author: BACKENSTOE, P.J.,

text:
    Rang v. Allentown Women’s Center
    May 11,1989

      James E. Egbert, for plaintiff. '

      Aaron M. Matte, for defendant.
   BACKENSTOE, P.J.,

This matter is before us upon the motion of defendant, Allentown Women’s Center, for summary judgment.

Plaintiff, Donna Rang, filed a complaint against the defendant on July 11, 1986. In the complaint plaintiff alleged the following facts: On or about April 15, 1985, plaintiff was a patient at the Allentown Women’s Center. At that time plaintiff signed admittance forms which contained language that any procedure would be kept confidential. Whereupon, in April 1985, it is alleged the defendant, its agents, servants and/or employees violated the confidentiality of plaintiff and informed other persons about the medical services rendered.

On October 14, 1986, defendant filed an answer and new matter. Almost one and one-half years later (April 12, 1988) without permission of the court or the consent of the other side, defendant filed supplemental new matter. Subsequently, on August 30, 1988, defendant filed the within motion for summary judgment.

Pursuant to Pa.R.C.P. 1035, after the pleadings are closed a summary judgment may “be rendered if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. ” Rossi v. Pennsylvania State University, 340 Pa. Super. 39, 44-5,489 A.2d 828, 831 (1985); Green v. Juneja, 337 Pa. Super. 460, 463, 487 A.2d 36, 38 (1985).

The first issue presented is whether defendant’s statute of limitations defense is properly before this court.

As stated earlier, defendant filed supplemental new matter without consent of the adverse party or by leave of court. Rule 1033 of the Pennsylvania Rules of Civil Procedure requires that, “[a] party, either by filed consent of the adverse party or by leave of court, may at any time change the form of action, correct the name of a party or amend his pleading.” In Mackey v. Adamski, 286 Pa. Super. 456, 429 A.2d 28 (1981) the Superior Court concurred with a decision in Grasso v. City of Philadelphia, 89 D.&C. 136, 141 (1954) which stated:

“The city has filed a ‘supplemental answer’ without leave of court or without the consent of opposing counsel. Without such leave of court or consent of counsel, the answer cannot stand. See Pa.R.C.P. 1033. The city cannot sidestep these requirements by labeling its pleading as a ‘supplemental answer.’ The city is actually seeking to file an amended answer and the procedure outlined by our rules must be followed. See Pa.R.C.P. 1017(a).”

In the Mackey case it was decided that the proper way to attack an improperly amended answer is by a motion to strike. Mackey, supra. In the within matter plaintiff did not file a motion to strike, instead plaintiff objected to the improperly amended answer in opposing the motion for summary judgment. Therefore, the problem before us is that defendant’s supplemental new matter does not comply with the Rules of Civil Procedure but plaintiff did not make the proper objection to this error.

Our research did not reveal any appellate cases which directly address the issue. However, in Advance Building Services Company v. F&M Schaefer Brewing Company, 252 Pa. Super. 579, 581, 384 A.2d 931, 932 (1978) the court stated that “[a]l-though the amended complaint was filed without leave of the court or consent of appellee more than 10 days after the filing of the preliminary objections, appellee waived this defect by failing to object.”

Obviously, defendant-should have sought court approval in amending their new matter. However, it would appear that the burden is upon the opposing party to bring this error properly before the court. Since plaintiff did not raise an objection until the summary judgment motion, we are required to, in view of Advance, find that plaintiff waived any objections to defendant’s supplemental new matter.

Accordingly, we must address whether plaintiffs invasion of privacy action is barred by the statute of limitations. In 42 Pa.C.S. §5523 an action for invasion of privacy must be commenced within one year. Clearly, since plaintiff waited 14 months prior to commencing this action, an action for invasion of privacy is barred.

However, plaintiff also alleges that she has an action for negligent infliction of emotional distress, which is not barred by the statute of limitations.

Under Pennsylvania law “there can be no recovery for negligently inflicted mental or emotional distress in the absence of attendant physical injury to the person of the claimant.” Houston v. Texaco Inc., 371 Pa. Super. 399, 405, 538 A.2d 502, 508 (1988). From the record before us it is undisputed that plaintiff did not suffer any physical injuries. The injuries plaintiff alleged were, “I [plaintiff] have suffered emotions and psychological trauma be-causé of constant fear of co-workers and employer being told of my abortion.”

For the foregoing reasons plaintiff is barred from asserting a claim for invasion of privacy and negligent infliction of emotional distress. Consequently, defendant’s motion for summary judgment is granted.

ORDER

Now, this May 11, 1989, upon consideration of defendant’s motion for summary judgment, the briefs fried by the attorneys and following oral argument upon the matter, it is hereby ordered that the said motion is granted.

      . Plaintiff contends that Barbara Bechtold (a nurse at Allentown Women’s Center) informed Paul Knecht (a friend of plaintiff’s) about an abortion rendered to plaintiff at the Allentown Women’s Center.

      . The supplemental new matter at paragraph 11, brought up for the first time the allegation that plaintiffs claim was barred by the statute of limitations.

      . Pa.R.C.P. 1035, 42 Pa.C.S.

      . We note that the court has discretion to grant or deny an amended pleading and amendments should be allowed with great liberality at any stage of the case unless they violate law or prejudice rights of the opposing party.. Gutierrez v. Pennsylvania Gas and Water Co., 352 Pa. Super. 282, 507 A.2d 1230 (1986).

      . “§5523. One-year limitation —
      “The following actions and proceedings must be commenced within one year —
      “(1) An action for libel, slander or invasion of privacy.”

      . In plaintiff’s brief she alleges the applicable statute of limitation section is 42 Pá.C.S. §5523. Since this is a one-year statute of limitation and it does not address an action for negligence, we do not believe plaintiff intended to use this section. Instead, we believe plaintiff intended to use 42 Pa.C.S. §5524 which requires a negligence action to commence within two years.


source: Caselaw Access Project

license: Public Domain

text:
    Stem v. St. Luke’s Hospital
    June 5,1989

      Richard F. Stevens, for plaintiffs.

      Leonard M. Mellon, for defendant.
   BACKENSTOE, P.J.,

This matter is before us on defendant’s preliminary objection in the nature of a demurrer and a motion to strike.

A complaint was filed on June 2,1988, in Northampton County by plaintiffs, Louise and Raymond Stem, against defendant St. Luke’s Hospital. Defendant filed preliminary objections as to venue/jurisdiction and demurrer/motion to strike. Thereafter, the parties agreed to sustain defendant’s objections as to venue and by an order of the Northampton Court of Common Pleas this matter was transferred to Lehigh County for further disposition.

The within action arises out of an incident that occurred at St. Luke’s Hospital. On October 26, 1987, Louise Stem was in the dialysis treatment area of the hospital in order to weigh herself. Plaintiffs allege Louise Stem was injured when she attempted to push a wheelchair provided by the hospital onto a scale (via a ramp) and the wheelchair flipped over.

Defendant filed a demurrer/motion to strike to plaintiffs’ complaint, counts I, II, III and IV. Defendants allege that they did not design, construct or maintain the wheelchair and/or scale in the sense that plaintiffs would be allowed to maintain causes of action under theories of products liability.

Our standard of review for a demurrer is set forth in Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), where the Supreme Court stated:

“In determining whether a demurrer should be sustained and the complaint dismissed, the question presented is whether, on the facts averred, the law says with certainty that no recovery is possible. King v. U.S. Steel Corp., 432 Pa. 140, 247 A.2d 563 (1968); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A.2d 262 (1951). In considering the demurrer, every well-pleaded material fact set . forth in the complaint, as well as all inferences reasonably deducible therefrom, must be taken to be admitted: Yania v. Bigan, 397 Pa. 316, 155 A.2d 343 (1959); Mistick v. Cammack, 397 Pa. 296, 154 A.2d 588 (1959).” Id.; cited in McGaha v. Matter, 365 Pa. Super. 6, 528 A.2d 988 (1987).

Defendant first contends that since the scale and wheelchair were not sold by defendant, defendant cannot by held strictly liable. Defendant’s argument is based on an interpretation of the Restatement (Second) of Torts, §402A, which states:

“Special Liability of Seller.of Products for Physical Harm to User or Consumer —
“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm caused thereby to the ultimate user or consumer or to his property if
“(a) the seller is engaged in the business of selling such a product, and
“(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.” (emphasis supplied)

Our decision upon this issue is based on the case of Grubb v. Einstein Medical Center, 255 Pa. Super. 381, 387 A.2d 480 (1978). In the Grubb case a patient was rendered a quadriplegic by a defective surgical drill supplied by defendant hospital. The Superior Court set forth the following interpretation of the Restatement (Second) of Torts §402A:

“[T]he Supreme Court of Pennsylvania has given a wide berth to section 402A and has found that liability extends to all sellers in the distributive chain. Bialick v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). The court has further recognized that liability does not turn on the technical existence of a sale. Hoffman v. Misericordia Hospital, 439 Pa. 501, 267 A.2d 867 (1970).
“At least one court has held the view that mechanical and administrative services provided by hospitals should not necessarily be exempt from strict liability. In Johnson v. Sears, Roebuck and Co. [Columbia Hospital], 355 F.Supp. 1065 (E.D. Wis. 1973) the court felt that mechanical services provided by a hospital may be subject to strike liability even though the rendition of professional services is governed by a negligence standard.
“In adopting the strict liability as set forth we are making reasonable extrapolation from the already expanding interpretation of 402A, and clear policy considerations. The surgical patient is without control over the procedures and instruments used upon him. His health and future safety are at the mercy and skill of the treating physician and the instruments he employs. It is elementary that if a hospital supplies equipment to an operating physician the hospital must appraise themselves of the risks involved and adopt every effort to insure the safety of the equipment chosen. ...” Grubb, 225 Pa. Super. at 401, 387 A.2d at 490. (emphasis supplied)

Clearly, the interpretation of Restatement (Second) Torts §402A in Pennsylvania is that a hospital need not sell a product to be held liable under this section. The Grubb case illustrates that a hospital can be held liable under 402A merely by supplying defective products. Therefore, defendant’s preliminary objections to counts II and IV are denied.

Defendant néxt contends that it cannot be held liable in negligence products liability, for it was not the manufacturer of the allegedly defective ramp or scale. Defendant citing Mannsz v. MacWhyte Company, 155 F.2d 445 (3d Cir. 1946).

However, upon review of counts I and III of plaintiffs’ complaint we note that defendant was alleged to have “negligently designed, constructed and maintained, the wheelchair and ramp.” (emphasis supplied) Plaintiffs have not merely alleged a negligent products liability action in counts I and III, but there is arguably an action in negligence against defendant for not providing plaintiff with proper equipment.

Defendants have demurred only to a portion of counts I. and III. Since defendants did not address the issue of whether they negligently maintained the ramp and wheelchair, we cannot grant their demurrer to counts I and III of plaintiffs’ complaint.

Accordingly, for the foregoing reasons defendant’s preliminary objections are denied and dismissed.

ORDER

Now, June 5, 1989, upon consideration of defendant’s preliminary objection in the nature of a demurrer/motion to strike, the briefs filed by the attorneys and following oral argument upon the matter, it is hereby ordered that the said motion is denied.

      . We assume that defendant’s demur to counts I, II, III and IV and want those counts stricken.

      . Defendant’s demurrer is to counts II and IV in plaintiffs’ complaint.

      . Cases which disagree with Pennsylvania’s interpretation of section 402A are Hector v. Cedars-Sinai Medical Center, 180 Cal. App. 3d 499, 225 Cal. Rptr. 595 (1986) and Magrine v. Krasnica, 94 N.J. Super. 228, 227 A.2d 539 (1967), aff'd. 100 N.J. Super. 223, 241 A.2d 637 and 53 N.J. 259, 250 A.2d 129.

      . Defendant’s demurrer is to counts I and III of plaintiffs’ complaint.

      . Plaintiffs cite Vitali v. Bankers Securities Corporation, 398 Pa. 230, 157 A.2d 633 (1960) for the proposition that a business invitee has the right to assume that equipment provided to him or her by the possessor of land is in a reasonably safe condition. See also Thomas v. Ribble, 404 Pa. 296, 172 A.2d 280 (1961) which adopted the Restatement (Second) of Torts §388 which holds a supplier of a chattel negligent under certain conditions.


text:
    John Hancock Mutual Life Insurance Co. v. Whiting
    May 11, 1989

      Kevin M. Richards, for plaintiff.

      Jeffrey B. Matzkin, for defendant Patricia A. Whiting.
   BACKENSTOE, P.J.,

Before us for disposition is counsel’s petition on behalf of Patricia A. Whiting asserting that she alone is entitled to the proceeds of her father’s life insurance policy.

On August 12, 1986, the insured, Stephan H. Whiting, was found beaten to death. His son, Sean Whiting, was accused of committing murder in the first degree and criminal conspiracy. Sean Whiting was a minor at the time of the event and subsequently, after hearing, the case was transferred from the Criminal Court to the Juvenile Court Division. At trial, the allegations against Sean Whiting were sustained.

At the time of his death Stephan H. Whiting had a life insurance contract with the John Hancock Mutual Life Insurance Company (listed as plaintiff in this action). Upon the death of Stephan Whiting the contract provided that the proceeds were to be distributed: (1) 100 percent to Sandra L. Whiting, his wife, (2) 100 percent to Sean S. Whiting, his son; (3) 100 percent to Patricia A. Whiting, his daughter.

In view of the above circumstances, plaintiff filed an interpleader action to determine the beneficiaries’ rights to the aforesaid life insurance policy. On June 23, 1988, Sandra Whiting was barred from asserting any claims to the life insurance proceeds. On November 10, 1988, counsel filed this motion and argument having been held, the case is ready for disposition.

The purpose of the summary judgment procedure is to avoid a useless trial when there is no issue of fact and the controversy may be determined as a question of law. 2B Anderson Pennsylvania Civil Practice §1035.26 (Supp. 1988). In the within matter there are no material facts in issue. The sole question is whether as a matter of law the Pennsylvania’s Slayer’s Act prohibits Sean Whiting (a juvenile) from receiving his share of the life insurance proceeds.

In Pennsylvania the Slayer’s Act provides that “no slayer shall in any way acquire any property or receive any benefit as the result of the death of a decedent but such property shall pass as provided in the sections following.” 20 Pa.C.S. §8802. A slayer is defined as “any person who participates, either as a principal or as an accessory before the fact, in the willful and unlawful killing of any other person.” 20 Pa.C.S. §8801.

The question before us is whether the Slayer’s Act applies when the slayer is a juvenile. Counsel for Sean Whiting does not deny that the killing was willful and unlawful; however, he contends that the purpose of the Slayer’s Act is to punish and punishment is not a proper objective of the Juvenile Act. Counsel emphasizes that the purpose of the Juvenile Act is “to remove from children committing delinquent acts the consequences of criminal behavior and to substitute therefore a program of supervision, care and rehabilitation.” 42 Pa.C.S. §6301(b)(2).

In Bosley v. Hawkins, 24 Ohio Misc.2d 11, 494 N.E.2d 460 (1985), a minor who had killed her father attempted to inherit from his estate. The Ohio court acknowledged that a question to be addressed was whether the policy behind their Slayer’s Act could be reconciled with the public policy of rehabilitating minors. The court held that the statutes were not in conflict noting the requirement that juveniles be held to the constraints of the civil law, which does not involve punishment or a criminal record, would not appear to be inconsistent with the ends which are attempted in the juvenile justice system.

Similarly, In re Sengillo’s Estate, 206 Misc. 751, 134 N.Y.S.2d 800 (1954) a 15-year-old boy murdered his father and then attempted to collect a share of his father’s estate. Id. at 800. The New York court provided:

“It has been contended that to deprive this boy of his distributive share is to impose an additional penalty. To hold that he cannot take, his share is no additional penalty or punishment since he had no property, the property in question that of Corrado Sengillo [the father]. On December 5, 1953, deceased had a prospect of a future life,, the duration or length of which was uncertain and this same situation was true as to Robert Sengillo [the son]. The duration of the uncertainty of the future life of the father was that day made certain by the act of Robert Sengillo and by the same act he cannot profit, since to hold that he takes his share as a distributee, would be to reward him for shooting his father.” Id. at 802.

We note further that the General Assembly specifically provided that the Slayer’s Act “[s]hall not be considered penal in nature, but shall be construed broadly in order to effect the policy of this state that no person shall be allowed to profit by his own wrong wherever committed.” 20 Pa.C.S. §8815 (emphasis supplied); see also, In re Kravitz Estate, 418 Pa. 319, 211 A.2d 443 (1965). Consequently, we believe the legislature has indicated that the Slayer’s Act is not a form of punishment but a way of not rewarding those who commit a wrong. Thus, the public policies behind the Slayer’s Act and the Juvenile Act do not conflict.

Finally, counsel alleges that the juvenile was adj udged a juvenile delinquent and that in order for the Slayer’s Act to apply he had to be convicted under the Crimes Code. However, the language in 20 Pa.C.S. §8801 does not support this contention. A slayer is “any person . . . who participates in the willful and unlawful killing of another.” (emphasis supplied) Moreover, the present statute was amended to eliminate the requirement that a conviction precede, application of the Slayer’s Act. In re Estate of Klein, 474 Pa. 416, 378 A.2d 1182, 1185-6 (1977).

Accordingly, for the above reasons we grant Patricia Whiting’s motion for summary judgment.

ORDER

Now, this May 11, 1989, upon consideration of the briefs submitted by counsel, following oral argument upon the matter and for the reasons set forth in the accompanying opinion, it is hereby ordered that Patricia A. Whiting’s motion for summary judgment is granted.

      . Sean was accused of conspiring with his mother, Sandra Whiting, in causing the death of Stephan Whiting.

      . On May 31, 1988, by order of the Honorable James K. Gardner, the plaintiff was ordered to deposit the insurance proceeds with this court and discharged plaintiff from any liability to the claimants.

      . “20 Pa.C.S. §8811. Proceeds of Insurance —
      “(a) Insurance proceeds payable to the slayer as the beneficiary or assignee of any policy or certificate of insurance on the life of the decedent, or as the survivor of a joint life policy, shall be paid to the estate of the decedent unless the policy or certificate designates some person not claiming through the slayer as alternative beneficiary to him.”


author: O’MALLEY, J.,

text:
    Sueta v. Bonafede
    February 15, 1990

      Terrence R. Nectlon, for plaintiff.

      Michael J. Donohue, for defendant.
   O’MALLEY, J.,

This matter is before the court on the petition of plaintiff to show cause why plaintiff. should not be permitted to introduce evidence of plaintiff’s medical expenses and loss of income at the time of trial of this case.

The underlying facts giving rise to this claim arose out of a motor vehicle accident that occurred on February 9,1987. Plaintiff was then employed by the Department of Public Works of the City of Scranton and was loading trash into a Packmaster truck which was standing in the middle of the road in the 500 Block of North Garfield Avenue. While so employed, plaintiff was struck by a motor vehicle operated by defendant. Plaintiffs medical bills and 66 and two-thirds percent of her salary and wages were paid by workers’ compensation. No benefits have been paid to plaintiff by any automobile insurance company. The Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701, Act of February 12, 1984, P.L. 26, §3, as amended, February 12, 1984, P.L. 53, §3, effective October 1, 1984, provides in pertinent part as follows:

“In an action for damages against a tort-feasor arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverage set forth in section 1711 (relating to required benefits) shall be precluded from pleading, introducing into evidence or recovering the amount of benefits paid or payable under section 1711.”

Section 1722 of the act, by express language, is limited “to the amount of benefits set forth in section 1711.” Therefore, a benefit received by a plaintiff which is outside the scope of section 1711, and not a “required benefit,” would make section 1722 of the act inapplicable.

More specifically, section 1711, entitled “Required Benefits,” in pertinent part states:

“An insurer issuing or delivering liability insurance policies covering any motor vehicle of the type required to be registered under this title, except recreational vehicles not intended for highway use, motorcycles, motor driven cycles or motorized pe-dacycles or like type vehicles, registered and operated in this commonwealth shall include coverage providing a medical benefit in the amount of $10,000 and income loss benefit up to a monthly maximum of $1,000 up to a maximum benefit of $5,000 and a funeral benefit in the amount of $1,500, as defined in section 1712 (relating to availability of benefits), with respect to injury arising out of the maintenance or use of a motor vehicle. ...”

Section 1711, by its language, is directed to “an insurer issuing or delivering liability insurance policies covering any motor vehicle . . .,” and does not speak to the insurer or self-insurer covering workers injured during employment. By an analogy, if section 1711 does not encompass workers’ compensation, then the preclusion contained in the language of section 1722 would be inapplicable and the plaintiff would not be allowed to plead, prove and recover.

This subchapter also suggests in section 1719 and section 1720 that workers’ compensation benefits are outside its scope and such benefits should be awarded in conjunction with benefits received from the tort-feasors’ insurer. Section 1719 of the act, entitled “Coordination of Benefits,” states the following:

“ . . . Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits), 1712(1) and (2) (relating to the availability of benefits) or 1715 (relating to the availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first-party benefits provided in section 1711, 1712 or 1715 or workers’ compensation.” (emphasis supplied)

By definition, the words “in excess of’ mean that which goes beyond the usual, proper or necessary. Also, the statement that benefits under section 1711 and the like are “not in duplication” of any other benefits, specifically workers’ compensation, denotes that double recovery had been contemplated by the legislature and is to be treated separate and distinct.

Also section 1720 of the act, entitled “Subrogation,” states:

“In actions arising out of the maintenance or use of a motor vehicle, there shall be no right of subrogation or reimbursement from a claimant’s tort recovery with respect to workers’ compensation benefits, benefits available under section 1711 (relating to required benefits), 1712 (relating to availability of benefits) or 1715 (relating to availability of adequate limits) or benefits in lieu thereof paid or payable under section 1719 (relating to coordination of benefits).”

The legislature has again contemplated, by express language, that other benefits could be forthcoming to plaintiff from a collateral source and specifically denied the tort-feasor’s insurer any sub-rogation rights.

It would appear that the language of the sections cited seem to move towards an equitable policy; that the tort-feasors should not be allowed a windfall and be reimbursed by the plaintiffs workers’ compensation insurer. Accordingly, plaintiff is not precluded from pleading, proving and recovering benefits from a tort-feasor in duplication of benefits received from her workers’ compensation company. See McLain v. Dixie Auto Transport, Civil no. 86-7371 (E.D. Pa. 1988).

ORDER

Now, February 15, 1990, for the reasons set forth in the foregoing opinion, plaintiff shall be permitted to prove and recover the benefits pled in her complaint and which have been paid under her workers’ compensation insurance coverage.

       Matters of this nature are more properly raised by a motion in limine addressed to the trial judge rather than by the procedure here employed by counsel for the plaintiff.


author: ZELEZNIK, J.,

text:
    Barrie v. Pennsylvania Liquor Control Board
    March 13, 1990

      Mark j. Homyak, for plaintiff, Rebecca Barrie.

      Eugene G. Berry, deputy attorney general, for Pa. Liquor Control Board.

      John K. Heisey, for defendant, Rebecca Barrie.

      Michael J. Kearney Jr., for Richard Barrie.

      Warren Ferry, for Kenneth Krisovenski.

      Timothy J. Burdette, for Mary Beth Dawson.
   ZELEZNIK, J.,

This case was argued on plaintiffs motion for post-trial relief after the court molded answers to written interrogatories by the jury into a verdict in favor of all defendants. Plaintiff requests a judgment n.o.v. and new trial limited to damages or alternatively, a new trial.

Rebecca Barrie, in her capacity as administratrix of the estate of her son, Bryan Barrie, deceased, filed this wrongful death and survival action, against the Pennsylvania Liquor Control Board and its employee Dennis Hoag for negligence in selling alcohol to a minor, and also against William D. Green for negligence in purchasing and furnishing alcohol to a minor, which resulted in his drowning. The LCB joined the plaintiff/administratrix and her ex-husband, Richard Barrie, on the theory of negligent parental supervision, and Kenneth Krisovenski for his negligence in encouraging and participating in the “drinking party” which preceded Bryan Barrie’s death. Subsequently, Kenneth Krisovenski joined Mary Beth Dawson for her participation as the third member of this drinking party.

The evidence revealed that plaintiffs decedent, at the time 16 years old, and Kenneth Krisovenski, also age 16, each contributed $10 to purchase a half-gallon of vodka and a fifth of giri. They approached defendant William D. Green, then age 20, who entered the liquor store and made the purchase. After the alcohol was purchased William Green gave possession to plaintiffs decedent who then made arrangements to meet with Kenneth Krisovenski and Mary Beth Dawson at a designated drinking site. This site was located on a hill next to a railroad track and in close proximity to the Chartiers Creek. The three minors began drinking around eight o’clock on the evening of November 15, 1985 and ultimately consumed the entire half gallon of vodka with Bryan Barrie and Kenneth Krisovenski alternating shots, while Mary Beth Dawson drank screwdrivers. Mary Beth Dawson testified that before she left the site Kenneth Krisovenski had passed out and that she had called out to Bryan Barrie, who was out of her view but still in the vicinity, to help her take him home to which he responded: “I can’t.” She further testified that she had returned home that night around 11 o’clock. Kenneth Krisovenski testified that after awakening he staggered home around 2:30 the next morning. Bryan Barrie never returned home. Approximately three weeks later his body was found in the Chartiers Creek downstream from the site of the drinking party.

At the close of all the evidence a directed verdict was entered in favor of additional defendant Rebecca Barrie as a parent. Next, the jury returned answers to written interrogatories finding that: (1) the LCB and Dennis Hoag did sell alcoholic beverages to William Green under circumstances by which Hoag knew or should have known the alcohol would be given to minors and that such sale was a substantial factor in bringing about the death of Bryan Barrie; (2) that the additional defendant and father of the decedent, Richard Barrie, was not negligent; (3) that the conduct of William Green in purchasing and furnishing alcohol to minors was negligent, and was a substantial factor in bringing harm to the decedent; (4) that the conduct of additional defendants Krisovenski and Dawson was negligent, but was not a substantial factor; and (5) that the conduct of plaintiffs decedent in purchasing and consuming alcohol while underage was negligent, and was a substantial factor in bringing about his own death. The jury apportioned liability and attributed 10 percent causal negligence to the LCB, 20 percent to defendant William Green and 70 percent to plaintiffs decedent. The court molded these answers into a verdict in favor of all defendants.

Plaintiff now contends that the court erred: in charging the jury on the minor decedent’s contributory negligence; in allowing evidence of the minor decedent’s prior drinking episodes to be introduced; and, in permitting evidence to be introduced that William Green appeared to be of legal age when he purchased the alcoholic beverage for plaintiffs minor decedent.

Plaintiff argues that minor decedent’s contributory or comparative negligence is irrelevant when a defendant licensee has violated section 4-493(1) of the Liquor Code, first raising that issue by a motion in limine, to prevent the LCB from using contributory negligence as a defense. Plaintiff argued that section 4-493(1) created a special class of minors in need of protection from the effects of alcohol, and that by applying section 483 of the Restatement (Second) of Torts a minor cannot as a matter of law be contributorily' negligent by violating a statute enacted for the minor’s benefit. This motion was denied and at the conclusion of the evidence a charge. on comparative negligence was given to which plaintiffs counsel timely objected.

Section 4-493(1) provides in pertinent part that it shall be unlawful:

“For any licensee or the board, or any employee, servant or agent of such licensee or of the board, or any other person, to sell, furnish or give any liquor or malt or brewed beverages, or to permit any liquor or malt or brewed beverages to be sold, furnished or given, to any person visibly intoxicated, or to any insane person, or to any minor, or to habitual drunkards, or persons of known intemperate habits.” 47 P.S. §4-493(1).

The applicable Restatement section is as follows:

“§483. Defense to Violation of Statute
“The plaintiffs contributory negligence bars his recovery for the negligence of the defendant consisting of the violation of a statute, unless the effect of the statute is to place the entire responsibility for such harm as has occurred upon the defendant.” Restatement (Second) of Torts §483.

In support of her argument plaintiff relies primarily upon the case of Majors v. Brodhead Hotel, 416 Pa. 265, 205 A.2d 873 (1965). In Majors, the jury found that the defendant licensee served alcohol to plaintiff while visibly intoxicated in violation of §4-493(1) and that plaintiff’s intoxication resulted in his injuries. The Pennsylvania Supreme Court, adopting the Superior Court’s reasoning in Schelin v. Goldberg, 188 Pa. Super. 341, 146 A.2d 648 (1958), held that the trial court was correct in refusing to instruct the jury on contributory negligence, and also determined that section 483 of the Restatement (Second) of Torts was applicable to a violation of section 4-493(1) thereby preventing plaintiff’s contributory negligence from barring recovery. Plaintiff now argues that Majors and Schelin control this case and plaintiff’s contributory negligence should not have been presented to the jury.

The LCB argues in opposition that plaintiff’s reliance on Majors and Schelin is misplaced in that those cases were decided prior to the enactment of the Comparative Negligence Act. The LCB further argues that application of section 483 was necessary when the law was such that even slight contributory negligence on the part of a minor plaintiff would be a complete bar to recovery, but that today, with the advent of comparative negligence, the harshness of the prior rule is alleviated and the need to apply section 483 removed.

Rather, the LCB suggests that Congini v. Portersville Valve Co., 504 Pa. 157, 470 A.2d 515 (1983) and Thomas v. Duquesne Light Co., 376 Pa. Super. 1, 545 A.2d 289 (1988), both decided after enactment of the Comparative Negligence Act, should control.

We agree. In Congini, the Supreme Court held that a social host was negligent per se in serving alcohol to a minor, but also held that a host could assert as a defense the minor’s contributory negligence. Plaintiff attempts to distinguish Congini on the basis that the cause of action was not grounded upon a violation of the Liquor Code. We are not persuaded that such distinction requires a different result. In Congini rather than adopting the Liquor Code (which was clearly inapplicable to the parties there involved) the Supreme Court applied the Crimes Code as setting the standard of conduct to be measured. Justice McDermott writing for the court stated:

“ [0]ur legislature has made a legislative judgment that persons under 21 years of age are incompetent to handle alcohol. Under section 6308 of the Crimes Code, 18 Pa.C.S. §6308, a person less than 21 years of age’ commits a summary offense if he ‘attempts to purchase, purchases, consumes, possesses, or transports any alcohol, liquor or malt or brewed beverages.’ Furthermore, under section 306 of the Crimes Code, 18 Pa.C.S. §306, an adult who furnishes liquor to a minor would be liable as an accomplice to the same extent as the offending minor.” Congini at 161, 470 A.2d at 517. (footnote omitted)

We are not persuaded that a minor plaintiff served in violation of the Liquor Code by a licensee should be excused from all responsibility for his own per se negligence when a minor plaintiff served by a social host in violation of the Crimes Code would be fully accountable for his per se negligence, based only on a fortuitous circumstance that the provider was licensed as opposed to non-licensed. Additionally, in Thomas a minor was injured after becoming intoxicated and falling from an electrical transmission tower. In an action brought by the minor’s parents a default judgment was entered against the adult who purchased the beer for the minor and a compulsory non-suit was entered in favor of the beer distributor. The jury found that the causal negligence of the minor plaintiff was greater than 50 percent and verdicts in favor of the remaining defendants were entered. On appeal the Superior Court reversed, holding that the issue of whether or not liability could be imposed upon a licensee who sells alcohol to an adult under circumstances in which the licensee knew or should have known that the adult was purchasing the alcohol for use by minors presented an issue of fact which should have been submitted to the jury. The court further stated that:

“Upon retrial, the jury should be required to determine the causal negligence, if any, of all defendants, as well as that of the minor plaintiff, and then apportion the same among the parties. This will now include the negligence, if any, of the beer distributor. . . . Recovery by the plaintiffs against all defendants will be precluded only if the minor plaintiff’s negligence exceeds the combined negligence of all defendants.” Thomas,, supra, (emphasis supplied)

Hence, the Thomas case is in accord with the decisions in Congini and more recently Matthews v. Konieczny, 515 Pa. 106, 527 A.2d 508 (1987) that a minor’s comparative negligence is for the jury.

In Matthews section 4-493(1) was directly implicated and yet the Pennsylvania Supreme Court, in concluding that commercial licensees could be held liable to third persons for injuries proximately caused by their service of alcohol to minors, stated:

“We emphasize, however, that such liability is not absolute and/or irrebuttable; and, as we explained in Congini, the defendants in a suit such as this can, where applicable, attempt to establish the comparative negligence of the actor(s) involved.” Id.

The same distinction now advanced by plaintiff was attempted by the appellees in Matthews and rejected. On this subject Justice McDermott opined:

“[T]he fact that Congini involved a non-licensee while the present cases involve licensees is of little consequence. The Congini decision was grounded upon the per se negligence involved in an adult dispensing alcohol to a minor in violation of the Crimes Code. Since the code’s provisions apply with equal force to licensees, the rationale of Congini is equally applicable here.” Id.

If the Comparative Negligence Act is to have no effect on the application of section 483 of the Restatement (Second) of Torts to a violation of section 4-493(1) of the Liquor Code as argued by plaintiff, then the same rationale for precluding contributory negligence as a defense as was espoused in Majors and Schelin should have been equally applicable in Congini and Matthews, and yet the Supreme Court did not follow such rationale. The clear implication, while not specifically addressed in either Congini or Matthews, is that the enactment of the Comparative Negligence Act compelled a different result. The prior decisions barring contributory negligence as a defense.were based primarily, if not solely, on the argument that permitting such a defense would absolutely bar the action thereby making the duty imposed by such statutes illusory, rather than on any belief that such statutes were intended to create absolute liability. That argument has less persuasive force after the adoption of comparative negligence.

Plaintiff next contends that the trial court erred in admitting testimony that plaintiff’s minor decedent consumed alcohol on other occasions prior to the night of his accident and that such evidence was irrelevant to any issue at trial, only tended to blacken the character of plaintiff’s minor decedent, and was prejudicial. This contention is likewise without merit. In general, evidence is admissible if it is competent for any purpose, and the evidence may be considered for any purpose for which it is competent. Morse Boulger Destruction Co. v. Arnoni, 376 Pa. 57, 101 A.2d 705 (1954). Hence, it is the purpose for which the evidence was admitted that must be evaluated. Berman v. Radnor Rolls Inc., 374 Pa. Super. 118, 146, 542 A.2d 525, 538 (1988).

Evidence of the minor decedent’s prior drinking was relevant to the issue of negligence claims made against his parents concerning prior knowledge of their son’s drinking and it was for this purpose alone that it was admitted. Evidence which is admissible for one purpose is not rendered inadmissible because it would'be inadmissible for another purpose. Bialek v. Pittsburgh Brewing Co., 430 Pa. 176, 242 A.2d 231 (1968). Plaintiff further argues that even if this evidence was admissible to show a lack of due care as to the parents, it was error to have faded to clarify the purpose for its entry by use of a limiting instruction. In cases of limited admissibility the court, upon request, will restrict the evidence to its proper scope and instruct the jury accordingly. See generally, Weinstein & Berger, Weinstein’s Evidence, paragraph 105 [1]-[05]; Graham, Handbook of Federal Evidence, §105; Fisanick, Pa. Evidence, §8-2, 8-2A. There having been no request to restrict the purpose for which it was received, the issue was waived. See e.g., Fischer v. Anderson, 173 Pa. Super. 175, 96 A.2d 168 (1953); Commonwealth v. Johnson, 457 Pa. 554, 327 A.2d 632 (1974).

Finally, plaintiff contends that it was error to allow the LCB to defend on the basis that defendant William Green appeared to be of legal drinking age. Plaintiff argues that the only excuse for a violation of section 4-493(1) is compliance with 47 P.S. §4-495 which requires licensees to obtain an identification card and a signed confirmation that the customer is at least 21 years old. However, the cases plaintiff cites in support of this proposition have no prece-dential value in the context of a tort action for money damages. The cases plaintiff relies on are all concerned with appeals of fines, suspensions or revocations imposed by the LCB and as to these type of actions mistake of age by appearance is not a defense. Plaintiff has not cited nor has this court located any cases which have adopted section 4-495 as the conduct which would be expected of a reasonably prudent person for establishing the presence or lack of due care in negligence cases. We believe that whether or not William Green appeared to be over 21 was a relevant consideration for the jury bearing upon the reasonableness of defendant Dennis Hoag’s conduct and was therefore properly admitted.

But in any event, in this case, the jury found that the LCB manager knew or should have known that the alcoholic beverages purchased by William D. Green would be made available to minors and found both the LCB and William D. Green causally negligent.

Post-trial relief will be denied.

ORDER

And now, this March 13, 1990, the motion for post-trial relief by plaintiff, Rebecca J. Barrie, ad-ministratrix of the estate of Bryan N. Barrie, deceased, be and the same is hereby dismissed and judgment may be entered on the verdict.

      . Ms. Dawson purchased some orange juice to use as a mixer and also provided the shot glass used to apportion the alcoholic beverages.

      . A dispute arose in the evidence as to whether Green or some adult intermediary actually made the purchase. However, this issue was decided against the LCB by the jury.


author: KUHN, J.,

text:
    Adams County Probation Office v. DeSilva

      January 12, 1990

      Martha J. Duvall, for plaintiff.

      Catherine J. Gault, for defendant Carolyn DeSilva.

      Chester G. Schultz, for defendant LeRoy Stamer.
   KUHN, J.,

The issue in these two cases are identical and are therefore consolidated for disposition on their respective motions to dismiss. Both cases are filed by the Adams County Juvenile Probation Office on behalf of an individual under its court-ordered supervision.

DR-250-89 involves an action filed against defendant, Carolyn DeSilva, seeking support for her child Shawn A. Magness, bom February 3, 1971. After Shawn’s 18th birthday he was adjudicated a delinquent child under provisions of the Juvenile Act, 42 Pa.C.S. §6301, et seq., for acts he committed while under the age of 18 years. On May 16, 1989, the Juvenile Court Judge ordered that Shawn be enrolled in the residential Project Self program at Youth Forestry Camp. no. 3 after his high school graduation.

Shawn entered the program on May 30, 1989, and continued therein until July 23, 1989. On June 14, 1989, the Chief Juvenile Probation Officer filed a support action.

At a support conference held August 1, 1989, the conference officer determined that the residential program cost $83 per day. Based upon Ms.' DeSilva’s earnings a recommended order of $58 per week for the period May 30, 1989, through July 23, 1989, payable at the rate of $100 per month, was entered August 16, 1989. Ms. DeSilva filed a demand for hearing and on October 13, 1989, orally moved to dismiss the action.

DR-284-89 involves an action filed against defendant, LeRoy Stamer, seeking support for his child, Michael L. Stamer, bom, June 29, 1971. After Michael’s 18th birthday, he was adjudicated a delinquent child under provisions of the Juvenile Act for acts he committed while under the age of 18 years. On July 12, 1989, the Juvenile Court Judge ordered Michael to be placed in a residential program. On July 13, 1989, the Chief Juvenile Probation Officer filed a support action.

At a support conference held August 1, 1989, the conference officer determined that his residential program cost $73 per day.. Based upon Mr. Stamer’s earnings a recommended order of $63 per week, payable at the rate of $50 per week, was entered August 14, 1989. Mr. Stamer filed a demand for hearing and on October 12, 1989, filed a motion to dismiss.

The issue before this court is whether a support action may be maintained against a parent by the Juvenile Probation Office on behalf of an adult child who is participating in a residential program pursuant to order of the Juvenile Court. For the reasons discussed below, we conclude that the action may be so maintained.

Each defendant correctly cited authority holding that there is a presumption in Pennsylvania that a parent’s duty to support a child ends when the child reaches age 18 years. DeWalt v. DeWalt, 365 Pa. Super. 280, 529 A.2d 508 (1987). The burden is then placed upon the adult child to rebut the presumption by showing that he is physically or mentally feeble or otherwise unemployable. Verna v. Verna, 288 Pa. Super. 511, 515, 432 A.2d 630, 632 (1981). Defen dants argue that their adult children are the real parties in interest, that the children must commence the action in their names, Pa.R.C.P. 1910.3(1), and that their children must overcome the presumption. However, this action is not being pursued under the Support Act of 1985, P.L. 264, no. 66, 23 Pa.C.S. §4301, et seq., hereinafter “Act 66.”

The Rules of Civil Procedure designate the framework within which to bring “all civil actions or proceedings” to “enforce a duty of support.” Pa.R.C.P. 1910.1(a). Duties of support arise under several authorities including, inter alia, Act 66, and The Support Law of 1937, 62 P.S. §1971, et seq.

The Juvenile Act is another statutory authority designating support obligations. That act specifically provides:

“The cost and expenses of the care of the child shall be paid as provided by sections 704.1 and 704.2 of the Act of June 13, 1967, (P.L. 31, no. 21), known as the ‘Public Welfare Code.’ ” 42 Pa.C.S. §6306.

Section 704.1(e) of the Welfare Code, 62 P.S. §704.1(e) provides:

“(e) If, after due notice to the parents or other persons legally obligated to care for and support the child, and after affording them an opportunity to be heard, the court finds that they are financially able to pay all or part of the costs and expenses stated in subsection (a), the court may order them to pay the same and prescribe the manner of payment. Unless otherwise ordered, payment shall be made to the clerk of the court for remittance to the person to whom compensation is due, or if the costs and expenses have been paid by the county, to the appropriate officer of the county.”

Subsection (a)(4) of section 704.1 provides that:

“(a) The department shall reimburse county institution districts or their successors for expenditures incurred by them in the performance of their obligation pursuant to this act and the act of December 6, 1982 (P.L. 1464, no. 333) known as the ‘Juvenile Act’ in the following percentages:
“(4) Fifty percent of the actual cost of care and support of... a child committed by a court pursuant to the act of December 6, 1972 (P.L. 1464, no. 333) known as the ‘Juvenile Act,’ to the legal custody of a public or private agency ...”

A “child” is defined in the Juvenile Act to include an individual who is under the age of 21 years who committed an act of delinquency before reaching the age of 18 years. The children who are the subject of this litigation fit the definition of “child.”

The term “parents or other persons legally obligated to care for and support the child” in section 704.1(e) of the Welfare Code is not defined. It is our opinion, however, that the section 704.1(e) creates two classes of persons from whom reimbursement for support may be maintained: (1) parents and (2) other persons legally obligated to care for and support the child.

We reach this conclusion by applying relevant provisions of the Statutory Construction Act, 1 Pa.C.S. §1901 et seq. The main object in interpreting any statute is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). In ascertaining that intention we may consider various factors including, inter alia, the mischief to be remedied, the object to be attained, the consequences of a particular interpretation, 1 Pa.C.S. § 1921(c), and that the legislature intends to favor public interest as against any private interest, 1 Pa.C.S. §1922(5).

The Juvenile Act and the Welfare Code clearly demonstrate an intent to seek some reimbursement for the cost of care and support for children who commit delinquent acts while a minor and who are subsequently placed in residential facilities. The legislature may be willing to initially pay for these services but makes certain that the public will not bear the entire burden of the cost when parents have the ability to share therein. The right of government to seek reimbursement for services provided differs substantially from the child’s individual right to receive support from a parent. In the former situation we choose not to engage in ascertaining whether the child has attained majority and whether he can overcome the presumption that he is no longer entitled to support. In the latter situation we must engage in that analysis. Therefore, we interpret the statute as creating the two classes of obligors and do not limit “parents” to those “legally obligated to care for and support the child.” Imposition of that limitation would force the court to engage in an analysis which may favor private interests over public interests if, for example, the parent could show that the adult child had shunned the parent-child relationship. DeWalt v. DeWalt, 356 Pa. Super. 280, 288, 529 A.2d 508, 512 (1987). Instead, we must recall that the delinquent act of the child which results in placement occurred when the child was a minor and the parent’s obligation to support that child was well-nigh absolute. Sutliff v. Sutliff, 339 Pa. Super. 523, 538, 489 A.2d 764, 771 (1985), aff'd. 515 Pa. 393, 528 A.2d 1318 (1987).

However, even if we had to consider the parent’s obligation under the general support law we would reach the same conclusion, if the Juvenile Probation Department could establish that the conditions of the residential program make the child unemployable while participating therein. Parents may be required to support children over the age of 18 years, 23 Pa.C.S. §4321, if they axe unemployable. A “delinquent child” is one who, by definition is in need of treatment, supervision or rehabilitation. 42 Pa.C.S. §6302. The term “unemployable” is intended to mean that the child is not capable of being self-supporting whether on a temporary or permanent basis and whether or not such limitation is caused by mental or physical disabilities. Commonwealth ex rel. Nicholson v. Groff, 169 Pa. Super. 12, 82 A.2d 536 (1951).

We noted above that the scope of the Rules of Civil Procedure, 1910.1 et seq. apply to all civil actions for support. We have concluded that the legislature clearly established a statutory action for “cost of care and support” of a child placed in a residential setting pursuant to the Juvenile Act. Thus, pursuant to the rules and the statute an action can be filed, as was done here, against the parent.

Furthermore, Pa.R.C.P. 1910.3 provides that an action shall be brought:

“(3) by a public body or public or private agency having an interest in the care, maintenance or assistance of a person to whom a duty of support is owing.”

Adams County Juvenile Probation qualifies as a public agency having the requisite interest in the subject children.

At any hearing it becomes incumbent upon the Juvenile Probation Department to establish (1) adjudication, (2) disposition to a residential facility, (3) the costs provided for the child by the Welfare Department pursuant to section 704.1(a), and (4) that defendants are parents or other persons legally obligated to support the child.

Accordingly, we enter the attached

ORDER

And now, January 12, 1990, defendant’s motion to dismiss is hereby denied.

      . The final order will have an effective date of June 14, 1989, which corresponds to the date of filing the complaint.

      . See section 2(b) of Act 66.


author: KELLER, P.J.,

text:
    Commonwealth v. Gallagher
    February 22, 1990

      Donald J. Smith, assistant attorney general, for PennDOT.

      Dwight C. Harvey, for defendant.
   KELLER, P.J.,

Elwood G. Gallagher received official notice dated October 3, 1989 that due to a violation of section 1547 of The Vehicle Code on September 17, 1989 his license would be suspended for one year effective November 7, 1989. On October 31, 1989 Mr. Gallagher filed his petition for appeal from the order suspending his operating privileges, and an order was entered directing that a hearing de novo be held on December 12, 1989 at 1:30 p.m., and directing that the said order act as a supersedeas to the suspension order. The matter was continued until January 16, 1990 at which time hearing was held.

FINDINGS OF FACT

(1) Officer Douglas O. Thomas has been a police officer since 1983 and he has experience in investigating driving under the influence cases.

(2) On September 17, 1989, he received a report from the Pennsylvania State Police of an automobile accident at the intersection of Cito Road and Lincoln Way East in the Borough of McConnellsburg at approximately 7 a.m. He responded to the call and arrived at the scene at 7:30 a.m.

(3) At the scene, he observed a 1980 Oldsmobile owned by defendant and a 1983 Chevrolet Coupe owned by Brenda Burger. He learned that defendant had failed to yield the right-of-way and pulled into the path of the Burger vehicle.

(4) Defendant was not at the accident scene when Officer Thomas arrived, and he learned that he had gone to Johnnie’s Diner for coffee.

(5) Approximately 10 minutes after Officer Thomas arrived at the accident scene, he observed the defendant approaching. He observed that he was “swaying,” his clothes were wrinkled, his shirttail was partially out, and there were spots on his pants. The officer also detected the strong odor of alcohol on defendant’s breath.

(6) Prior to defendant arriving at the accident scene, Officer Thomas had found on the floor of defendant’s vehicle a beer bottle with approximately one-half ounce of beer still in it.

(7) At the officer’s request, defendant gave him his operator’s license and insurance card.

(8) Officer Thomas inquired how the accident had happened. Defendant said he was attempting to make a left turn from Lincoln Way onto Crystal Drive when the Burger vehicle tried to pass him on the left and the collision occurred. This was contrary to other information the officer had received and evidence secured at the scene.

(9) The officer advised defendant he was under arrest for driving under the influence and that he should not drink the coffee because the officer wanted defendant to take the blood/alcohol test at the Fulton County Medical Center. He further at 7:50 a.m. advised defendant of the implied consent law, and that his operating privileges would be suspended for a year if he refused to give blood.

(10) Defendant was placed in the backseat of the police cruiser and taken to the Fulton County Medical Center.

(11) During the brief conversation with defendant before he was placed in the cruiser, and during the time of his being transported to the Medical Center, Officer Thomas observed that the defendant’s attitude was indifferent and his speech fair.

(12) At the Medical Center, the officer then informed personnel that he wanted a blood test taken. At 8:13 a.m. a Ms. Bonnie Hoffman approached the defendant and inquired whether he was ready for her to take his blood. Defendant replied that he wanted his doctor to check him out first. Ms. Hoffman told defendant that Dr. McLucas was out of town but Dr. Johnson was coming to the Medical Center. Officer Thomas agreed to wait a little while for Dr. Johnson to come and examine defendant.

(13) At 8:35 a.m. the officer approached defendant and told him he couldn’t wait much longer for the blood test. He advised defendant of the implied consent law and that his operating privileges would be suspended for a year if he refused to provide blood. The defendant responded that he was not refusing, that he wanted his doctor to check him out first.

(14) Between 8:35 a.m. and 8:45 a.m., Officer Thomas learned that Dr. Johnson would not arrive at the Medical Center until 9:30 a.m. He advised defendant that the time was a factor in blood/alcohol tests. He had learned and advised defendant an emergency room doctor was available and would check him out. Defendant stated again that he was not refusing, but wanted his “own doctor to check me out first.”

(15) The officer told defendant that he had had three opportunities to agree to give blood and he considered defendant had refused his requests by attaching conditions. Defendant said he knew his rights and was calling his attorney.

(16) Officer Thomas at no time advised defendant of his Miranda rights.

DISCUSSION

Defendant’s first argument is that defendant cannot be found to have refused the blood test, because no valid blood test request was made.

Defendant argues that he was simply seeking to have the presence of a physician as required by law. Counsel for defendant relies on section 3755(a) of the Vehicle Code which provides: “If, as a result of a motor vehicle accident, the person who drove . . . any involved motor vehicle requires medical treatment in an emergency room . . . the emergency room physician or his designee shall promptly take blood samples ...”

The court finds two flaws in defendant’s argument. First, counsel did not quote the remainder of section 3755(a) which goes on to provide: “ . . . from those persons and transmit them within 24 hours for testing to the Department of Health or a clinical laboratory licensed and approved by the Department of Health, and specifically designated for this purpose.”

Section 3755 imposes a mandatory obligation upon hospital emergency room personnel, treating victims of accidents, to obtain blood samples from such victims when probable cause exists to believe that such person was operating a vehicle under the influence of alcohol in violation of section 3731 of the code. Section 3755, however/deals with the criminal aspects of a vehicle code violation and provides immunity from civil and criminal liability to emergency room personnel; it is inapplicable where, as here, an operator’s license has been suspended pursuant to section 1547(b) of the code. See Simpson v. Commonwealth of Pennsylvania, 105 Pa. Commw. 631, 525 A.2d 444 (1987). We find section 3755(a) inapplicable in a license suspension proceeding.

Second, section 3755(a) deals with persons taken to the emergency room for medical treatment. In the case at bar, defendant was taken to Fulton County Medical Center so a blood/alcohol test could be performed. When defendant and Officer Thomas arrived at the Medical Center, the officer informed personnel that he wanted a blood test performed. In that context obviously section 3755(a) is inapplicable. We find section 1547 to be the applicable section, and we also find that a nurse may properly withdraw blood. We, therefore, find no merit in defendant’s first argument.

Defendant’s second argument is that his license should not be suspended because he stated that he wanted to talk to a lawyer and Officer Thomas did not clarify and explain that there is no right to counsel prior to a blood test. That , this is a specious contention is manifest by the fact that defendant never requested an opportunity to speak to his attorney. Only after the officer advised defendant that he considered his conduct to constitute a refusal did the defendant state he was calling his attorney. (Finding of fact no. 15.)

We will first determine whether defendant’s action constituted a refusal.

The language of section 1547 is clear. Any person who refuses chemical testing upon notice of the consequence shall lose his operating privilege. No exceptions are contemplated, nor have past attempts to create such exceptions been successful in our courts. The reasoning is simple: as the body rapidly eliminates alcohol, it is necessary to conduct chemical testing quickly in order to get an accurate reading. Since consultation with either counsel or physicians will involve delay, courts have held that there is no right to request such consultation prior to taking the test. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Driver Licensing v. Belle, 105 Pa. Commw. 468, 524 A.2d 1060 (1987).

Courts have repeatedly followed the rule, “That anything substantially less than an unqualified, unequivocal assent to take a chemical test constitutes a refusal.” The occasion is not one for debate, maneuver or negotiation, but rather for a simple “yes” or “no” to the officer’s request. Commonwealth of Pennsylvania, Department of Transportation, Bureau of Traffic Safety v. Wroblewski, 65 Pa. Commw. 320, 442 A.2d 837 (1982); Belle, supra.

Time is of the essence in administering blood tests, due to the volatile nature of the evidence to be obtained, and the public interest in identifying violators of section 3731 is so compelling as to justify a very strict application of the law. An officer’s agreement to wait for defendant’s doctor was strictly a matter of grace which could be withdrawn at any time without prejudice to defendant. Wroblewski, supra.

When the officer approached defendant to inquire whether he was ready to take the test, he replied that he was not refusing, that he wanted his doctor to check him out first. The officer tried three times to get defendant to submit to the test but each time he stated he wanted to see his doctor first. The officer could not wait for the doctor to come and told defendant that, but he persisted in his refusal to take the test until his doctor came. We conclude the undisputed evidence of defendant’s action constitutes a refusal.

The officer after the third time he approached defendant told him he was taking his action to constitute a refusal. It was only then that defendant stated his intention to speak to his attorney. We do not find defendant’s statement that he knew his rights and was calling his attorney to be a refusal, but conditioning his consent on the presence of his physician was, indeed, a refusal.

Defendant’s statement of his intention to call his attorney is irrelevant in this proceeding. Commonwealth v. O'Connell, 521 Pa. 242, 555 A.2d 873 (1989), is factually distinguishable from the case at bar, and therefore inapplicable to this case.

We find defendant’s contentions to be without merit, and the one-year suspension of operating privileges will be reinstated.

ORDER

Now, February 22, 1990, the appeal of Elwood G. Gallagher from the order of the Pennsylvania Department of Transportation suspending his driving privileges is dismissed. The October 31,1989 stay of the execution of the suspension order is vacated.

The Pennsylvania Department of Transportation is directed to issue a new suspension notice to Elwood G. Gallagher.

Exceptions are granted appellant.


author: KLEIN, J.,

text:
    DeMayo v. Schmitt
    December 28, 1989

      Francis Ferrara and Garland Cherry, for plaintiffs.

      Joseph Manta and Harold Mancus, for defendants.
   KLEIN, J.,

In April 1948, Agnes Babcock was pregnant with her daughter, Mary Ellen, who by marriage later became Mary Ellen DeMayo. While carrying Mary Ellen in útero, Agnes Babcock allegedly ingested diethylstilbestrol (DES). In December 1977, Mary Ellen DeMayo became pregnant with the minor plaintiff, Alena DeMayo. In this action, it is claimed that the grandchild, Alena DeMayo, suffered injuries caused by the ingestion of DES by her grandmother, Agnes Babcock.

Defendants challenge the right of grandchild Alena DeMayo to bring an action for injuries and deformities allegedly caused by a drug administered to her grandmother. In essence, defendants claim that there should be no recovery for a “third-generation” injury.

This court has granted the motion for summary judgment in part and denied it in part.

The motion for summary judgment is denied, and recovery will be allowed if the plaintiff can show:

(1) The manufacturer acted negligently in placing the product on the market without sufficiently testing for efficacy and risk; and

(2) The manufacturer knew or should have known that there would be a risk of injury to the reproductive system of the second generation. Knowledge of the risk of injury to the reproductive system of the second generation creates a foreseeable risk of deformities in the third generation.

The motion for summary judgment is granted as to some of the counts, as follows:

(1) Strict liability will not apply to a third-generation injury. Because of the remoteness and lack of foreseeability of an injury to the third generation, under a balancing test, it is unfair to place such a burden on a manufacturer that is free from fault."

(2) For plaintiff to recover for a third-generation injury under a negligence theory, he or she must show more than that there was a risk of general injury to the second generation. Plaintiffs must also show that defendants should have known of the specific risk of third-generation injury because of evidence of risk of injury to the reproductive system of the second-generation child.

In general, the Pennsylvania Supreme Court has determined that when a product causes injury absent any negligence, one of two innocent parties must suffer, the victim or the manufacturer. Between consumers on the one hand and manufacturers or suppliers on the other, Pennsylvania has determined that because of the increasingly complex nature of a national market economy, “[those] who are engaged in the business of selling or supplying a product may be said to have undertaken and assumed a special responsibility toward the consuming public and are in a position to spread the risk of defective products.” Berkebile v. Brantley Helicopter Corp., 462 Pa. 83, 93, 337 A.2d 893, 898 (1975).

At the same time, not everyone who is injured can get'money from someone else. Not every wrong can have a remedy. “[A]t some point, along the causal chain, the passage of time and the span of distance mandate a cut-off point for liability.” Massagatti v. Everingham by Everingham, 512 Pa. 265, 273, 516 A.2d 672, 676 (1986). Life has its risks, and ability to pay on the part of a defendant does not automatically mean that a verdict should be entered against it.

To reach a just result, the courts must apply a balancing test and use common sense to arrive at a public policy consistent with the needs of the community.

In the instant circumstance, if the manufacturers, using due care, could not have known that ingestion of DES causes genital-tract injury to daughters of DES mothers, they could not have anticipated defects in the third generation, or grandchildren of the women that took the drug. Even if there were other problems with offspring of DES mothers, problems in the third generation should be considered so remote as to be unforeseeable. For example, if there were a tendency of children of DES mothers to develop kidney cancer, this would not indicate any kind of problems in the third generation.

At the same time, if proper animal tests or other research would have shown genital defects in offspring of DES mothers, it would not be unforeseeable that those genital problems could result in premature births and other defects in the grandchildren.

With respect to the claim under section 402Á of the Restatement of Torts, liability should stop with the second generation. Again, there must be a balancing test. It may be proper in some circumstances to impose liability on an innocent manufacturer on a “share the risk” theory. At the same time, there must be some line drawn to allow manufacturers freedom to experiment with new products without risking bankruptcy if there is some adverse result they could not have foreseen even if exercising all due care. The offspring of those exposed to the product seems an appropriate place to stop.

It should be noted that establishing an arbitrary limit for section 402A liability is not new to the area of pharmaceutical products. Comment K of section 402A of the Restatement of Torts points out that because of the desire to bring new products to the market that could save lives, one does not want to place such an onerous burden on manufacturers that research will be discouraged. “The seller of such [unavoidably unsafe] products, again with the qualification that they are properly prepared and marketed, and proper warning is given, where the situation calls for it, is not to be held to strict liability for unfortunate consequences attending , their use, merely because he has undertaken to supply the public with an apparently useful and desirable product. . . ’’Restatement (Second) of Torts, §402A, comment K.

Therefore, eliminating strict liability for third-generation injuries has only a minor practical effect in the DES litigation. It appears the only way plaintiffs get to a strict-liability argument is if they can show that the manufacturers (fid not reasonably test for efficacy. If the product did not work to preserve pregnancies, then the protection of comment K may not be available for the manufacturers. However, if the manufacturers were negligent in not properly testing for efficacy, they probably also were negligent in not testing for safety, so there is no need for plaintiffs to rely on section 402A of the Restatement. The elimination of strict liability for third-generation injuries would only make a difference if the manufacturers were negligent iii not reasonably testing for efficacy but not negligent in testing for safety. Then, absent this ruling, there could be recovery under section 402A but not under negligence.

It is recognized that, to some extent, the rules laid down in this case are not derived from legal theory as much as from the factual situation of the litigation and a determination of public policy. However, this is the way the common law has evolved. Courts have always recognized that imposing legal liability on a party must end at some point. That end point is usually determined by considering common-law principles in light of social policy concerns. Although throughout history “public policy” changes as the public alters its expectations of acceptable behavior, the key legal inquiries consistently have been proximity — closeness in time and place — and foreseeability. (See Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928).)

There is always a balancing test.. For example, if a manufacturer makes millions of automobile tires, it is foreseeable that one of those tires might explode causing injury, even if all care was taken. Although the manufacturer could not anticipate which tire would explode, they could anticipate that some tire could explode. Therefore, it does not seem unjust to ask the manufacturers to bear the risk rather than the injured party.

It could be assumed that giving drugs to a mother to prevent a miscarriage could result in some injury to the offspring, so it does not shock the conscience to impose liability for injury to the child. However, absent some other factor, there is nothing inherent in administering a drug to prevent miscarriages that gives any indication of a risk to later grandchildren. That is so remote that it should not be considered foreseeable, certainly for imposing strict liability.

While the determination of what is and what is not proximate and what is or is not foreseeable of necessity is somewhat arbitrary, establishing a cutoff as a matter of public policy is familiar to Pennsylvania law.

In Pennsylvania, cases which involve the “zone of danger” concept illustrate both how law evolves as society’s perceptions change and the unchanging, continuing importance of the foreseeability principle in tort law. These cases typically involve claims for negligent infliction of emotional distress by parents or other close relatives who witness a child or loved one’s death.

Initially, Pennsylvania denied recovery for damages in tort resulting from emotional injuries unless the distress was accompanied by physical impact. Knaub v. Gotwalt, 422 Pa. 267, 220 A.2d 646 (1966).

In 1970 the court abandoned the “impact rule” and adopted the “zone of danger” theory, allowing recovery for emotional injury to someone “in the zone of danger” when a close relative was struck. Neiderman v. Brosky, 436 Pa. 401, 403, 261 A.2d 84, 85 (1970). The court then expanded the zone of danger theory to include recovery for psychological damages where a mother witnessed her son’s accident although beyond the zone of danger. Sinn v. Burd, 486 Pa. 146, 404 A.2d 672 (1979). “We are . . . satisfied that by the proper application of the tort concept of foreseeability the area of liability may be reasonably circumscribed.” Sinn v. Burd, 486 Pa. at 173, 404 A.2d at 686.

In Yandrich v. Radic, 495 Pa. 243, 433 A.2d 459 (1981) an equally divided court affirmed the Superior Court position denying recovery for a father who first arrived at the accident scene after his son had been taken to the hospital. The father was allegedly so depressed after being with his son at the hospital in the five days before the son died that he committed suicide. Justice Wilkinson, joined by Justice Roberts, acknowledged that the trauma of a parent who hears of his or her child’s accident is no less than one who witnesses the event, and the distinction being made was artificial. He noted that the relief, if granted, would result in greatly expanded liability, and specifically declined to abandon wholesale the zone of danger concept, saying, “We are unwilling to . . . enter a realm of uncertainty with no workable guidelines for recovery.” Yandrich v. Radic, 495 Pa. at 248, 433 A.2d at 461. Justice (now Chief Justice) Nix reached the same result following “the long-standing tradition of denial of recovery for grief.” Yandrich v. Radic, 495 Pa. at 251, 433 A.2d at 463.

Chief Justice Nix was in the majority in Massagatti v. Everingham by Everingham, 512 Pa. 265. 516 A.2d 672 (1986). In that casé, recovery was denied for a mother who arrived at the scene of an accident and observed her daughter injured in the street.

As was noted, there is a special rule dealing with new pharmaceutical products. Comment K of section 402A of the Restatement of Torts points out that because of the desire to bring new products to the market that could save lives, one does not want to place such an onerous burden on manufacturers that research will be discouraged. Therefore, especially in the situation involving drugs, it is not unusual for the law to use practical considerations to place limits on imposing strict liability.

CONCLUSION

At some point, public policy mandates that a risk must be considered too remote, and even if someone is injured by a tort-feasor, the court will not allow recovery. Of necessity, the dividing line is sometimes arbitrarily and not logically drawn. However, as Justice Oliver Wendell Holmes wrote in The Common Law, “The life of the law has been experience, not logic.” Likewise, in his famous dissent in Palsgraf, supra, Justice Andrews wrote: “[Sometimes] because of convenience, of public policy [and] a rough sense of justice, the law arbitrarily declines to trace a series of events beyond a certain point. This is not logic. It is practical politics.” Quoted in Sinn v. Burd, 486 Pa. at 166, 404 A.2d at 682.

Common sense must therefore be applied to difficult cases. As Justice Andrews wrote in Palsgraf, supra, “There is in truth little to guide us other than common sense.” In this situation, the most reasonable way to approach the problem is to allow recovery for the third generation if the manufacturer negligently failed to learn of genital-tract injuries to the second generation; but to deny recovery if all that should have been discovered were general injuries to the second generation; and to deny recovery for third-generation injuries on a strict liability theory.

ORDER

Defendants’ motion for summary judgment is granted in part and denied in part.

The motion for summary judgment is denied, and recovery will be allowed if plaintiff can show:

(1) The manufacturer acted negligently in placing the product on the market without sufficiently testing for efficacy and risk; and

(2) The manufacturer knew or should have known that there would be a risk of injury to the reproductive system of the second generation. Knowledge of the risk of injury to the reproductive system of the second generation creates a foreseeable risk of deformities in the third generation.

The motion for summary judgment is granted as to some of the counts as follows:

(1) Strict liability will not apply to a third-generation injury. Because of the remoteness and lack of foreseeability of an injury to the third generation, under a balancing test, it is unfair to place such a burden on a manufacturer that is free from fault.

(2) For plaintiff to recover from a third-generation injury under a negligence theory, he or she must show more than that there was a risk of general injury to the second generation. Plaintiff must also show that defendants should have known of the specific risk of third-generation injury because of evidence of risk of injury to the reproductive system of the second-generation child.


author:
SCHILLER, Member,
     MUNDY, Chairman

text:
    In re Anonymous No. 93 D.B. 87
    December 13, 1989
    Disciplinary Board Docket no. 93 D.B. 87
   SCHILLER, Member,

On November 7, 1985, the Office of Disciplinary Counsel sent respondent, [ ], a DB-7 letter concerning possible Disciplinary Rule violations respondent may have committed in the course of his representation of [A], On December 2, 1985, respondent replied to petitioner’s letter and denied any Disciplinary Rule violations.

On December 16, 1987, the Office of Disciplinary Counsel filed a petition for discipline charging respondent with various Disciplinary Rule violations in the course of his representation of complainant [A]. Respondent filed an answer to the petition for discipline on January 5, 1989. In his answer, respondent denied any Disciplinary Rule violations. Respondent also filed various motions to dismiss which were dismissed without prejudice by order dated April 22, 1989.

On May 3, 1989, oral argument was heard before Hearing Committee [ ], consisting of chairperson [ ], Esq., and members [ ], Esq. and [ ], Esq. On August 28, 1989, the hearing committee filed its report. The committee recommended dismissal of the charges against respondent and granted respondent’s motion to dismiss the charges against him.

On September 18, 1989, petitioner filed a brief in sfipport of exceptions to the report of Hearing Committee [ ]. On October 5, 1989, respondent filed a brief in opposition to petitioner’s exceptions.

Pursuant to Disciplinary Board Rule 89.201(b), oral argument was heard before a three-member review panel of the Disciplinary Board. At its October 24, 1989 board meeting, the immediate matter was adjudicated and the charges against respondent were dismissed.

FINDINGS OF FACT

(1) The immediate matter stems from respondent’s 1983 to 1984 representation of [A] in a criminal matter.

(2) Respondent has been a criminal defense attorney in the [ ] area since 1970.

(3) [A] had been charged with involuntary manslaughter and homicide by vehicle as a result of a July 20, 1983 motor vehicle accident.

(4) On September 29 or 30, 1983, respondent was retained by [A] to represent him in the aforementioned matter.

(5) Respondent arranged for [A’s] surrender to the proper authorities on October 3, 1983.

(6) Respondent made handwritten notes at his initial meeting with [A] and supplemented these writings with information garnered at subsequent meetings.

(7) During respondent’s initial meeting with [A], he learned that [A] has been placed on accelerated rehabilitative disposition as the result of a 1982 assault conviction.

(8) In the course of his representation of [A], respondent represented to the court that [A’s] only past conviction was the 1982 assault conviction.

(9) In 1975, [A] was convicted in the North Carolina United States District Court of armed robbery on a military reservation in North Carolina, in violation of U.S.C. §2111. [A] was sentenced to eight years of incarceration in a federal prison for this offense.

(10) In September 1980, [A] was paroled.

(11) On July 20, 1983, through November 8, 1984, [A] received federal supervision as part of his parole status.

(12) Beginning August 30, 1983, [A] was under the supervision of [B], a U.S. Parole Officer in the [ ] U.S. Parole Office.

(13) On November 21, 1983, respondent appeared before the Honorable [C] of the Municipal . Court of the [ ] Court of Common Pleas with and on behalf of [A]. Respondent entered a plea of guilty on behalf of [A] to two counts of homicide by vehicle at this appearance.

(14) The court had before it at this time a pre-sentence investigation of [A], dated November 17, 1983, which indicated that [A’s] 1982 assault and resisting arrest conviction (and subsequent ARD) were his only prior criminal offenses. .

(15) A pre-sentence investigation of [A] was conducted on or about December 2, 1983, at which time [A] received a prior record score of zero based upon his 1982 conviction.

(16) On December 6, 1983, Judge [C] sentenced [A] to two and one-half to five years in the state correctional institution, sentence suspended, and two years non-reporting probation, in compliance with established sentencing guidelines.

(17) On December 9, 1983, the assistant district attorney, who had not been present at [A’s] December 6, 1983 sentencing, filed a petition to reconsider sentence in light of newly discovered evidence of respondent’s 1975 conviction.

(18) Judge [C] entered a rule to show cause and order to vacate on December 9, 1983.

(19) On February 2, 1984, a hearing on the petition to reconsider sentence was held before Judge [C]. Respondent appeared on [A’s] behalf at this hearing.

(20) Respondent met probation officer [B] for the first time at the February 2, 1984 hearing. Respondent had, however, spoken with [B] earlier on the telephone concerning [A], whom he believed to be under federal supervision because of his status as a wounded Vietnam War veteran.

(21) [A] received a sentence of two to four years in the [ ] Correctional Facility, five years of non-reporting probation, and lifetime suspension of his driving privileges at the February 2, 1984 hearing. The court indicated that the stiffer new sentence was the result of its newfound knowledge of [A’s] 1975 conviction.

(22) [A] subsequently discharged respondent as his counsel in this matter, and retained the services of [D] on February 6, 1984.

(23) On February 9, 1984, [D] filed a petition to modify sentence and a petition to withdraw guilty plea on [A’s] behalf.

(24) A hearing was held on [A’s] petitions before Judge [C] on April 18, 1984.

(25) Respondent testified under oath before Judge [C].at the April 18, 1984 hearing that he had no knowledge of [A’s] 1975 conviction until the District Attorney’s Office filed its petition to reconsider sentence. [A] testified at the hearing that respondent did in fact have knowledge of the 1975 conviction but advised [A] to withhold such information from the court.

(26) [A’s] petition to withdraw guilty plea was denied and his sentence was reinstated at the April 18, 1984 hearing.

(27) [A] timely appealed Judge [C’s] sentencing and order of April 18, 1984. The Honorable [E] of the Court of Common Pleas of [ ] affirmed the conviction, denied [A’s] petition to withdraw guilty plea, and remanded the case to the municipal court for sentencing because lifetime suspensions of one’s driving privileges is outside the scope of that court’s jurisdiction.

(28) A timely appeal of Judge [E’s] order was taken to the Superior Court on March 4, 1985.

(29) [A] then withdrew his appeal, although it was reinstated by his counsel and upheld on appeal. The Superior Court’s opinion specifically addressed the issue of whether respondent had knowledge of [A’s] 1975 conviction at the time he advised [A] to enter his guilty plea. The court resolved this issue of credibility in favor of respondent, finding he was unaware of [A’s] 1975 conviction. The Pennsylvania Supreme Court denied review of [A’s] sentence.

(30) [A] was resentenced in accordance with the sentencing guidelines and served the term of,his sentence. He was subsequently remanded to federal custody and is serving the balance of his federal conviction for armed robbery.

The Office of Disciplinary Counsel’s petition for discipline charged that, in the course of his representation of [ ], respondent violated the following Disciplinary Rules:

(a) D.R. 1-102(A)(4) — which prohibits an attorney’s engagement in dishonest, fraudulent, or deceitful conduct or misrepresentation;

(b) D.R. 1-102(A)(5) — which prohibits an attorney from engaging in conduct which is prejudicial to the administration of justice;

(c) D.R. 1-102(A)(6) — which prohibits an attorney’s participation in conduct adversely reflecting on one’s fitness to practice law;

(d) D.R. 7-102(A)(3) — which prohibits an attorney from concealing or knowingly failing to disclose that which he is required by law to reveal;

(e) D.R. 7-102(A)(4) — which prohibits an attorney’s knowing use of perjured testimony or false evidence;

(f) D.R. 7-102(A)(5) — which prohibits an attorney from knowingly making a false statement of law or fact in the course of his representation of a client.

(g) D.R. 7-102(A)(6) — which prohibits an attorney’s participation in the creation or preservation of evidence the attorney knows, or should know, is false; and

(h) D.R. 7-102(A)(7) — which prohibits an attorney from counseling or assisting the client in conduct known by the attorney to be illegal or fraudulent.

CONCLUSIONS OF LAW

(1) Petitioner is empowered by rule 207 of the Pennsylvania Rules of Disciplinary Enforcement to investigate alleged attorney misconduct of attorneys licensed to practice law in Pennsylvania. Petitioner has the power and the duty to prosecute those attorneys whose conduct violates Pennsylvania Disciplinary Rules.

(2) Respondent is an attorney who was bom in 1939 and admitted to practice law in Pennsylvania in 1966.

DISCUSSION

The gravamen of petitioner’s complaint is that respondent, in the course of his representation of [A], counseled and assisted his client in misrepresentation of [A’s] criminal history to the court. Petitioner further avers that respondent perpetuated this misrepresentation of [A’s] criminal history by lying under oath while testifying at [A’s] April 18, 1984 resentencing hearing.

The issue before the board is whether respondent engaged in misrepresentations of [A’s] past conviction record in the course of his representation of [A], and subsequently while testifying before Judge [C]. We must determine whether we should re-examine respondent’s conduct in the course of his representation of [A] or defer to our state court’s exhaustive findings on respondent’s credibility in this matter.

This unique factual situation presents a case of first impression for the Disciplinary Board. However, the instant case is not without analogy. In the case of Alberici v. Tinari, 374 Pa. Super. 20, 542 A.2d 127 (1988), the Pennsylvania Superior Court held that an unsuccessful ineffective assistance of counsel claim bars a subsequent malpractice case against the same attorney.

In the instant matter, petitioner wishes to reopen the question of whether respondent was aware of his client’s entire criminal history at the time he represented to the court that his client had a limited conviction record. The question of respondent’s knowledge of [A’s] criminal background has already been litigated extensively in the state courts.

[A] first raised the issue at his April 18, 1984 hearing before Judge [C], at which time he charged that he had entered his guilty plea in accordance with respondent’s advice in light of his past criminal record. Judge [C] found in respondent’s favor, deciding that respondent had no knowledge of [A’s] 1975 conviction before evidence of the conviction was procured by the District Attorney’s Office in December 1983. This ruling was upheld by Court of Common Pleas of [ ] Judge [E].

Respondent’s lack of knowledge about [A’s] entire criminal record was reiterated by the Superior Court: “trial court found as fact that trial counsel did not tell appellant to lie; in fact, trial counsel did not know about the prior conviction.” The Pennsylvania Supreme Court subsequently refused to hear [A’s] appeal on his petitions.

Now petitioner requests that the Disciplinary Board reconsider whether respondent knowingly misstated his client’s conviction record to a court of law. Although the instant matter is not a civil lawsuit, the overriding considerations are the same as those faced by the Alberici court. The board has as its purpose the enforcement of the Disciplinary Rules which govern attorney conduct in the Commonwealth of Pennsylvania. The board has a duty to enforce these rules and prosecute those who violate them. However, the board also bears the responsibility of taking notice of prior court proceedings involving the identical issue and the same attorney. Judicial economy and a need for continuity within our state legal system are crucial.

The court in Alberici declined to relitigate the same issues between the same parties as a civil lawsuit when the issues had already been determined under the stricter criminal court standards. In the instant matter, the question of when respondent became aware of [A’s] conviction record has already been litigated at several levels of the state court system and decided in respondent’s favor. At all prior proceedings involving this question, complainant [A] received the protection accorded a convicted criminal. We should bow to the extensive fact-finding, within the context of a criminal appeal, of our state courts on this issue.

Therefore, because petitioner has failed to present any evidence that the Office of Disciplinary Counsel’s case differs materially from the claims extensively exhausted by [A] we conclude that respondent’s conduct was not in violation of any Disciplinary Rules.

DETERMINATION

The Disciplinary Board of the Supreme Court of Pennsylvania determined that the charges against respondent be dismissed.

Mr. Keller and Dr. Gilbert did not participate in the adjudication.

ORDER

MUNDY, Chairman

And now, December 13, 1989, upon consideration of the report and recommendation of Hearing Committee [ ] filed August 28, 1989; it is hereby ordered that the charges filed against [respondent], docketed at No. 93 D.B. 87, be dismissed.