author: HORN, J.,

text:
    PennDOT v. Eisenhart

      Francis P. Bach, assistant district attorney, for the Commonwealth.

      Michael C. Baldauff, for defendant.
    February 14, 1991
   HORN, J.,

This matter is before this court on petitioner’s appeal from a license suspension pursuant to 75 Pa.C.S. §1542 of the Motor Vehicle Code, as the habitual offender, stemming from her offense dated November 17, 1986.

A historical review of the case is crucial in our determination of the outcome.

Petitioner was arrested for driving under the influence of alcohol on. November 17, 1986. Petitioner accepted and was admitted into the accelerated rehabilitation disposition program for that offense and under the guidelines of the program, her license was suspended for a period of four months beginning on October 14, 1987. On December 12, 1988, Ms. Eisenhart was removed from the ARD program per an order of the Honorable John Chronister and the case was remanded for trial. An order dated February 13, 1989, by Judge. Chronister, accepted defendant’s plea of guilty to the charge of public drunkenness and imposed a fine, and defendant was ordered to complete the balance of the 35 hours volunteer work that she originally had agreed and accepted under the ARD program. When the volunteer hours were completed, the DUI offense from November 17, 1986, would be nol prossed.

Petitioner’s second offense under this section occurred on December 25, 1988. Ms. Eisenhart was convicted of section 3731, driving under the influence. As a result of a conviction on October 24, 1989, her license was suspended for one year as mandated by section 1532(b) of the Vehicle Code.

Petitioner’s third offense occurred on April 14, 1989, and she was charged with a violation of section 3731, driving under the influence. Since this was petitioner’s third offense under this section of the statute, Ms. Eisenhart’s license was revoked for five years under the Habitual Offender Statute, 75 Pa.C.S. §1542(a).

Ms. Eisenhart has appealed this revocation contending that the first violation on November 17, 1986, for which she originally accepted admission into the ARD program does not constitute a major offense under section, 1542(a) because the District Attorney ultimately entered a nol pros as the result of a subsequent plea arrangement.

The issue before this court is whether a mere acceptance into the ARD program for driving under the influence counts as a major offense for purpose of license revocation/suspension under section 1542(a), the Habitual Offender Statute, when defendant was removed from ARD and then, pursuant to a plea bargain, permitted to plead guilty to public drunkenness, with the understanding a nol pros is to be entered dismissing the original offense of driving under the influence when she completes her community service.

Section 1542(a) in pertinent part is as follows:

“(a) General rule — The department shall revoke the operating privilege of any person found to be a habitual offender pursuant to the provisions of this section. A ‘habitual offender’ shall be any person whose driving record, as maintained in the department, shows that such person has accumulated the requisite number of convictions for the separate and distinct offenses described and enumerated. . .”

Section (b) enumerates the sections of the statute which are counted as convictions for the Habitual Offender Statute to apply.

“(b) Offenses enumerated — Three convictions arising from separate acts of any one or more of the following offenses . . . shall result in such person being designated as a habitual offender:

“(1) any offense set forth in section 1532 (relating to revocation or suspension of operating privilege).”

Section (c) provides:

“(c) Accelerated Rehabilitative Disposition as an offense — Acceptance of accelerated rehabilitative disposition for any offense enumerated in subsection (b) shall be considered an offense for the purposes of this section.”

We interpret section 1542(c) to mean that the mere acceptance into the ARD program constitutes a conviction. We believe that the intent of the statute is not determined by outcome. Acceptance,regardless of completion of ARD, will be considered by this court as a conviction, not only for determining the sentence on subsequent convictions but also for determining the number of offenses.

We rely on two recent Superior Court cases to support our decision. In Commonwealth v. Becker, 366 Pa. Super. 54, 530 A.2d 888 (1987), the state appealed from an order of the Court of Common Pleas of Allegheny County which sentenced defendant as a first offender following a driving while under the influence conviction. The issue in Becker, supra, was whether acceptance into the accelerated rehabilitative disposition program after being charged with driving under the influence exposes a person to be sentenced as a second offender after a suit determination on a second DUI charge.

In the Superior Court’s analysis, a statutory interpretation was necessary to facilitate the meaning and intent of the words ‘ ‘ acceptance” into the ARD program. The sentencing court interpreted section (e)(2) as meaning that only “acceptance and completion of ARD shall be considered a first conviction.” Becker, supra. The Superior Court did not accede to this view and found it inconsistent with the plain text of the Vehicle Code.

The Superior Court read section 3731(e)(2) as meaning “exactly what it says — that acceptance of ARD is sufficient to trigger an enhanced penalty upon sentencing for a subsequent offense.” Id. The decision further clarified for the sentencing court what a “disposition of any charge brought under this section” means in section 3731(e)(2). The Becker court found that section 3731(e)(2) requires “only a preliminary disposition of the charge and defines acceptance of ARD as a preliminary disposition. We must therefore conclude that section 3731(e)(2) was designed to reach defendants who have failed to ‘graduate’ from the ARD program.” Id.

We find that Glenda Eisenhart has failed to graduate from the ARD program and as such will be considered a first offender for purposes of the Habitual Offender Statute, section 1542.

In Commonwealth v. Taylor, 390 Pa. Super. 571, 568 A.2d 1320 (1990), Taylor had been convicted of driving while under suspension for a DUI-related offense. On appeal, the Superior Court held that within reasonable bounds of statutory construction, defendant was found driving under suspension as a habitual offender and not under suspension as a condition of acceptance of ARD for violation of the DUI statute. Judge Brosky found that the defendant could properly be convicted under the statutory subsection prohibiting driving while his operating privilege was suspended but not under the subsection prohibiting driving while under suspension for a DUI or DUI-related offense. Id. Judge Brosky found that an erroneous conclusion had been reached by the lower court in equating the terms “condition of” and “the result of” when dealing with section 3731 of the Motor Vehicle Code. The Superior Court reached the conclusion that it was clear that Taylor received the five-year license suspension “as a result of and not as a condition of, or to, acceptance of ARD.” Taylor, supra. Parenthetically, the court added:

“In actuality it is not even entirely correct to state that the five-year suspension was a result of acceptance of ARD as the suspension 'results from the acceptance of ARD and the prior two convictions for traffic offenses. There must be three such convictions, none of which has to be, under the wording of the applicable provision, a conviction for DUI or DUI related.” Taylor, supra.

Judge Brosky further clarified the Habitual Offender Statute by stating that “the suspension under 75 Pa.C.S. §1542 results because the offender is considered habitual, as evidenced by the commission of three offenses, not because he or she has been convicted of a DUI offense.” Taylor, supra.

We believe that her mere acceptance into the ARD program, regardless of the final disposition, constitutes a countable event for the purpose of establishing three major offenses for disposition under section 1542. This court finds that petitioner, Glenda Eisenhart, has met the criteria for a habitual offender and as such her license suspension under 75 Pa.C.S. §1542 for a period of five years was proper.

ORDER.

The appeal of petitioner is refused and PennDOT is authorized to reinstate the suspension/revocation originally imposed at a time to be determined by PennDOT.


source: Caselaw Access Project

author: WHITE, P.J.,

license: Public Domain

text:
    Commonwealth v. Scurry

      Elizabeth Carmichael, assistant district attorney, for the Commonwealth.

      Edward Scurry, in propria persona.
    September 28, 1990
   WHITE, P.J.,

We have for consideration the appeal from summary conviction of Edward L. Scurry. Following a de novo hearing held on August 30, 1990, and consideration of the briefs and arguments, we sustain defendant’s appeal and find him not guilty.

Defendant was cited on March 1, 1990, for violating section 3353(a)(3)(ii) of the Motor Vehicle Code which citation was amended at the hearing before the District Justice to be section 3353(a)(l)(vi), which prohibits parking a vehicle “alongside or opposite any street excavation or obstruction when stopping, standing or parking would obstruct traffic.” Defendant was parked along the curb opposite a circular concrete traffic island, where the passageway was narrow, in Municipal Lot 9, Oil City, Pennsylvania. The area in which defendant was parked did not contain any signs prohibiting parking; however, the curb was painted yellow. Additionally, there was no parking meter provided for the space in which defendant was parked.

The only issue presented by this appeal is whether the circular concrete traffic island is an “obstruction” within the meaning of 75 Pa.C.S. §3353(a)(l)(vi). The rules of statutory construction require that words be given their common meaning unless they have acquired a peculiar and appropriate meaning or are defined within the statute. 1 Pa.C.S. §1903. The effect of the statute in this instance is penal, and therefore, the statute must be strictly construed. 1 Pa.C.S. §1928(b)(1); see Commonwealth v. Teada, 235 Pa. Super. 438, 344 A.2d 682 (1975). Black’s Law Dictionary defines obstruction as, “A hindrance, obstacle, or barrier. Delay, impeding or hindering. See also obstruct.” Black’s Law Dictionary then defines obstruct as, “To block up; to interpose obstacles; to render impassible; to fill with barriers or impediments, as to obstruct a road or way.” It is clear from these definitions and the common meaning that an obstruction as used in section 3353(a)(l)(vi) of the Motor Vehicle Code indicates a temporary obstacle or barrier so as to render the road or way impassible. Applying the archaic principle of construction known as ejusdem generis is especially pertinent in this instance:

“General expressions used in a statute are restricted to things and persons similar to those specifically enumerated in the language preceding the general expression. . Commonwealth v. Monumental Properties Inc., 459 Pa. 450, 479, 329 A.2d 812, 827 (1974).

Obviously, in the statute at issue a “street excavation” is specific whereas an “obstruction” is general. One has trouble conceptualizing in what way a “traffic island” is similar or even related to a “street excavation.” Obviously a meaning for the word “obstruction” relating it to a street excavation is sensible and consistent with what should be the legislative purpose in enacting this particular section — that is, assuring traffic flow when the normal passageway is obstructed. As the circular concrete traffic island in Oil City Municipal Parking Lot 9 is a permanent fixture not meant to block off and render the way impassible, it is not an obstruction within the meaning of section 3353(a)(l)(vi) of the Motor Vehicle Code.

Oil City, under 75 Pa.C.S. §6109(a)(l), is specifically given the power to regulate or prohibit stopping, standing or parking within the municipality. In regulating or prohibiting parking, the city may erect parking meters or place official signs prohibiting parking in certain areas. The area in which defendant’s car was parked did not contain any official signs prohibiting parking. Defendant, however, was originally cited for violating 75 Pa.C.S. §3353(a)(3)(ii), which prohibits - parking “at any place where official signs prohibit parking.” It was not until the day of the hearing before the district magistrate that the Commonwealth amended the citation when it realized it could not prove a violation of section 3353(a)(3)(ii) of the Motor Vehicle Code because no official signs prohibiting parking were at the space in question. The Commonwealth then cited defendant with a violation it felt closely matched the facts they had.

Oil City has the power to prohibit parking in the space in which defendant was cited for parking. All the city needs to do is to erect official signs prohibiting parking in that area. We cannot alter the meaning of the words in the statute just because it is the closest alternative section under which defendant could be charged.

ORDER

And now, September 28, 1990, after consideration of the testimony of the parties and memoranda submitted, defendant is found not guilty. The clerk is directed to refund any deposit heretofore made by defendant toward the fine to defendant.


author: CAIAZZA, J.,

text:
    Commonwealth v. Lombardo

      J. Craig Cox, assistant district attorney, for the Commonwealth.

      Lawrence M. Kelly, for defendant.
    December 14, 1990
   CAIAZZA, J.,

We have before us for determination defendant’s omnibus pretrial motion in the nature of a motion to suppress, a motion to dismiss because of lack of jurisdiction, and a motion to dismiss because of illegal arrest. The basis underlying all three motions is the alleged illegality of defendant’s arrest due to its execution outside of the arresting officer’s jurisdiction.

The facts which gave rise to this case may be summarized as follows. In the early morning hours of December 23, 1989, Chief William Hogue of the Pulaski Township Police Department, Lawrence County, Pennsylvania, was involved in a vehicle traffic stop on Route 422 in Pulaski Township. At that time, Alan Morris, an off-duty officer of the Coitsville, Ohio, Police Department, approached Hogue regarding a vehicle apparently lodged in a ditch alongside of Hillsville Road in Mahoning Township, Lawrence County, Pa., approximately one-half mile from Route 422. Chief Hogue dispatched Officer Patton to the scene of the vehicle. Upon arrival, Officer Patton reported that there whs indeed a vehicle in the ditch but he could not locate its operator. Chief Hogue subsequently completed his traffic stop and proceeded to join Officer Patton at the scene of the vehicle.

In the interim, defendant, Michael J. Lombardo, had returned to the vehicle and was attempting to secure his registration from the vehicle when Chief Hogue arrived at the scene. The vehicle was not in a position to be driven out of the ditch. After observing defendant, Chief Hogue suspected that defendant was under the influence of alcohol. Ma-honing Township does not maintain its own police department. Chief Hogue therefore contacted the Pennsylvania State Police but was informed that there were no units available to respond at that time. Hogue then arrested defendant for driving under the influence of alcohol, 75 Pa.C.S. §3731, and driving on the right side of the roadway, 75 Pa.C.S. §3301. Defendant was subsequently transported to the St. Francis Hospital in New Castle, Pennsylvania, for a blood test, which determined the defendant’s blood alcohol content to be 0.15 percent.

It is here undisputed that Chief Hogue arrested defendant outside of the officer’s territorial jurisdiction. The essential issue is, therefore, whether such execution of defendant’s arrest outside of the officer’s jurisdiction constituted an illegal arrest.

A municipal police officer has jurisdiction outside the territorial limits of his primary jurisdiction only in a limited set of circumstances, see 42 Pa.C.S. §8953, only two of which are arguably applicable to the case sub judice.

One such circumstance extending the jurisdiction of a municipal police officer evolves in factual situations wherein the officer is requested to provide aid to a law enforcement officer in another jurisdiction. 42 Pa.C.S. §8953(a)(3). See also, Commonwealth v. Triplett, 387 Pa. Super. 378, 564 A.2d 227 (1989). Obviously, in the case sub judice, no request for aid was communicated to Chief Hogue by a police officer from Mahoning Township. Because Mahoning Township has no police department, such a request must emanate from the Pennsylvania State Police. There appears no testimony here establishing that the Pennsylvania State Police requested Officer Hogue to assist them. The only request received by Chief Hogue here came from an off-duty officer of the Coitsville, Ohio, Police Department. Consequently, section 8953(a)(3) cannot here serve as a basis to extend Chief Hogue’s jurisdiction.

Secondly, a police officer has jurisdiction beyond his territorial limits “[w]here the officer is on official business and views an offense, or has probably cause to believe that an offense has been committed. . .” 42 Pa.C.S. §8953(a)(5). However, an on-duty officer who enters a foreign jurisdiction does not automatically obtain the status of being on “official business.” Commonwealth v. Merchant, 385 Pa. Super. 264, 560 A.2d 795 (1989). The general purpose of the statute is to provide the police with the authority to make arrests outside of their jurisdictions in limited situations. Id. Thus, subsection (a)(5) must be read concurrently with subsection (a)(4). Interpreted in this fashion, subsection (a)(5) “allows police officers, who are in [a] foreign jurisdiction on ‘official business’ under the guise of subsection (4), and who witness the commission of a crime or offense, to perform the same functions in the foreign jurisdiction” as they can perform within their primary jurisdiction. Id. at 268, 560 A.2d at 797. Subsection (a)(4) applies “[wjhere the officer has obtained the prior consent... to enter the other jurisdiction for the purpose of conducting official duties which arise from official matters within his primary jurisdiction.” 42 Pa.C.S. §8953(a)(4). See also, Commonwealth v. Sestina, 376 Pa. Super. 441, 546 A.2d 109 (1988).

In the case sub judice, Chief Hogue proceeded to Mahoning Township in response to a communication received from an off-duty Coitsville, Ohio, police officer. The communication did not relate to any matter developing in Pulaski Township. Chief Hogue was not, therefore, in Mahoning Township to conduct official business relating to matters arising in Pulaski Township. Consequently, section 8953(a)(5) cannot here serve as a basis to extend Chief Hogue’s jurisdiction.

From the foregoing, we must conclude that Chief Hogue’s arrest of defendant was in violation of the Municipal Police Jurisdiction Act, 42 Pa.C.S. §8951 et seq. Having made such a determination, we must now address the question of the remedy to be applied.

In that regard, we would here note that neither defendant’s motion nor the court’s own research revealed any procedural authority or appellate court decisions indicating that dismissal of the criminal charges filed against defendant would be an appropriate remedy under the facts of this case. However, suppression of any evidence obtained incident to defendant’s arrest may be an appropriate remedy for .a violation of the act.

It is clear that not all violations of the act require suppression of evidence obtained as a result thereof. See Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989); Commonwealth v. Fetsick, 392 Pa. Super. 264, 572 A.2d 793 (1990); Commonwealth v. Merchant, 385 Pa. Super. 264, 560 A.2d 795 (1989). In Commonwealth v. O’Shea, supra, the Pennsylvania Supreme Court declared the following:

, “The Superior Court has recognized that, under Commonwealth v. Mason, 507 Pa. 396, 490 A.2d 421 (1985), suppression of evidence may or may not be the appropriate remedy for a violation of section 8953 of the act, depending upon all of the circumstances of the case including the intrusiveness of the police conduct, the extent of deviation from the letter and spirit of the act, and the prejudice to the accused. Compare Commonwealth v. Saul, 346 Pa. Super. 155, 499 A.2d 358 (1985); Commonwealth v. Peppers, 357 Pa. Super. 270, 515 A.2d 971 (1986); Commonwealth v. Sestina, 376 Pa. Super. 441, 546 A.2d 109 (1988); with Commonwealth v. Merchant, 385 Pa. Super. 264, 560 A.2d 795 (1989); Commonwealth v. Fiume, 292 Pa. Super. 54, 436 A.2d 1001 (1981); Commonwealth v. Roberts, 356 Pa. Super. 309, 514 A.2d 626 (1986). We approve of this case-by-case approach to the determination of the appropriateness of exclusion of evidence allegedly obtained in violation of the act. Accordingly, we affirm the suppression court’s alternative ruling that exclusion of the challenged evidence would not be warranted in this case even if the search was considered to be ‘illegal’ under section 8953.’’ Id. at 399-400, 567 A.2d at 1030.

In general, suppression of evidence is not an appropriate remedy where, under the. facts and circumstances of the case, such a remedy would be out of all proportion to the violation, or to the benefits gained to the end of obtaining justice while preserving individual liberties. See Commonwealth v. O’Shea, supra; Commonwealth v. Fetsick, supra; Commonwealth v. Saul, supra.

In Commonwealth v. Merchant, supra, the Superior Court compared the types of police conduct involved in previous cases with the conduct involved in that case; viz., routine extraterritorial patrols. The court then went on to state the following:

“[AJlthough we read Saul, Mason, Peppers and Santina [sic] to support the disallowance of suppression where there is a technical violation of the act and where the police are engaged in conduct contemplated within the act, but perhaps simply fail to proceed properly, we do not read those cases to compel the same result when the very purpose and spirit of the act is violated and there is no question of technical compliance with the act.” Id. at 274, 560 A.2d at 799-800.

In the case sub judice, Chief Hogue responded to a report of an automobile accident in an adjacent township which did not maintain an independent police force. After arriving at the scene and observing defendant, Chief Hogue suspected defendant to be under the influence of alcohol. Consequently, he contacted the State Police, but was informed that there were no units available to respond at that time. Chief Hogue therefore attempted to assist the State Police and arrested defendant himself.

At the hearing of defendant’s omnibus motion, the counsel for the Commonwealth did not elicit testimony specifically addressing whether the State Police actually requested Chief Hogue to assist them and arrest defendant. We must, therefore, at this juncture presume that no such request was made. It would appear, however, that such assistance is certainly the type of conduct contemplated within 42 Pa.C.S. §8953(a)(3) and that the officer’s conduct is a technical violation of the act. As such, the court opines that suppression of any evidence obtained as a result of defendant’s arrest would not be an appropriate remedy.

From the foregoing, we conclude that defendant’s omnibus pretrial motion in the nature of a motion to suppress, a motion to dismiss because of lack of jurisdiction, and a motion to dismiss because of illegal arrest must be denied.

ORDER OF COURT

Now, December 14, 1990, in accordance with the provisions of the appended memorandum opinion, defendant’s omnibus pretrial motion in the nature of a motion to suppress, a motion to dismiss because of lack of jurisdiction, and a motion to dismiss because of illegal arrest is hereby denied.


author: FRANKS, J.,

text:
    George v. Caravan Express Inc.

      Robert L. Webster Jr., for plaintiffs.

      Joseph J. Bosick, for defendant.
    June 1, 1990
   FRANKS, J.,

This case is before this court upon defendant’s preliminary objections seeking to dismiss plaintiffs’ claim for punitive damages. This action arose out of a motor vehicle accident in which the injured plaintiffs, Howard and Faye George, assert that an agent of defendant, Caravan Express Inc., was negligent in the operation of a tractor-trailer. Plaintiffs further allege that defendant negligently failed to providé proper training and instruction to its employees.

Plaintiffs filed a complaint seeking compensatory and punitive damages on February 28, 1990. Defendant responded by filing preliminary objections on March 30, 1990, in which defendant contends that punitive damages are unavailable to plaintiff as the complaint fails to plead facts sufficient to warrant an award of punitive damages. We disagree with defendant’s contention and, therefore, refuse the preliminary objections.

DISCUSSION

Pennsylvania has adopted section 908(1) and (2)' of the Restatement (Second) of Torts which provides general guidance as to the availability of punitive damages. It reads:

“(1) Punitive damages are damages other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.
“(2) Punitive damages may be awarded for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference to the rights of others. In assessing punitive damages, the trier of fact can properly consider the character of the defendant’s act, the nature and extent of the harm to the plaintiff that the defendant caused or intended to cause and the wealth of the defendant.” Restatement (Second) of Torts, §908(1) and (2).

Punitive damages must be based on conduct which is malicious, wanton, reckless, willful or oppressive, and can be imposed where the act itself, together with circumstances including motive of a wrongdoer and relation between parties, is especially egregious. Dean Witter Reynolds Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637 (1985). In the Pennsylvania Supreme Court decision of Martin v. Johns-Manville Corp., 508 Pa. 154, 494 A.2d 1088 (1985), the court concluded that punitive damages are appropriate where the “actor knows, or has reason to know, of facts which create a high degree of risk or personal harm to another and deliberately proceeds to act in conscious disregard of the risk.” Id., 508 Pa. at 171, 494 A.2d at 1097.

Defendant contends that plaintiffs have failed to set forth any factual allegations in the complaint which would satisfy the standard of conduct discussed in the above-cited cases. However, plaintiffs correctly point out that paragraph 11 of their complaint does list certain factual allegations that, if true, would support submitting the issue of punitive damages to the jury.

Paragraph 11 of plaintiffs’ complaint contains various allegations regarding the operation of the tractor-trailer involved in the accident and the lack of adequate training given by defendant to its employees. We find subsection (a) of paragraph 11 to be particularly relevant. It states that defendant was negligent, careless and reckless “[i]n failing to train and instruct, its servant, agent, employee, Ricky B. Turner, in the proper methods and procedures of operating a tractor-trailer combination.”

If this allegation is indeed true, then punitive damages consideration is certainly warranted. Instructing an untrained employee to operate a tractor-trailer combination on the winding, twisting highways in this county would unquestionably be reckless and egregious conduct. This would be the type of extreme, wanton behavior that punitive damages are designed to deter. We conclude that plaintiffs have properly pleaded facts to warrant further development at trial.

Finally, defendant alleges that paragraph 10(g) of plaintiffs’ complaint should be stricken for failure to comply with Pa.R.Crim.P. 1019(1). That paragraph avers a broad spectrum of negligence as follows: “In failing to exercise any care under the foreseeable circumstances.” Counsel for plaintiffs agreed at the oral argument to amend their complaint to comply with Pa.R.Crim.P. 1019(a).

ORDER

And now, June 1, 1990, it is ordered and directed that defendant’s preliminary objections are refused. Plaintiffs shall amend their paragraph 10(g) of their complaint consistent with Pa.R.Crim. P. 1019(a) within 20 days from this date.


author: DOWLING, J.,

text:
    Commonwealth v. Lowe

      Edward M. Marsico, assistant district attorney, for the Commonwealth.

      William A. Fetterhojf, for defendant.
    January 30, 1991
   DOWLING, J.,

Our federal Union — on whose maintenance so many men and women have expended their blood and energy over the past two centuries — is a delicate equipoise of reciprocal rights, duties and divisions of authority. One of the most crucial of these is what has come to be known as the “full faith and credit” clause of the Constitution, which holds that each state will recognize the validity of the statutes, licensing procedures and court decrees of the others. This is often no simple proposition: American history has been shaken from time to time by legal crises stemming from this principle, some of them semicomic (as when many Eastern states refused to concede the legitimacy of so-called “quickie” divorces granted in Nevada) and some world-shaping events (such as the refusal of several Northern state courts in the 1850’s to recognize the efficacy of the Southern laws on the subject of slavery). In the latter instance, of course, the ultimate result was a cleavage between the states that led Horace Greeley to make his (fortunately unwarranted) adieu to 11 members of the Union family: “Wayward sisters, depart in peace.”

We, of course, have no desire in the instant matter to say to the great Empire State which adjoins our Commonwealth, “Depart in peace”; but it has fallen to us to determine whether a pending matter against defendant should be dismissed, on the strength of the protection afforded him by a New York driver’s license; or whether we must insist that Pennsylvania’s denial of his privileges as an operator of motor vehicles acts as an all-purpose bar to his exercise of that prerogative in this state, New York to the contrary or no.

Defendant, Dewitt Lowe, was the possessor of a Pennsylvania driver’s license which was suspended on June 18, 1980. Pending his appeal of this action, the license was reinstated on June 26, 1980. This reinstatement lasted until May 10, 1982, when Lowe’s appeal was denied. During the'23 months of his reinstatement, Lowe obtained a valid New York state driver’s license, which he has kept in force to the present day.

On March 24, 1990, Lowe was cited under 75 Pa.C.S. §1543, driving while operating privilege is suspended or revoked. He was convicted in a summary proceeding and has appealed to the court.

No one disputes that defendant did not have a valid Pennsylvania driver’s license at the time of his 1990 citation. It is well established in the law that a suspension of driving privileges is not subject to being neutralized either by a simple passage of time or the performance of a mandatory act, but must be reinstated by an affirmative act on the driver’s part. Commonwealth v. Moyer, 225 Pa. Super. 374, 310 A.2d 345 (1973). The only issue we must consider is whether his possession of a valid New York license operates as a ban to his citation for lacking a Pennsylvania license.

We must conclude that it does not. The two strongest points in favor of defendant’s position are: (a) that he secured a valid out-of-state license while his Pennsylvania license was still legally in effect (thereby avoiding the charge that he was trying to make an end run around the ban on his driving privileges in the Commonwealth), and (b) that the time of his actual suspension from 1982 had long expired by 1990. The compelling quality of these arguments is augmented by the fact that several of the cases cited by the Commonwealth depended upon factual elements not consonant with those in the case at bar. The driver in Commonwealth v. MacNamara, 12 D.&C. 3d 36 (1979), for example, was stopped and cited for driving during the actual period of his suspension, which is not the case here; and the offender in Commonwealth v. Trice, 26 Somerset Leg. J. 260 (1970), secured his out-of-state license while his Pennsylvania driving privileges were in abeyance, which is also not true here.

But, at the last, this court’s decision was made when it was compelled to confront the simple question: does this Commonwealth, or any state, have the right to determine, through its own agencies, who shall have the right to operate a motor vehicle within its borders, or does it not? If Mr. Lowe were exempt from the jurisdiction of Pennsylvania law on the grounds of his being a non-resident of this state, our conclusion would differ markedly; but since he does not seem to dispute that he is a Pennsylvanian, he must be regarded as being subject to the laws of this state, and his brandishing of a New York operator’s license in the face of this Commonwealth cannot be held to avail him. There is no reason apparent to us which explains why he did not seek to have his Pennsylvania privilege reinstated after the period of his suspension had run; and his references to his alleged “abandonment” of his Pennsylvania license are particularly unconvincing. An individual can legitimately “abandon” a state’s laws only at the time he also “abandons” his contacts and residency within that state; otherwise, one could theoretically be faced with reductio ad absurdum such as Philadelphia or Pittsburgh residents who paid their state taxes into the coffers of New Jersey or West Virginia on the grounds that they had unilaterally elected to “abandon” the revenue acts of Pennsylvania.

We wish to emphasize, in the spirit of the passage with which we opened this opinion, that we do not, by reaching this conclusion, challenge the validity of the license issued by our sister state, as it pertains to Mr. Lowe’s use of it within her borders. We merely insist upon the supremacy of our own Commonwealth’s right to determine the conditions under which its own people may operate vehicles within Pennsylvania frontiers.

Accordingly, we enter the following

ORDER

And now, January 30, 1991, defendant’s appeal is denied, and he is found guilty.

      . “§1543. Driving while operating privilege is suspended or revoked

        “(a) Offense defined — [A]ny person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is'guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.”

      . Mr. Lowe contends that he never sought to reinstate his Pennsylvania driving privileges because he had “abandoned” his Pennsylvania license in favor of its New York counterpart.

      . It also absolves defendant from the charge of having violated 75 Pa.C.S. §1573, which prohibits a driver whose rights have been suspended from driving under a foreign license issued “during the suspension or after the recall, cancellation or revocation [of his original license].”


author: TAXIS, S.J.,

text:
    Deutscher Estate

      Herbert W. Salus Jr. and William H. Tobolsky, for Florence Deutscher.

      Richard I. Torpey, for the estate.
    March 18, 1991
   TAXIS, S.J.,

The issue before this court is whether Florence Deutscher, the surviving spouse of the deceased, Fred Deutscher, is permitted to revoke her initial election to take against her husband’s will some five years after her original election. The petition to revoke is granted.

The record reflects that Fred Deutscher died testate on February 15, 1985. He was survived by his wife, Florence Deutscher, his daughter, Bari Deutscher Amadio, and grandchildren from a previous marriage. Mr. Deutscher executed his will and first codicil on February 4,1985 and a second codicil on February 13, 1985. Probate was on April 25, 1985, and letters testamentary were granted the same day. Bari Amadio was appointed executrix Of the estate. She filed an inventory and appraisement on October 16, 1985. A first and final account containing amendments to the original inventory and appraisement was filed on November 4,1987. A petition for adjudication was filed on December 1, 1987. The gross estate asset value was $775,277.60. Combined principal and income on hand as of the filing of the account was $66,127.30.

An election to take against the will must be filed within six months of the decedent’s death or before the expiration of six months after the date of probate, whichever is later. 20 Pa.C.S. §2210 (1982). Florence Deutscher petitioned the court in October 1985, requesting ,an extension for the surviving spouse’s right to elect against the will and conveyances of the decedent. The petition stated that a decision regarding election was imprudent as the executrix had failed to provide Mrs. Deutscher with certain appraisals and evaluations and a listing of the total assets of the estate. The court granted the extension. On December 19, 1985, 10 months after the decedent’s death, Florence Deutscher signed and filed an election not to take under the decedent’s will. The election was provisional pending full receipt of asset disclosure.

At the time Florence Deutscher exercised her option to elect against the will, an estate accounting had not been filed. The first and final account and petition for adjudication were submitted on November 4,1987, covering transactions from February 15, 1985 to September 30, 1987. Objections were immediately filed on behalf of Florence Deutscher in December 1987. A supplemental schedule of transactions covering the period from September 30, 1987 to December 1990 was filed with this court on December 5, 1990. The gross estate was listed at $106,611.61. Combined principal and income was $43,224.10. Objections were filed on behalf of Florence Deutscher on December 10, 1990. It was not until the evé of trial, December 4, 1990, some five years after the original filing of the election and subsequent to the filing of the accounting,' that Florence Deutscher petitioned this court to revoke her election to take against the will. Counsel submitted briefs on this issue. Oral argument was heard before the Orphans’ Court on February 27, 1991.

A court might preclude a surviving spouse from revoking an election to take against the will to prevent excessive delay, to attain finality in proceedings, to quiet title, to prevent fraud, to avoid apathy of the complainant, and/or to avoid greater injury to others who are innocently misled. Boileau’s Estate, 201 Pa. 493, 494, 51 Atl. 338, 338 (1902).

It is the estate’s position that Florence Deutscher should be bound by her election to take against the will. She exercised this right with full knowledge of the consequences. She appeared to be of sound mind at the time of election. She was unable to demonstrate that she was the victim of fraud or deceit in her election. She was repeatedly informed by counsel for the estate that an election against the will was monetarily imprudent. Nevertheless, Mrs. Deutscher stood firm behind her position until the eve of trial. The estate contends that the petition to revoke is untimely and therefore barred by the doctrine of laches.

Unfortunately, the statutory provisions do not provide a time limit within which to filé a petition to revoke election against the will. The Orphans’ Court Rules are also silent. Therefore, the court must rely on existing case law.

Counsel for the estate cited several Pennsylvania Supreme Court cases to support its position. However, these cases must be distinguished from the pending case before this court. Many deal with the opposite situation, that is, the surviving spouse is attempting to elect against the will after having previously elected under the will. Statutory provisions provide a time limit. Many cases involve the situation where the surviving spouse serves as executrix. As executrix, the surviving spouse possesses full knowledge and information regarding the estate assets and their respective valuations. Mrs. Deutscher, on the other hand, was dependent upon the executrix for such information. Her decision to elect against the will was procured months after her husband’s death at which time she was not possessed of an accurate and complete accounting of the estate. Many cases deal with situations where the surviving spouse had received specific bequests and/or devises under the will prior to filing a petition to elect against the will. The surviving spouses, by their actions, manifested a full intent to elect under the will. There has been no distribution of Frederic Deutscher’s estate assets. Finally, many cases entail periods of delay far in excess of five years. Bradfords v. Kents, 43 Pa. 474 (1862); Boileau’s Estate, supra; Johnson’s Estate, 244 Pa. 600, 90 Atl. 923 (1914); and Daub’s Estate, 305 Pa. 446, 157 Atl. 908 (1931).

A determination of what constitutes undue delay in petitioning to revoke election against the will is complicated. It is the estate’s position that the doctrine of laches bars Mrs. Deutscher’s request to elect against the will. Two elements must be proven for the doctrine of laches to apply. There must be undue delay, and the undue delay must severely prejudice the other side. The test is essentially a factual one. For undue delay to exist, the party charged is deemed to have discovered those facts which were discoverable through the exercise of reasonable diligence. For prejudice to exist, there must be some changed condition of the parties which occurs during the period of, and in reliance on, the delay. Sprague v. Casey, 520 Pa. 38, 45-6, 550 A. 2d 184, 188 (1988).

Florence Deutscher did not exercise undue delay. Her decision to elect against the will was procured months following her husbánd’s death. She based her decision on the information provided to her by the executrix. This information was limited to an inventory and appraisement. Mrs. Deutscher was unable to make a full and informed decision at the time as the accounting had not been filed. She filed a tentative election. A final election was never filed with the court. This court is of the opinion that Mrs. Deutscher’s “statute of limitations” regarding her election against the will should not have begun to run until the filing of the account in November 1987.

The courts have decided that the executor of an estate owes a duty to the surviving spouse to disclose to her the value of the assets of the estate and the value which she would receive under the alternatives available to her. Martin Estate, 3 Pa. Fiduc. 2d 356, 357 (1983).

The record indicates that Florence Deutscher felt compelled to file for an extension to the election to take under or against the will due to insufficient information. At the time the election was procured, no estate accounting had been filed. The court in Krieser’s Appeal, 69 Pa. 194, 200 (1871) stated:

“The general rule is that the party is not bound to make an election until all the circumstances are known, and the state, condition and value of the funds are clearly ascertained; for until that is known it is impossible to make a discriminating and deliberate choice, such as ought to be binding in reason and justice. To bind the widow, she must have full knowledge of the Tacts.” (See McCauley Estate, 3 Pa. Fiduc. 2d 433 (1983), where the court granted a petition to revoke an election to take against the will. The widow was without vital information. Without such information, she was unable to make an intelligent choice regarding the election.)'

After a careful examination of the record and testimony, there is no indication that the estate will be prejudiced by this court’s decision to grant Mrs. Deutscher’s petition. The record reflects that as late as March 1990, counsel for the estate continued to encourage Florence Deutscher to exercise her right of election under the will. The record reflects that all interested parties, witnesses and pertinent documents are available. Severe prejudice usually involves instances where there has been a destruction of vital information. Daub’s Estate, 305 Pa. 446, 454, 157 Atl. 908, 911 (1931).

The McCauley court, supra, provides insight into the responsibility and function of the Orphans’ Court. Irrespective of any legislation, the Orphans’ Court possesses an inherent discretionary power to correct its own records in the interests of justice, even to protect parties from the effect of their own mistakes and blunders. Id. at 435; Sloan’s Estate, 254 Pa. 346, 350, 98 Atl. 966, 967 (1916); Dudek Estate, 30 Pa. Fiduc. 359 (1980). The Orphans’ Court has the power to grant the revocation in the case at hand in the interests of justice. Florence Deutscher’s decision to elect against the will was an unintelligent choice. Although there is no indication that there was intentional deception of the widow, her decision, absent full information of the estate, was not the result of a judicious and discriminatory choice. Martin Estate, supra at 357. The court should not foster anything less than an act intelligently done. Estate of Woodburn, 138 Pa. 606, 614, 21 Atl. 16, 17 (1891).

In the interests of justice, consideration should be given to the testator’s intent. By allowing Florence Deutscher to elect under the will, no interested party stands to be severely prejudiced. The testator’s estate plan will be preserved; the specific bequests and devises will flow to those designated by the testator; and Florence Deutscher will be entitled to a greater share of the estate proceeds.

The issue before the court is both a complicated and delicate one. The facts of this case present the classic scenario of the animosity that often surfaces between stepparents and stepchildren upon the death of loved ones. It is the court’s responsibility to remain a neutral party, to set aside all personal and emotional differences between the parties, and to issue an adjudication that is in accord with the law and the testator’s intent. In this light, the court grants petitioner’s request to revoke her election against the will.

Pursuant to this adjudication, the court wishes to convene with counsel to determine, what issues, if any, require further adjudication. It is hereby so ordered.


text:
    Commerce Bank v. Bello

      Lloyd R. Persun and Maria P. Cognetú, for plaintiffs.

      LeRoy Smigel and Susan E. Lederer, for defendant Carmela Bello.

      Leslie D. Jacobsen, for defendant Robert Bello.
    February 21, 1991
   DOWLING, J.,

On October 8, 1985, defendant Robert Bello executed two assignments of Real Estate Purchase Agreements in favor of plaintiff, Commerce Bank. The assignments constitute mortgages of the equitable title of the properties described in the purchase agreements and secured payment of the indebtedness of Robert’s Jewelry Center Inc., t/a Robert’s New York Diamond Exchange, evidenced by a collateral note in the principal amount of $100,000 plus interest and a guaranty agreement. The assigned realty consisted of two adjacent properties with one dwelling, being purchased by Mr. Bello in his name only under two installment sales contracts with the seller, one purchased before the marriage in 1981 containing the dwelling and the other without improvements purchased in 1984 during the marriage. Carmela Bello has resided on the property since her marriage to Mr. Bello. It appears Bello has not lived there since December 1984, when the parties separated.

The proceeds of the collateral note were used in the corporations’s jewelry business which was apparently profitable until 1988, when the corporation sought bankruptcy protection under Chapter 11 of the United States Bankruptcy Code. The corporation and Mr. Bello defaulted on the collateral note and the guaranty agreement, and Commerce filed complaints in mortgage foreclosure against Mr. and Mrs. Bello. Mr. Bello never answered or otherwise pleaded to the complaints. Judgments in mortgage foreclosure by default were entered against Robert Bello on April 20, 1990 in favor of Commerce in the amount of $66,272.71 plus interest. On April 30, 1990, Mrs. Bello filed answers to Commerce’s complaints in mortgage foreclosure, alleging that she had no knowledge of the assignments by Mr. Bello or of the loan of money by Commerce to Robert’s Jewelry Center Inc. and that her marital interest in the property should not be subject to the assignments.

When Robert Bello executed and delivered the assignments to Commerce in October 1985, no divorce proceeding was pending between Mr. and Mrs. Bello, that action not being commenced until July 5, 1990. In that proceeding, Mrs. Bello claimed that the divorce master could divest Commerce’s security interest in the property as part of a property settlement agreement between the spouses. Commerce disagreed and petitioned to intervene in the divorce proceeding, seeking to protect its mortgage lien on the equitable interest in the property. Mrs. Bello opposed Commerce’s intervention.

Hearing on Commerce’s petition was held on November 27, 1990, at the conclusion of which Commerce withdrew its request to intervene on the condition that the court adjudicate the issue of its lien priority in the mortgage foreclosure actions on its motion for summary judgment. The court consolidated the mortgage foreclosure actions for purposes of decision.

Any marital interest claimed by Mrs. Bello in the property is derivative in nature, as she has no title of record to the property independent of her relationship to her husband. As such, she cannot encumber or convey the property. Although the individual creditors of Mrs. Bello could not reach the property of Mr. Bello, the creditors of Mr. Bello were free to attach his property. Iscovitz v. Filderman, 334 Pa. 585, 6 A.2d 270 (1939). Likewise, Mr. Bello was competent during the marriage to encumber the property owned in his own name without the joinder of his wife. Cancilla v. Bondy, 353 Pa. 249, 44 A.2d 586 (1945).

When Robert mortgaged the interest in the property on October 8, 1985 in favor of Commerce, section 401(e)(7) provided in relevant part:

“(e) For purposes of this chapter [Property Rights] only, ‘marital property’ means all property acquired by either party during the marriage except:
“(7) Property to the extent to which such property has been mortgaged or otherwise encumbered in good faith for value, prior to the time proceedings for divorce are commenced. ” 23 P.S. §401(e). (emphasis supplied)

Mr. Bello assigned the equitable interest in the property to Commerce and also gave his personal guaranty in exchange for a $100,000 loan by Commerce to the corporation, which he owned. Mrs. Bello has not alleged and has not presented any evidence of bad faith. She did not commence divorce proceedings against her husband until July 5, 1990, almost five years after he had made the assignment. Under the clear wording of section 401(e)(7) in effect on October 8, 1985, Commerce’s rights in the equitable interest in the property vested on October 8, 1985, and the equitable interest represented by Commerce’s mortgage is not marital property.

Mrs. Bello alleges that she paid $2,500 of the down payment from her funds. Even if she contributed to the purchase price down payment, and even if she can overcome by clear, explicit, and unequivocal evidence the presumption of a gift that arises in transactions between spouses, that fact would not alter or impair Commerce’s mortgage. Mermon v. Mermon, 257 Pa. Super. 228, 232, 390 A.2d 796, 799 (1978); Restatement (Second) of Trusts, §442. See, 21 P.S. §601, which provides:

“Whenever hereafter a resulting trust shall arise with respect to real property, by reason of the payment of the purchase money by one person, and the taking or making of a legal title in the name of another, if the person advancing the purchase money has the capacity to contract, such resulting trusts shall be void and of none [sic] effect as to bona fide judgment or other creditors, or mortgagees of the holder of the legal title, or purchasers from such holder without notice unless either (1) a declaration of trust in writing has been executed and acknowledged by the holder of the legal title, and recorded in the recorder’s office of the county where the land is situated, or (2) unless an action of ejectment has been begun, in the proper county, by the person advancing the money, against the holder of the legal title.” Accord, Penn Mutual Life Insurance Co. v. Finkel, 428 Pa. 11, 235 A.2d 396 (1967); Barrish v. Flitter, 715 F.Supp. 692 (E.D. Pa. 1989).

Section 401(e)(7) was amended on February 12, 1988 to exclude from the definition of “marital property” that property encumbered in good faith for value “prior to the date of final separation.” 23 P.S. §401(e)(7). The date of final separation of Mr. and Mrs. Bello is irrelevant to the issue in this case because the amendment of the statute must be construed as effective on the date of enactment-—February 12, 1988. See 1 Pa.C.S. §1953, which provides as follows:

“Whenever a section or part of a statute is amended, the amendment shall be construed as merging into the original statute, become a part thereof, and replace the part amended and the remainder of the original statute and the amendment shall be read together and viewed as one statute passed at one time; but the portions of the statute which were not altered by the amendment shall be construed as effective from the time of their original enactment, and the new provisions shall be construed as effective only from the date when the amendment became effective. ” (emphasis supplied)

No statute is construed to be retroactive unless clearly and manifestly so intended by the General Assembly. 1 Pa.C.S. §1926; Krenzelak v. Krenzelak, 503 Pa. 373, 469 A.2d 987 (1983), and cases cited therein.

If statutory language is general and could be construed as prospective or retroactive, it will be applied prospectively only, especially when retroactive application impairs any right which vested prior to enactment. Krenzelak, supra. Retroactive application of a statute or an amendment thereto is presumed not to have been intended by the legislature if such application alters the substantive rights of parties to a pre-existing contract. Rudolph Rosa v. Latrobe Brewing Co., 347 Pa. Super. 551, 562, 500 A.2d 1194, 1200 (1985).

The Krenzelak court determined that the legislative history was silent on the issue of retroactive application of the code’s provisions. The court concluded:

“Neither the code itself nor its legislative history convinces us that the legislature intended the new concept of ‘marital property’ to encompass property conveyed by a spouse to a third party prior to the code’s enactment.” Krenzelak, supra.

Similarly, the Pennsylvania Superior Court in 1990 concluded that the legislative history reveals a clear intent that the substantive rights of a third-party mortgagee not be impaired upon divorce of the mortgagor. Kronz v. Kronz, 393 Pa. Super. 227, 574 A.2d 91 (1990). Thus, the code does not authorize the court “to alter the rights of secured creditors merely to aid in effecting an equitable distribution of marital property between the spouses.”

The courts have applied Divorce Code provisions retroactively only if the property rights at issue belong to the husband and wife, not third parties like Commerce. See e.g., Bacchetta v. Bacchetta, 498 Pa. 227, 445 A.2d 1194 (1982); Nuttall v. Nuttall, 386 Pa. Super. 148, 562 A.2d 841 (1989).

Accordingly, we enter the following

ORDER

And now, February 25, 1991, plaintiff’s motion for summary judgment is granted and judgments in mortgage foreclosure are entered in favor of plaintiff.

      . An assignment of an equitable interest in the property-under the real estate purchase agreement constitutes a mortgage as a matter of law in Pennsylvania. Russell’s Appeal, 15 Pa. 319 (1848); Rhines v. Baird, 41 Pa. 256, 262-3 (1861); Frederick & Lewisburg Building Association v. Corcoran et al., 100 Pa. 413 (1881).

      . Mrs. Bello never contended that she did not intend a gift. She presented no evidence to rebut the presumption of her giving the down payment to Mr. Bello. She in fact testified that she “gave” him the money (Tr. 23, 24).

      . The heinousness inherent in making laws effective retroactively was an element very much in the minds of the Founding Fathers when they included the prohibition (article I, section 9, subsection 9) in the federal Constitution against all “ex post facto” laws. The authors of this august document were guided by their long historical memories, which ran to such gems of jurisprudence as Henry VII’s decision, in 1485, to prosecute all of the followers of Richard III, whom Henry had defeated and killed at the Battle of Bosworth. Henry simply back-dated his own reign to the day before Bosworth, and then attempted to indict Richard’s men on a charge of high treason. This action (fortunately blocked by the House of Commons) led a contemporary to exclaim in despair: “Oh, God! What security are our kings to have henceforth in the day of battle if their loyal followers may in defeat be deprived of life, fortune and inheritance!” We may likewise wonder how stable contracts would be if later laws were held to have the power to rewrite or annul them.


author: O’MALLEY, J.,

text:
    Turner v. National Bank of Olyphant

      Myles R. Wren, for plaintiff.

      Carmen A. Minora, for defendant.
    March 5, 1991
   O’MALLEY, J.,

The facts and allegations which we must consider in determining the motion for summary judgment before us are essentially this: Plaintiff, Virginia Turner, has filed a replevin action against the National Bank of Oly-phant for the return of certain of her securities deposited with the bank. The bank claims, in an action for declaratory judgment, that Turner deposited these securities as guarantor for loans made to one Joseph Kacaba with Kacaba subsequently defaulting on these loans and becoming bankrupt. Turner, in her motion for summary judgment, asserts that the bank had collateral for these loans in the form of four vehicles owned by Kacaba; that these vehicles were sold without notice to Turner; that the sale proceeds were applied to the said loans; that this lack of notice was in violation of the Uniform Commercial Code, 13 Pa.C.S. §9504; and that, therefore, the bank is not entitled to a deficiency judgment as a matter of law and Turner should be discharged from her obligation under the alleged guarantee. The bank admits that no notice of sale of the vehicles was given to Turner.

Because the effect of a summary judgment is to put one party out of court, it should be granted only in the clearest of cases. Jefferis v. Commonwealth, 371 Pa. Super. 12, 537 A.2d 355 (1988). It is well-established that a court can sustain a summary judgment only if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. The record must be examined in the light most favorable to the non-moving party. A summary judgment should be granted only when the case is clear and free from doubt. Further, all doubts as to the existence of a genuine issue as to a material fact must be resolved against the party moving for summary judgment. Jeffries v. McCague, 242 Pa. Super. 76, 363 A.2d 1167 (1976).

The motion for summary judgment will be denied.

At this juncture of the case we are asked to decide whether a lender, who, after default by its debtor, repossesses collateral and conducts the sale thereof, is barred from suing for a deficiency because he failed to notify the guarantor of the time and place of the sale prior thereto, or within a reasonable time thereafter.

The pertinent part of 13 Pa.C.S. §9504(c) reads as follows:

“(c) Manner of disposition — Disposition of the collateral may be by public or private proceedings and may be made by way of one or more contracts. Sale or other disposition may be as a unit or in parcels and at any time and place and on any terms but every aspect of the disposition including the method, manner, time, place and terms must be commercially reasonable. Unless collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, reasonable notification of the time and place of any public sale or reasonable notification of the time after which any private sale or other intended disposition is to be made shall be sent by the secured party to the debtor, if he has not signed after default a statement renouncing or modifying his right to notification of sale. . ..”

The purpose of the notice of disposition of collateral is not merely to enable the debtor to protect his or her interest in the collateral by paying the debt but also to guard him or her from unfair imposition of a deficiency claim by allowing him or her to attend or bring other potential buyers to the sale and thus prevent a disposition of the collateral for less than its fair market value. In re Koreski, 91 B.R. 689 (Bankr. E.D. Pa. 1988). Notice provisions are also designed to protect the debtor from any form of double recovery by the secured party. Security Pacific National Bank of Geernaert, 199 Cal. App. 3d 1425, 245 Cal. Rptr. 712 (1988).

The bank has conceded that Turner, as a guarantor, is a debtor. This appears to be prevailing opinion. See First National Bank & Trust Company v. Hughes, 332 N.W. 2d 674 (Neb. 1983); United States on behalf of Farmers Home Administration v. Kennedy, 348 S.E.2d 636 (Ga. 1986); Westmont Tractor Company v. Continental 1 Inc., 731 P.2d 327 (Mont. 1986). Furthermore, this is how we read the definition of “debtor” in 13 Pa.C.S. §9105.

This brings us to the primary question here involved, that is, no notice of the sale of the vehicles having been given to Turner, is the bank barred, as a matter of law, from collecting a deficiency judgment versus Turner? This query has been raised and dealt with in other states and at least peripherally in Pennsylvania. “While the code is uniform, its interpretation in this respect is not.” Atlas Thrift Co. v. Horan, 59 ALR 3d 389, 393 (Cal. 1972).

“The Uniform Commercial Code does not specifically state the consequences of a failure to give notice or to give proper notice of a resale of the collateral following default. . . .

“It has been held that failure to give notice results in loss of the right of the secured party to a deficiency judgment following resale, and there has been some indication that failure to give notice together with other conduct of the secured party represented an accord and satisfaction, thereby releasing the debtor from further liability. On the other hand, there are decisions to the effect that a deficiency judgment will not be precluded because of such failure.” 69 Am. Jur. 2d Secured Transactions §616.

An article dealing with these two points of view will be found in 59 ALR 3d 401. In all fairness it should be pointed out that General Electric Credit Corp. v. Schaffer, 34 Lehigh L.J. (1970), in Turner’s brief is cited in that article as supporting the first viewpoint above mentioned. There was also cited for that particular proposition Skeels v. Universal C.I.T. Credit Corp., 222 F.Supp. 696 (Pa. 1963), vacated on other grounds 335 F.2d 846. Furthermore, in 69 Am. Jur. 2d, supra, the case of Alliance Discount Corp. v. Shaw, 195 Pa. Super. 601, 171 A.2d 548 (1961), was cited for that same point.

However, we believe we must be governed by the Pennsylvania Supreme Court case of Savoy v. Beneficial Consumer Discount Company, 503 Pa. 74, 468 A.2d 465 (1983). We are mindful of Turner’s argument that “failure to notify guarantor” and “failure to hold a commercially reasonable sale” are two entirely different concepts with the Supreme Court’s attention being directed to the latter in Savoy (notice having been given to the debtor according to the Superior Court decision at 291 Pa. Super. 649, 436 A.2d 687 (1981)). Nevertheless, we would like to point out that not all decisions differentiate between the two conceptions. In Conrail Leasing Partners Ltd. v. Consolidated Airways Inc., 742 F.2d 1095 (7th Cir. 1984), the sale of a plane was commercially unreasonable under UCC section 9504 because adequate notice of sale was not given by the creditor. In Washburn v. Union National Bank & Trust Company, 502 N.E.2d 739 (Ill. 1986), the sale by the creditor bank of the debtor insurance company’s “Ginnie Mae” bonds (loan collateral) without prior notice to the debtor did not violate the commercial reasonableness requirement of UCC section 9504.

But even if this difference is accepted, we are persuaded, from the language appearing in Savoy, that the Supreme Court’s reasoning, while referring to commercial reasonableness, was also meant to equally apply to notification. The Supreme Court said:

“When there has been a commercially unreasonable disposition of collateral, the issue arises as to the effect of that disposition upon a creditor’s entitlement to recovery of remaining debt. It is the view in certain jurisdictions that when a sale is found to have been commercially unreasonable, the creditor should be barred entirely from obtaining a deficiency judgment against the debtor. . .. Other courts have held that failure to establish commercial reasonableness of the resale price creates a presumption that the value of the collateral equalled the indebtedness, thereby extinguishing the indebtedness unless the secured party rebuts the presumption. . .. We believe that the latter approach, which was adopted by Superior Court in the instant case, is the more enlightened and equitable. The former approach foreclosing a creditor from the possibility of securing any deficiency judgment, would provide the debtor with a windfall relief from his obligation while extinguishing a creditor’s right to recover sums truly owed. Further in conjunction with the rebuttable presumption now adopted, the debtor’s interests are adequately protected by code provisions allowing the debtor a right to recover any losses caused by a secured party’s failure to comply with the requirement that collateral be disposed of in a commercially reasonable manner. 13 Pa.C.S. §9507(a).”

Precisely the same rules, (1) the presumption that the collateral was worth at least the amount of the debt and (2) that section 9507 provides the protection for wronged debtors have been followed by courts in cases involving failure of a secured party to give notice of the disposition of collateral. See 59 ALR 3d 412, sections 4, 5, 6. See also, Church v. Mickler, 287 S.E.2d 131 (N.C. 1982): Although lack of notice by the creditor raises a presumption that the collateral was worth at least the amount of the debt, this presumption is not conclusive and may be overcome by the creditor’s proving that the collateral was sold at market value, and that the market value was less than the amount of the debt. Hall v. Owen County State Bank, 370 N.E.2d 918 (Ind. 1977): Notwithstanding the creditor’s failure to notify the debtor as required by UCC section 9504, the creditor has the right to bring an action for a deficiency judgment since the debtor, under section 9507, has a right of action against the creditor for the latter’s failure to proceed properly with the sale of collateral. However, if the creditor sells collateral without giving the debtor the required notice, he must then prove, in his action for deficiency judgment, that the reasonable value of the collateral at the time of the sale was less than the amount of debt owed by the debtor. Associates Financial Services Co. v. DiMarco, 383 A.2d 296 (Del. 1978): There is no specific section of the UCC that requires the barring of a deficiency judgment as a penalty for failure to comply with the notice provisions. Section 9507 permits the debtor to recover from the creditor “any loss caused by failure [of the creditor] to comply with the provisions of this” statute. This provision has been interpreted to place the burden of proof upon the creditor to show regularity of sale and to create a presumption that the value of the collateral equalled the debt. Hock v. Ellis, 627 P.2d 1060 (Alaska 1981): If notice of sale of collateral was not given or sale was not commercially reasonable as required by UCC section 9504, the secured party has the burden of rebutting, by clear and convincing evidence, the presumption that the collateral’s fair market value was at least equal to the amount of debt. If the secured party failed to satisfy his burden of proof, the presumption leads to the conclusion that the entire debt is discharged. Commercial Credit Corp. v. Wollgast, 521 P.2d 1191; Savings Bank of New Britain v. Booze, 382 A.2d 226 (Conn. 1977); Mack Financial Corp. v. Scott, 606 P.2d 993 (Idaho 1980); Zimmerman v. Cook, 651 P.2d 910 (Colo. 1982); Papas v. Speizman, 511 N.E.2d 768 (Ill. 1987).

First Galesburg National Bank & Trust Co. v. Joanides, 469 N.E.2d 180 (Ill. 1984), concerned an action for a deficiency judgment against the guarantors of a corporate debtor’s obligation following the debtor’s default and the creditor’s sale of collateral (car inventory) without notice to the guarantors required by section 9504. The rebuttable presumption rule applied under which (1) the creditor’s failure to give notice raised the presumption that the value of the collateral equalled the debtor’s obligation; (2) the rebuttal of such a presumption by the creditor, coupled with a showing that the sale was commercially reasonable under section 9504, entitled the creditor to maintain a deficiency action against either the debtor or the guarantor of the debtor’s obligation; and (3) any loss sustained by the debtor as a result of the creditor’s failure to give notice was recoverable under section 9507 and could be set off against the debtor’s deficiency.

In General Electric Credit Corp. v. Schaffer, supra, the court did not have before it the exact dollar value of the items sold without notice and further commented that, in any event, this dollar amount was only a part of the larger claim the plaintiff was pressing in its assumpsit action. In Skeels v. Universal C.I.T. Credit Corp., supra, the court commented that it was the secret disposition of collateral by chattel mortgage owners and others which the code sought to correct and that a secured party who disposes of collateral without notice denies to the debtor his right of redemption. In Alliance Discount Corp. v. Shaw, supra, the matter involved the repossession and sale of an automobile which had been financed with an installment sale contract. The car was sold for $1800 and the total contract sum was $4962.71, the sum involved being relatively modest. The Superior Court observed the finance company had admitted in its pleading the sale figure of $1800 was grossly inadequate. The point we seek to make by discussing these cases is that the facts and circumstances attending them were quite different from those in the case before us.

Here, we are dealing with a guarantor, not a debtor. The items sold constituted only a part of all the collateral. Turner does not allege that the vehicles were sold at less than their fair market value. Lack of notice would not serve to alert her to pay the debt to forestall the sale since she obviously has no intention of willingly paying the same. Nor would she have any reason to buy, at repossession sale, the vehicles belonging to a bankrupt debtor. There is no hazard of double recovery as the bank has applied the proceeds of the sale to the alleged guaranteed debt. Finally, there appears to be an enormous disparity between the value of the vehicles and the amount of indebtedness the bank claims Turner guaranteed. The amount of the loans the bank alleges are guaranteed comes to some $135,448.16. (Sawchak dep. 1/17/90, exh. 5.) An examination of the bids submitted on the vehicles, in a variety of permutations, indicates the best amount that could be realized would not exceed $11,000. (Sawchak dep. 1/17/90, exh. 8; Casagrande dep. at 28-33.) Thus, to hold that failure to give notice of the vehicle sale to Turner absolutely bars a deficiency judgment would provide her with a huge windfall which our Supreme Court in Savoy v. Beneficial Consumer Discount Co. says should be avoided.

What Turner has done by raising the defense of lack of notice is to create a rebuttable presumption that the collateral disposed of without notice had a value equal to the debt. Therefore, summary judgment cannot be granted;

“In summary, the Uniform Commercial Code applies a standard of commercial reasonableness to the disposition of collateral by a creditor. In view of the imprecision of that standard, it is not in harmony with the concept of reasonableness which permeates that portion of the act to hold that the creditor acts at the peril of his losing his right to deficiency judgment if he errs in good faith in applying that standard. . .. Ample compensatory protection for the debtor exists under [section 9507] ... by which any loss suffered by the debtor may be offset against the deficiency judgment or may result in judgment for the debtor supported by a presumption favorable to the debtor. To permit more benefit for the debtor is to impose a penalty not justified by the equities of the ordinary debtor-creditor situation.” Associates Financial Service Co. v. DiMarco, supra, at 302.

ORDER

Now, March 5, 1991, for the reasons set forth in the accompanying opinion, the motion of plaintiff, Virginia Turner, for summary judgment is denied.

       But see Rutan v. Summit Sports Inc., 173 Cal. App. 3d 965, 219 Cal. Rptr. 381 (1985), which held a guarantor was not a debtor within the meaning of California’s UCC, and guarantee agreement signed by guarantor waived right to notice of sale under section 9504.


author: McCRACKEN, P.J.,

text:
    Kotuby v. Trent

      Kenneth E. Fox, for plaintiff.

      Linton L. Moyer, for defendant.
    January 22, 1991
   McCRACKEN, P.J.,

Before the court is a motion by plaintiffs in this medical malpractice action seeking a protective order to prohibit counsel for either defendant from communicating ex parte with any of the wife-plaintiff’s treating physicians or from calling them as expert witnesses at trial.

This action stems from surgery performed by Dr. Douglas E. Trent on plaintiff Carol Kotuby at Ell-wood City Hospital on June 7, 1983. Mrs. Kotuby alleges that due to the negligence of Dr. Trent and the hospital, she has sustained permanent damage to a nerve in her right thigh as a result of the operation. Since the date of the surgery, she has been treated by Dr. Thomas Dugan and Dr. Patricia Jozefczyk, both of whom have filed reports made available to defendants’ counsel, diagnosing plaintiff’s injury and expressing opinions as to what may have caused it. Late in 1987, while this action was pending, counsel for Ellwood City Hospital telephoned Dr. Dugan and Dr. Jozefczyk and obtained from them statements to the effect that the injury suffered by plaintiff was not necessarily caused by negligence on anyone’s part. Plaintiff’s counsel was not made aware of these statements until October 1990. On November 8, 1990, plaintiff filed a motion for a protective order against expert testimony by Dr. Dugan or Dr. Jozefczyk and any further ex parte communications between them and defense counsel.

The basis for plaintiff’s motion is her contention that it is improper for a defense counsel in a medical malpractice case to contact, ex parte, a plaintiff’s former treating physician or to retain them as expert witnesses on liability.

It is true that many of our trial courts have disapproved of such a practice generally on the ground that plaintiff has sought treatment from such a physician with the expectation that the information acquired by the physician in confidence would not be disclosed to parties with adverse interests, and that assistance voluntarily rendered to a patient’s opponent violates the duty of care owed by a physician to a patient. McNally v. Eastern Hospital, 46 Northamp. Rep. 202 (1985); Hoffmeyer v. Pell, 23 D.&C. 3d 448 (1982); Freyer v. Travelers Indemnity Co., 15 D.&C. 3d 649 (1980); Nicholson v. Estate of Polcyn, 12 D.&C. 3d 561 (1979); Shea v. McCadden, 46 D.&C. 2d 560 (1969); Alexander v. Knight, 25 D.&C. 2d 649 (1961), affd. per curiam 197 Pa. Super. 79, 177 A.2d 142 (1962). Nonetheless, we doubt that cases such as these are still accurate statements of the law of Pennsylvania in the light of the Superior Court’s decision in Moses v. McWilliams, 379 Pa. Super. 150, 549 A.2d 950 (1988), the first appellate court case to confront this issue.

In considering the claim of a malpractice plaintiff, that her privacy rights were violated when her subsequent treating physician discussed her condition with counsel for the defendant hospital and with representatives of the hospital’s insurer, the Superior Court observed that once the plaintiff had filed a lawsuit placing her physical condition at issue, her privacy expectations were reduced because she could anticipate that her claim would be investigated. The court observed that the prompt investigation of malpractice claims is in society’s best interest and that ex parte interviews are easier and less expensive to schedule than depositions; they promote candor and spontaneity, and they are cost efficient in eliminating non-essential witnesses. Most significantly, the court noted that the Pennsylvania Physician-Patient Confidentiality Statute (42 Pa.C.S. §5929) contains a specific exception for personal injury lawsuits. Thus, a plaintiff who has brought such an action has waived the protection of the statute with respect to the disclosure of medical information on the plaintiff’s condition acquired by a treating physician in a professional capacity, as was recognized in Feingold v. SEPTA, 512 Pa. 567, 517 A. 2d 1270 (1986).

We thus conclude that the decision of the Superior Court in Moses, supra, represents the present law of this Commonwealth. Not only are communications between defense counsel and plaintiff’s treating physicians not barred by any statutory privilege, they are to be encouraged as promoting efficient investigation of the merits of malpractice claims. Furthermore, if a physician under such circumstances may be asked to disclose the facts surrounding the plaintiff’s condition, we can see no reason why he may not, in addition, be asked whether the plaintiff’s injuries could have occurred without negligence. That is the only opinion that has been expressed by either Dr. Dugan or Dr. Jo-zefczyk in this case and it is not the same as expressing the opinion that defendants were clearly not negligent.

Accordingly, we conclude that there was no impropriety in the contact made by defense counsel with plaintiff’s physicians in this case and that there is no basis for prohibiting further contact with them or the use of their testimony at trial. Plaintiffs’ motion for a protective order will therefore be denied.

ORDER OF COURT

Now, January 22, 1991, the motion for a protective order filed on behalf of plaintiffs on November 9, 1990 is hereby denied.

      . Act of July 9, 1976, P.L. 586, No. 142, §2.

      . This statute contains the only physician-patient privilege that exists under Pennsylvania law, since there is no such privilege at common law. Commonwealth v. Sykes, 353 Pa. 392, 45 A.2d 43 (1946).


text:
    Moyer v. Moyer

      Colleen Malloy, for plaintiff.

      Charles Cusick, for defendant.
    November 28, 1990
   McCRACKEN, P.J.,

The issue is the correct interpretation of a provision in a marital dissolution agreement giving the wife 25-percent interest in the husband’s pension. Was it the parties’ intent that she receive 25 percent of that portion of the pension which the husband had earned during the lifetime of the marriage, or was it their intent that she have 25 percent of the entire amount of the pension at the time it is paid out?

The marital dissolution agreement was entered into on December 10, 1981 as an elaboration of a stipulation entered into by the parties, through their counsel, at a master’s hearing on September 14, 1981. The agreement was incorporated into the master’s recommendations and it was approved by an order of court in conjunction with the divorce decree rendered on January 5,1982. On July 3, 1990, the wife filed a motion for the enforcement of the agreement alleging that she is receiving only 25 percent of the 1981 value of the pension rather than 25 percent of its value in 1989 when the husband began to collect it and that the latter was the intent of the parties under the 1981 agreement. The husband, by contrast, contends that the parties intended that the 1981 value of the pension be used in calculating the amount to which the wife is entitled.

The parties agree that the controlling issue is the interpretation of paragraph 19 of the agreement entitled “Husband’s Obligations.” It reads as follows:

“Husband will soon have a right in a pension through the membership in the pipe fitters union. When the Husband retires, or in the event that he predeceases the Wife, then the Wife, without regard to her marital status, if still alive, will have a 25-percent interest in this union pension of the Husband. Wife shall receive 25 percent of whatever settlement option the Husband or his primary beneficiary elects to receive this pension in. If the Wife receives $25,000 or more as her share in the settlement of her lawsuit against A&P (exclusive of interest, costs and attorney fees), then she will waive all her rights to the Husband’s pipe fitters union pension.”

We should observe at the outset that both parties, in their briefs on this motion, have sought to introduce issues that are not properly relevant to the narrow question before us. Plaintiff-husband, for example, claims that this matter is controlled by King v. King, 332 Pa. Super. 526, 481 A.2d 913 (1984), which held that only that portion of a pension that was earned during the lifetime of the marriage (before the final separation) is subject to equitable distribution as marital property. He argues that awarding the defendant-wife 25 percent of the 1989 value of the pension would violate this precedent because it would cause the court to distribute what has been held to be non-marital assets. The point he misses, however, is that the court is not being asked to decide what is or is not marital property under the law, but rather to interpret a provision in an agreement that was drawn up prior to the King decision. To assume without evidence that the parties intended to make a distinction between benefits that were earned during the marriage and those that were earned afterwards is to assume that they foresaw King. Moreover, since our task is to interpret and enforce the parties’ agreement, it would not matter if the parties had agreed to the distribution of an asset that later case law would hold to be non-marital. If they intended to distribute the pension at its 1989 value, then that intent should be given effect. We therefore conclude that King is not controlling on this point.

Nor is there any relevance in the fact that the administrators of the pension plan have decided that the agreement calls for the distribution of the pension at its 1981 value. The agreement has been incorporated into an order of court and it is the court’s responsibility to interpret and enforce its own orders. The action of the administrators does not, as the husband claims, shift to the wife the burden of producing evidence to disrupt the status quo. Should this court determine that the interpretation which the administrators have given to the agreement is erroneous, this error will afford no basis for continuing an arrangement that is contrary to what the parties intended.

In the same way, there is no question of invading the marital assets of the plaintiff-husband’s second marriage. If it was his intent to give his first wife 25 percent of the 1989 value of his pension, and if he bound himself by contract in 1981 to do this, then the amount of the pension due the first wife is not an asset of the second marriage because he never brought it into his second marriage. Therefore, if we determine that, prior to entering into his current marriage, he had already contracted to give this money to his first wife as part of a settlement of the economic claims of his first marriage, then his second wife never had any claim to it.

We also reject defendant-wife’s claim that the addendum to the agreement on February 20, 1987 sheds any light on the intent behind the original agreement. It merely states that, “Edward H. Mo-yer’s obligation under paragraph 19 of the December 10, 1981 agreement remains in full force and effect.” But it says nothing regarding the actual meaning of that paragraph.

Having thus determined which issues are not relevant to our inquiry, we come to the one issue directly before us: that of determining the intent of the parties from the language of their agreement. It is axiomatic that our starting point must be the plain language of the agreement which may not be disregarded when it is clear and unambiguous. Port Authority v. Rugare, 29 Pa. Commw. 83, 370 A.2d 768 (1977). The language of paragraph 19 states that “When the Husband retires, . . . then the Wife . . . will have a 25-percent interest in this union pension of the Husband,” and that “Wife shall receive 25 percent of whatever settlement option the husband . . . elects to receive this pension in.” It is obvious that the parties intended to defer distribution of the pension until it became payable. But it is less obvious whether “a 25-percent interest in this union pension” refers to the pension as it existed at the time of the agreement or as it would exist at the time of the husband’s retirement. Bearing in mind, however, that it is proper to consider the entire agreement so as to give effect, if possible, to the whole instrument, we believe that it is proper to consider paragraph 11 as shedding light on the proper meaning of paragraph 19. Paragraph 11 is entitled “After-Acquired Personal Property” and reads:

“Each of the parties shall hereafter own and enjoy, independently of any claim or right of the other, all items of personal property, tangible or intangible, hereafter acquired by him or her, with full power in him or her to dispose of the same as fully and effectively, in all respects and for all purposes, as though he or she were unmarried.”

This paragraph states in clear and unambiguous terms that neither party is to acquire any interest in personal property acquired by the other after the date of the instrument (December 10, 1981). Personal property includes money owed to an individual. Blacks’ Law Dictionary, 5th ed. at 1096. Since the increase in value of the pension fund between 1981 and 1989 represents money which the husband earned after 1981, it constitutes after-acquired personal property. Accordingly, it is not to be distributed under the agreement, but is the sole property of the spouse who has earned it. (The wife attempts to avoid this conclusion by arguing that under 1 Pa.C.S. §1933, the particular controls the general in two provisions enacted together. But that is true only when there is an irreconcilable conflict between the two provisions. Here there is no such conflict if paragraph 19 is understood as referring to the 1981 value of the pension.)

We therefore conclude that the method of distribution currently in force, whereby the wife receives 25 percent of the 1981 value of the husband’s pension, is in accord with the intent of the parties at the time of the equitable distribution. We will therefore dismiss the wife’s motion.

ORDER OF COURT

Now, November 28, 1990, the court holding that defendant, Donna Lou Moyer, is entitled under the marital dissolution agreement to 25 percent of the pension of plaintiff, Edward Henry Moyer, as valued on December 10, 1981, therefore, defendant’s motion for enforcement of said agreement filed on July 3, 1990, is hereby dismissed.

      . The final sentence of this paragraph no longer has any force, inasmuch as the record indicates that the wife obtained no recovery from the lawsuit mentioned.

      . Although, as we have said earlier, King v. King, supra, does not apply to the interpretation of this agreement, it is still noteworthy that the agreement, as we have construed it, is in accord with the result in King regarding the portion of the pension that is subject to equitable distribution.