author: BURR, J.,

text:
    Shankweiler v. Regan

      C.P. of Delaware County,
    no. 99-6101.

      Andrew E. DiPiero Jr., for plaintiffs.

      James C. Haggerty, Suzanne Tighe, Paul A. Nappi and Michael Pastino, for defendants.

      September 5, 2002
   BURR, J.,

The plaintiffs, William and Donna Shankweiler, have appealed from the order of this court granting the defendants’ post-trial motion and molding the jury’s verdict downward from $50,300 to $300, so as to reflect the settlement of $50,000 accepted by the plaintiffs during pretrial underinsured motorist arbitration proceedings. Judgment has been entered in favor of the plaintiffs and against the defendants in the amount of $300, consistent with the order granting defendants’ post-trial motion, plus delay damages in the amount of $4,124.75, on plaintiffs’ praecipe, filed August 8, 2001. On November 28, 2001, plaintiffs’ insurer, The Employees Mutual Insurance Company (EMCASCO), was given leave of court to intervene in this matter for the purpose of preserving any claims it may have for reimbursement of monies paid to the plaintiffs.

This action arose from a motor vehicle collision that occurred when plaintiffs’ 1989 Nissan was struck from behind by the defendants’ 1979 Dodge Aspen while plaintiffs’ vehicle was stopped for a red traffic signal at the intersection of West Chester Pike and Park Avenue in Upper Darby, Delaware County, Pennsylvania, at approximately 4 p.m., on May 13,1997. Husband-plaintiff claimed that he suffered injuries to his back and extremities in the collision, including herniated lumbar discs, lumbosacral/cervical strain and sprain, and left-sided radiculopathy or radiating pain and numbness in the left leg caused by injury to the nerve root coming out of the spine. Wife-plaintiff asserted a claim for loss of consortium. At the time of the accident, the defendants were insured under a personal automobile policy issued by Allstate Insurance Company pursuant to the Pennsylvania Motor Vehicle Financial Responsibility Act, 75 Pa.C.S. §1701 et seq., providing for $25,000 in liability coverage. The plaintiff, William Shankweiler’s, personal automobile policy with EMCASCO included underinsured motorist coverage. Prior to trial, plaintiffs submitted a claim for the recovery of those benefits from EMCASCO, and on October 23, 2000, without submitting the matter to arbitration to determine the merits thereof, EMCASCO tendered and paid the policy limit of $50,000 in underinsured motorist benefits for injuries sustained by Mr. Shankweiler in this accident. (See “agreement and policy release,” exhibit A to defendants’ motion for post-trial relief.)

Plaintiffs presented evidence at trial that the car husband-plaintiff was driving was situated approximately eight feet behind another vehicle while stopped at the intersection and, when struck by the defendants’ vehicle, moved forward only one or two feet. (3/26/01 N.T. 80-81, 103.) Husband-plaintiff said, however, that he had been “jarred pretty good” by the impact, but did not strike any portion of the interior of the car. (3/26/01 N.T. 81.) Husband-plaintiff related that he told the investigating police officer that he was “okay,” and that he had driven home from the scene in his car. (3/26/01 N.T. 109-10.) In reference to a photograph taken by the defendants of his vehicle, husband-plaintiff agreed that damage to the car in the accident was “pretty minor.” (3/26/01 N.T. 81; trial exhibit D-3.) Husband-plaintiff testified that he had seen his family doctor, Dr. Brian Fredrich, two days after the accident, and had treated with him thereafter, first attending physical therapy sessions for about four weeks, and taking aspirin and anti-inflammatory painkillers as needed. (3/26/01 N.T. 76-91.) Husband-plaintiff said that he had treated with Dr. Fredrich only intermittently for back pain during the following year. (3/26/01 N.T. 89.) He then complained, in July of 1998, that back pain was causing him difficulty in getting out of bed and that he was suffering from numbness and tingling in his left leg. (3/26/01 N.T. 89-91.) Husband-plaintiff was prescribed the same conservative treatment he had undergone in the past at the direction of Dr. Fredrich. (3/26/01 N.T. 89-91.) On December 23,1998, husband-plaintiff presented to Dr. Fredrich with more intense back pain, this time resulting from a fall that was attributed in Dr. Fredrich’s records to “rollerblading,” although plaintiffs vehemently denied that husband-plaintiff has ever rollerbladed in his life. (3/26/01 N.T. 91-93, 201.)

Thereafter, husband-plaintiff reported to Dr. Fredrich in May of 1999 that he was suffering from severe back pain, and was referred to Dr. Richard Levenberg, an orthopedic surgeon. (3/26/01 N.T. 94-95.) An MRI of husband-plaintiff’s spine showed lumbar disc herniations at the L4-5 and L5-S1 levels. (3/26/01 N.T. 95, 179.) Dr. Levenberg performed surgery to remove the ruptured discs on June 28, 1999, with husband-plaintiff’s condition thereafter reported as “greatly” improved. (3/26/01 N.T. 96-97, 100-101.) Plaintiffs presented the expert opinions of Drs. Fredrich and Levenberg, that these disc herniations were caused by this accident. (3/26/01 N.T. 123-68, 168-97.) Defendants presented contrary expert testimony from Dr. Steven Gollomp, a neurologist, who testified that, while it was his understanding that husband-plaintiff had suffered an injury in this accident, it was his opinion that the disc herniation had been caused by the alleged fall while rollerblading in December of 1998. (3/26/01 N.T. 224-26.) Plaintiffs presented the testimony of wife-plaintiff to provide grounds for her claim of loss of consortium, and a stipulation of the parties that husband-plaintiff’s wage loss claim amounted to $12,860. (3/26/01 N.T. 198, 199-206.)

Defendants admitted that Mr. Regan’s negligence caused this accident, and both plaintiffs’ and defendants’ experts agreed that husband-plaintiff had suffered some injury therein. (3/27/01 N.T. 51.) Therefore, the jury was directed to answer “yes” to the interrogatory as to whether the admitted negligence of the defendant was a substantial factor in bringing about Mr. Shankweiler’s injuries, and to decide the issue of damages alone. (3/27/01 N.T. 51, 57.) The court instructed the jury that if it found that damages were awardable from this accident, that plaintiffs were entitled to receive those which would “fairly and reasonably compensate them for all of the physical and financial injury suffered.” (3/27/01 N.T. 51.) The jury awarded husband-plaintiff damages in the amount of $50,300, and awarded no damages on wife-plaintiff’s claim for loss of consortium. The wife-defendant, Madeline Regan, has since been dismissed from this action by agreement of the parties.

The defendant, Michael Regan, submitted a timely-filed motion for post-trial relief seeking a molding of the jury’s verdict to reflect the payment of $50,000 to plaintiffs under their underinsured motorist coverage with EMCASCO. The asserted grounds for this relief were Pennsylvania’s “one satisfaction” rale, prohibiting more than one recovery for injuries claimed in this accident, and collateral estoppel. Plaintiffs countered this assertion by stating that molding of the verdict would impermissibly reward the defendant wrongdoers, and violate the “collateral relief” rale barring consideration of insurance benefits previously conferred in the calculation of damages to be awarded, and that defendants had waived this plea for relief by failing to raise it before the conclusion of trial. The court, after a hearing on defendants’ motion for post-trial relief entered the following order disposing of that motion, of defendants’ motion for leave to amend their answer and new matter, and of plaintiffs’ motion for delay damages:

“And Now, July 18, 2001, having considered the following motions and the responses thereto, as well as the memoranda of law submitted in support thereof, and oral argument having been heard as to defendants’ prayer for post-verdict relief, it is hereby Ordered and Decreed that the defendants’ motion for post-trial relief is Granted, and that the Verdict awarded by the jury to the plaintiffs in the above-captioned matter is hereby Molded to the sum of $300, so as to reflect the amount of Underinsured Motorists Insurance coverage already provided to the plaintiffs by their motor vehicle insurance carrier.
“It is further Ordered and Decreed that defendants’ motion for leave to amend their answer and new matter is Granted with the exception of the addition of the defense of collateral estoppel. Plaintiffs’ motion to strike defendants’ motion for post-trial relief is hereby Dismissed as Moot.
“Finally, it is hereby Ordered and Decreed that plaintiffs’ petition for delay damages is Granted, and that said damages are to be calculated on the amount of the jury’s unmolded verdict of $50,300 in favor of the plaintiffs. It is further Ordered that plaintiffs’ motion to strike defendants’ response to plaintiffs’ petition for delay damages is Dismissed as Moot, and that plaintiffs’ bill of costs will remain in abeyance pending the conclusion of all litigation in this case.”

There is no appeal by the defendants from the award of delay damages to the plaintiffs. However, the plaintiff, William Shankweiler, has appealed from the court’s granting of defendants’ requests to mold the verdict, and to amend the pleadings as set forth in the order, and submits the following lengthy exposition of issues as his statement of matters complained of on appeal:

“(1) ... It is the plaintiff/appellant’s contention that this honorable court erred in granting defendants’ motion for post-trial relief and otherwise molding the verdict. Rule 227.1 of the Pennsylvania Rules of Civil Procedure specifically states that post-trial relief may not be granted unless the grounds therefor.... ‘were raised in pretrial proceedings, or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial. ..’, none of which was done by the defendants in this case. The issue raised by defendants in their motion for post-trial relief was not preserved in any manner, nor is it relevant to this case. It is the plaintiff’s position that he is entitled to recover the full amount of the verdict awarded by the jury. Whether some other entity has a subrogation lien against plaintiff’s recovery is another issue for another day. However, the record of this case clearly establishes the fact that the defendants did not preserve the issue presented in defendants’ motion for post-trial relief at any pretrial proceeding or otherwise in the context of the record of this case.
“(2) The practical result of this court’s order of July 18, 2001, granting defendants’ motion for post-trial relief is that it permits the wrongdoer, i.e., defendant Michael Regan, to escape responsibility which is contrary to the jurisprudence and public policy of this Commonwealth.
“The relief requested by the defendants and which was granted by this court violates the potential rights of others who are not parties to this litigation as the remedy ordered by this court interferes with traditional forms of subrogation, liens and the plaintiffs’ legal rights to pursue all claims on behalf of the plaintiff, as well as claims of others. This case has potential implications spilling over to other arenas, such as workers’ compensation, Medicare, private health insurance liens, etc. The result ordered by this court will actually create a potential for a multiplicity of lawsuits in place of what should have been one. It is therefore against the public policy of this Commonwealth.
“In addition, the result ordered by this court by granting defendants’ motion for post-trial relief is contrary to basic principles of fairness and equity. The result ordered by this court accomplishes something which is virtually unknown in American jurisprudence, i.e., it rewards the wrongdoer. Mr. Regan caused the accident and harm to the plaintiff, and yet he is able to take advantage of the fact that plaintiff had purchased a policy of insurance which provided for first-party benefits. Therefore, this court is permitting the tort-feasor, Mr. Regan, to pay a mere $300 rather than the $50,300 the jury ordered him to pay.
“(3) . . . Underinsured motorist benefits have been held to be first-party benefits in Pennsylvania. Burstein v. Prudential Property and Casualty Insurance Company, 742 A.2d 684 (Pa. Super. 1999), en banc. Accordingly, the plaintiff may receive what is tantamount to a double recovery of damages and, the law is also very clear that a defendant wrongdoer should not benefit from any collateral benefits, including insurance benefits. Denardo v. Carneval, 297 Pa. Super. 484, 494-95, 444 A.2d 135, 141 (1982); Rubin, Quinn, Moss, Heaney & Patterson v. Kennel, 832 F. Supp. 922 (E.D. Pa. 1993). Of course, these benefits may be subject to a subrogation interest; however, the payment of collateral benefits such as UIM benefits does not diminish the legal obligation on the part of the third-party defendant, Michael Regan, to compensate the plaintiff fully for the damages that he has caused. Johnson v. Beane, 541 Pa. 449, 664 A.2d 96 (1995).
“(4) . . . Plaintiff/appellant hereby incorporates by reference plaintiff’s answer to defendants’ motion for post-trial relief, as well as plaintiff’s motion to strike defendants’ petition to amend answer and new matter, plaintiff’s answer and brief in opposition to defendant’s petition to amend answer and new matter, and plaintiff’s motion to strike the supplemental brief and affidavit submitted by defendants filed subsequent to this court’s order of July 18, 2001.
“In summary, amendments should only be permitted when there is a legitimate and meritorious basis for the proposed amendment. In this case, there is no such basis for the defendant to file amended pleadings. The post-trial effort by the defendant, which was permitted by the court, was merely an attempt to ‘remedy’ a deficient record.
“On or about July 25, 2001, defense counsel submitted a supplemental memorandum of law in support of [defendants’] motion for post-trial relief, notwithstanding the fact that this court had already ruled on defendants’ motion for post-trial relief by issuing its order of July 18,2001. Surreptitiously attached to defendants’ supplemental memorandum of law is an affidavit of Robert Edwards dated July 23, 2001 (also dated subsequent to this court’s order). This is a blatant and bad faith effort by the defendants to ‘recreate’ the record that was never created in the first instance. This witness, Robert Edwards, was never made known to plaintiff at any time prior to or during trial, nor was the plaintiff afforded an opportunity to take this witness’ deposition to test the truth and veracity of the statements made in his self-serving affidavit on behalf of the Allstate Insurance Company. It is the plaintiff’s position that this affidavit and the supplemental memorandum filed on or about July 25, 2001, should be stricken from the record and that the post-trial amendments to defendants’ pleadings should likewise be stricken because they lack merit and were otherwise prejudicial to this plaintiff.” (Plaintiff/appellant’s statement of matters complained of on appeal, pp. 1-4.)

Plaintiffs’ issues on appeal are discussed under appropriate headings below.

1. POST-TRIAL AMENDMENT OF PLEADINGS

Plaintiffs contend error in the court’s allowing defendants to amend their answer and new matter to add the defenses of set-off and satisfaction of the judgment entered against them. (Concise statement, paragraph 4.) Plaintiffs argue that amendments should be permitted only when there is a legitimate and meritorious basis for the proposed amendment; that there is no such basis for the defendants to amend their pleadings; and that the post-trial effort by the defendants to do so was merely an attempt to remedy a deficient record. Plaintiffs tack onto this claim an assertion that defendants submitted in an untimely fashion, after the order which is the subject of this appeal had been issued, a supplemental memorandum of law supporting their motion for post-trial relief, to which memorandum was attached an affidavit from Robert Edwards, a representative from defendants’ insurer, the Allstate Insurance Company. Mr. Edwards claims in the affidavit that he was unaware of the plaintiffs’ settlement with EMC AS CO until after the verdict was delivered. Plaintiffs insist that the supplemental memorandum of law and Mr. Edwards’ affidavit must be stricken from the record because Mr. Edwards’ identity “was never made known to plaintiff at any time prior to or during trial, nor was the plaintiff afforded an opportunity to take this witness’ deposition to test the truth and veracity of the statements made in his self-serving affidavit on behalf of the Allstate Insurance Company.” (Concise statement, paragraph 4.)

The docket reflects that the within order was filed on July 19, 2001, and that plaintiffs’ notice of appeal from that order was filed on July 27, 2001. Defendants’ supplemental memorandum with the Edwards affidavit was filed on July 30, 2001, or several days after this court had lost jurisdiction of the case. It is beyond cavil that a court may not consider evidence that is not before it when a decision is handed down, and most certainly not after it has been divested of the power to rule upon a motion in which that evidence is presented. Defendants aver awareness of this fact, but claim the affidavit was provided in order to “create a record” for purposes of this appeal. Since this court no longer had jurisdiction to act upon plaintiffs’ motion to strike defendants’ supplemental memorandum when it was filed, it is respectfully suggested that plaintiffs should raise this objection before the Pennsylvania Superior Court.

A party may, at any time, with consent of an opposing party, or by leave of court, amend his or her pleading. Pa.R.C.P. 1033; Somerset Community Hospital v. Mitchell & Associates, 454 Pa. Super. 188, 685 A.2d 141 (1996); Ecksel v. Orleans Construction Company, 360 Pa. Super. 119, 519 A.2d 1021 (1987). “Atrialcourt has broad discretion in ruling on a party’s motion to amend the pleadings.” Somerset Community Hospital v. Mitchell & Associates, supra at 199, 685 A.2d at 147. “An amendment will not be allowed, however, when it is against a positive rule of law, where it states a new cause of action after the statute of limitations has run, or when it will surprise or prejudice the opposing party.” Somerset Community Hospital v. Mitchell & Associates, supra at 199, 685 A.2d at 147; Horowitz v. Universal Underwriters, 397 Pa. Super. 473, 580 A.2d 395 (1990).

Citing to the case authority of City of Philadelphia v. Spencer, 139 Pa. Commw. 574, 591 A.2d 5 (1991), plaintiffs argue the following claim of prejudice from the amendment:

“The relief requested by the defendants would interfere with plaintiff’s ability to pursue separate and distinct claims and remedies available to plaintiff under the laws of this Commonwealth (e.g., claims for first-party benefits, claim for delay damages, claim for payment of bill of costs, and a claim for excess liability and bad faith against defendants’ insurance carrier). The relief sought by the defendants is an attempt to pervert the laws of this Commonwealth and to interfere with plaintiff’s ability to pursue his lawful claims.” (Plaintiffs’ brief in opposition to defendants’ motion to amend their answer and new matter, p. 2.)

The case of City of Philadelphia v. Spencer, supra, relied upon by the plaintiffs, involved the granting of the motion of the City of Philadelphia to amend its answer and new matter to add a defense of sovereign immunity some two years after the filing of the plaintiff’s complaint contending injury on a city playground. The Commonwealth Court there held that the passage of time alone constitutes insufficient prejudice to bar an amendment, and that, in any event, the defense of immunity in that context could never be waived. City of Philadelphia v. Spencer, supra at 577-78, 591 A.2d at 7-8. In response to the plaintiff’s insistence that such a late filing would prejudice her ability to win her case against the city if the amendment were allowed, the court wrote: “[i]f the amendment contains allegations which would have been allowed inclusion in the original pleading (the usual case), then the question of prejudice is presented by the time at which it is offered rather than by the substance of what is offered. The possible prejudice, in other words, must stem from the fact that the new allegations are offered late rather than in the original pleading, and not from the fact that the opponent may lose his case on the merits if the pleading is allowed.” City of Philadelphia v. Spencer, supra at 577-78, 591 A.2d at 7; citing to Bata v. Central Penn-National Bank of Philadelphia, 448 Pa. 355, 380, 293 A.2d 343, 357 (1972), cert. denied, 409 U.S. 1108, 93 S.Ct. 910, 34 L.Ed.2d 689 (1973). (emphasis in original)

In the case sub judice, where the defenses of set-off and satisfaction could have been included in the original pleadings to this action, the plaintiffs are contending not that the lateness of the amendment will cause them prejudice, but that the amendment itself may cause them to lose prospective claims not yet brought for “first-party benefits, claim for delay damages, claim for payment of bill of costs, and a claim for excess liability and bad faith against defendants’ insurance carrier.” Plaintiffs cannot meet their burden of proving prejudice in this regard with contentions of an inability to either prepare for, or even to win any claims which have not arisen, and might never arise, by dint of the allowance of late amendment of the defendants’ pleadings. This amendment comes as no surprise to the plaintiffs, nor has it been shown that its mere lateness caused them prejudice. It is respectfully suggested, for all of the foregoing reasons, that the amendment to defendants’ answer and new matter to the plaintiffs’ complaint was properly allowed.

2. TIMELINESS OF MOTION TO MOLD VERDICT

Plaintiffs object to the granting of defendants’ motion for post-trial relief and molding of the verdict on grounds that “Rule 227.1 of the Pennsylvania Rules of Civil Procedure specifically states that post-trial relief may not be granted unless the grounds therefor... ‘were raised in pretrial proceedings, or by motion, objection, point for charge, request for findings of fact and conclusions of law, offer of proof or other appropriate method at trial.’” (Concise statement, paragraph 1.) Plaintiffs filed a motion to strike defendants’ motion for post-trial relief in which they asserted that grounds for post-verdict motions are required to be presented by the conclusion of trial. However, plaintiffs neglected to mention in said motion that Pa.R.C.P. 227.1 provides, in relevant part:

“(b) Post-trial relief may not be granted unless the grounds therefor,
“(1) if then available, were raised in pretrial proceedings or by motion, objection, point for charge, request for findings of fact or conclusions of law, offer of proof or other appropriate method at trial . . . .” (Pa.R.C.P. 227(b)(1)). (emphasis added)

The language of the rule recognizes on its face that issues, if then available, must be raised prior to the conclusion of trial. The issues raised in defendants’ motion for post-trial relief were not available until the jury had returned its verdict. The Pennsylvania Superior Court, in Gallop v. Rose, 420 Pa. Super. 388, 391, 616 A.2d 1027, 1028 (1992), approved of the trial court’s denial, as premature, of the defendant’s pretrial motion in limine requesting the court to reduce any verdict by the amount already paid to the plaintiff in uninsured motorist benefits, because damages had yet to be determined by the jury. Because the issues raised herein directly relate to the jury’s award of damages based on the evidence presented at trial, it is respectfully submitted that they were properly and timely raised and adequately preserved for appeal. Pa.R.C.P. 227.1(b)(1); Gallop v. Rose, supra.

3. MOLDING OF VERDICT TO REFLECT UNDERINSURED MOTORIST INSURANCE SETTLEMENT

Finally, plaintiffs contend that the court violated both law and public policy in reducing the jury’s verdict to reflect the pretrial settlement of underinsured motorist benefits upon the plaintiffs by their insurer. (Concise statement, paragraphs 2 and 3.) The defendants had sought molding of the verdict on grounds that Pennsylvania’s “one satisfaction” rule prohibits more than one recovery for injuries claimed in this accident, and that plaintiffs were collaterally estopped by their prior recovery of UIM benefits from obtaining damages in excess of the jury’s award. The plaintiffs argued in opposition that molding of the verdict would impermissibly reward the defendants as wrongdoers, thus prejudicing the rights of plaintiffs and all potential similarly situated litigants in violation of public policy, and would violate the “collateral source rule” prohibiting crediting “to the benefit of a wrongdoer money or services received by a plaintiff in reparation for his injury emanating from sources other than the wrongdoer.” (Plaintiffs’ brief in opposition to defendants’ motion for post-trial relief, p. 4.) Plaintiffs’ contentions are discussed seriatim under appropriate headings below.

a. Public Policy Argument

Plaintiffs contend, in paragraph 2 of their concise statement that:

“The practical result of this court’s order of July 18, 2001, granting defendants’ motion for post-trial relief is that it permits the wrongdoer, i.e., defendant Michael Regan, to escape responsibility which is contrary to the jurisprudence and public policy of this Commonwealth.
“The relief requested by the defendants and which was granted by this court violates the potential rights of others who are not parties to this litigation as the remedy ordered by this court interferes with traditional forms of subrogation, liens and the plaintiff’s legal rights to pursue all claims on behalf of the plaintiff, as well as claims of others. This case has potential implications spilling over to other arenas, such as workers’ compensation, Medicare, private health insurance liens, etc. The result ordered by this court will actually create a potential for multiplicity of lawsuits in place of what should have been one. It is therefore against the public policy of this Commonwealth.
“In addition, the result ordered by this court by granting defendants’ motion for post-trial relief is contrary to basic principles of fairness and equity. The result ordered by this court accomplishes something which is virtually unknown in American jurisprudence, i.e., it rewards the wrongdoer. Mr. Regan caused the accident and harm to the plaintiff, and yet he is able to take advantage of the fact that plaintiff had purchased a policy of insurance which provided for first-party benefits. Therefore, this court is permitting the tort-feasor, Mr. Regan, to pay a mere $300 rather than the $50,300 the jury ordered him to pay.” (Plaintiffs’ concise statement of matters complained of on appeal, paragraph 2.)

Plaintiffs argue that, in molding this verdict so as to reduce it by the amount of the UIM settlement, the court allowed the defendant, Michael Regan to circumvent his obligation to the plaintiffs, thus prejudicing the potential subrogation rights of parties such as employers, workers’ compensation insurance companies, health insurance companies, automobile insurance companies, and “perhaps others” not involved in this litigation. (Plaintiffs’ brief in opposition to defendants’ motion for post-trial relief, p. 7.) Plaintiffs further state that they do not concede the fact that their UIM carrier has any such subrogation rights, but that they have been twice placed on notice by counsel for EMC AS CO that the company is seeking a credit for amounts paid to the plaintiffs. (Plaintiffs’ brief in opposition to defendants’ motion for post-trial relief, p. 7.) The release agreement signed by the plaintiffs upon settlement with EMC AS CO discharges the company from all further actions and claims for damages resulting from this accident, and evinces its conformity with a “trust agreement” pursuant to the terms of the insurance policy, which terms are entirely unspecified in the release form. Plaintiffs also covenanted in signing the release that they had made no settlement with, nor had they prosecuted to judgment, any action against any person responsible for causing the bodily injury for which the UIM benefits had been paid. Other than any rights which might be inferred in speculating as to the contents of the so called “trust agreement,” the release form is silent as to any subrogation rights that may have been asserted by EMCASCO. (See “agreement and policy release,” exhibit A to defendants’ motion for post-trial relief.)

Plaintiffs allege that the controlling legal authority for this issue is the case of Warner v. Continental/CNA Insurance Companies, 455 Pa. Super. 295, 688 A.2d 177 (1997). However, Warner, supra, involved the question of whether the exclusivity provision of the Workers’ Compensation Act, 77 PS. §1 et seq., precluded an employee injured during the course of his employment while driving a vehicle owned by his employer, from compelling underinsured motorist arbitration of a claim for damages under the policy covering the employer’s vehicle. 77 PS. §481. The plaintiff/appellant in Warner, supra, had been paid $8,227.94 in workers’ compensation benefits, and had settled a claim with the defendant’s insurer for a sum representing the tort-feasor’s policy limits of $35,000, less $2,491 for damage to the employer’s vehicle. The plaintiff’s employer’s insurer, Continental/CNA, denied UIM coverage based on the exclusivity provision of the Workers’ Compensation Act, and the plaintiff sought to compel arbitration of the claim. The Superior Court held that the trial court was wrong in denying arbitration and that the plaintiff was not precluded by the Workers’ Compensation Act from pursuing UIM benefits under the policy covering his employer’s vehicle, inasmuch as there was no such exclusion in the policy. Warner v. Continental/CNA Insurance Companies, supra at 303-310, 688 A.2d at 181-84. The Superior Court noted in Warner, supra, that the 1992 amendments to the Workers’ Compensation Act have repealed section 1720 of the Motor Vehicle Financial Responsibility Law, which barred an employer’s right of subrogation against the tort recovery of an employee, and that there was no longer any reason to prevent an injured employee from seeking UIM benefits in addition to those available under the Workers’ Compensation Act. Warner v. Continental/ CNA Insurance Companies, supra at 306-308, 688 A.2d at 183.

Interestingly, in stating that an employer could not be prejudiced by an award of UIM benefits to an employee due to the recently conferred right to seek subrogation of such payments, the Warner court also wrote that an employee’s receipt of sick leave benefits, disability benefits and income loss benefits from his employer could not constitute “double dipping” if such benefits were also recovered from a tort-feasor, because these were benefits for which the employee had paid. Warner v. Continental/CNA Insurance Companies, supra at 310, 688 A.2d at 184-85. By way of contrast, the instant action does not involve a claim for underinsurance motorist benefits under an employer’s motor vehicle insurance policy, nor is there a question of whether any statutory authority allows or prohibits the plaintiffs from pursuing the same. Plaintiffs suggest that deducting the amount of their UIM recovery from the sum of the jury’s verdict would somehow impact upon the right of an employer’s insurer to initiate a subrogation action to recover UIM payments. However, plaintiffs agree that it is entirely clear in the law that employers’ insurers are now protected by the Workers’ Compensation Act from losing their rights to make a subrogation claim. (Plaintiffs’ brief in opposition to defendants’ motion for post-trial relief, pp. 7-8.)

It is also evident from the Warner, supra, opinion, that where an employee seeks to recover health, income loss and other benefits from a tort-feasor under the MVFRL, he would not be subject to a double recovery of benefits previously conferred to him as an employee because he is recouping the value of benefits for which he has already paid. Warner v. Continental/CNA Insurance Companies, supra at 310, 688 A.2d at 184-85, citing Panichelli v. Liberty Mutual Insurance Group, 543 Pa. 114, 118, 669 A.2d 930, 932-33 (1996). In recouping benefits pursuant to their UIM insurance coverage, plaintiffs have been provided benefits for which they have “paid,” but the law governing non-commercial excess motor vehicle insurance coverage looks to such benefits in an entirely different light not addressed in plaintiffs’ argument. Hence, plaintiffs’ concern that the court’s decision respective of the molding of the verdiet in this case would prejudice the recovery rights of employee plaintiffs of the sort who litigated the Warner action, supra, is misguided. What happened in Warner, supra, is completely irrelevant to the facts and circumstances of their own case.

Plaintiffs cite also to the case of Harper v. Washington Insurance Company, 753 A.2d 282 (Pa. Super. 2000), which is more on point, but equally unhelpful, to their position on this issue. Harper, supra, also involved an employee’s claim for underinsured motorist coverage under a policy covering the plaintiff’s employer’s vehicle in which he had been injured. There, the employer’s insurance policy provided UIM coverage in excess of whatever other coverage was available to the plaintiff. The tort-feasor’s policy limit was $100,000, and believing his damages to be well in excess of that amount, the plaintiff in Harper, supra, initiated a claim for UIM benefits. A panel of arbitrators unanimously awarded plaintiff $250,000, and allowed a credit to the UIM insurer for $100,000 in the plaintiff’s third-party case against the tort-feasor. The UIM insurer thereafter sought to vacate the arbitration award as impermissibly preceding litigation of the civil action against the tortfeasor because the plaintiff had yet to exhaust the limits of the tort-feasor’s policy. Harper v. Washington Insurance Company, supra, 753 A.2d at 283. The Pennsylvania Superior Court, citing to Boyle v. Erie Insurance Company, 441 Pa. Super. 103, 656 A.2d 941 (1995), held that, so long as a credit is given to the UIM insurer for the amount of coverage awarded to a plaintiff through arbitration proceedings, an exhaustion clause would not prohibit arbitration of a claim for UIM benefits from preceding a third-party court action for damages arising from the same incident.

There is no claim for UIM benefits from an employer’s insurer, nor an exhaustion clause prohibiting such a claim, nor an arbitration hearing and award preceding the instant action. In this case, plaintiffs opted to settle with their UIM insurance carrier before their case against the defendants was brought to trial, having signed a release discharging EMCASCO from any and all claims for damages yet to be brought. The settlement agreement expressly stated that it was in accord with provisions of a “trust agreement,” the terms of which have never been provided to the court. Plaintiffs cite to Harper, supra, for the proposition that the “terms of the relationship between the UIM [insurance] carrier and its insured have no bearing whatsoever on the outcome of the tort case, nor should the tort-feasor, Michael Regan, benefit from the relationship that William Shankweiler has with his UIM insurance carrier.” (Plaintiffs’ brief in opposition to defendants’ motion for post-trial relief, pp. 8-9.) However, viewing the available evidence, plaintiffs’ arrangements with their UIM insurance carrier with respect to any recovery of damages from the defendants are, at best, unclear, and there is no evidence of any “credit” to the insurer for the sum of the benefits conferred toward the recovery of damages from the defendant tort-feasors. Plaintiffs took the unique risk of settling their claim with their UIM insurance carrier before their damages from the tort claim were assessed by a jury. They now ask the court to allow them to recover both the UIM benefits and the amount of the jury’s verdict on the same claims. It goes without saying that such an absurd result could not have been contemplated, and should not be countenanced, in the law.

The Pennsylvania Superior Court revisited the propriety of conducting an uninsured motorist arbitration hearing before trial of a court action against a tort-feasor in the case of Krakower v. Nationwide Mutual Insurance Company, 790 A.2d 1039 (Pa. Super. 2002), aff’d, 2002 WL 1768067 (Pa. 2002) (Table). In Krakower, supra, the plaintiff sought and obtained underinsured motorist insurance benefits under her mother’s policy in the amount of $50,000, with the arbitrators’ directing that plaintiff issue the UIM insurer a credit in the amount of the tort-feasor’s policy limit of $15,000. Thereafter, the plaintiff’s case against the tort-feasor proceeded to trial, which resulted in a verdict for the tort-feasor. The UIM insurer then filed a motion to vacate the arbitration award, alleging prematurity, and plaintiff’s failure to first exhaust the available limits of the tort-feasor’s insurance policy before proceeding to arbitration. Citing to Harper v. Washington Insurance Company, supra, and referencing the credit made available to the plaintiff’s UIM carrier in that case, the Pennsylvania Superior Court concluded in Krakower, supra, that the purpose of contractual arbitration of claims would be frustrated if it were necessary to postpone such proceedings until all third-party actions had been resolved. Krakower v. Nationwide Mutual Insurance Company, 790 A. 2d at 1041. The court also recognized that permitting underinsured motorist arbitration matters to proceed while third-party actions are pending would lead to inconsistent results, inasmuch as it is not uncommon for juries and arbitration panels to arrive at inconsistent results. Krakower v. Nationwide Mutual Insurance Company, 790 A.2d at 1041. The court further noted that, “[h]ad an arbitration award been entered in favor of the insurer and a jury verdict been rendered in favor of the insured, the insured would have no right to seek to void the arbitration ruling because it was inconsistent with the jury verdict.” Krakower v. Nationwide Mutual Insurance Company, 790 A.2d at 1041. That outcome endorses the presumption that a prior arbitration decision in favor of a UIM carrier would have a preclusive effect on a claim for UIM coverage in excess of the tort-feasor’s policy limits after delivery of the verdict.

Returning to plaintiffs’ original question as to whether reducing this verdict by the amount conferred upon them in a settlement by their UIM carrier would violate public policy by allowing the defendant Michael Regan to circumvent his obligations to the plaintiffs, the cases and argument presented in this context simply do not address the issue. The Pennsylvania Superior Court has described the considerations requisite to rendering a decision on a matter alleged to be contrary to public policy as follows:

“Public policy is to be ascertained by reference to the laws and legal precedents and not from consideration of supposed public interest. It is only when a given policy is so obviously for or against the public health, safety, morals or welfare that there is a virtual unanimity of opinion in regard to it, that a court may constitute itself the voice of the community in declaring what is or is not in accord with public policy. The phrase ‘pub-lie policy’ has been used also when the courts have interpreted statutes broadly to help manifest their legislative intent.” Kmonk-Sullivan v. State Farm Mutual Automobile Insurance Company, 746 A.2d 1118, 1123 (Pa. Super. 1999), citing Paylor v. Hartford Insurance Company, 536 Pa. 583, 586-87, 640 A.2d 1234, 1235 (1994).

The laws and legal precedents governing this case adduce no violation of generally accepted public policy in reducing this verdict. Any subrogation rights reserved to plaintiffs’ UIM carrier, EMCASCO, are conferred not merely by contract, nor can they be removed at the whim of the court, as suggested by the plaintiffs, but are conferred by operation of law. The question arises, whether plaintiffs’ settlement with EMCASCO should be declared a nullity under Harper, supra, and Krakow-er supra, for their failure to provide a “credit” to their carrier? Fortunately, there is law allowing for reduction of a subsequent verdict to reflect prior settlement of excess motor vehicle insurance claims.

Subrogation rights involving underinsured motorist claims are not governed by any specific statutory provision. Nevertheless, the Pennsylvania Supreme Court has held that common-law rights of subrogation are available to insurers who pay underinsured benefits to their insureds. Johnson v. Beane, 541 Pa. 449, 664 A.2d 96 (1995). The courts of this Commonwealth may exercise their equitable powers in reducing a verdict to reflect the difference between a jury’s verdict and excess insurance benefits already paid to a plaintiff. Gallop v. Rose, supra, 616 A.2d at 1030-31 (legal, statutory and equitable rights to subrogation were conferred on carrier that asserted the right to be subrogated to all payments in excess of actual damages awarded by the jury up to the amount of payments made by the carrier under the uninsured motorist provisions of the applicable policies); Boyle v. Erie Insurance Company, supra at 106, 656 A.2d at 943-44 (where insured settles for less than policy limits of tort-feasor, his UIM insurer will be allowed to credit the full amounts of the tort-feasor’s liability coverage against the insured’s damages); Johnson v. Beane, supra at 456-57, 664 A.2d at 100 (equitable right of subrogation places the subrogee UIM insurance carrier in the precise position of the tort-feasor to whose rights it is subrogated, and carrier may pursue an action to recover benefits paid to its insured); Travelers/Aetna Property Casualty Corporation v. Snell, 1997 WL 88908 (E.D. Pa. 1997) (Pennsylvania Supreme Court held in Johnson v. Beane, supra, that common-law rights of subrogation are available to insurers who pay underinsured benefits to their insureds).

The goal of subrogation under Pennsylvania law is to place the burden of the debt upon the person who should be responsible for it. The equitable doctrine of subrogation places the subrogee in the precise position of the one to whose rights he is subrogated. Thus, the insurer who paid an underinsurance claim acquires, by operation of law, the right to seek subrogation from any person the insured could have pursued who should rightly have borne the loss. Johnson v. Bean, supra at 457, 664 A.2d at 100; Travelers/Aetna Property Casualty Corp. v. Snell, supra. In the context of insurance law, the insured must be fully compensated, or “made whole,” for injuries suffered before the right of subrogation on the part of the insurer arises. Nationwide Mutual Insurance Company v. DiTomo, 330 Pa. Super. 117, 121, 478 A.2d 1381, 1383 (1984). Under this rubric, in providing excess underinsurance benefits to compensate the plaintiffs for injuries that defendants’ automobile insurance was inadequate to cover, EMCASCO thus stood in the defendants’ place in settling with the plaintiffs. Hence, the defendants, who were solidarity liable with the plaintiffs’ underinsured motorist carrier to remit the damages to make the plaintiffs whole, neither evaded, nor circumvented, their obligations to the plaintiffs. Under the law governing excess automobile insurance coverage in this Commonwealth, plaintiffs had already received $50,000 in damages in the name of the defendant, and were entitled only to an award exceeding that figure after the jury had calculated the true measure of plaintiffs’ damages. The plaintiffs’ UIM carrier, EMCASCO, is left free to pursue its common-law subrogation rights to sums paid, if it chooses. There is no dispute that any claim EMCASCO might initiate in that regard is not presently before the court, and requires no further discussion in this appeal.

It must be observed, at this juncture, that there is scant Pennsylvania legal precedent dealing with the precise circumstances presented here. However, courts outside our jurisdiction have addressed the impact of prior receipt of uninsured or underinsured motorist benefits on an injured party’s claim against a tort-feasor. See Batchelor v. Brye, 421 So.2d 1267 (Ala. Ct. Civ. App. 1982) (uninsured motorist benefits settled on plaintiff to compensate for deficiencies in defendant’s liability coverage were property deducted from damages assessed by jury to prevent double recovery); King v. Jordan, 601 P.2d 273 (Ak. 1979) (uninsured motorist benefits settled on plaintiff were properly deducted from damages assessed by court pursuant to statute prohibiting double recovery); Fertitta v. Allstate Insurance Company, 462 So.2d 59 (La. 1985) (uninsured motorist benefits settlement was payment on insurer’s solidary obligation and properly imputed to debt owed to plaintiff motorist by tort-feasor, the other solidary obligor); Johnson v. Consolidated Freightways Inc., 420 NW.2d 608 (Mn. 1988) (uninsured motorist benefits settled on plaintiff were properly deducted from recovery in negligence action because state’s wrongful death statute required it). Because there is no statute barring a double recovery of excess motor vehicle insurance benefits in this Commonwealth as there is in Alaska, the principles of law and public policy designed to prevent a double recovery governed the rationale for remitting the verdict here below. It is respectfully submitted that there was no error in the decision to do so.

b. Collateral Source Rule

The plaintiffs contend in paragraph 2 of their concise statement that:

“Underinsured motorist benefits have been held to be first-party benefits in Pennsylvania. Burstein v. Prudential Property and Casualty Insurance Company, 742 A.2d 684 (Pa. Super. 1999), en banc. Accordingly, the plaintiff may receive what is tantamount to a double recovery of damages and, the law is also very clear that a defendant wrongdoer should not benefit form any collateral benefits, including insurance benefits. Denardo v. Carneval, 297 Pa. Super. 484, 494-95, 444 A.2d 135, 141 (1982); Rubin, Quinn, Moss, Heaney & Patterson v. Kennel, 832 F. Supp. 922 (E.D. Pa. 1993). Of course, these benefits may be subject to a subrogation interest; however, the payment of collateral benefits such as UIM benefits does not diminish the legal obligation on the part of the third-party defendant, Michael Regan, to compensate the plaintiff fully for the damages that he has caused. Johnson v. Beane, [supra].” (Plaintiffs’ concise statement of matters complained of on appeal, paragraph 3.)

The “collateral source rule” provides that a victim of a tort is entitled to all damages necessary to compensate him for the tort-feasor’s actions, regardless of compensation the victim receives from other sources, and that such compensation may not be considered in the calculation of damages. Boudwin v. Yellow Cab Company, 410 Pa. 31, 188 A.2d 259 (1963). However, in advocating that the UIM benefits conferred by EMCASCO are subject to the rule, and would not constitute a double recovery of damages for the same injuries, plaintiffs again attempt to artfully dodge the law governing excess motor vehicle insurance coverage. A review of the cases relied upon by plaintiffs to support their position indicates that they are irrelevant to whether UIM insurance benefits in fact are subject to the rule as well. See Rubin, Quinn, Moss, Heaney & Patterson P.C. v. Kennel, 832 F. Supp. 922 (E.D. Pa. 1993) (collateral source rule applied to insurance benefits covering client funds converted by defendant); Beechwoods Flying Service Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350 (1984) (collateral source rule inapplicable where bailment contract necessitated the purchase of insurance to cover damage to bailed property); Feely v. United States of America, 337 F.2d 924 (1964) (collateral source rule inapplicable and plaintiff with tort claim against United States could not recover value of free medical care furnished by an agency of the defendant); Denardo v. Carneval, 297 Pa. Super. 484, 444 A.2d 135 (1982) (collateral source rule applied to employer funded disability and medical benefits).

Equally unsupportive of plaintiffs’ position is the case authority of Burstein v. Prudential Property and Casualty Insurance Company, supra, which they rely upon for the questionable proposition that, as first-party benefits under Pennsylvania insurance law, underinsured motorist benefits are subject to the collateral source rule. Burstein stands only for the proposition that, because UIM insurance benefits are first-party benefits, they follow the person and not a vehicle, and will protect the insured from the negligence of drivers with inadequate coverage regardless of the vehicle in which he or she may have been injured. Burstein v. Prudential Property and Casualty Insurance Company, supra, 742 A.2d at 688. There is no mention in Burstein of the collateral source rule at all.

Plaintiffs also seek to distinguish the holding in Johnson v. Beane, supra, that the collateral source rule was inapplicable to UIM insurance benefits conferred upon the plaintiffs by way of settlement with the specious assertion that in Burstein those benefits had been paid before trial in the court action, and here Mr. Regan has, to date, paid nothing to the plaintiffs. However, the Johnson court made no such distinction. The court there held that the $50,000 in UIM benefits previously provided to the plaintiff by her automobile insurance carrier, taken in combination with the $25,000 policy limits of the defendant completed, and would not be added to, the $75,000 remitted judgment awarded by the court, because the UIM benefits had not reduced the amount of damages for which the defendant was liable. Johnson v. Bean, supra at 456, 664 A.2d at 100. The court emphasized that the defendant indeed remained liable for $50,000, but left open the question, to whom? The court went on to state that, pursuant to the equitable doctrine of subrogation, the plaintiff’s UIM carrier stood in her shoes and could pursue an action of its own to recover the amount paid to the plaintiff. Johnson v. Beane, supra at 456, 664 A.2d at 100. Therefore, under Johnson v. Beane, supra, the collateral source rule would not require this court to reduce the jury’s verdict by the amount already paid to the plaintiffs by EMC AS CO, because the liability of the defendants was not reduced thereby. Defendants remain liable for $50,000 of those damages. The question as to whom they are liable is not before the court.

CONCLUSION

It is well established in this Commonwealth that a plaintiff is limited to one satisfaction for a single injury. Franklin Decorators Inc. v. Kalson, 330 Pa. Super. 140, 143, 479 A.2d 3, 4 (1984); Rossi v. State Farm Automobile Insurance Company, 318 Pa. Super. 386, 390, 465 A.2d 8, 10 (1983) (plaintiff who was fully compensated for injuries under liability portion of motor vehicle insurance policy cannot thereafter claim same damages under uninsured motorist provision of same policy). This rule is based upon the theory that a duplicate recovery will result in unjust enrichment. In the context of excess motor vehicle insurance coverage, where there are equitable and common-law rights to subrogation, EMC AS CO’s payment of underinsured motorist insurance benefits to the plaintiffs before their court action proceeded to verdict did not reduce defendants’ liability for damages to make the plaintiffs whole. Although the issue of EMCASCO’s ability to recoup these benefits is not before the court, it nevertheless provides a proper basis under the applicable law for molding this verdict. Even though there are no legal precedents directly on point with the instant facts and circumstances, it is respectfully submitted that ample guidance in this regard can be found in those cited from the foregoing foreign jurisdictions. Further, it is urged that the extant legal and equitable factors attendant to consideration of the issues here presented militate toward upholding the judgment of this court. Walls v. City of Pittsburgh, 292 Pa. Super. 18, 436 A.2d 698 (1981).

For all of the foregoing reasons, it is respectfully submitted that no error or abuse of discretion was committed by this court in allowing for the amendment of defendants’ pleadings after the conclusion of trial, in entertaining defendant’s motion for post-trial relief raising an issue not presented at trial, and in reducing this verdict by the amount of underinsured motorist insurance benefits paid to the plaintiffs.

      1. The defense of collateral estoppel is available in this context only where there has been prior litigation and decision of a damages claim before a panel of arbitrators. Incollingo v. Maurer, 394 Pa. Super. 352, 356, 575 A.2d 939, 940-41 (1990); Phillip v. Clark, 385 Pa. Super. 229, 233,560 A.2d 777, 779 (1989). Plaintiffs’ settlement with their insurance carrier for the available policy limits of underinsured motorist coverage was not the product of litigation, and cannot serve as grounds for collaterally estopping the issue of damages sub judice. It is clear in the law, however, that the jury’s award of damages, following the foregoing presentation of plaintiffs’ evidence in that regard, would collaterally estop further litigation of that issue. Incollingo v. Maurer, supra; Phillip v. Clark, supra.

      . It is clear on the face of the order appealed from that plaintiffs have been granted delay damages by this court. In addition, plaintiffs’ bill of costs, which must await decision until after the conclusion of this litigation, is completely irrelevant to the matters under consideration in this appeal. It is also unlikely that plaintiffs, as third parties, could prevail in a bad faith or garnishment action against defendants’ insurer. Johnson v. Beane, 541 Pa. 449, 453-56, 664 A.2d 96, 98-100 (1995).

      . It has been shown in footnote 1, supra, that the asserted grounds of collateral estoppel are inapplicable here.

      . Section 481. Exclusiveness of remedy; actions by and against third party; contract indemnifying third party
      “(a) The liability of an employer under this Act shall be exclusive and in place of any and all other liability to such employes, his legal representative, husband or wife, parents, dependents, next of kin or anyone otherwise entitled to damages in any action at law or otherwise on account of any injury or death as defined in section 301(c)(1) and (2) or occupational disease as defined in section 108.
      “(b) In the event injury or death to an employe is caused by a third party, then such employe, his legal representative, husband or wife, parents, dependents, next of kin, and anyone otherwise entitled to receive damages by reason thereof, may bring their action at law against such third party, but the employer, his insurance carrier, their servants and agents, employes, representatives acting on their behalf or at their request shall not be liable to a third party for damages, contribution, or indemnity in any action at law, or otherwise, unless liability for such damages, contributions or indemnity shall be expressly provided for in a written contract entered into by the party alleged to be liable prior to the date of the occurrence which gave rise to the action. 77 P.S. §481.


source: Caselaw Access Project

license: Public Domain

text:
    Commonwealth v. Bannigan

      C.P. of Bucks County,
    no. 5733/2000.

      Gayle M. Baker, for Commonwealth.

      Vanessa L. Bellino, for defendant.
    September 18, 2001
   EN BANC, BIEHN, J„ JJ. RUFE, J. AND BIESTER JR., S.J.,

Defendant James Bannigan has challenged the constitutionality of Pennsylvania’s Megan’s Law. This is an issue of first impression in Bucks County.

PROCEDURAL HISTORY

On January 11, 2001, defendant James Bannigan entered a plea of guilty to the charge of aggravated indecent assault, 18 Pa.C.S. §3125, and other related offenses in connection with a sexual assault on his mentally handicapped niece. Aggravated indecent assault is an enumerated offense under Pennsylvania’s Megan’s Law. 42 Pa.C.S. §9791 et seq. Following defendant’s conviction, the State Sexual Offenders Assessment Board was ordered to determine whether defendant should be classified as a sexually violent predator.

Upon completion of the assessment, the Commonwealth filed a praecipe for a sexually violent predator hearing pursuant to 42 Pa.C.S. §9795.4. By order dated May 2, 2001 a sexually violent predator hearing was scheduled for May 4, 2001. Prior to the hearing, defendant filed a motion for extraordinary relief to challenge the constitutionality of the sexually violent predator provisions of Pennsylvania’s Megan’s Law, to suppress evidence, to bar ex post facto prosecution and to bar a second prosecution for the same offense. The American Civil Liberties Union together with the Pennsylvania Association of Criminal Defense Lawyers, Defender Association of Philadelphia and the Public Defender Association of Pennsylvania filed an amicus curiae memorandum of law in support of defendant’s constitutional challenges. The Commonwealth submitted a responsive memorandum.

On July 12, 2001 the Honorable R. Barry Me Andrews, President Judge, appointed the undersigned three-judge panel to hear argument on defendant’s motions. On July 25, 2001, argument was conducted in open court. The matter is now ripe for disposition.

A. Pennsylvania’s Megan’s Law

1. Background

The original version of Pennsylvania’s Megan’s Law (Megan’s Law I) was signed into law by the legislature in 1995. The statute had two main components: (1) registration provisions applicable to all offenders convicted of any of the enumerated predicate offenses and (2) sexually violent predator/notification provisions. In Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593 (1999), the Pennsylvania Supreme Court struck down the notification/sexually violent predator portions of the original version of the Act as “violative of the procedural due process guarantees of the Fourteenth Amendment.” Specifically, the court found those portions of the Act, which placed a burden on a defendant to rebut the presumption that the defendant was a sexually violent predator, were contrary to fundamental constitutional principles. After careful analysis, the court concluded that the Commonwealth must bear the burden of demonstrating that an offender is a sexually violent predator. Id.

On May 10, 2000, the Pennsylvania State Legislature enacted an amended version of Megan’s Law (Megan’s Law II), which became effective on July 9, 2000. Megan’s Law II complies with the requirements of Williams, insofar as the burden of persuasion for determining whether an offender is a sexually violent predator now rests with the Commonwealth. Megan’s Law II also retained the registration provisions applicable to all offenders and the sexually violent predator/ notification provisions of Megan’s Law I. The legislature, however, made some changes to the registration provisions as well as to other portions of the Act.

2. Persons Covered by the Act

All convicted sex “offenders” as defined under Megan’s Law II are subject to its requirements. Offender is defined in the Act as an individual required to register under section 9795.1(a), (b)(1), or (2). Sexually violent predator is defined as a person who has been convicted of a sexually violent offense as set forth in section 9795.1 (relating to registration) and who is determined to be a sexually violent predator under section 9795.4 (relating to assessments) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses. The term includes an individual determined to be a sexually violent predator where the determination occurred in other state, territory, federal court, the District of Columbia or by court martial.

3. Registration

Megan’s Law II requires all offenders to register their residence with the Pennsylvania State Police upon discharge, release or parole. The duration and frequency of the registration obligation depends upon whether the sex offender is classified as an offender pursuant to section 9795.1(a) or section 9795.1(b). An offender who has been convicted of kidnapping, indecent assault, incest, promoting prostitution of a minor, sexual abuse of children, unlawful contact with children, sexual exploitation of children, and crimes relating to obscene and other sexual materials and performances of minors falls under the provisions of 9795.1(a) and must register with the Pennsylvania State Police for a period of 10 years. An offender who has been convicted of rape, involuntary deviate sexual intercourse, sexual assault, aggravated indecent assault, or incest relating to a vietim under the age of 12, or is a repeat offender or sexually violent predator falls under the provisions of 9795.1(b) and must register with the Pennsylvania State Police for life.

All offenders are required to notify the Pennsylvania State Police within 10 days of a change of residence. In addition, offenders not classified as sexually violent predators must verify their residence in person at a Pennsylvania State Police station annually. To register, offenders must complete a verification form and be photographed.

All offenders required to register must do so or risk a criminal penalty. An offender who fails to verify his or her residence is guilty of a felony of the third degree. Lifetime registrants who fail to verify their residence may be subject to a mandatory minimum of lifetime probation or a maximum of lifetime incarceration.

4. Sexually Violent Predator Assessment/Notification

After a person is convicted of one of the enumerated offenses, a trial court must defer sentencing and order the Sex Offender’s Assessment Board to assess the defendant. Upon receipt of the court order, the board must conduct an assessment of the offender to determine if the individual should be classified as a sexually violent predator. After completion of the assessment, the board must submit to the district attorney a written report containing its assessment. Following receipt of the assessment, the district attorney may file a praecipe for a hearing to adjudicate whether the offender is a sexually violent predator.

At the hearing, the Commonwealth bears the burden of proving that the offender should be classified as a sexually violent predator by clear and convincing evidence. The offender has the right to counsel, the right to call expert witnesses and the right to cross-examine the Commonwealth’s witnesses. At the conclusion of the hearing, the court must make a determination as to the status of the offender.

If the court adjudicates an offender a sexually violent predator, the offender must comply with the sexually violent predator/notification provisions found in Megan’s Law II. Prior to release from prison, parole or probation, and for the remainder of his or her life, the sexually violent predator must register his or her residence with the Pennsylvania State Police. An offender must notify the police of any change of residence within 10 days of the change. Every 90 days, the sexually violent predator will receive a non-forwardable verification of address form. Sexually violent predators must then appear in person to verify their registration at a Pennsylvania State Police office and be photographed. Any violation of either the registration or verification provisions constitutes a felony of the first degree with a mandatory minimum sentence of probation for the remainder of the individual’s lifetime, and the possibility of a sentence of lifetime incarceration.

A person who is adjudicated a sexually violent predator is required to attend monthly counseling sessions for life in a program approved by the assessment board and be financially responsible for all fees assessed from such counseling session unless he or she can demonstrate indigence. In addition, every 90 days the sexually violent predator must verify his or her compliance with the mandatory counseling provisions with the state police.

Based upon the residence information provided by the sexually violent predator, the chief law enforcement officer of the municipality where the sexually violent predator resides is responsible for providing written notification to designated recipients. Written notification consists of the name of the offender, the address where he or she resides, the offense for which he or she was originally convicted, a statement that a court of law has determined the individual to be a sexually violent predator and a photograph of the individual. This written notification must be given to the victim of the crime, neighbors of the sexually violent predator, the director of the county Children and Youth Services Agency, the superintendent of each school district within the municipality of residence enrolling students through grade 12, the superintendent of any school within a one-mile radius of the sexually violent predator’s residence, the licensee of each certified daycare center and preschool program in the municipality of residence and each owner/operator of any registered in-house family day-care center, and the president of any college or university within 1,000 feet of the sexually violent predator’s residence. The statute calls for the dissemination of this information within specific timeframes, not exceeding seven days after receipt of the information by the chief law enforcement officer. Any of the information contained in the written notification is available to the public at large upon request, and may be sent through electronic means.

Significantly, in amending Megan’s Law I, the legislature removed the portions of the Act that permitted a sexually violent predator to petition the court for reconsideration of his assessment. Consequently, an offender classified as a sexually violent predator is so designated for the remainder of his or her life, regardless of circumstances.

DISCUSSION

Defendant raises numerous constitutional challenges to the registration and the sexually violent predator provisions of Megan’s Law II. At the outset we note that there is a strong presumption that legislative enactments do not violate the constitution. Williams, supra. A statute will only be found unconstitutional if it “clearly, palpably and plainly violates the Constitution.” Commonwealth v. Mikulan, 504 Pa. 244, 247, 470 A.2d 1339, 1340 (1983). Defendant’s challenges to the registration and the sexually violent predator provisions will be considered separately.

A. Sexually Violent Predator/Notification Provisions

1. The Due Process Claim

Defendant asserts that the proceeding by which an offender is determined to be a sexually violent predator imposes punishment and, therefore, defendant is entitled to the full extent of procedural protections afforded by the Pennsylvania Constitution and the Fourteenth Amendment. Defendant maintains that due process requires the Commonwealth’s burden of proof at a sexually violent predator hearing to be “beyond a reasonable doubt” and that the “clear and convincing evidence” standard set forth in Megan’s Law II does not pass constitutional muster.

In response, the Commonwealth claims that Megan’s Law II and its effects are remedial and non-punitive. Since the legislature removed those portions of Megan’s Law I that specifically imposed an enhanced sentence upon sexually violent predators, the Commonwealth asserts that the statute must be considered remedial rather than punitive. Moreover, the Commonwealth maintains that the due process rights guaranteed to an offender under Megan’s Law II satisfy the requirements of both the state Constitution and the Fourteenth Amendment.

In Williams, supra, the Pennsylvania Supreme Court held that the proceeding set forth in Megan’s Law I by which an offender was determined to be a sexually violent predator was “a separate factual determination, the end result of which is the imposition of criminal punishment.” 557 Pa. at 304, 733 A.2d at 603. In so finding, the court stated that during a sexually violent predator hearing an offender was entitled to the full panoply of the relevant protections which due process guarantees. Id.

The Williams court’s conclusion that the proceeding imposed punishment centered upon the enhanced sentencing provisions found at sections 9799.4(a) and 9799.4(c). Pursuant to those sections, the mandatory maximum penalty for conviction of the underlying offense was increased to the offender’s lifetime. The court concluded that despite the legislature’s stated purpose of public protection, “by increasing the punishment for the listed . . . offenses where the offender is determined to be a sexually violent predator, the goals of the sexually violent predator provisions are equally punitive.” 557 Pa. at 301-302, 733 A.2d at 601-602. (footnote omitted) The court’s determination that the Act was penal in nature triggered the application of due process.

Megan’s Law II does not contain the enhanced sentencing provisions discussed in Williams. Consequently, the conclusions drawn by the court in Williams are not dispositive of the procedural due process challenge raised by the defendant in the instant matter. Rather, we are required to make an independent decision as to whether the proceeding by which defendant would be classified as a sexually violent predator, as set forth in Megan’s Law II, imposes punishment. Only if this court concludes that the Act inflicts criminal punishment can the requirements of due process be invoked.

A review of the sexually violent predator/notification provisions of Megan’s Law II compels us to conclude that this section of the Act is indeed penal in nature. Although there is no dispute that the stated intent in enacting Megan’s Law is the protection of the public from violent sexual offenders likely to commit such offenses again in the future, the fact that the sexually violent predator designation is imposed for life, regardless of change in circumstance, defeats that remedial objective. Notifying the community about a person who, by change of circumstances, may no longer be a threat to others offers a diminished benefit to the public welfare. Likewise, the state’s legitimate interest in protecting its citizens is overridden when one considers the stigma suffered by a “sexually violent predator” no longer experiencing the mental abnormality that existed at the time of his or her designation as a sexually violent predator. Prohibiting those who have been designated sexually violent predators from demonstrating that the designation is no longer warranted is indicative of the legislation’s punitive effect.

Additionally, Megan’s Law II allows for unlimited public dissemination of the written notification. Any individual can obtain the sexually violent predator’s information simply by request to the local law enforcement agency. The request for information can be fulfilled through electronic means. The legislation’s failure to narrowly tailor the dissemination of the notification information emphasizes the punitive effects of the Act.

Finally, the lifetime mandatory counseling and registration requirements of Megan’s Law II, applicable to sexually violent predators, are more onerous than the requirements imposed upon any other inmate on parole or probation. An offender’s compliance is monitored by the Pennsylvania State Police every 90 days for life. Noncompliance can result in incarceration for life. Unlike those inmates on probation or parole whose compliance with the terms of their release is terminated upon completion of sentence, a sexually violent predator must comply with the counseling and registration provisions for life even after serving his or her court-imposed period of incarceration, parole or probationary sentence. Although a sexually violent predator may have successfully completed a course of therapy or treatment, or has been found by a therapist or psychiatrist to be rehabilitated, the offender must continue counseling, at his or her own expense; for the remainder of his or her life. The legislation’s stated remedial purpose is severely diminished when it prohibits any opportunity for re-evaluation of the sexually violent predator’s mental status.

We conclude the effects of the sexually violent predator/notification provisions of Megan’s Law II are sufficiently onerous to constitute punishment. The Act imposes a life term of intermediate punishment, maintains a coercive threat of life imprisonment and allows for widespread public dissemination of personal information. Megan’s Law II impacts a sexual offender’s life, liberty and property such that the due process protections afforded by the United States and Pennsylvania Constitutions are required.

2. Due Process Analysis

Having concluded that defendant is entitled to due process protection, we must address what procedural protections are required. It is well-settled that not all situations call for the same level of procedural safeguards. “Due process is flexible and calls for such procedural protections as the particular situation demands ____” Morrisey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972).

Defendant contends that due process requires that, at a sexually violent predator hearing, the Commonwealth’s burden of proving an offender to be a sexually violent predator must be “beyond a reasonable doubt.” In response, the Commonwealth maintains that the “clear and convincing evidence” standard imposed in Megan’s Law II adequately balances the interests of both parties while protecting against the risk of an erroneous decision.

The United States Supreme Court in the case of Matthews v. Eldridge, set forth the factors a court must apply in analyzing a standard of proof claim. Three distinct considerations must be addressed:

“First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements will entail.” Matthews v. Eldridge, 424 U.S. 319, 334-35, 96 S.Ct. 893, 903, 47 L.Ed.2d 18, 33 (1976) (citing Goldberg v. Kelly, 397 U.S. 254, 263-71, 90 S.Ct. 1011, 1018-22, 25 L.Ed.2d 287 (1970)).

The standard of proof necessary to satisfy the requirements of due process must reflect the significance of the private and public interest affected, and represent a societal decree as to how the risk of error should be distributed between the participants. Addington v. Texas, 441 U.S. 418, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979). “Adopting a standard of proof is more than an empty semantic exercise. In cases involving individual rights, whether criminal or civil, the standard of proof [at a minimum] reflects the value society places on individual liberty.” Addington v. Texas, supra, quoting Tippett v. Maryland, 436 F.2d 1153, 1166 (CA4 1971). (citations omitted) The question posed here is whether the “clear and convincing” burden of proof standard fairly allocates the risk of erroneous fact-finding between the litigants. Such is the type of question traditionally left to the judiciary to resolve. Williams, 557 Pa. at 307, 733 A.2d at 605; quoting Commonwealth v. Wright, 508 Pa. 25, 494 A.2d 354 (1985); citing Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599. Analyzing the sexually violent predator hearing provision of Megan’s Law II under the Eldridge test, we conclude that due process requires the Commonwealth to prove that an offender is a sexually violent predator “beyond a reasonable doubt.”

a. Private interest

The extent of the dissemination of the written notification, the availability of the information, and the duration of the sexually violent predator assessment all demonstrate the weight and gravity of the impingement on an offender’s liberty interest resulting from a negative outcome in a sexually violent predator hearing. As stated by the Third Circuit Court in Verniero, 119 F.3d 1077 (3d Cir. 1997), and agreed with by the Pennsylvania Supreme Court in Williams, “[Njotification puts the registrant’s livelihood, domestic tranquility and personal relationships with others all around him in grave jeopardy.” Verniero, 119 F.3d at 1107; Williams, 557 Pa. at 311, 733 A.2d at 607. There is no denying that the knowledge that someone has been adjudicated to be a sexually violent predator will affect the way in which an individual is treated by neighbors and the members of the community of residence. As the Verniero court observed, “[t]he primary sting from Megan’s Law notification comes by way of injury to what is denoted in constitutional parlance as reputational interests. This includes the burdens of isolation, harassment, loss of opportunities and the myriad of more subtle ways in which one is treated differently by virtue of being known as a potentially dangerous sex offender.” Verniero, 119 F.3d at 1102.

Under Megan’s Law II, once a person is designated a sexually violent predator, the individual suffers the consequence of that designation for life, regardless of change in circumstances. A sexually violent predator is required to attend and to pay for at least monthly counseling sessions for life. The registration provisions require a sexually violent predator to report in person to a police barracks every 90 days for life. Even when a sexually violent predator has completed the court imposed period of incarceration, parole or probationary sentence, he or she is subject to conditions that strongly echo the requirements of probation or parole. Moreover, there is the constant threat of lifetime probation for any violation. All of these statutorily imposed conditions are permanent.

As stated previously, Megan’s Law II does not limit dissemination to those persons who are most likely to encounter the offender. There are no legislatively imposed controls to reduce the extent of the stigma in the eyes of the general public. The statute imposes no limitation on geographical scope. In fact, the information is available to any person upon request. Under Megan’s Law II the information obtained by individuals can be further disseminated by any means including the internet.

Certainly, the Commonwealth has a compelling interest in protecting its citizens by notifying victims and the community that a classified predator is residing in their community. However, given the permanency of the sexually violent predator assessment and the lifelong impact it will have on an offender, we find that the balance of private interests strongly favors a heightened procedural protection.

b. Impact of an erroneous determination

The effects on an offender erroneously found to be a sexually violent predator are considerable. The overestimation of an offender’s dangerousness subjects a sexually violent predator to widespread public dissemination of his or her status. Most importantly, there is no way for an offender to remove the lifetime designation as a sexually violent predator. A sexually violent predator will be subject to public embarrassment, ostracism and possibly even physical violence for life. There is no opportunity for an erroneous classification to be corrected.

In the context of a sexually violent predator hearing, numerous factors combine to magnify the risk of an erroneous determination. In most cases, the Commonwealth’s ability to assemble its case against an offender will be greater than the offender’s ability to mount a defense. See Santosky, supra. Most often, primary expert testimony at the hearing will be presented by a member of the assessment board. There is clearly an opportunity for an erroneous conclusion at the hearing and this highlights the need for a heightened level of due process protection. Furthermore, the Commonwealth has no vested interest in informing neighborhoods about erroneously classified offenders. Williams, supra. Misclassifications offer no progress toward the designated goal of protecting citizens from dangerous sexual offenders. The goal of public safety is best served by implementing a procedure that promotes accurate assessments.

c. Fiscal and administrative burdens that the substitute procedural requirement would entail

Procedural due process requires the imposition of a “beyond a reasonable doubt” standard of proof upon the Commonwealth at a sexually violent predator hearing. “Increasing the burden of proof is one way to impress the fact-finder with the importance of the decision and thereby perhaps to reduce the chances that inappropriate determinations will be ordered.” Addington, 441 U.S. at 427, 99 S.Ct. 1804, 60 L.Ed.2d at 331. Using a standard typically reserved for criminal matters emphasizes to the court and to the community that the penalty imposed upon a sexually violent predator for life is as great as any other penalty imposed by criminal statute.

It is true that in a sexually violent predator hearing, just as in a civil commitment hearing, the court is required to evaluate medical and psychiatric testimony that rarely rises to a level of absolute certainty. However, as the United States Supreme Court noted in Addington, “the layers of professional review and observation of the patient’s condition and the concern of family and friends generally will provide continuous opportunities for an erroneous commitment to be corrected.” Addington, 441 U.S. at 428-29, 99 S.Ct. 1804, 60 L.Ed.2d at 332-33. Under Megan’s Law II, an offender has a single opportunity to preclude the imposition of a judicially endorsed classification that will materially alter the quality of his or her life. Given the weight of the private interests at stake and the severe effects of even an occasional error, due process requires that the risk of error must be completely borne by the Commonwealth.

Accordingly, we find that section 9795.4’s “clear and convincing” standard of proof fails adequately to provide the procedural due process protections recognized by the United States and Pennsylvania Constitutions. The interests of an offender jeopardized by the sexually violent predator classification warrant a “beyond a reasonable doubt” standard of proof. In light of this determination, it is unnecessary to address the remainder of defendant’s constitutional challenges regarding the sexually violent predator provisions.

B. Registration

1. The Ex Post Facto and Double Jeopardy Claims

With respect to the constitutional challenges regarding the registration provisions of Megan’s Law II, defendant asserts that the provisions of mandating lifetime registration increase the punishment for sex offenses after completion of sentence in violation of the ex post facto and double jeopardy clauses of the Pennsylvania and United States Constitutions. The Commonwealth responds that Megan’s Law II is not an ex post facto law and does not violate the double jeopardy clause because it is neither punitive in nature or effect. According to the Commonwealth, the registration requirement is designed for the legitimate goals of public safety and law enforcement.

Article I, section 10 of the United States Constitution forbids states from enacting “any ex post facto law.” The ex post facto clause in the Pennsylvania Constitution contains a similar prohibition, “[n]o ex post facto law shall be passed.” Pa. Const. Art. §17. The ex post facto clause has been interpreted by the United States Supreme Court to prohibit any government from passing laws that inflict a greater punishment than that statutorily prescribed at the time the crime was committed. Calder v. Bull, 3 U.S. (3. Dall) 386, 1 L.Ed. 648 (1798). The double jeopardy clause provides that “no person shall be subject for the same offense to be twice put in jeopardy of life or limb.” This clause prohibits, inter alia, a second prosecution for the same offense after conviction and multiple punishments for that same offense. United States v. Halper, 490 U.S. 435, 440, 109 S.Ct. 1892, 1897, 104 L.Ed. 487 (1989). A prerequisite to succeeding on either a double jeopardy or ex post facto claim is a determination that the challenged law constitutes “punishment” as defined by established constitutional principals. See Van Doren v. Mazurkiewicz, 695 A.2d 967, 972 (Pa. Commw. 1997).

2. Punishment Analysis

Pennsylvania courts have addressed ex post facto and double jeopardy challenges to the sex offender registration laws and determined that the central issue is whether the challenged law impermissibly imposes punishment. See e.g., Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa. Commw. 1997). In Commonwealth v. Gaffney, the Pennsylvania Supreme Court addressed the constitutionality of the registration provisions of Megan’s Law I. Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616 (1999). The defendant asserted that the application of the registration provisions to him constituted an ex post facto violation pursuant to both the federal and state constitutions. In dismissing defendant’s claim, the court employed a three-part test formulated by the Third Circuit Court in Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1997) and E.B. Verniero v. Attorney General, 119 F.3d 1077 (3d Cir. 1997), cert. denied, 522 U.S. 1109, 118 S.Ct. 1039, 140 L.Ed. 2d 105 (1998), designed to determine whether a statute imposes punishment. The Pennsylvania Supreme Court concluded that registration is regulatory, not punitive.

The Gaffney court based its analysis on three factors: First, the court inquired into “the legislature’s stated intent.” The court determined that the declared purpose of Megan’s Law I, set forth at section 9391(b), was evidence of the legislature’s intent to create a registration procedure designed to protect the public. Gaffney, 557 Pa. at 333, 733 A.2d at 619. Second, the court considered whether the legislature’s objective purpose, in requiring offenders to register with the state police, was punitive. Gaffney, 557 Pa. at 333-34, 733 A.2d at 619-20. Observing that a historical analysis suggests that registration is not punitive, the court stated that the registration requirements were reasonably related to a legitimate, non-punitive goal of protecting the public. Id. Third, the court concluded that the overall effects of the registration requirements were not sufficiently harsh to classify the law as punishment. Gaffney, 557 Pa. at 336, 733 A.2d at 621.

A similar result was achieved by the Commonwealth Court in Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa. Commw. 1997). In Van Doren, the appellant claimed that the registration provisions of Megan’s Law I constituted additional punishment and violated the double jeopardy and ex post facto clauses of the United States Constitution. The court adopted the analysis set forth by the Third Circuit Court in Artway and rejected the defendant’s constitutional challenges. Id. at 975.

Defendant asserts that Megan’s Law II added a lifetime registration requirement that enhances a sex offender’s sentence by subjecting him to registration after he has served his full period of incarceration. A number of factors must be considered in determining whether the registration provisions of Megan’s Law II impose punishment.

a. Intent

As noted previously, the starting point of our analysis is whether the legislature’s stated purpose is punishment. Gaffney, 557 Pa. at 333, 733 A.2d at 619. There is ample evidence that the legislature intended Megan’s Law II primarily to serve the non-punitive purpose of enhancing law enforcement efforts. As in Megan’s Law I, the legislative findings of Megan’s Law II provide:

“9791. Legislative findings and declaration of policy
“(a) Legislative findings. — It is hereby determined and declared as a matter of legislative finding:
“(1) If the public is provided adequate notice and information about sexually violent predators and certain other offenders, the community can develop constructive plans to prepare themselves and their children for the offender’s release. This allows communities to meet with law enforcement to prepare and obtain information about the rights and responsibilities of the community and to provide education and counseling to their children.
“(2) These sexually violent predators pose a high risk of engaging in further offenses even after being released from incarceration or commitments and that protection of the public from this type of offender is a paramount governmental interest.
“(3) The penal and mental health components of our justice system are largely hidden from public view and lack of information from either may result in failure of both systems to meet this paramount concern of public safety.
“(4) Overly restrictive confidentiality and liability laws governing the release of information about sexually violent predators have reduced the willingness to release information that could be appropriately released under the public disclosure laws and have increased risks to public safety.
“(5) Persons found to have committed such an offense have a reduced expectation of privacy because of the public’s interest in public safety and in the effective operation of government.
“(6) Release of information about sexually violent predators to public agencies and the general public will further the governmental interests of public safety and public scrutiny of the criminal and mental health systems so long as the information released is rationally related to the furtherance of those goals.” 42 Pa.C.S. §9791.

In addition, the declaration of purpose contained in 9791(b) expresses that the purpose of the Act is to protect the safety and general welfare of the people of this Commonwealth:

“(b) Declaration of policy. — It is hereby declared to be the intention of the General Assembly to protect the safety and general welfare of the people of this Commonwealth by providing for registration and community notification regarding sexually violent predators who are about to be released from custody and will live in or near their neighborhood. It is further declared to be the policy of this Commonwealth to require the exchange of relevant information about sexually violent predators among public agencies and officials and to authorize the release of necessary and relevant information about sexually violent predators to members of the general public as a means of assuring public protection and shall not be construed aspunitive.,ri 42 Pa.C.S. §9791. (emphasis added) We conclude that the stated legislative purpose in enacting the registration sections of Megan’s Law II was regulatory and non-punitive.

b. Objective purpose

Next, we must consider whether the objective purpose of the registration provisions of Megan’s Law II is punishment. Gaffney, 557 Pa. at 333-34, 733 A.2d at 619-20. The objective prong of the punishment test focuses on whether analogous measures have traditionally been regarded in our society as punishment and has three subparts: (1) whether the remedial purpose of the measure can explain all the adverse effects on those involved; (2) whether the measure has been historically considered punishment; (3) whether the measure serves both a remedial and a deterrent purpose. Gaffney, 557 Pa. at 334, 733 A.2d at 619.

The fundamental purpose of the registration provisions of Megan’s Law II is to identify potential recidivists and to enable law enforcement agencies to keep records on sexual offenders. As noted by the Third Circuit Court of Appeals, by knowing where convicted sex offenders reside and when they move into a new neighborhood, law enforcement authorities will be in a better position to protect their communities:

“Here, the solely remedial purpose of helping law enforcement agencies keep tabs on these offenders fully explains requiring certain sex offenders to register. Registration may allow officers to prevent future crimes by intervening in dangerous situations .... And the means chosen — registration and law enforcement notification only — is not excessive in any way. Registration, therefore, is reasonably related to a legitimate goal: allowing law enforcement to stay vigilant against possible re-abuse.” Artway v. Attorney General, 81 F.3d at 1265.

Thus, registration is a legitimate and necessary means to achieving a regulatory goal. Pennsylvania’s registration provisions are narrowly tailored so that registration can be accomplished privately, without public notification and societal opprobrium. While Megan’s Law II requires lifetime verification for specified sexual offenders, the purpose of this requirement is legitimately related to the legislature’s salutary purpose of protecting the community.

Moreover, registration has not been historically considered punishment; rather, “[Registration is a common and long-standing regulatory technique with a remedial purpose.” Artway, 81 F.3d at 1264. Registration requires an offender to provide information to local law enforcement. The act of registering annually with a discrete government entity, which is not authorized to release information to the community at large, is not equivalent to stigmatization or banishment.

c. Effects

Finally, we must consider whether the effects of registration are so harsh that, as a matter of degree, they constitute punishment. Gaffney, 557 Pa. at 326-27, 733 A.2d at 621.

Registration does not impose a substantial disability or restraint on sex offenders. It does not restrict the offender’s movements within or outside the community, but merely requires certain sex offenders to appear annually at the local state police barracks to verify his or her residence. The practical effect of registration does not impact an offender’s ability to become gainfully employed nor does it impair an offender’s ability to obtain housing. While the registration provisions pose the inconvenience of having to verify one’s residence in person, the act of registering is essentially administrative.

Furthermore, public dissemination of registration information is not provided for in Megan’s Law II. Registration information is given to a discrete government entity that is not authorized to release the information to the community at large. By requiring sex offenders to register annually with the local police, Megan’s Law II does not inhibit an offender’s rehabilitation. The simple act of registering does not prevent a sex offender from reintegrating into society.

Although there may be discomfort and inconvenience in registration, the burdens of registration are not so onerous or extreme as to amount to punishment. See Verniero, 119 F.3d at 1101.

CONCLUSION

We conclude that the sexually violent predator provisions of Megan’s Law II violate defendant’s right to due process by subjecting him to a determination of his status as a sexually violent predator by a standard of proof which is less than beyond a reasonable doubt. We therefore determine that Megan’s Law II is unconstitutional as it pertains to the determination of sexually violent predators. Because we view the registration requirements of Megan’s Law II as essentially remedial and non-punitive, we find no constitutional violation with respect to those provisions.

ORDER

And now, September 18, 2001, following argument and upon consideration of briefs, it is hereby ordered and decreed that defendant James Bannigan’s motion for extraordinary relief to challenge the constitutionality of the violent predator provisions of Pennsylvania’s Megan’s Law, to suppress evidence, to bar ex post facto prosecution and to bar a second prosecution for the same offense is granted in part and denied in part.

It is ordered and decreed that the sexually violent predator/notification provisions of Megan’s Law II are unconstitutional.

It is further ordered and decreed that registration provisions of Megan’s Law II do not violate the double jeopardy or ex post facto clauses of either the United States or Pennsylvania Constitutions.

      . Since petitioner was convicted of rape and involuntary deviate sexual intercourse, the 10-year registration requirements are not implicated.