judicial decisions or general rules of court, any legal right may be waived. Pa.R.C.P. §1007.1 prescribed that the right to trial by jury in civil cases “shall be deemed waived” by failure to file a written demand for a jury trial. The same rule is applied to a “deemed” withdrawal of a demand for jury trial. Thus, trial courts have been authorized to “deem” certain rights waived, consequent upon specified inaction or action.

In this case, we “deemed” that plaintiffs, by failing to appear at the time and place specified to present evidence on the case that they filed, had acquiesced in the award of the arbitrators. We also “deemed” that plaintiffs, ex necessitate, as sequent to their first waiver, had waived their right to appeal from the arbitration award to the court for a trial de novo.

We note that our decision comports with Hall v. Reeb, 136 Pitts. Leg. J. 299 (1988), a decision of McGowan, J., of this court.

Plaintiffs rely on Sipe v. Pa. R.R. Co., 219 Pa. 210, 68 Atl. 705 (1908), which construed the compulsory Arbitration Act of June 16, 1836, P.L. 715. Section 17 of the cited statute (15 P.S. §41) (relating to absence of a party at the arbitration hearing) along with the entire statute was repealed by the Judiciary Repealer Act (JARA), Act of 1978, no. 53, §2(a)[149]. Plaintiff also cites Barmak v. Duquesne Light Co., 133 Pitts. Leg. J. 404 (1985), which also relies on Sipe, which relies on the Act of 1836, which has been repealed.


author: WOLFE, P.J.,

text:
    Commonwealth v. Jackson

      Paul H. Millin, district attorney, for the Commonwealth.

      H. John Drayer, for defendant.
    July 13, 1990
   WOLFE, P.J.,

Defendant challenges the constitutionality of section 4 of Act no. 1989-24 styled: Catastrophic Loss Benefits Continuation Fund and Traffic Violation Surcharge. Specifically the act, as relevant herein, provides:

“(a) Creation — The Catastrophic Loss Benefits Continuation Fund is hereby created to provide funds necessary to pay catastrophic loss benefits under section 1798.2 (relating to transition).

“(b) Composition — The Catastrophic Loss Benefits Continuation Fund shall be composed of funds transferred from the Catastrophic Loss Trust Fund, funds contributed pursuant to section 6506 (relating to surcharge) and funds earned by the investment and reinvestment of such funds. The funds shall be held in trust, be deposited in a separate account, and be the sole and exclusive source of funds for the payment of catastrophic loss benefits under section 1798.2 and the administration of the catastrophic loss benefits under section 1798.2 and the administration of the Catastrophic Loss Benefits Continuation Fund.”

Section (c) provides the fund and all income earned by it shall not become part of the General Fund (of the Commonwealth) or Motor License Fund.

Factually, defendant was cited for violation of 75 Pa.C.S. §4942(a) by operating a motor vehicle in excess of the maximum allowable gross weight. Defendant was fined $75 under the Motor Vehicle Code, $10 under the Emergency Medical statute, court costs, and $150 under the Catastrophic Loss Benefits Continuation Fund.

Defendant argues this act violates Article I, section 13 of the Pennsylvania Constitution, which states:

“Excessive bail shall not be required, nor excessive fine imposed, nor cruel punishment inflicted.”

Defendant specifically argues the $150 surcharge is no more than a bailout of a bankrupt Catastrophic Loss Trust Fund (CAT Fund) by imposing a fiscal penalty on a statutory overweight fine, the results of which is not to protect the highways or safety of the citizens of the Commonwealth, but rather is a fiscal surcharge unrelated to the overweight violation. Moreover, defendant argues the $150 surcharge is applied indiscriminately whether a vehicle is 865.5 pounds overweight (as was the case here) or 8,000 pounds overweight.

We have no difficulty in arriving at the conclusion the surcharge is purely fiscal in nature; however, it is not totally unrelated to an overweight vehicle. It is the obvious intent of the legislature to create a fund to pay for catastrophic losses of the motoring public in this Commonwealth and this clearly cannot be couched under the term “fine.” Nonetheless, we cannot conclude the surcharge is unconstitutional for that reason. The sovereign has a clear mandate to protect its citizens from economic loss from injuries incurred by others violating the Motor Vehicle Code. Overweight vehicles violate the Motor Vehicle Code. The police power of the Commonwealth in this regard cannot be questioned. There are ample statistics to support the legislation in that annually there are approximately 50,000 deaths throughout the United States caused by the motor vehicle. Property loss and permanent maiming of individuals is incalculable.

Nor can we agree with defendant that due to the indiscriminate imposition of the surcharge it is constitutionally infirm. The surcharge applies without exception, irrespective of the overweight amount; thus there is no discrimination against highway truck users; however, the fine imposed is determined by the Vehicle Code based upon the amount of overweight and the type of vehicle involved. In Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267 (1963), the court held a fine of $4,350 for overweight of a tractor-trailer was not unconstitutional for violation of Article I, section 13 of the Pennsylvania Constitution. The court, citing Commonwealth v. Burall, 146 Pa. Super. 525, 22 A.2d 619 (1941) and McDonald v. Pa. R.R. Co., 219 F.2d 524 (3d Cir. 1954), observed the purpose of the overweight provision of the Vehicle Code is to protect the highways of the Commonwealth from damage and to insure the safety of those traveling upon the highways. The court found a previous fine of $50 imposed for each violation, irrespective of the amount of overweight, was not serving this function since profits accruing from the excess loads more than compensated for the penalty inflicted.

Instantly, the surcharge is related to the use of the highways in the Commonwealth. The imposition of the surcharge is applicable for all motor-vehicle violations and thus not limited to overweight violations (75 Pa.C.S. §6506). We conclude that treating the surcharge as an additional monetary penalty is not in violation of the Pennsylvania Constitution, in that it is not excessive when considered in balance with the interest of the Commonwealth in its attempt to make whole those injured on its highways.

Defendant also argues the act is in violation of Article III, sections 1 and 4 of the Pennsylvania Constitution. In this regard defendant submits the act originated as “Senate Bill 274” but when the bill was sent to the House of Representatives it was transformed from a “permit” provision of the Vehicle Code to a “revenue bill” to fund the “failed CAT fund.” Defendant further argues the Senate, after receiving the bill from the House, concurred in the House amendments without considering the revised bill on three different Senate days, which was in violation of Article III, section 1 of the Pennsylvania Constitution:

“No law shall be passed except by bill, and no bill shall be so altered or amended, on its passage through either house,. as to change its original purpose.”

Defendant also argues this violated Article III, section 4 of the Pennsylvania Constitution, providing, inter alia:

“Every bill shall be considered on three different days in each house.”

Defendant’s exhibit C, submitted as an exhibit to defendant’s brief, purports to support the defendant’s argument. By review of this exhibit we cannot make that determination; however, even accepting defendant’s argument, it is apparent from the exhibit both houses considered the bill. We have hesitated make the determination defendant’s position is correct in that the bill was not considered three times by the Senate, because exhibit C is not that clear. However, it does áppear the bill was. before the House at Printer’s Bill on three occasions, then moved to the Senate and the Senate then considered the bill three times. Finally, the bill returned to the House and the picture of the bill concludes the House concurred in Senate amendments to House amendments June 30, 1989. The bill was signed in the Senate on June 30, 1989; signed in the House on June 30, 1989; and in the hands of the governor on July 1, 1989. Last day for action was July 11, 1989 and the bill was approved by the governor on July 1, 1989, Act no. 24. .

We find no primary changes in the purpose of the bill, and the caption clearly states in Printer’s no. 1408:

“An act amending Title 75 (Vehicles) of the Pennsylvania Consolidated Statutes, creating the Catastrophic Loss Benefits Continuation Fund for payment of certain catastrophic loss benefits; providing for surcharge for certain offenses to provide monies for the fund, and further providing for conditions of permits.”

Defendant relies on Consumer Party of Pennsylvania v. Commonwealth of Pennsylvania, 510 Pa. 158, 507 A.2d 323 (1986) for the legal tenet neither the House nor Senate may violate Article III, section 1, of the Pennsylvania Constitution as such was established to prevent corrupt legislation. We have no quarrel with defendant’s' stance in this regard. However, the court there clearly found that the legislature did not violate Article III, section 1 in passing the Public Official Compensation Law, as there was no change in the bill’s purpose after it left the committee, and that object was clearly stated in the new title. Thus, the court found that although the title of the bill had been altered by agreement of the committees, the parties had agreed and stipulated the purpose of the bill did not change after the bill left the committee and when it was presented for final passage before both houses. The essence of the holding is neither the House or Senate may alter or change the primary purpose of a bill (heading) without the consent of the other body. The court, again setting down the burden one carries in attacking the constitutionality of a statute, cited Pa. Liquor Control Board v. The Spa Athletic Club, 506 Pa. 364, 485 A.2d 732 (1984):

“The strong presumption of constitutionality enjoyed by acts of the General Assembly and the heavy burden of persuasion on the party challenging an act have been so often stated as to now be axiomatic. Legislation will not be invalidated unless it clearly, palpably and plainly violates the constitution, and any doubts are to be resolved in favor of a finding of constitutionality.” (citations omitted)

Thus, the court found the language of Article III, section 1, albeit clearly mandatory, nonetheless was not applicable.

Irrespective of the foregoing, in Parker v. Dept. of Labor and Industry, 115 Pa. Commw. 93, 540 A.2d 313 (1988), the court, finding no applicable cases in this Commonwealth, followed sister jurisdictions and held:

“The rule, as followed by other jurisdictions, is that an amended bill need not be referred to committee or considered on three separate days in the house from which the bill which was amended originated, if the amendments are germane to, and do not wholly change the general subject of the bill.” (citations omitted)

Instantly, “exhibit C” clearly shows the bill was considered three times in the House, and after amendment on June 29, 1989, three times in the Senate, the Senate concurring in the House amendment as amended by the Senate June 30, 1989, and finally in the House with the House concurring in the Senate amendment on June 30, 1989. At no time was the primary purpose of the bill changed other than one topic matter in the caption of the bill.

We therefore conclude by our review of that the history of Act 24 does not violate Article III, section 1 of the Pennsylvania Constitution as clearly the primary purpose of the bill was intact throughout its history, was not altered by either body of the legislature without the other having knowledge of the amendment, and ultimately both House and Senate concurred in the amendments. We therefore reject defendant’s argument in this regard.

For these reasons we enter the following

ORDER

And now, July 13, 1990, defendant’s appeal from summary conviction is dismissed; costs to be borne by defendant.