author: KELLER, P.J.,

text:
    Commonwealth v. Morales

      C.P. of Berks County,
    no. 1289/97.

      Steven L. Chung, assistant district attorney, for Commonwealth.

      Kristin E. Jaquis, assistant public defender, for defendant.
    December 9, 1998
   KELLER, P.J.,

On October 22, 1997, the defendant, Jorge Morales, was found guilty by a jury of one count of rape, one count of statutory sexual assault, three counts of indecent assault, and one count of corruption of minors. Pursuant to 42 Pa.C.S. §9794(a) (Megan’s Law), on April 8, 1998, this court ordered an assessment to be performed by the Commonwealth Sexual Assessment Board.

On June 9, 1998, the defendant filed a motion for extraordinary relief challenging the constitutionality of the “sexually violent predator” provisions of Pennsylvania’s Megan’s Law and to bar a second prosecution. On June 16, 1998, this court denied the motion for extraordinary relief and conducted a hearing to determine whether the defendant was a sexually violent predator. This court received and took note of the statutorily mandated assessor reports. After reviewing reports offered by the two state board assessors, this court found the defendant failed to prove, by clear and convincing evidence, that he was not a sexually violent predator. Accordingly, this court sentenced the defendant to a period of incarceration of seven years to life on count one, rape and six months to 24 months on count nine, corruption of minors. Thereafter, the defendant was advised of his duties to register under the relevant provisions of Megan’s Law and he acknowledged the same in writing. (N.T. 6/16/98 pp. 12-13.)

A timely appeal was filed by the defendant to the Superior Court of Pennsylvania on July 8, 1998. Subsequently, this court requested a concise statement of matters complained of on appeal. This concise statement was filed on August 3, 1998. In that first concise statement, defendant raised two issues concerning, first, defendant’s status as a sexually violent predator, and second, the constitutionality of Pennsylvania’s Megan’s Law. Both these issues were addressed in this court’s memorandum opinion of August 6,1998. Subsequently, on August 31, 1998, upon motion of the defendant, this court allowed the public defender to file an amended concise statement of matters complained of on appeal. In this second concise statement, the defendant raises two additional issues:

“(1) The Commonwealth did not provide sufficient evidence to meet its burden of proving beyond a reasonable doubt the charges of rape, statutory sexual assault, indecent assault and corruption of minors.
“(2) The sentencing court did not provide adequate reasons on the record for deviating from the sentencing guidelines and in imposing a sentence that is manifestly excessive.”

This opinion is written pursuant to Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure and for the following reasons, we request that defendant’s appeal be denied; however, this court requests that the defendant be remanded for resentencing in light of a recent Superior Court decision.

SUFFICIENCY OF THE EVIDENCE

In defendant’s first allegation of error, he contends that the evidence was insufficient to support a verdict of guilty. We disagree.

With respect to the sufficiency of the evidence, to sustain a conviction, the standard of review is as follows:

“In reviewing a challenge to the sufficiency of the evidence, we must determine whether, viewing all the evidence admitted at trial, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth, the trier of fact could have found that each element of the offense [ ] charged was supported by evidence and inferences sufficient in law to prove guilt beyond a reasonable doubt. . . . This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. . . . Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact-finder is free to believe all, part, or none of the evidence____The facts and circumstances established by the Commonwealth need not be absolutely incompatible with the defendant’s innocence, but the question of any doubt is for the jury unless the evidence be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances.” Commonwealth v. Sanders, 426 Pa. Super. 362, 367, 627 A.2d 183, 185 (1993) (citations omitted); see Commonwealth v. Hodge, 441 Pa. Super. 653, 656-57, 658 A.2d 386, 387-88 (1995).

The testimony of the victim alone is sufficient to sustain a rape conviction. Commonwealth v. Pride, 252 Pa. Super. 34, 380 A.2d 1267 (1977). In order for there to be sufficient evidence for the charge of rape, the Commonwealth must prove that the defendant engaged in sexual intercourse, with the complainant, by force or compulsion. “Forcible compulsion is an act, including physical force as well as moral, psychological or intellectual force, used to compel a person to engage in sexual intercourse against that person’s will. . . . Moreover, the degree of that force is relative and depends on the totality of the facts and circumstances of the particular case. . . . The victim need not resist a person trying to force sexual intercourse against her will.” Commonwealth v. Riley, 434 Pa. Super 414, 417, 643 A.2d 1090, 1091 (1994) (citing Commonwealth v. Rhodes, 510 Pa. 537, 510 A.2d 1217 (1986)). (citations omitted) Furthermore, when determining whether moral, psychological or intellectual force exists, a court should consider the following factors: “the respective ages of the victim and the accused, the respective mental and physical conditions of the victim and the accused, the atmosphere and physical setting in which the incident was alleged to have taken place, the extent to which the accused may have been in a position of authority, domination or custodial control over the victim, and whether the victim was under duress.” Rhodes, supra at 556, 510 A.2d at 1227.

To prove the crime of statutory sexual assault, the Commonwealth must prove beyond a reasonable doubt, that the defendant engaged in sexual intercourse with a complainant under the age of 16 years and that the defendant is four or more years older than the complainant and the complainant and the defendant are not married to each other. 18 Pa.C.S. §3122.1. To prove the crime of indecent assault, the Commonwealth must prove all the elements provided for in 18 Pa.C.S. §3126. In pertinent part the statute provides that:

“(a) Offense defined. — A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if:
“(8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.” 18 Pa.C.S. §3126.

Indecent contact requires the touching of the intimate parts of another without her consent for the purpose of gratifying sexual desire in either person. Commonwealth v. Grayson, 379 Pa. Super. 55, 549 A.2d 593 (1988). And finally, corruption of minors is statutorily defined as:

“(a) Offense defined.—
“(1) Whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, . . ., commits a misdemeanor of the first degree.” 18 Pa.C.S. §6301.

Furthermore, to decide what conduct can corrupt the morals of a minor, the court should apply, “the common sense of the community, as well as the sense of decency, propriety and the morality which most people entertain is sufficient to apply the statute to each particular case, and to individuate what particular conduct is rendered criminal by it.” Commonwealth v. Decker, 698 A.2d 99 (Pa. Super. 1997) (quoting Commonwealth v. Randall, 183 Pa. Super. 603, 133 A.2d 276 (1957), cert. denied, 355 U.S. 954, 78 S.Ct. 539, 2 L.Ed.2d 530 (1958)).

Instantly, the testimony at trial established that:

On March 13, 1997, the victim, T.G., was 14 years old and living at 333 Washington Street, Reading, Berks County, Pennsylvania. She was living there with her boyfriend, John Colon a.k.a. Harry, and Harry’s cousin Jose Colon a.k.a. Cheno. The defendant was a friend of Harry’s and through that friendship had daily contact with the victim. From that contact, the defendant knew the fact that the victim was 14 on the day of this incident. (N.T. 10/21/97 p. 9.)

At approximately 10 p.m. on March 13, 1997, T.G. was alone in the apartment when the defendant arrived, ostensibly to talk with Harry. After T.G. informed the defendant that Harry was not at home, he decided to stay and talk with her. Eventually, the defendant and T.G. had a conversation about Harry’s infidelity with another girl about a week before. This conversation took place in the living room of the apartment. At that point in the conversation, the defendant told T.G. that he could, “find somebody to get him (Harry) back.” T.G. declined the defendant’s offer. (N.T. 10/21/97 p. 18.) At one point T.G. had to go to the bedroom to shut off the television. After she turned off the television, she continued through the bedroom into the kitchen before attempting to return to the defendant in the living room. As she was returning to the living room, she was intercepted by the defendant in the bedroom. When the defendant got close to her, he blew in her face. (N.T. 10/21/97 p. 20.) The victim ignored it, at first, and tried to push her way passed the defendant, but as both T.G. and the defendant were in the doorway separating the bedroom from the living room, the defendant stopped and “just started kissing (her) and putting his hands up (her) shirt.” (N.T. 10/21/97 pp. 22-23.) The victim testified that the defendant was putting his hands all over her; specifically she testified that his hands were on, “my breasts, my stomach, my hips, my waist.” (N.T. 10/21/97 p. 23.) She tried to push his hands away, but his hands were “like springs” and as she would push them away, he would bring them right back. (N.T. 10/21/97 pp. 24-25.) T.G. testified that she did not want this to happen and that she repeatedly told the defendant to “stop” and “don’t do this.” (N.T. 10/21/97 p. 25.)

Eventually there was a knock on the door and the defendant stopped his attack on the victim. As T.G. went to open the front door, the defendant retreated to the area of the bedroom or kitchen. T.G. unlocked the door and had a short conversation with the person at the door. As the conversation concluded the man at the door ran up the stairs to the third floor, and unexpectedly, T.G. saw the defendant on the stairs leading up to the landing leading to the front door of the apartment. She testified that she did not tell the visitor about the defendant’s attack on her because she thought “he (visitor) knew him (defendant) and wouldn’t believe (her).” (N.T. 10/21/97 p. 33.) Additionally, she thought the defendant was still in the bedroom or kitchen because she never heard the door from the kitchen to the fire escape open. (N.T. 10/21/97 p. 34.) The defendant again came into the apartment. Almost immediately the defendant continued his attack on T.G. Eventually, he tells her to lay down; which she refuses to do. The defendant then got on his knees in front of her. As he kisses her stomach, he begins to pull down her pants and underwear. (N.T. 10/21/97 p. 37.) She tries unsuccessfully to pull them up. The defendant, however, got back up on his feet and moved himself behind the victim and “told (her) to bend down.” (N.T. 10/21/97 p. 39.) She tried to resist, but the defendant had his hands on her back and was forcing her to bend over. While the defendant has his hand on her back, she is resisting, crying, and telling him to stop, and at some point she could feel his penis enter her vagina. (N.T. 10/21/97 pp. 40-41.) This went on for 10 to 15 minutes, and after it was over, the defendant left.

Additionally, Criminal Investigator Thomas Yeich, testified that he took a statement from the defendant on March 19, 1998, only six days after the attack took place. At the time of the statement the defendant indicated that he was 31 years old. (N.T. 10/21/97 p. 89.)

Based on the aforementioned evidence, as testified to at trial, the evidence is clearly sufficient to sustain verdicts for rape, statutory sexual assault, indecent assault, and corruption of minors. Therefore, it is the opinion of this court that the Commonwealth met its burden and proved each of the elements beyond a reasonable doubt. Accordingly, this claim should be denied.

DEVIATION FROM SENTENCING GUIDELINES AND EXCESSIVE SENTENCE

The final issue raised by the defendant and addressed in this opinion is whether this court provided adequate reasons, on the record, for deviating from the sentencing guidelines and in imposing a sentence that is manifestly excessive. While this court disagrees with the defendant’s allegations of error, this court would request that the defendant be remanded for resentencing, based on the constitutional status of Pennsylvania’s Megan’s Law.

Initially, a court must determine whether the defendant has raised a substantial question justifying review of the discretionary aspects of his sentence. Commonwealth v. Wagner, 702 A.2d 1084 (Pa. Super. 1997). A substantial question exists where the defendant advances a colorable argument that the trial judge’s actions were inconsistent with a specific provision of the Sentencing Code, or contrary to the fundamental norms underlying the sentencing process. Id. A claim of ex-cessiveness of sentence does not raise a substantial question where the sentence imposed is within the statutory limits. However, a claim that the sentencing court did not adequately explain its reasons for sentencing outside the statutory guidelines does raise a substantial question. Id. Furthermore, sentencing is a matter vested within the sound discretion of the sentencing judge, and a sentence will not be disturbed absent a manifest abuse of that discretion. Commonwealth v. Johnson, 446 Pa. Super. 192, 666 A.2d 690 (1995). At sentencing, a judge may consider any legal factor in deciding whether a defendant should be sentenced within the aggravated range and, for the sentence to be adequate, the sentencing judge’s reasons must reflect this consideration and, finally, the decision regarding the aggravation will not be disturbed absent a manifest abuse of that discretion. Commonwealth v. Prestidge, 372 Pa. Super. 282, 539 A.2d 439 (1988).

Instantly, this court is of the opinion that the defendant’s claim of excessiveness does not raise a substantial question, as the seven-year minimum sentence imposed is within the statutory limits for a conviction for rape. Furthermore, the seven-year minimum sentence is within the aggravated range of the sentencing guidelines; therefore, that aspect of the sentence does not raise a substantial question.

Moreover, on June 16, 1998, this court held a sentencing hearing pursuant to the guidelines set forth under Pennsylvania’s Megan’s Law. The Commonwealth introduced the two statutorily mandated assessor reports. This court found that the defendant had failed to rebut the presumption that he is a sexually violent predator, as defined in 42 Pa.C.S. §9792. After determination that the defendant was a sexually violent predator, this court determined that the defendant would be sentenced on counts one and nine, rape and corruption of minors. In consideration of the defendant’s sentence, this court reflected:

“The Court: Very well.
“Defendant does have a prior record score. He has a prior record score of two — I’m sorry, three.
“With regard to the rape, the standard range is 54 to 72, mitigated is 42, aggravated is 84.
“And the corruption of minors, I don’t have a guideline for that. Someone’s going to have to help me out there. It’s under the old guideline form.
“Mr. Sweitzer: Your honor, the O.G.S. would be a five. In this case, the prior record score would be a zero. Therefore, the standard range would be R.S. to six. The aggravated range would be up to nine months.”

Additionally, prior to handing down the sentence this court stated the following:

“The Court: The court believes that total confinement is necessary in this case. We believe that based on the defendant’s prior record for criminal activity, there’s an undue risk that he would commit another crime based on his record.
“A lesser sentence would depreciate the seriousness of the crime of the defendant.
“He’s in need of correctional rehabilitation that can be most effectively provided by institutional supervision in a state correctional facility.
“We also believe that an aggravated-range sentence is required here, primarily due to the age of the victim and the age of the defendant. The age of 14 years is still relatively young girl, and the defendant is in his 30s. So that there is a great disparity in age between the two individuals here. For that reason, basically, we believe an aggravated-range sentence is required.
“We will commit him for a period of not less than seven years nor more than 15 years to the Bureau of Corrections for confinement in a state — no. I’m sorry. Nor more than life imprisonment. I forgot about Megan’s Law. Seven years to life imprisonment, Bureau of Corrections, for confinement in a state correctional facility, effective this date, credit for time served, costs, $100 fine. . . .
“The Court: ... At count nine, corruption of minors, we will commit him for a period of not less than six months nor more than 24 months to the Bureau of Corrections. That would be effective this date and will run concurrently with the sentence we just imposed on count one, costs, $100 fine.”

Accordingly, it is the opinion of this court that the reasons provided to the defendant for his sentence were proper and adequate and the sentence handed down to the defendant was not manifestly excessive. However, it is also the opinion of this court that the defendant should be remanded back to this court for resentencing.

Recently, the Pennsylvania Superior Court addressed the issue of whether Megan’s Law improperly places the burden of persuasion on a defendant in violation of federal procedural due process. The Superior Court concluded “that the due process clause of the federal constitution is violated by the provisions of the Act which requires the offender to rebut a presumption and which do not impose upon the prosecution the burden of persuasion by clear and convincing evidence. As a consequence, [the court struck] as unconstitutional section 9794 of title 42 and all remaining sections of the Act which refer to the designation of a ‘sexually violent predator.’ ” Commonwealth v. Halye, 719 A.2d 763, 769 (Pa. Super. 1998).

Therefore, although this court does not find any validity in defendant’s allegations of error, this court feels that pursuant to the ruling of the Superior Court, the defendant’s case should be remanded for resentencing in accordance with the ruling of the Superior Court.

      . Specifically, the defendant was found guilty of 18 Pa.C.S. §3121(1), 18 Pa.C.S. §3122.1, 18 Pa.C.S. §3126(a)(l), 18 Pa.C.S. §3126(a)(2), 18Pa.C.S. §3126(a)(8),18 Pa.C.S. §6301(a) respectively. Counts two and eight, rape, 18 Pa.C.S. §3121(2) and indecent exposure, 18 Pa.C.S. §3127 were dismissed.

      . 42 Pa.C.S. §9794(a).

      . 42 Pa.C.S. §9794(c).

      . A sexually violent predator is defined in 42 Pa.C.S. §9792 as: A person who has been convicted of a sexually violent offense as set forth in section 9793(b) (relating to registration of certain offenders for 10 years) and who is determined to be a sexually violent predator under section 9794(e) (relating to designation of sexually violent predators) due to a mental abnormality or personality disorder that makes the person likely to engage in predatory sexually violent offenses.

      . 42 Pa.C.S. §9799.4(b), (c).

      . 42 Pa.C.S. §9795(b).

      . 18 Pa.C.S. §3121.

      . 42 Pa.C.S. §9781. Appellate review of sentence
      “(b) Allowance of appeal. — The defendant or the Commonwealth may file a petition for allowance of appeal of the discretionary aspects of a sentence for a felony or a misdemeanor to the appellate court that has initial jurisdiction for such appeals. Allowance of appeal may be granted at the discretion of the appellate court where it appears that there is a substantial question that the sentence imposed is not appropriate under this chapter.” (emphasis added by author)

      . 42 Pa.C.S. §9794(c).


source: Caselaw Access Project

author: ALLISON, J.,

license: Public Domain

text:
    Cassell v. Mount Joy Mennonite Church

      C.P. of Lancaster County,
    no. 3824 of 1992.

      Maryfrances Cassell, pro se, plaintiff.

      Vivian B. Narehood, for defendants.
    April 9, 1998
   ALLISON, J.,

This matter is before the court on defendants’ motion for summary judgment, for the reasons set forth below, defendants’ motion is granted.

The facts giving rise to this cause of action are as follows: plaintiff Maryfrances Cassell, a member of the Christian Science faith, moved to the Mount Joy area in 1948. At that time, plaintiff was a professional musician; she later became a public accountant and a real estate broker. In approximately 1962, plaintiff met defendants Florence Miller and Martha Ebersole, who invited plaintiff to attend a service at the Mount Joy Mennonite Church. While plaintiff accompanied these women to the church in order to learn about their religion, she remained a member of the Christian Science faith. Defendant Miller introduced plaintiff to Arlene Miller, her sister, who was a piano teacher. Eventually, Ms. Miller and plaintiff decided to establish a studio where they could collaborate as piano teacher and artistic director, respectively. However, Ms. Miller’s family discouraged this intended collaboration, and hostility developed. Despite the family’s resistance, the ministry team at the church persuaded plaintiff to resume the plan of establishing a professional relationship with Ms. Miller in approximately 1964. This decision resulted in a significant misunderstanding between the ministry team and the Miller family. Throughout the duration of this professional relationship, a hostile faction in the church was encouraging Ms. Miller to disband the professional relationship with plaintiff and sought to cut off communication between them. The relationship ultimately ended in 1980, and numerous lawsuits followed.

Defendant Ervin Stutzman became minister of the church in 1983. On August 18, 1991, the church held a regular Sunday morning service. The service included a scripture reading and a sermon delivered by defendant Stutzman, which dealt with how any person, and particularly church leaders, may be drawn into patterns of misunderstanding or wrongdoing through the pull of temptation and human weakness. Plaintiff was not mentioned or referenced in the scripture and sermon portions of the service. Following the sermon, there was a time of open sharing. Defendant Stutzman referenced the past relationship between plaintiff and Ms. Miller, acknowledged that the church ministry team betrayed the Miller family and others, and stated that they had tried to make right any wrongs that were committed against plaintiff, who had also felt betrayed. When the congregation was given an opportunity to respond, Ms. Miller, defendant Robert Garber and defendant Florence Miller spoke on this topic.

Plaintiff filed a praecipe for writ of summons on August 17, 1992 against the above-named defendants. On October 10, 1995, plaintiff filed a complaint which alleged that defendants slandered her during the August 18,1991 church service. Plaintiff then filed an amended complaint on December 6, 1996, which added a breach of contract claim. Defendants filed the instant motion for summary judgment on August 8, 1997. The court heard oral argument on the motion on January 27,1998.

The standard used in reviewing a motion for summary judgment is well established:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pa.R.C.P. 1035.2 (1996).

Furthermore, summary judgment is proper “where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits on file support the court’s conclusion no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law.” Goldberg v. Delta Tau Delta, 418 Pa. Super. 207, 211, 613 A.2d 1250, 1252 (1992). The record is reviewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, 98-99, 674 A.2d 1038, 1041 (1996) (citing Pennsylvania State University v. County of Centre, 532 Pa. 142, 144-45, 615 A.2d 303, 304 (1992)).

Plaintiff’s amended complaint contains counts sounding in defamation and in breach of contract. In the defamation count, plaintiff alleges that defendant Stutzman, as an agent for the church and as the representative of the other defendants, engaged in a “prearranged combined utterance of untrue and defamatory statements . . . knowing the same to be false, to the general public.” Amended complaint, at paragraph 11. In an action for defamation, plaintiff has the burden of proving: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; (5) the understanding by the recipient of it as intended to be applied to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged occasion. 42 Pa.C.S. §8343(a) (West 1982). Whether challenged communications are capable of a defamatory meaning is a question of law which the court must determine in the first instance. Thomas Merton Center v. Rockwell International Corp., 497 Pa. 460, 464, 442 A.2d 213, 215 (1981). If the court determines that the challenged communication is not capable of a defamatory meaning, there is no basis on which to proceed to trial. Id. at 464-65, 442 A.2d at 215-16 (citing Restatement (Second) of Torts §614(1) (1977)).

Under Pennsylvania law, a communication is defamatory if it tends to deter third persons from associating with the subject of the communication or to harm the subject’s reputation by lowering the subject in the estimation of the community. Parano v. O’Connor, 433 Pa. Super. 570, 574, 641 A.2d 607, 609 (1994). Injury to reputation is judged by the reaction of other persons in the community; it is not judged by the party’s self-estimation. Rybas v. Wapner, 311 Pa. Super. 50, 56, 457 A.2d 108, 110 (1983). Rather, the court must consider “the effect the [communication] is fairly calculated to produce, the impression it would naturally engender, in the minds of the average persons among whom it is intended to circulate.” Dougherty v. Boyertown Times, 377 Pa. Super. 462, 472, 547 A.2d 778, 783 (1988).

In the instant case, plaintiff alleges that the essence of the statements made during the August 18, 1991 church service was that she had satanically manipulated all of the Mennonite ministers for the evil purpose of entrapping Ms. Miller in order to abuse her mentally, physically and financially. Amended complaint, at paragraph 13. Specifically, plaintiff alleges that the following defamatory statements were made: Christian Science is of the devil; plaintiff, a Christian Scientist, is therefore dangerous; plaintiff has sinister and ulterior motives and is not to be trusted; plaintiff is “unequally yoked,” the evil one to be “shunned” and ostracized; plaintiff had wrongly influenced Henry F. Garber to act unilaterally to allow her to lead Ms. Miller astray; plaintiff had satanically manipulated all of the Mennonite officials for an evil purpose; plaintiff had satanically manipulated and entrapped Ms. Miller; and plaintiff had caused Ms. Miller to sin. Id. at paragraph 15.

The court reviewed an official transcript of the church service which was prepared from an audiotape of the service. This review revealed that only statements regarding an “unequal yoke” and an apparent “manipulation” were made. First, defendant Stutzman stated:

“Now, we now understand that these two women [plaintiff and Ms. Miller] were unequally yoked together. Christian Science beliefs and our Mennonite Christian beliefs diverge at some significant points.” Transcript of service, page 13. The court finds that the average church member in attendance would not have found that this statement was made to disparage plaintiff; rather, as defendant Stutzman went on to explain, these two religions are simply grounded on different theologies. Second, the only mention of manipulation is Ms. Miller’s statement that: “[M]y determination to have my own way, the anxiety of my family and what appears to me as a manipulation of many by Maryfrances was a potent breeding ground for the unGodly confusion that was present.” Transcript of service, page 15. At most, this statement is an opinion given by Ms. Miller, who is not a defendant in the instant case. The court finds that neither of these statements would tend to harm plaintiff’s reputation by lowering her in the estimation of the community. See Parano, 433 Pa. Super. at 574, 641 A.2d at 609. Thus, neither of these statements is capable of a defamatory meaning.

The heart of plaintiff’s claim for defamation relies upon a theory of defamation by innuendo. The Supreme Court has stated: “[t]he purpose of an innuendo ... is to define the defamatory meaning which the plaintiff attaches to the words; to show how they come to have that meaning and how they relate to the plaintiff[.] But it cannot be used to introduce new matter, or to enlarge the natural meaning of the words, and thereby give to the language a construction which it will not bear[.] ... If the words are not susceptible of the meaning ascribed to them by the plaintiff and do not sustain the innuendo, the case should not be sent to a jury . . . .” Livingston v. Murray, 417 Pa. Super. 202, 214-15, 612 A.2d 443, 449 (1992) (quoting Sarkees v. Warner-West Corp., 349 Pa. 365, 368-69, 37 A.2d 544, 546 (1944)).

Alleged defamatory statements cannot be rendered slanderous “by an innuendo which puts an unfair and forced construction on the interpretation” of the communication. Thomas Merton Center, 497 Pa. at 467, 442 A.2d at 217 (quoting Sarkees, 349 Pa. at 369, 37 A.2d at 546). Rather, an innuendo must be warranted, justified and supported by the communication. Id. at 467 (citing Bogash v. Elkins, 405 Pa. 437, 176 A.2d 677 (1962)).

During the August 18, 1991 service, defendant Stutzman read the account of the serpent in the third chapter of Genesis and the story of the prodigal son. Plaintiff argues that there is a strong inference that defendants were actually calling her the “serpent,” as there were references to her “manipulating” people and to the ministry team “unwittingly” taking certain actions. Plaintiff claims that the Mennonite congregation was aware of the defamatory meaning of the scriptures, sermon and responses, and that the name “Maryfrances” is so ingrained in the Mennonite vocabulary as the “evil one” that the very mention of her name in this community has become inflammatory. Finally, plaintiff asserts that the scripture and sermon were selected to apply to Ms. Miller as the “prodigal” returning from the evil influence of plaintiff. While this court’s critical determination is the effect of the communication in the mind of the average member of the community among whom it is intended to circulate, plaintiff has failed to offer an affidavit or the deposition testimony of any person who was in attendance at the August 18,1991 church service. Plaintiff’s interpretation is supported only by her written analysis of the service and her own affidavit.

Defendants’ construction of the service is that Defendant Stutzman read the biblical accounts of the serpent and of the prodigal son. He then discussed how any person, and particularly church leaders, may be drawn into patterns of misunderstanding and wrongdoing through the pull of temptation and human weakness. After the sermon, defendant Stutzman shared that he and others in the ministry team had misunderstood the concerns of the Miller family concerning Ms. Miller’s relationship with the plaintiff, and had at times betrayed the Miller family. Defendant Stutzman recognized that part of the misunderstanding resulted from differences in plaintiff’s Christian Science beliefs and Ms. Miller’s Mennonite Christian beliefs. Defendant Stutzman further acknowledged that plaintiff had also felt betrayed at times. He and the church leadership took the blame for the problems resulting from the multiple litigation and apologized to the congregation for becoming involved in the relationship between plaintiff and Ms. Miller. Defendant Stutzman then invited congregation members to share. Defendant Robert Garber asked for forgiveness from the Miller family on behalf of his deceased father. Defendant Florence Miller thanked God for being with her family over the past years of problems and hardships.

Reading the transcript of the church service on the whole, the court finds that plaintiff’s interpretation is not justified by the communications at the church service. Defendant Stutzman stated in his affidavit that the sermon was intended for teaching and counsel for daily living, and that the average church member in attendance would have understood that the application of the sermon dealt with the ministers and the Miller family, and not with plaintiff. While it is clear that plaintiff was mentioned during the service, reading the transcript in its entirety reveals that the intent was not to lower plaintiff in the estimation of the community. Plaintiff’s contention that defendants actually were referring to her when discussing the “serpent,” for instance, simply enlarges the meaning beyond what it can bear. These statements are not capable of defamatory meaning by innuendo, even by a Mennonite congregation who was aware of the prior professional relationship between Ms. Miller and plaintiff and of the prior litigation initiated by plaintiff. Therefore, plaintiff cannot sustain a cause of action for defamation.

Next, in her breach of contract count, plaintiff asserts that the alleged defamatory language uttered in the August 18, 1991 church service constituted a breach of an oral contract between plaintiff and defendant Stutzman. This alleged contract, which, among other things, stated that defendants would retract slanderous statements against plaintiff, Ms. Miller and the Christian Science faith, was evidenced by a document entitled “Statement of Retractions.” This document was signed by defendant Stutzman and witnessed by plaintiff on October 1, 1988.

Before the court will recognize a cause of action for breach of contract, all of the essential elements of the contract must be in existence. PennDOT v. First Pennsylvania Bank N.A., 77 Pa. Commw. 551, 553, 466 A.2d 753, 754 (1983). The Superior Court has determined that contracts are enforceable where the parties have manifested an intent to be bound by the terms of the agreement, the terms are sufficiently definite, and the agreement is supported by consideration. Johnston the Florist Inc. v. Tedco Construction Corp., 441 Pa. Super. 281, 291, 657 A.2d 511, 516 (1995). It is plaintiff’s burden to prove by a preponderance of the evidence that a contract exists. Viso v. Werner, 471 Pa. 42, 46, 369 A.2d 1185, 1187 (1977). (citations omitted)

This court finds that plaintiff has not sustained this burden. A complaint similar to the one at issue was filed by plaintiff in Lancaster County in 1994; this complaint included a breach of contract count based upon the 1988 “Statement of Retractions” document and proceeded before this court. Sustaining a demurrer to the breach of contract count, the court stated: “[although the documents do reveal a dispute and some effort to resolve it, the allegation that there was in fact a contract in place between the parties is inartfully drawn____plaintiff has failed to sufficiently demonstrate the material elements of the existence of a contract.” Maryfrances Cassell v. Lancaster Mennonite Conference, no. 2220 of 1989, memorandum opinion at 3 (C.P. Lancaster August 3,1995), Allison, J. The Superior Court affirmed this decision, concluding that with respect to the “Statement of Retractions,” plaintiff failed to plead the required elements to show the existence of a contract. Maryfrances Cassell v. Lancaster Mennonite Conference, 454 Pa. Super. 675, 685 A.2d 205 (1996). Therefore, under the doctrine of collateral estoppel, plaintiff is prevented from relitigating the issue of whether a contract exists. See Day v. Volkswagenwerk Aktiengesellschaft, 318 Pa. Super. 225, 236, 464 A.2d 1313, 1318 (1983) (stating that collateral estoppel “operates to prevent a question of law or an issue of fact which has once been litigated and adjudicated finally in a court of competent jurisdiction from being relitigated in a subsequent suit”); Thompson v. Karastan Rug Mills, 228 Pa. Super. 260, 265, 323 A.2d 341, 344 (1974) (stating that collateral estoppel does not require an identity of parties, “as long as the party against whom the defense is invoked is the same”).

Furthermore, plaintiff filed a similar lawsuit in York County against the Lancaster Mennonite Conference. Included in her complaint was a count for breach of contract which was based upon an alleged oral agreement entered into by the parties, and was later renewed through further oral agreement and the “Statement of Retractions” document in 1988. In sustaining preliminary objections to plaintiff’s amended complaint, the York County court concluded:

“[W]e find the ‘Statement of retractions’ put forth by plaintiff to be binding between the parties to be lacking any of the elements of a contract. This document is no more than an alleged acknowledgment of certain transgressions against plaintiff and an apology on the part of the Mount Joy Mennonite Church. There are no definite terms, and there is certainly no consideration to be construed from plaintiff to the Mennonite Church.” Opinion, no. 93-SU-00696-01 (C.P. York April 22, 1996), Domey, J. (affirmed by Superior Court without opinion on July 9, 1997, no. 00427 Harrisburg 1996).

Therefore, it is clear that this issue has been previously litigated and a final judgment on the merits has been entered. Moreover, the “Statement of retractions” reads at the bottom: “This paper is freely submitted as a basis for healing of our relationship. We understand that nothing within this document will be considered admissible as evidence in a court of law.” From a review of the pleadings and the exhibits attached thereto, the court concludes that any discussions and the resulting “Statement of Retractions” document were merely preliminary negotiations in an effort to settle this dispute. The intent of the parties in creating this document must be honored. Consequently, plaintiff cannot sustain a cause of action for breach of contract.

Therefore, even when the record is viewed in the light most favorable to the plaintiff, the court finds that no genuine issue of material fact exists as to the defamation claim and to the breach of contract claim. Defendants are entitled to judgment as a matter of law.

Accordingly, we enter the following:

ORDER

And now, April 9, 1998, after reviewing the briefs submitted by the parties and after hearing oral argument, it is hereby ordered that defendants’ motion for summary judgment is granted. Plaintiff’s amended complaint is dismissed with prejudice.

      . In addition, plaintiff alleges that defendant Stutzman made defamatory statements about her in a May 7, 1992 letter to Solomon Yoder and that defendant Sherer made defamatory statements about her in an April 13, 1992 letter to Solomon Yoder. The court has reviewed the letters and finds that they are not capable of defamatory meaning.

      . Because of the length of the church service, the text of the service was not made part of this opinion. Furthermore, pursuant to Judge Allison’s order of July 11, 1997, plaintiff was precluded from denying that the transcript attached to defendants’ answer and new matter constituted the entirety of all relevant communication at the church service at issue.

      . Plaintiff makes much of the fact that some of the comments made at the August 18, 1991 service were “pre-planned.” The court does not find this to be relevant to whether or not these statements were defamatory in nature.

      . Even if the statements at issue were capable of defamatory meaning, plaintiff has failed to establish that any actual harm was caused by the defamatory statements. Although plaintiff claims that the alleged defamation so ruined her reputation that it rendered it impossible for her participate in her music studio, accounting practice, or real estate business, and that she lost the means to generate gross average annual income of $25,000, the court finds that there is no evidence to support these damages. The court reviewed plaintiff’s federal income tax returns from 1986 through 1995. Plaintiff’s income was substantially lower than $25,000 in 1986, five years before the alleged defamation took place. Plaintiff’s highest income was in 1990, with approximately $17,000 in adjusted gross income, while the average adjusted gross income of the 1986-1990 period was substantially lower than $25,000. In fact, plaintiff’s adjusted gross income was approximately $18,500 in 1995, four years after the alleged defamation.
      Furthermore, pursuant to Judge Allison’s order of July 11, 1997 which imposed sanctions for failure to comply with a discovery order, plaintiff is precluded from presenting any evidence of actual or anticipated loss of income as a result of any alleged actions by the defendants.

      . Although she did not include counts for false light invasion of privacy and for shunning in her amended complaint, plaintiff argues that the pleadings and documents support such claims. Plaintiff primarily relies upon a document entitled “To whom it may concern” which was signed by defendant Stutzman on October 28, 1988, and which was drafted as an apology to plaintiff. Plaintiff apparently argues that the statements made in the August 18,1991 church service were made with a “reckless disregard” as to their falsity and placed plaintiff in a false light that would be “highly offensive” to a reasonable person. See Curran v. Children’s Service Center, 396 Pa. Super. 29, 38-39, 578 A.2d 8, 12-13 (1990). In addition, plaintiff relies upon the “To whom it may concern” document to support her claim that what was meant at the church service was that church members should have shunned her from the outset and should not have welcomed her into their homes. The court finds both of these claims to be without merit.


author: CLARK, J.,

text:
    Webb v. Old Republic Insurance Co.

      C.P. of Dauphin County,
    no. 2195 S 1995.

      Leslie M. Fields, for plaintiff.

      Michael A. Farrell, for defendant.
    March 5, 1998-
    BEFORE: TURGEON, HOOVER AND CLARK, JJ.

   CLARK, J.,

PROCEDURAL HISTORY

This action was instituted by a writ of summons that was issued on June 7, 1995. Plaintiffs filed á complaint on or about July 11, 1995, alleging the following three counts; (1) statutory bad faith, (2) breach of implied covenant of good faith and fair dealing and (3) loss of consortium. Defendant, Old Republic, filed preliminary objections to the complaint, which were disposed of by a panel of this court on December 19, 1995. Old Republic demurred to Counts I and II and the claim for punitive damages. The demurrers were denied. Old Republic then filed a petition for permission to appeal the denial of its objections. On April 4, 1996, the Pennsylvania Superior Court denied the petition. Defendants, Old Republic and Crawford and Company, later filed motions for summary judgment. On August 27, 1997, a panel of this court denied Old Republic’s motion, but granted summary judgment in favor of Crawford and Company. On September 15,1997, Old Republic filed a second motion for summary judgment in light of the Pennsylvania Superior Court’s recent decision in Fry v. Atlantic States Insurance Co., 700 A.2d 974 (Pa. Super. 1997). On December 4,1997, a panel of this court entertained oral argument on the matter.

FACTS

At all times relevant hereto, plaintiff, Nancy Webb, was employed as a courier guard at Emory Worldwide in Middletown, Dauphin County, Pennsylvania. On December 14, 1989, while plaintiff was lifting an object from the ground, she injured her right shoulder, suffering a rotator cuff tear. In January 1990, plaintiff selected Craig W. Fultz M.D. to perform surgery on her right shoulder and repair her rotator cuff injury. After the surgery, plaintiff was diagnosed with carpal tunnel syndrome. In August 1990, plaintiff was examined by Lance O. Yarus D.O. for the purpose of obtaining an opinion on the cause of the carpal tunnel syndrome. Unlike Dr. Fultz, Dr. Yarus was retained by plaintiff’s workers’ compensation insurance carrier, Old Republic.

In November 1990, Dr. Fultz permitted plaintiff to return to work with restrictions and limitations on the duties she could perform. However, Dr. Yarus was of the opinion that plaintiff could return to full employment without any restrictions and continue to serve in the same capacity as she had prior to the injury. Based on the instructions of Dr. Yarus, plaintiff resumed her duties at Emory Worldwide in an unrestricted manner. In April 1991, plaintiff began experiencing recurrent shoulder pain and was examined by Dr. Fultz. Dr. Fultz diagnosed rotator cuff tears to both shoulders and again performed corrective surgery on three separate occasions.

In her three-count complaint, plaintiff alleges that as a result of Dr. Yarns’ advice and Old Republic’s actions, she sustained additional rotator cuff tears requiring other operations and has suffered injuries which have caused permanent and severe damage to her shoulders.

DISCUSSION

Summary judgment may be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that, there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Coleman v. Coleman, 444 Pa. Super. 196, 663 A.2d 741 (1995), appeal denied, 543 Pa. 722, 673 A.2d 330 (1996). The right to summary judgment must be free and clear from doubt. Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 661 A.2d 397 (1995). In ruling on the motion, the trial court must view the evidence in a light most favorable to the non-moving party and any doubt must be resolved against the moving party. First Wisconsin Trust Co. v. Strausser, 439 Pa. Super. 192, 653 A.2d 688 (1995). The burden of proof rests upon the moving party to show that there is no genuine issue of a material fact, although the nonmoving party may not rest on the averments contained in its pleadings, but must demonstrate that there is a genuine issue for trial. Accu-Weather Inc. v. Prospect Communications Inc., 435 Pa. Super. 93, 644 A.2d 1251 (1994).

Old Republic first contends that it is entitled to summary judgment as a matter of law since plaintiff has not asserted a cause of action for fraudulent misrepresentation which is required to remove her claims from the statutory scheme of the Workers’ Compensation Act. Old Republic argues that when an employee is injured during the course of his employment, he generally has no recourse against his employer or its workers’ compensation insurance carrier outside the confines of the WCA, 77 Pa.C.S. §§481(a) and 501. Old Republic interprets the decision of the Pennsylvania Supreme Court in Martin v. Lancaster Battery Co. Inc., 530 Pa. 11, 606 A.2d 444 (1992) as carving out an exception to this general premise granting the ability to proceed with a common-law action of fraudulent misrepresentation when such conduct aggravates a work-related injury.

In Martin, the worker was employed by a manufacturer of automotive/truck batteries and had been exposed to lead dust and fumes throughout his employment. Federal safety regulations required that employees working in such conditions be tested on a regular basis to determine the lead content in their blood. The employer willfully and intentionally withheld and altered the worker’s test results concealing the true level of lead toxicity in his blood. As a result, the worker was subsequently diagnosed with several lead-related ailments. The severity of his condition would have significantly been reduced had his employer timely and accurately apprised him of his test results.

The worker filed suit on grounds of fraudulent misrepresentation on behalf of his employer for causing a delay which aggravated his work-related injury. The Pennsylvania Supreme Court found that the worker was not limited to the remedies set forth in the WCA and, thus, not precluded from bringing a common-law action for fraud against his employer. Id. at 18, 606 A.2d at 448. The court stated that “[cjlearly, when the legislature enacted the Workmen’s Compensation Act in this Commonwealth, it could not have intended to insulate employers from liability for the type of flagrant misconduct at issue herein by limiting liability to the coverage provided by the Workmen’s Compensation Act.” Id. at 17-18, 606 A.2d at 448.

Old Republic also cites Fry, supra, for the proposition that when an employee asserts a cause of action against a workers’ compensation carrier for bad faith, that employee must also allege a count for fraudulent misrepresentation. In that case, the worker injured her back during the course of her employment and began receiving compensation benefits. In November 1994, after a period of treatment with her employer’s physician, among others, surgery was recommended. However, the insurers refused to authorize the operation until the worker submitted to a physical examination by their physician, which finally occurred in February 1995. The surgery was performed in April 1995.

Sometime in 1996, a complaint was filed against the insurers alleging bad faith for excessive delay in permitting the surgery. The insurers filed preliminary objections in the nature of a demurrer, arguing that the worker was limited to the remedies available under the WCA and further that her action was barred by the Act’s exclusivity provision. The trial court granted the preliminary objections and an appeal followed. The worker’s position was based on the premise that the Supreme Court in Martin, supra, created an exception to the exclusivity clause of the WCA permitting redress where the employer intentionally acted in causing a delay in treatment that aggravated a work-related injury. Arguing that the exclusivity clause did not apply, the worker contended that she was entitled to recover on a cause of action for bad faith under 42 Pa.C.S §8371. Thus, the issue before the Pennsylvania Superior Court was whether the decision in Martin, supra, permitted recovery under the circumstances.

The court in Fry distinctly observed that the worker in Martin was not seeking damages for a work-related condition that would have been covered by the WCA, but rather for fraudulent conduct on behalf of his employer which caused a delay that exacerbated a work-related injury. Fry, supra at 976. The court interpreted Martin to stand for die narrow proposition that only suits for deliberate conduct, specifically fraudulent misrepresentation, which aggravates a work-related injury are permitted to be adjudicated outside the provisions of the WCA. Id. Thus, fraud and delay leading to the exacerbation of the injury must be present to remove a claim from the WCA. Id. The court explained that Martin supplies relief only where the Act is silent, that is, where there has been aggravation of a work-related injury precipitated by fraud since, separately, either may be remedied under the Act. Id. at 977.

Because the worker in Fry failed to meet the requirements of Martin, the court found that her claim for bad faith pursuant to 42 Pa.C.S. §8371 was barred by the exclusivity provision of the WCA. Id. The court characterized the issue presented in Fry as one for the mishandling of an otherwise valid claim of a work-related injury that resulted in adverse medical repercussions. Id. at 978. It found that the provisions of the WCA were broad enough to encompass such an issue and afford an appropriate remedy. Id. The court went on to distinguish the type of conduct exhibited by the employer in Fry from that present in Martin. Id. It noted that the employer in Martin engaged in “flagrant misconduct” by actively misleading an employee who was already suffering from the workplace hazards, thereby precluding him from limiting his contact with the hazard and receiving prompt medical treatment. Whereas, the worker in Fry knew of her injury and did, in fact, receive medical care. Id. The court concluded that any claim regarding her later care was so intertwined with her original injury that it was inseparable from it. Id. Her form of redress was, thus, limited to that available under the WCA.

Plaintiff contends that Fry should not apply to her case since she did not base her allegation of bad faith on excessive delay in treatment. She argues that her situation should be governed by Martin, supra and San tiago v. Pennsylvania National Mutual Casualty Insurance Co., 418 Pa. Super. 178, 613 A.2d 1235 (1992) because she alleged that Old Republic’s “flagrant misconduct” in the “administration and coordination of medical treatment” caused her injuries and that this misconduct was knowingly and intentionally committed.

In Santiago, the Pennsylvania Superior Court noted that prior to Martin, Pennsylvania did not recognize an intentional tort exception to the exclusivity provision of the WCA. It thus interpreted Martin as having created a limited exception to the application of the exclusivity provision of the WCA where an employer concealed, altered or intentionally misrepresented information related to a work-related injury which resulted in an aggravation of that injury. Id. at 189-90, 613 A.2d at 1239. Plaintiff contends that the second tear to her right rotator cuff and the first tear to her left rotator cuff arose from and are related to the “flagrant misconduct” of Old Republic and, therefore, her cause of action for bad faith should remain.

To follow plaintiff’s line of reasoning, we would have to ignore the most recent decision of the Superior court in Fry, supra. That we will not do. Plaintiff complains that after receiving treatment for her injured right shoulder, Old Republic’s physician released her into the workplace without restrictions, even though her private physician imposed such, thereby causing her to suffer additional injuries in the workplace. Like Fry, we find that the essence of plaintiff’s complaint is the improper handling of a valid claim of a work-related injury which resulted in adverse medical repercussions. The Superior Court has found that the WCA provides for the handling of such a circumstance. Fry, supra at 975.

Plaintiff further argues that her injuries are directly related to Old Republic’s administration and coordination of her medical treatment and, therefore, lie outside the scope of the exclusivity provision of the WCA. In support of her position, plaintiff cites Tropiano v. Travelers Insurance Co., 455 Pa. 360, 319 A.2d 426 (1974) and Taras v. Wausau Insurance Companies, 412 Pa. Super. 37, 602 A.2d 882 (1992).

In Tropiano, the worker was injured in the course of his employment and received a series of treatments that proved unsuccessful and harmful. The worker filed suit in trespass against his employer’s workers’ compensation carrier and several doctors. The issue before the court was whether an employer’s carrier is immune from liability in trespass caused by the carrier’s negligence in supplying medical services in the treatment and care of any injury previously sustained by the worker in the course of his employment. Id. at 362, 319 A.2d at 427. The court found that the nature of the injuries was the determining factor in resolving this issue since an employer only receives immunity under the WCA for work-related injuries. Id. It focused on whether the injuries for which the worker was seeking recovery arose during the course of his employment Id. The court concluded that the acts of negligence arising from the medical treatment directed and controlled by the carrier did not occur in the course of the worker’s employment. Id. It reasoned that the medical treatment of injuries is a function that is separate and distinct from the employer’s business operations. Id. The court found that the alleged acts of negligence were committed by the carrier after and independent of the original injury and with no involvement of the employer. Id. Thus, the worker was permitted to proceed with his claim in trespass.

After Tropiano, the Superior Court was presented with a case involving a similar issue. In Taras, supra, the worker was injured in an automobile accident in the performance of his employment. The workers’ compensation carrier assumed the responsibility for coordinating his medical treatment. During the course of his treatment, the worker was subjected to electro convulsive shock therapy. He was later diagnosed as suffering post traumatic stress disorder, which was found to have resulted from his participation in the Vietnam War and exacerbated by the automobile accident and shock therapy. In light of his diagnosis of PTSD, the worker was advised that the course of treatment was inappropriate.

The worker filed a lawsuit alleging that the workers’ compensation carrier was negligent in directing and controlling his medical care. The court was faced with deciding whether the WCA provided the carrier with immunity from this suit. It noted that the exclusivity provision of the WCA has generally “been held to bar tort actions flowing from any work-related injury.” Id. at 42, 602 A.2d at 884. It went on to recognize that if a claim is not based on an injury compensable under the WCA, the worker is not limited to the remedies provided therein. Id. at 47, 602 A.2d at 886.

The court found that the issue in Taras was akin to that presented in Tropiano. Id. at 50, 602 A.2d at 888. It needed to be determined whether a carrier was immune from liability in trespass to a worker for injuries allegedly caused by the carrier’s negligence in supplying medical services in the treatment and care of any injury that was previously sustained by the worker in the course of his employment. Id. Again, the determining factor was whether the injuries arose during the course of employment. Id. The worker was seeking compensation for psychological and emotional injuries caused by the shock treatment. The court determined that these particular injuries were separate and distinct from the original injury and not related to his employment. Id. at 47, 602 A.2d at 888. The worker was seeking recovery from the carrier to the extent its negligence contributed to the receipt of such therapy. Id. The court ruled that where the claimant has alleged a separate and distinct injury caused by the carrier’s negligence in directing the claimant’s medical care, the carrier will not be afforded immunity under the WCA. Id. at 54, 602 A.2d at 890. The court concluded that the worker’s injuries were not compensable under the Act. Id. at 47, 602 A.2d at 886.

We find plaintiff’s reliance on Tropiano and Taras to be misplaced in light of Fry. In both Tropiano and Taras, the plaintiffs’ causes of action sounded in negligence, not bad faith. This distinction should not be overlooked. The acts of negligence allegedly committed in those cases arose from the medical treatment administered by the workers’ compensation carrier and were held not to occur in the course of the worker’s employment. The plaintiffs’ injuries were caused by the medical treatment they received during their course of treatment with no involvement from the employer. In Tropiano, the series of treatments administered to the worker proved fruitless and damaging. The worker in Taras was injured by the electro shock therapy directed by his employers.

The courts in those cases found that the determining factor in deciding whether a carrier received immunity under the WCA was the nature of the injuries. The issue then was whether the injuries for which the worker was seeking recovery came about during the course of his employment. If so, such injuries were compensable under the WCA.

In the present situation, plaintiff was not injured by the treatment administered to her. In fact, she received no treatment at the direction of her employer’s carrier. As defined in The American Heritage Dictionary of English Language, Third Edition, 1996, “treatment” means “a. Administration or application of remedies to a patient or for a disease or an injury; medicinal or surgical management; therapy, b. The substance or remedy so applied.” Nowhere in the complaint does plaintiff mention any remedies administered or applied to her for her injuries. Plaintiff’s complaint is based upon allegations that her carrier’s physician released her to work without restrictions. Specifically, in paragraph 10 of the complaint, plaintiff avers:

“Despite the unequivocal nature of Dr. Fultz’s instructions, on or about November 7,1990, at the request of defendants, Dr. Yarns issued an opinion which disagreed with Dr. Fultz’s on weight restrictions involving plaintiff’s upper extremity. This opinion was given without a physical examination of plaintiff and resulted in defendants’ removal of all restrictions on plaintiff’s work activities. Plaintiff was sent back to full employment in the same capacity as she held preceding the rotator cuff tear.” (emphasis added)

In her own words, plaintiff contends that her carrier’s physician issued an opinion that resulted in the removal of all restrictions on her work activities. She does not describe any treatment that was administered by Dr. Yarns and caused her to suffer non-work-related injuries. Moreover, the injuries suffered by plaintiff occurred while she was lifting objects for her employer after her return to work. She sustained an exacerbation of the original work-related injury to her right shoulder and a new injury to her left shoulder. Clearly, these subsequent injuries arose during the course of her employment. Our Superior Court has directly spoken on allegations of bad faith and, therefore, Fry is controlling on this matter.

Based on the foregoing, plaintiff cannot remove her claims from the WCA and seek outside redress for bad faith under 42 Pa.C.S. §8371. She is limited to the form of redress available under the Act. Summary judgment is granted in favor of Old Republic on Count I of plaintiff’s complaint.

Old Republic also argues that it is entitled to summary judgment because the exclusivity provision of the WCA is not superseded by the bad faith statute, 42 Pa.C.S. §8371. Since summary judgment has already been granted in favor of Old Republic, we shall refrain from addressing the merits of this argument.

With regards to Counts II and III of the complaint, Old Republic contends that summary judgment should additionally be granted in their favor on the basis that these counts are derivative of Count I. It maintains that actions for breach of implied covenant of good faith and fair dealing and loss of consortium derive their basis from the bad faith action. A review of the complaint indicates that acts which comprise the foundation for bad faith are identical, in fact, verbatim, to those offered in support of the claim for breach of implied covenant of good faith and fair dealing. Although plaintiff may have characterized the claims differently, they are in essence the same. A rose by any other name is still a rose. Furthermore, the claim for loss of consortium is derivative of Counts I and II and shall accordingly be dismissed.

For the reason outlined herein, we enter the following:

ORDER

And now, March 5, 1998, defendant Old Republic’s motion for summary judgment is granted. Plaintiff’s complaint is dismissed

      . Old Republic also requested that summary judgment be entered in its favor on plaintiff’s bad faith claim under 42 Pa.C.S. §8371 since one must be an insured to assert that cause of action and plaintiff is not an insured under the workers’ compensation insurance policy. In an opinion and order dated August 27,1997, Judge Turgeon thoroughly examined this issue and concluded that plaintiff was an unnamed insured under the policy of workers’ compensation insurance. We shall not depart from her conclusion since we do not find Fry to be controlling on this issue.


author: TURGEON, J.,

text:
    Two Rivers Terminal L.P. v. Benatec Associates Inc.

      C.P. of Dauphin County,
    no. 4530 S 1993.

      Kenneth L. Joel, for plaintiff.

      Patricia C. Camvel, for defendant.
    May 7, 1998
    BEFORE: TURGEON, LEWIS AND EVANS, JJ.

   TURGEON, J.,

This action was commenced by plaintiff Two Rivers L.P. alleging defendant Benatec Associates Inc. provided a deficient environmental report concerning a property purchased by Two Rivers. Currently before the court are Benatec’s preliminary objections to Two Rivers’ amended complaint. For the reasons set forth below, Benatec’s objection asserting the existence of alternate dispute resolution is sustained.

FACTS

In 1990, Two Rivers, a limited partnership, was contemplating the purchase of a Duncannon bulk petroleum storage facility or “tank farm” owned by Chevron. One of Two Rivers’ general partners was James Talley, who was also a corporate officer with City-Suburban Oil Company. In October 1990, Talley, on behalf of City-Suburban, entered into an agreement with Benatec for the performance of an environmental assessment of the Chevron site. Talley signed the agreement in his capacity as City-Suburban’s president. The agreement contained a mandatory arbitration provision, as follows:

“5.1 All claims, counterclaims, disputes and other matters in question between the parties hereto arising out of or relating to this agreement or the breach thereof will be decided by arbitration in accordance with the Construction Industry Arbitration Rules of the American Arbitration Association then obtaining. This agreement so to arbitrate and any other agreement or consent to arbitrate entered into in accordance herewith as provided in this paragraph will be specifically enforceable under the prevailing law of any court having jurisdiction.” (Complaint, exhibit A.) (emphasis added)

After Two Rivers purchased the property, it discovered significant site contamination which Benatec had allegedly missed. In Two Rivers’ amended complaint, it alleges breach of contract, promissory estoppel, negligence/malpractice and negligent misrepresentation for Benatec’s failure to discover the scope of the contamination. Two Rivers argues Talley’s involvement in the agreement gives Two Rivers rights thereunder and that Benatec should have known Two Rivers was relying on the environmental report in deciding whether to purchase the property. Plaintiff alleges in addition that Benatec had dealings not only with Talley but with two other Two Rivers’ general partners. Furthermore, some of Benatec’s compensation was paid by a check drawn on the account of a Two Rivers partner.

LEGAL DISCUSSION

Benatec raises various preliminary objections to the amended complaint including existence of alternate dispute resolution (arbitration), motion to strike scandalous and impertinent material, failure to attach a writing, failure to plead the existence of a condition precedent and demurrers to all claims for relief. Since we find all of Two Rivers’ claims are subject to arbitration, we address only that issue.

The existence of an arbitration agreement, as a form of alternate dispute resolution, is properly raised by preliminary objection. Pa.R.C.P. 1028(a)(6), 42 Pa.C.S. “Preliminary objections, the end result of which would be dismissal of a cause of action, should be sustained only in cases that are clear and free from doubt.” Hazleton Area School District v. Bosak, 671 A.2d 277, 281 (Pa. Commw. 1996). “The test is whether it is clear from all of the facts pleaded that the pleader will be unable to prove facts legally sufficient to establish his or her right to relief.” Id. Our Superior Court has recently recited the law with regard to arbitration, as follows:

“As a matter of public policy, the courts of this Commonwealth strongly favor the settlement of disputes by arbitration. Langston v. National Media Corporation, 420 Pa. Super. 611, 615-16, 617 A.2d 354, 356 (1992) (citations omitted); Dickler v. Shearson Lehman Hutton, 408 Pa. Super. 286, 294, 596 A.2d 860, 864 (1991), allocatur denied, 532 Pa. 663, 616 A.2d 984 (1992). ‘[W]hen parties agree to arbitration in a clear and unmistakable manner, the court will make every reasonable effort to favor such agreements.’ DiLucente Corporation v. Pennsylvania Roofing Co. Inc., 440 Pa. Super. 450, 456-57, 655 A.2d 1035, 1038 (1995), allocatur denied, 542 Pa. 647, 666 A.2d 1056 (1995) (citing Hassler v. Columbia Gas Transmission Corporation, 318 Pa. Super. 302, 307, 464 A.2d 1354, 1357 (1983)). When one party to an agreement seeks to prevent another from proceeding to arbitration, judicial inquiry is limited to determining (1) whether a valid agreement to arbitrate exists between the parties and, if so, (2) whether the dispute involved is within the scope of the arbitration provision. Messa v. State Farm Insurance Company, 433 Pa. Super. 594, 597, 641 A.2d 1167, 1168 (1994) (citations omitted); PBS Coal Inc. v. Hardhat Mining Inc., 429 Pa. Super. 372, 376-77, 632 A.2d 903, 905 (1993) (citations omitted). ‘If a valid arbitration agreement exists between the parties and appellants’ claim is within the scope of the agreement, the controversy must be submitted to arbitration.’ Messa v. State Farm Insurance Company, supra at 600, 641 A.2d at 1170. An agreement to arbitrate a dispute is an agreement to submit oneself as well as one’s dispute to the arbitrators’ jurisdiction. Therefore, a party who can establish that he did not agree to arbitrate may be entitled to enjoin an arbitration proceeding. Gaslin Inc. v. L.G.C. Exports Inc., 334 Pa. Super. 132, 141, 482 A.2d 1117, 1122 (1984) (quoting Hoffman v. Gekoski, 250 Pa. Super. 49, 53, 378 A.2d 447, 448 (1977) (en banc), citing Flightways Corporation v. Keystone Helicopter Corporation, 459 Pa. 660, 331 A.2d 184 (1975)).” Smith v. Cumberland Group Ltd., 687 A.2d 1167, 1171 (Pa. Super. 1997). (footnote omitted)

The threshold issue of whether a party has agreed to arbitrate is a jurisdictional question to be decided by a court. Id.

Plaintiff asserts that to the extent it is a party to the agreement, none of its claims, except breach of contract, arise out of or relate to the agreement. We disagree. Initially we note that Two Rivers asserts rights to the Benatec — City-Suburban agreement directly, through its agent James Talley, as well as a third-party beneficiary thereto. (Complaint ¶¶3, 5, 6, 19.) In either capacity, Two Rivers is bound by the same limitations set forth in the agreement as would be the signatories of the agreement. See In re: The Prudential Insurance Company of America Litigation, 133 F.3d 225, 229 (3d Cir. 1998) (“a variety of non-signatories of arbitration agreements have been held to be bound by such agreements under ordinary common-law contract and agency principles”); Johnson v. Pennsylvania National Insurance, 527 Pa. 504, 508, 594 A.2d 296, 298-99 (1991) (“third-party beneficiaries are bound by the same limitations in the contract as the signatories of that contract” including arbitration provisions).

Our Supreme Court has held that arbitration language materially identical to paragraph 5.1, providing for mandatory arbitration of “any controversy or claim arising out of or relating to this agreement or the breach thereof,” is “framed in the broadest conceivable language from which it must be concluded that the parties intended the scope of the submission to be unlimited.” Ambridge Borough Water Authority v. Columbia, 458 Pa. 546, 551, 328 A.2d 498, 501 (1974). (citations omitted) See also, Smith v. Cumberland Group Ltd., 687 A.2d at 1172-73 and Woodward Heating Etc. v. American Arbitration Association, 259 Pa. Super. 460, 466, 393 A.2d 917, 920 (1978) (en banc).

In considering the scope of unlimited arbitration clauses, courts should interpret them “to extend to any dispute arising from the contractual relationship. ” Waddell v. Shriber, 465 Pa. 20, 30, 348 A.2d 96, 101 (1975) (Waddell I). (emphasis added) See also, Ambridge Borough, 458 Pa. at 551-52, 328 A.2d at 501 (where there is an unlimited arbitration clause, “any dispute which may arise between the parties concerning the principal contract is to be settled to its terms”).

Two Rivers’ claims of promissory estoppel, negligence and negligent misrepresentation fall within the “unlimited” scope of the arbitration clause. Two Rivers’ allegations are “claims, counterclaims, disputes or other matters . . . arising out of or relating to [the Benatec — City-Suburban] agreement____” All three claims are directly based on the allegedly deficient environmental assessment performed by Benatec which was the subject of the Benatec — City-Suburban agreement. Thus, all three claims clearly “arise from the contractual relationship.” Ambridge Borough, supra.

The fact that these claims are not characterized as contract actions is not determinative of arbitrability. Our Superior Court rejected a similar argument in Waddell v. Shriber, 238 Pa. Super. 241, 357 A.2d 571 (1976) (Waddell II). There, the arbitration provision was equally broad providing for arbitration of “any controversy” arising out of the parties’ business relationship. The court held a claim for defamation, an intentional tort, was arbitrable. The court stated, “[t]he phrase ‘any controversy’ is certainly broad enough to embrace tort as well as contractual disputes, the only limitation being that the dispute has its roots in the applicable relationship between the parties.” Id. at 246, 357 A.2d at 573. See also, Bergquist Co. v. Sunroc Corp., 777 F. Supp. 1236, 1247 (E.D. Pa. 1991) (“unlimited” arbitration provision encompassed product liability, strict liability and negligence claims since they arose out of the same facts that made up the breach of contract claim), and Moss v. Prudential-Bache Securities Inc., 18 Phila. 436, 450-51 (1989). But see, Hazleton Area School District v. Bosak, supra (Pellegrini, J., dissenting). Any other conclusion would frustrate the intent of arbitration agreements wherein arbitrability would depend entirely upon the characterization of a claim instead of whether the claim related to the subject matter of the arbitration clause.

Because we find plaintiff’s claims are properly arbitrable, we need not address the remaining objections. Accordingly, we enter the following:

ORDER

And now, May 7, 1998, defendant Benatec’s preliminary objection raising alternate dispute resolution is hereby sustained. Plaintiff’s action is hereby dismissed.

      . We briefly address, and dismiss, Two Rivers’ argument that Benatec is estopped from or has waived the raising of the arbitration provision since Benatec failed to affirmatively seek arbitration for over four years. The right to enforce an arbitration clause may be waived, either expressly or by implication. Goral v. Fox Ridge Inc., 453 Pa. Super. 316, 321, 683 A.2d 931, 933 (1996). An effective waiver under Pennsylvania law requires a conscious and deliberate choice to relinquish a known right; waiver by implication or inference requires conduct “so inconsistent with a purpose to stand on the contract provisions as to leave no opportunity for a reasonable inference to the contrary.” Marranca General Contracting v. Amerimar, 416 Pa. Super. 45, 49, 610 A.2d 499, 501 (1992).
      In both Goral and Marranca, the Superior Court found waiver where the defendant had sought to enforce arbitration after unfavorable decisions in the court proceedings. The Superior Court concluded it would not allow such “second bites at the apple.” In this case, Benatec raised the existence of the arbitration provision at its first opportunity, by filing preliminary objections to Two Rivers’ complaint, which was not filed by Two Rivers until 1997. See Goral, supra at 322-23, 683 A.2d at 934.


author: KURTZ, J.,

text:
    Yablonski v. Stephens

      C.P. of Huntingdon County,
    no. 97-1708.

      Louis Schmitt Jr, for plaintiff.

      David A. Ody, for defendant.
    April 23, 1998
   KURTZ, J.,

Defendant Gary Stephens objects to a subpoena which plaintiff by written notice has indicated she intends to serve as part of her discovery in this litigation. See Rule 4009.21(a)(b)(c), Pa.R.C.R After lively argument, we are persuaded that the objections are not meritorious, and we will enter an order consistent with that conclusion.

BACKGROUND

Brenda Yablonski was injured in an automobile accident on January 22,1997. Who was driving the vehicle owned by plaintiff is problematic, as each party in this cause has identified the other as the operator. Prior to initiation of this action, Mrs. Yablonski through counsel filed a claim with her insurance carrier, Nationwide Insurance Company, for uninsured motorist benefits. Nationwide, it is believed, conducted an extensive investigation of the claim, and it negotiated toward settlement with plaintiff’s counsel. When these discussions were unavailing, this case was filed in due season. The seed of the present controversy is the fact that Mr. Stephens is also insured by Nationwide.

The subpoena at issue is directed to a claims representative of Nationwide and it demands that she produce “all claims and investigations of the January 22, 1997, accident in which Ms. Yablonski was involved.” Plaintiff’s counsel, at argument, particularized that the focus of the subpoena is information obtained by Nationwide during its investigation of Ms. Yablonski’s claim under her own insurance policy. Counsel indicated that he has reason to believe that Nationwide unearthed evidence favorable to her factual assertion that she was not driving her car at the time of the accident.

Citing two procedural rules regulating discovery, defendant believes that the sought after information is beyond the pale of discovery. We will consider the objections seriatim.

First, Rule 4003.3, Pa.R.C.P., was putforth as abarrier to the procurement of the information requested. That directive provides in pertinent part that discovery requests “shall not include disclosure of the mental impressions of a party’s attorney or his conclusions, opinions, memoranda, notes or summaries, legal research or legal theories.” As a corollary, it was asserted that the subpoena “is so overbroad and generalized to require the disclosure of communications which would be protected by the attorney-client privilege.”

The argument misses the mark since we are persuaded that the interpretation of Rule 4003.3 by the Honorable R. Stanton Wettick Jr. of the Court of Common Pleas of Allegheny County is the proper analysis with respect to the scope of the rule. In Little v. Allstate Insurance Co., 16 D.&C.3d 110 (1980), Judge Wettick concluded that “Rule 4003.3’s protections apply only to the litigation of the claim for which the impressions, conclusions and opinions were made.” Id. at 112. In that case, Allstate had conducted an investigation of a claim for no-fault benefits prior to rejecting plaintiff Little’s claim. Judge Wettick, after a careful analysis of the rule, determined that the material was not protected from discovery, and he therefore ordered it turned over to plaintiff.

We perceive no factual difference in this case. Nationwide conducted an investigation of Ms. Yablonski’s accident as a result of a claim made by plaintiff on her own policy of insurance. The results of that investigation are relevant to an issue in this case. Therefore, they should be and are discoverable.

Next, the argument was forcefully made that since the defendant does not intend to call any expert that investigated the accident, the material is not discoverable. Under subdivision (a)(3) of Rule 4003.5, no discovery is permitted of experts not expected to be called at trial.

Again, we disagree with the expansive interpretation of the rule. Rule 4003.5(a)(3) prohibits a party from discovering facts known or opinions held by an expert retained or employed by another party. It says nothing about information gathered by a non-party. Therefore, since Nationwide Insurance Company is not a party to this action, we do not believe that Rule 4003.5(a)(3) forecloses discovery of the information gathered during the investigation of Ms. Yablonski’s claim under her own policy of insurance.

ORDER

For the reasons set forth in a memorandum filed this date, it is ordered that the objections of defendant to the plaintiff’s subpoena are dismissed.


author: CONWAY, P.J.,

text:
    Lewis v. Shellberg

      C.P. of Wayne County,
    no. 116-Civil-1997.

      Michael H. Roth, for plaintiff.

      Christine S. Lezinski, for defendant.
    February 6, 1998
   CONWAY, P.J.,

Each party filed a motion for partial summary judgment. Thereafter, the parties filed a stipulation which provided a basis for the court to adjudicate each motion. The court will not recite the applicable facts since they are contained in the aforesaid stipulation. Neither will the court recite the standards applicable to entry of summary judgment; both parties are in agreement as to these standards. The court need only address the sole issue of whether or not the loss of consortium claim by Ramona Lewis is a separate claim and therefore not included as part of the $100,000 per person limit for Robert Lewis, deceased, for which payment has already been made.

The principles governing the interpretation of insurance contracts in Pennsylvania are well-settled:

“The principles governing the interpretation of insurance contracts in Pennsylvania are well settled. The goal of interpreting an insurance contract is to ascertain the intent of the parties as manifested by the language of the written instrument. . . . The reasonable expectations of the insured are the focal point in reading the contract language. . . . Where the language of the contract is clear and unambiguous, a court is required to give effect to that language. . . . ‘The clear meaning of language cannot be ignored by the judiciary.’... Where the language of a contract is ambiguous, the insured received the benefit of the doubt, and the language at issue is interpreted in his favor. . . . Language in an insurance policy should be given its ordinary meaning, unless it is clear that some other meaning was intended by the parties. . . . The policy, like every other contract, must be read in its entirety and the intent gathered from a consideration of the entire instrument.” Koening v. Progressive Insurance Co., 410 Pa. Super. 232, 236, 599 A.2d 690, 691-92 (1991). (citations omitted)

In addition, the court has reviewed all of the case authority submitted by the parties. The court has applied the principles regarding the interpretation of insurance contracts and the case authority to the case sub judice. That is, the court has examined the language of the contract in its entirety and gave each word its plain meaning. This analysis has caused the court to conclude that the plaintiff’s position was incorrect and the defendant’s position was correct.

The controlling provision of the Nationwide policy on this issue is Endorsement 2264, which provides:

“Amounts Payable For Liability Losses
“Our obligation to pay property damage or bodily injury liability losses is limited to the amounts per person and per occurrence as stated in the declarations. The following conditions apply to these limits. . . .
“2. Bodily injury limits shown for any one person are for all legal damages including all derivative claims, claimed by anyone arising out of and due to bodily injury to one person as the result of one occurrence.
“Subject to this per person limit, the total limit of our liability shown for each occurrence is the total amount available when two or more persons sustain bodily injury, including death, as the result of one occurrence.”

The term “bodily injury” is defined under the liability section of the policy as “(a) bodily injury; (b) sickness; (c) disease; or (d) death” of any person.

This policy language clearly and unambiguously utilizes the term “including all derivative claims.”

Pennsylvania courts have long held that an action for loss of consortium is derivative of the injured spouse’s claim. Scattaregia v. Shin Shen Wu, 343 Pa. Super. 452, 455, 495 A.2d 552, 553 (1985). In Scattaregia, the Superior Court provided this explanation:

“The consortium claim and the personal injury claim are closely interconnected; together, they represent the total, compensable damages — direct and indirect — suffered as a result of the principal plaintiff’s injury. Viewed in this light, it makes little sense to hold that an injured party’s negligence would bar or limit his recovery for direct injury, but would not affect his spouse’s recovery for indirect injury.
“The consortium plaintiff . . . has suffered no direct injury. . . . [His/Her] right to recover is derived, both in a literal and legal sense, from the injury suffered by [his/her] spouse.” Id. at 455, 495 A.2d at 553-54.

Further, the court has not considered developments in tort law pertaining to loss of consortium. Based on the holding of Koening v. Progressive Insurance Co., supra, the court’s decision was based solely on contract construction principles. Developments in tort law were not of assistance to this court. Id. at 239 n.6, 599 A.2d at 693 n.6.

Finally, the court’s decision is harmonious with the following holding of the Superior Court:

“We hold, therefore, that a surviving spouse cannot maintain a separate cause of action for loss of consortium resulting from the death of a spouse but must instead recover damages for loss of the deceased spouse’s society in an action for wrongful death. In the instant case, the wrongful death and survival actions were set-tied for policy limits with the approval of the court. The surviving spouse’s additional claim for loss of consortium, therefore, was properly dismissed.” Linebaugh v. Lehr, 351 Pa. Super. 135, 139, 505 A.2d 303, 305 (1986).

The court was unpersuaded that the authority relied upon by the plaintiff had any relevance to the case sub judice. For example, the court found Manzitti v. Amsler, 379 Pa. Super. 454, 550 A.2d 537 (1988) to be factually dissimilar. Manzitti involved the settlement of a medical malpractice lawsuit in which the injuries sustained were serious, but not fatal. Id. at 456, 550 A.2d at 538. Therefore, a wrongful death action was not possible.

Accordingly, this court enters the following:

ORDER

And now, February 6, 1998, it is hereby ordered that the plaintiff’s motion for partial summary judgment is denied.

It is further ordered the defendant’s motion for partial summary judgment is granted.

It is also ordered that, pursuant to paragraph 8 of the parties’ stipulation:

“The loss of consortium claim of Ramona Lewis is subject to and included as part of, the $100,000 per person bodily injury liability limit for Robert Lewis, deceased, for which payment has already been made under the Nationwide policy to Ramona Lewis, as administratrix of the estate of Robert Lewis, deceased. The remaining individual claims of Ramona Lewis for personal injury and emotional distress may proceed to trial.”


author: MUNLEY, J.,

text:
    North Pocono School District v. Buscarini

      C.P. of Lackawanna County,
    no. 97 Civ. 2949.

      William J. Rinaldi, for plaintiff

      Richard Bishop and James T Shoemaker, for defendant.
    March 9, 1998
   MUNLEY, J.,

Before the court for disposition is the defendant’s motion for summary judgment. The plaintiff is North Pocono School District, and the defendant is Diane M. Buscarini, individually and as executrix of the estate of John F. Buscarini. Briefs have been submitted and oral argument heard.

The undisputed facts giving rise to the instant motion are as follows: John F. Buscarini, the deceased husband of the defendant, was a superintendent at North Pocono School. In May 1996, Mr. Buscarini entered into an agreement with North Pocono whereby Mr. Buscarini was to take a leave of absence (sabbatical) for health restoration at full pay commencing on July 1, 1996. He was to receive his full salary during the sabbatical.

The parties to the contract further agreed that Mr. Buscarini would retire as of June 30, 1997, and receive as an early retirement incentive 90 percent of his annual salary. Moreover, the school agreed to provide family medical insurance coverage for Mr. Buscarini until he reached the age of 65.

Mr. Buscarini died on December 20, 1996. He was 55 years old, and he had approximately six months remaining on his sabbatical leave. No further payments were made under the agreement after Mr. Buscarini’s death. Plaintiff then filed a complaint in Lackawanna County Court of Common Pleas. Plaintiff’s suit is an action for declaratory judgment requesting the court to determine that any and all duties North Pocono owed to Mr. Buscarini ceased upon his death. The defendant filed an answer, new matter and counterclaim, as well as an amended answer, new matter and counterclaim, in which defendant alleges that the plaintiff owes all the payments due under the agreement to the estate of John F. Buscarini pursuant to paragraph 7 of the agreement which provides as follows:

“All of the payments due to [Mr.] Buscarini hereunder will, in the event of his prior death, be payable to his heirs, executors, administrators, successors and assigns or as applicable, to the beneficiary of any insurance policy.” Agreement, paragraph 7. The defendant- now moves for summary judgment alleging that no questions of fact exist, and the defendant is entitled to judgment as a matter of law. The school maintains that a summary judgment is not appropriate.

The school first argues that the contract is ambiguous, and extrinsic evidence is thus necessary to interpret it. Hence, plaintiff contends that summary judgment is improper. In the alternative, it alleges that the Pennsylvania School Code of 1949 mandates that the payment of salary and benefits while on sabbatical ends upon death of the recipient, and regardless of the terms of the agreement, the payments properly ended upon Mr. Buscarini’s death.

The defendant posits that the contract is unambiguous and clearly provides that any payments due at death, including the salary Mr. Buscarini would have received from December 1996 to June 1997, are payable to the heirs of the decedent. After a careful review of the matter, we find that summary judgment should be granted in favor of the defendant.

Rule 1035.2 of the Pennsylvania Rules of Civil Procedure sets forth the law on summary judgment as follows:

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law
“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or
“(2) if, after the completion of discovery relevant to the motion including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to . . . [a] defense which in a jury trial would require the issues to be submitted to a jury.”

Moreover, in determining a motion for summary judgment, the record is examined in the light most favorable to the non-moving party, and all doubts are resolved in favor of the non-moving party. Marks v. Tasman, 527 Pa. 132, 135, 589 A.2d 205, 206 (1991).

The school district alleges that a motion for summary judgment is improper at this point because the contract at issue is ambiguous and the intent of the parties must be determined. Plaintiff argues that since no depositions of those involved have yet been taken, it would be impossible to establish intent. We do not agree that the contract is ambiguous.

With regard to contract ambiguity, the law provides as follows:

“Where the terms of a contract are clearly expressed, interpretation of those terms must be determined from the language itself. . . . Only where the language in a written contract is ambiguous may extrinsic or parol evidence be considered to determine the intent of the parties— Whether a contract is ambiguous is a question of law .... A contract will be found ambiguous: ‘[i]f, and only if, it is reasonably or fairly susceptible to different constructions and is capable of being understood in more senses than one and is obscure in meaning through indefiniteness of expression or has a double meaning. A contract is not ambiguous if the court can determine its meaning without any guide other than a knowledge of the simple facts on which, from the nature of the language in general, its meaning depends; and a contract is not rendered ambiguous by the mere fact that the parties do not agree upon the proper construction. ’ . . . The ambiguity must appear on the face of the agreement and not be created by the parol evidence which is offered.” PennDOT v. Brozzetti, 684 A.2d 658, 663 (Pa. Commw. 1996). (citations omitted) (footnote omitted)

In the matter sub judice, the language of the contract is not ambiguous. The controverted portion of the agreement reads: “All of the payments due to [Mr.] Buscarini hereunder will, in the event of his prior death, be payable to his heirs, executors, administrators, successors and assigns or as applicable, to the beneficiary of any insurance policy.” Agreement, paragraph 7. The language is explicitly clear; the payments due under the agreement were to be paid to the decedent’s heirs. No ambiguities exist in the language employed.

Since we are presented with no ambiguities, we must ascertain the merits of the summary judgment motion, and determine what payments were due under the agreement at the time of Mr. Buscarini’s death, and therefore, are now payable to his estate. The school district contends that the school is only obligated to pay pursuant to the requirements of the Pennsylvania School Code, 24 P.S. §1-101 et seq. (Purdon’s 1997) which prohibits the payment of any benefits after death, except that the decedent’s salary is to be paid for 10 days. The plaintiff disagrees, claiming that even if this were a correct interpretation of the School Code, the agreement alters the duty of the school, requiring payment of the full year’s salary and the various benefits. After a careful review of the matter, we find that summary judgment is properly granted for the defendant.

The school relies on 24 P.S. § 11-1154 (Purdon’s 1997) which provides as follows:

“Payment of salaries in cases of sickness, injury or death, (a) In any school year whenever a professional or temporary professional employee is prevented by illness or accidental injury from following his or her occupation, the school district shall pay to said employee for each day of absence the full salary to which the employee may be entitled as if said employee were actually engaged in the performance of duty for a period of 10 days. Any such unused leave shall be cumulative from year to year in the school district of current employment or its predecessors without limitation. All or any part of such accumulated unused leave may be taken with full pay in any one or more school years. No employee’s salary shall be paid if the accidental injury is incurred while the employee is engaged in remunerative work unrelated to school duties.”

We find no merit to the school district’s argument that this section of the School Code requires them to pay only 10 days of salary from the date of death since an administrator on sabbatical leave is treated as if he were working full time pursuant to 24 P.S. §11-1170 (Purdon’s 1997). From the plain language of the section, we see no prohibition of payment beyond the 10-day period if the parties so agree. Moreover, no authority has been cited, and our research has uncovered none, which would indicate that a school may not make an agreement such as the one at issue. No reasons exist, therefore, to enjoin enforcement of the contract as it is written.

We find that a ruling to the contrary would be inequitable. The school entered into the agreement with the understanding that they would be paying the money and benefits even though Mr. Buscarini was never going to return to work. By Mr. Buscarini’s death, the school has not lost any services or consideration. The situation has remained the same as it was when the agreement was entered into; Mr. Buscarini will no longer return to work. The plaintiff may not now try and escape from paying under the agreement, without citing any law which provides support for its position.

Accordingly, for the above reasons, we find that no question of material fact exists, and the defendant is entitled to judgment as a matter of law. The contract at issue is unambiguous and provides that the remainder of the payments and benefits flowing from the agreement are to be paid to the decedent’s heirs.

ORDER

And now, to wit, March 9, 1998, the defendant’s motion for summary judgment is hereby granted.