author: MORAN, J.

text:
    Shaffer v. Feidler

      George A. Heitczman, for plaintiff.

      Joel H. Ziev, for defendant Northampton Area School District.
    September 9, 1988
   MORAN, J.

This matter comes before the court on the motion for summary judgment filed by defendant Northampton Area School District.

The pleadings allege the following facts. On December 2, 1983, plaintiff, Suzan Shaffer, was a student at Northampton Area Junior High School. Suzan Shaffer arrived at school between 7:15 a.m. and 7:25 a.m. and was dropped off at the school entrance by a school bus. Plaintiff, knowingly violating a school policy, left the school entrance area and began walking toward a parking lot behind the school to meet some friends. Her walk took her along a grassy area adjacent to a private internal roadway owned by defendant school district at the rear of the junior high school building. At the same time, Ryan Feidler, a student at the senior high school, was operating his vehicle on the roadway while smoking a cigarette. Defendant, Ryan. Feidler, attempted to throw the cigarette out of his window but instead it dropped onto his lap. Ryan Feidler lost control of his automobile while trying to remove the burning cigarette from his lap. He proceeded to drive over the curb and struck plaintiff, Suzan Shaffer.

Discovery has been completed and the pleadings are closed. The depositions of the following witnesses: Ryan L. Feidler, Lucille E. Feidler, Susan M. Shaffer, Carol S. Shaffer, Russell R. Shaffer III, Howard George Jr. and Dr. Edward A. Tremba, have been filed. Howard George Jr. is a patrolman for the police department of the Borough of Northampton. Dr- Edward A. Tremba is the Assistant Superintendent for Management Services of the school district.

Defendant, school district, has filed the present motion for summary judgment claiming that the action against the school district is barred by the Political Subdivision Tort Claims Act, 42 Pa.C.S. §8541 et seq. 42 Pa.C.S. §8541 states:

“Except as otherwise provided in this subchapter, no legal agency shall be liable for any damages on account of any injury to a person or property caused by any act of the local agency or an employee thereof or any other person.”

The standards for passing upon a motion for summary judgment are clear. Summary judgment should only be granted if the pleadings, depositions, answers to interrogatories and admissions, together with affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Community Medical Services of Clearfield Inc. v. Local 2665, AFSCME, AFL-CIO, 292 Pa. 238, 437 A.2d 23 (1981). The moving party has the burden of proving that no material issue of fact exists, and the court must accept as true all well-pleaded facts in the non-moving party’s pleadings. LeGrand v. Lincoln Lines Inc., 253 Pa. 19, 384 A.2d 955 (1978); Nash v. Chemetron Corp., 246 Pa. 595, 371 A.2d 992 (1977). A non-moving party may not, however, rest upon mere allegations or denials in the pleadings to establish that there' is a genuine issue of fact; rather, he must set forth such issues of fact by affidavit or as otherwise provided in Pa.R.C.P. 1035. Amabile v. Auto-Kleen Car Wash, 249 Pa. 240, 376 A.2d 247 (1977). Summary judgment should be granted only in a clear case. Just v. Sons of Italy Hall, 240 Pa. 416, 368 A.2d 308 (1976).

Defendant school district is a political subdivision of the Commonwealth of Pennsylvania. Any tort claims against it are therefore governed by the Political Subdivision Tort Claims Act. The act provides a general grant of immunity to local governmental units, subject to several limited and specifically enumerated exceptions. Section 8542(b) of the act lists the areas in which acts of a political subdivision may lead to the imposition of liability. Plaintiffs rely upon two of the exceptions to remove their causes of action against the school district from the general grant of immunity. Plaintiffs seek to fit their causes of action within the exceptions set forth at 42 Pa.C.S. §8542(b)(3) (the “real property” exception) and 42 Pa.C.S. §8542(b)(6) (the “streets” exception).

The real-property exception to the general grant of immunity, found at 42 Pa.C.S. 8542(b)(3), is set forth in the following terms:

“(b) Acts which may impose liability. The following acts by a local agency or any of its employees may result in the imposition of liability on a local agency: ...
“(3) Real Property— The care, custody or control of real property in the possession of the local agency ... As used in this paragraph, ‘real, property’ shall not include: ...
“(in) streets . . .”

The streets exception to the general grant of immunity, found at 42 Pa.C.S. §8542(b)(6) is set forth as follows:

“(i) A dangerous condition of streets owned by the local agency, except that the claimant to recover must establish that the dangerous condition created a reasonably foreseeable risk of the kind of injury which was incurred and that the local agency had actual notice or could reasonably be charged with notice under the circumstances of the dangerous condition at a sufficient time prior to the event to have taken measures to protect against the dangerous condition.”

In reviewing both 42 Pa.C.S. §8542(b)(3) and 42 Pa.C.S. §8542(b)(6), it must be stressed that both are exceptions to the general grant of governmental immunity stated in 42 Pa.C.S. §8541. As exceptions to the rule, their “[e]xtent must be narrowly interpreted given the expressed legislative intent to insulate political subdivisions from tort liability.” Mascaro v. Youth Study Center, 514 Pa. 351, 361, 523 A.2d 1118, 1123 (1978).

In Mascaro, supra, the Pennsylvania Supreme Court held that the real estate exception may only be applied in “cases where it is alleged that the artificial condition or defect of the land itself causes the injury, not merely when it facilitates the injury by the acts of others, whose acts are outside the statute’s scope of liability.” Mascaro at 363, 523 A.2d at 1124. (emphasis supplied)

The Pennsylvania Supreme Court’s analysis in Mascaro, while it specifically addresses the real-property exception, is applicable to the remaining exceptions to the general grant of immunity found in 42 Pa.C.S. §8542.

“We believe the Legislature has clearly precluded the imposition of liability on itself or its local agencies for acts of third parties by its language of section 8541, supra, and that it has not seen fit to waive immunity for these actors or their acts in any of the eight exceptions. ” Id. at 362, 523 A. 2d at 1124. (emphasis supplied)

In Chevalier v. City of Philadelphia, 516 Pa. 316, 532 A.2d 411 (1987), the Pennsylvania Supreme Court reaffirmed its holding in Mascaro. The Chevalier decision involved the trees, traffic control and street lighting exception. The court, in Chevalier, reaffirms the applicability of Mascaro to all eight exceptions found at 42 Pa.C.S. §8542(b). The court, in Chevalier, stated:

“In Mascaro, we held that the Tort Claims Act, specifically 42 Pa.C.S. §8541, clearly precludes the imposition of liability on the commonwealth or its local agencies for acts of third parties, and the legislature has not seen fit to waive immunity for such actors or their acts in any of the eight exceptions.” Chevalier at 319, 532 A.2d at 413. (emphasis in original)

While this court has not found a case which applies Mascaro to the “streets” exception; it is clear that the rule set forth by the Pennsylvania Supreme Court is applicable to that exception. We are therefore compelled to grant summary judgment to. the school district. The injuries to Suzan Shaffer were caused by the act of a third party, not the school district.

Wherefore,, we enter the following

ORDER OF COURT

And now September 9, 1988, the motion for summary judgment of defendant, Northampton Area School District, is sustained. Judgment is entered in favor of defendant, Northampton Area School District, and against plaintiffs.


source: Caselaw Access Project

author: ALEXANDER, P.J.,

license: Public Domain

text:
    In the Matter of the Appeal of John W. Pryor

      William A. Kuhar Jr., assistant counsel, for the commonwealth.

      William E. Hager III, for appellant.
    January 25, 1990
   ALEXANDER, P.J.,

John W. Pryor has appealed to this court pursuant to section 4724(b) of the Pennsylvania Motor Vehicle Code, 75 Pa.C.S. §4724(b), from a suspension imposed by the Commonwealth of Pennsylvania, Department of Transportation of his certificate of appointment of official inspection station and privilege to inspect motor vehicles. After hearing this court finds that the two-month suspension imposed by DOT was improper and that the licensee should have been issued a warning.

Statement of the Issue

The issue in this case is: May DOT impose a two-month suspension for a licensee’s first violation of its Vehicle Equipment and Inspection Regulations when the licensee’s culpability is no greater than careless?

Findings of Fact

Licensee is the owner and operator of a business in Rimersburg Borough, Clarion County, Pennsylvania, known as Eshbaugh’s Repair Shop, which business holds a certificate of appointment to operate an official inspection station. Licensee has worked in the business for 23 years and is familiar with the history of the business since his grandfather started it in 1953. To licensee’s knowledge the business has never had a violation concerning the operation of their inspection station.

On November 26, 1988, licensee personally inspected a trailer and recorded the pertinent data concerning that inspection on a form supplied by DOT known as an Inspection Record.

The inspection stickers used by a certified station are supplied by DOT and are in packages of 10. Licensee had only used two stickers from the package of 10, but the regulations required that he open a new package of 10 and begin using the new stickers with the first one to be used for the November 26, 1988, inspection. Licensee in fact took a new sticker from thd new package of 10 and placed that sticker on the trailer which was inspected.

When licensee recorded the information concerning the inspection on the Inspection Record, however, he listed the certificate of inspection serial number for the third sticker in the older package instead of the first sticker in the new package. This error occurred because the trailer being inspected .was the same trailer which had been inspected by licensee on July 24, 1988, and November 26, 1988.

The information, therefore, for the July 24, 1988, inspection and the November 26, 1988, inspection was identical with the exception of the serial number of the sticker. Licensee inadvertently added one number to a 10-digit number indicating that the serial number of the sticker was the third sticker in the older package when in fact the first sticker of the newer package had been placed on the truck.

Five days later on December 1, 1988, licensee inspected another trailer and when he examined the inspection stickers he realized that he had made the error on November 26, 1988. He realized at that time that he had to start a new Inspection Record, which is a single-page document supplied by DOT. All that was required to start the new Inspection Record was to transpose the third and final entry on the previous Inspection Record onto the new record as the initial entry and to insert the data from the December 1, 1988, inspection, which data was already set forth on a work order prepared by licensee.

Neither licensee, nor anybody else associated with licensee’s business, inspected a trailer between December 1, 1988, and April 4, 1989, when Trooper Thomas Chelgren, of the Pennsylvania State Police, came to licensee’s place of business for the purpose of performing a routine audit of the inspection records. Had licensee inspected a trailer subsequent to December 1, 1988, and prior to April 4, 1989, he would have started a new Inspection Record by transposing the information from the old record and recording the data from the work order of December 1. He had intended to do this when he discovered his error, but had forgotten the problem and had had no reason to be reminded of it since no subsequent inspections were performed.

When the error was discovered during the April 4, 1989, audit, the new Inspection Record sheet was begun properly and the third and last item on the old Inspection Record was deleted by drawing a pencil line through that item. Both of these corrections were marked as “okay” and dated by Trooper Chelgren. Trooper Chelgren reported “incorrect entries” by licensee and DOT imposed a two-month suspension of licensee’s certificate of appointment for his violation of the regulations.

Discussion of Law and Analysis

When the error was made by licensee in his records,' the regulations provided:

“Duration of Suspension”
Type of Violation First Second Third and Violation Violation Subsequent Violation
(2) Category 2
(i) Fraudulent record keeping 1 year Permanent
(ii) Improper record keeping 2 months 1 year 3 years
(viii) Careless record keeping Warning 4 months 6 months

67 Pa. Code §175.51.

In addition to the general categories of “fraudulent record keeping,” “improper record keeping” and “careless record keeping,” the regulations provide specific subcategories which describe the exact conduct which is unlawful (such as failure to affix a certificate of inspection immediately upon successful completion of the inspection), but there has been no suggestions by DOT that licensee violated any of these specific subcategories.

It is the contention of DOT that licensee was guilty of improper record keeping, mandating a two-month suspension. Licensee contends that his conduct was merely careless which would permit DOT to suspend his certificate only after one warning was given.

Trooper Chelgren testified that there was no evidence that licensee had acted fraudulently or had the intent to deceive anybody when he made the mistake which he made, and DOT has not contended that licensee acted fraudulently.

DOT, however, made no finding concerning whether or not licensee had been careless in his record keeping, as that category was ignored by DOT.

Prior to October 4, 1983, there were only two general specifications of unlawful record keeping — fraudulent record keeping and careless record keeping. On that date the regulations were amended to include the offense of improper record keeping.

DOT contends that the present case is controlled by the opinion of the Commonwealth Court in Department of Transportation v. Cappo, 106 Pa. Commw. 481, 527 A.2d 190 (1987). In the Cappo case the Commonwealth Court reversed the trial court’s finding that, since no fraud or intent to deceive were proven, DOT could only, find that the licensee in that case was guilty of careless record keeping.

The trial court in Cappo had relied upon Department of Transportation v. Sortino, 75 Pa. Commw. 541, 462 A.2d 925 (1983). The violation in the Sortino case was prior to October 4, 1983, when there were only two categories to consider, either fraudulent record keeping or careless record keeping. The trial court in Cappo, therefore, misplaced its reliance upon Sortino because it was still necessary for it to determine whether the conduct was improper or careless when fraud was negated because the third category of improper record keeping had been added to the regulations since the violation in Sortino.

The court in Cappo explained the misuse of Sortino by the trial court and went on to. discuss the terms “improper” and “careless”:

“While the terms ‘improper’ and ‘careless’ are not defined by statute, by DOT regulations, or by case law, it is clear that these violations do not include elements of fraud or deceit, for these latter are elements of the separate charge of fraudulent record keeping. Sortino. And, the charge of fraudulent record keeping would be mere surplusage if improper and careless record keeping involved the same elements. Section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1921(a) (statutes shall be construed, if possible, to give effect to all provisions). We must, therefore, construe' these terms according to their common and approved usage. Section 1903 of the Statutory Construction Act of 1972, 1 Pa.C.S. §1903. ‘Improper’ is defined as ‘not accordant with fact, truth, or right procedure,’ i.e., incorrect, inaccurate. Webster’s Third New International. Dictionary 1137 (1966). ‘Careless’ is defined as ‘not taking ordinary or proper care,’ i.e., neglectful, inattentive. Webster’s Third New International Dictionary 339 (1966). Inasmuch as fraud and deceit are elements of fraudulent record keeping, rather than of improper or careless record keeping, necessary factual findings are required, but are missing here, as to whether or not the appellee’s conduct satisfied the elements necessary for a conclusion of ‘careless,’ as opposed to ‘improper,’ record keeping. See Sortino. ” Cappo, supra.

The Cappo case, therefore, does not demand the result which is urged upon this court by DOT, but only acknowledges that the trial court in that case as well as this court in the present case must determine whether the conduct was “careless” or “improper.”

When DOT added the “improper record keeping” category in 1983, it inserted an orange between two apples. The terms “fraudulent record keeping” and “careless record keeping” describe the culpability of the licensee. The term “improper record keeping” tells us nothing about the culpability.of the licensee.

“Improper record keeping,” as that term was defined in the Cappo case as meaning incorrect and inaccurate, describes both fraudulent record keeping and careless record keeping, since both fraudulently kept records and carelessly kept records are records which are incorrect and inaccurate.

It is a reasonable assumption that DOT inserted the “improper record keeping” category between the careless and fraudulent categories because it realized that there was culpability which would fall short of fraud but rise above careless. The “improper record keeping” category can only be a residual category to apply to conduct falling within the hiatus between the fraudulent act and the careless act. This residual category would, therefore, include culpability such as intentionally keeping incorrect records but without a fraudulent intent and recklessly keeping incorrect records when the licensee’s conduct involved a gross deviation from the reasonable person standard but was unin- ' tentional.

If the “improper record keeping” category is not limited to this residual application, its insertion into the regulations will completely eliminate the other two categories, since fraudulent record keeping and careless record keeping are both improper record keeping. See section 1921(a) of the Statutory Construction Act of 1972, 1 Pa.C.S. §1921(a) (statutes shall be construed, if possible, to give effect to all provisions).

In applying this rationale to the present case, we must first determine if the licensee kept his records in conformance with the regulations. It is this court’s finding that the licensee’s records were not kept in exact conformity to the regulations and, therefore, the licensee’s degree of culpability must be determined.

Since it is conceded by DOT that licensee was not fraudulent, we must determine whether or not licensee’s conduct was careless. If this court were to find that licensee’s conduct, which produced the records which did not conform to the regulations, was neither fraudulent nor careless, that conduct would be properly characterized as “improper record keeping” within the meaning of the regulations.

This court, however, finds that licensee’s conduct was nothing more than careless. In fact, when an explanation of how the mistake took place is examined, it is the finding of this court that licensee’s conduct constitutes only the slightest degree of carelessness.

There is no evidence that licensee intended to keep his Inspection Records in a manner which did not conform to the regulations, nor is there any evidence that his conduct was reckless. If “careless record keeping” does not properly describe the conduct of the licensee in this case, that category would be virtually eliminated from the regulations.

There is no indication that DOT intended to eliminate the “careless record keeping” category in 1983. DOT, however, completely ignored the “careless record keeping” category in this case when it imposed the two-month suspension of licensee’s certificate.

This court may modify the penalty imposed by DOT when it makes new findings of fact and new conclusions of law, as has been done in this case. See Department of Transportation, Bureau of Driver Licensing v. Cappo, 106 Pa. Commw. 481, 527 A.2d 190 (1987); Kenworth Trucks Philadelphia, Inc. v. Department of Transportation, Bureau of Traffic Safety, 56 Pa. Commw. 352, 425 A.2d 49 (1981).

The appropriate penalty in this case is a warning for careless record keeping, which warning is not a meaningless slap on the wrist in view of the cumulative effect of such a violation, causing a second offense to mandate a four-month suspension and third and subsequent offenses to mandate six-month suspensions.

Hence this

ORDER

And now, January 25, 1990, for the reasons set forth in the foregoing opinion, the appeal of John W. Pryor is sustained and the suspension of his certificate of appointment of official inspection station and privilege to- inspect motor vehicles is set aside and the Pennsylvania Department of Transportation is instructed to issue a warning to John W. Pryor for his first violation for careless record keeping pursuant to regulation 175.51(a)(2)(viii).

        . T67 Pa. Code §175.51.

      . See 67 Pa. Code §175.51(a)(2)(iv).

      . See Department of Transportation, Bureau of Driver Licensing v. Cappo, 106 Pa. Commw. 481, 527 A.2d 190 (1987) at footnote 3.

      . If the- regulations are interpreted to limit the “improper record keeping” category to this residual application the issue of whether or not the regulations are unconstitutionally vague or overbroad is avoided. See, Arnett v. Kennedy, 416 U.S. 134, 40 L.Ed. 2d 15, 94 S.Ct. 1633 (1974), and annotation, Supreme’s Court Application of Vagueness Doctrine to Non-Criminal Statutes or Ordinances, 40 L.Ed. 2d 823.


author: COTTONE, /.,

text:
    Mancus v. Maryland Casualty Co.

      Harry P. O’Neill, for plaintiff.

      Lucille Marsh, for defendant Maryland Casualty Co.

      Joseph A. Murphy, for defendant General Accident Insurance Co.
    January 13, 1989
   COTTONE, /.,

This matter comes by way of a motion for summary judgment by defendant, General Accident Insurance Company. Originally, this case began as an action for declaratory relief, filed on April 24, 1987, by plaintiff, Lisa Mancus, against defendants, Maryland Casualty and General Accident Insurance Companies. We are asked to determine, as a matter of law, whether plaintiff can maintain an underinsured motorist claim against defendant, General Accident Insurance Company.

By way of background, plaintiff was a passenger in a motor vehicle that was involved in a single-car accident on October 28, 1984. The vehicle was operated by Holly Metro and was covered by an insurance policy issued by General Accident. That policy provided liability coverage in the amount of $35,000 and underinsured motorist coverage in the amount of $30,000. It is relevant to note that, at the time the General Accident policy was issued on May 19, 1984, the Pennsylvania Motor Vehicle Financial Responsibility Law (hereinafter “MVFRL”), mandating underinsured motorist coverage to be paid to covered persons under certain criteria, was not in effect. 75 Pa. C.S. §1701 et seq. Under the General Accident Policy, underinsured motorist coverage was purchased as a separate option and a separate premium was paid for this coverage. The effective date of the MVFRL was October 1, 1984, prior to the time of the accident in this case.

At the time of the accident, plaintiff was the named insured on her own automobile policy issued by Maryland Casualty. That policy provided under-insured motorist coverage pursuant to the MVFRL in the amount of $100,000.

General Accident has paid plaintiff the full liability coverage of $35,000. General Accident maintains that, according to Wolgemuth v. Harleysville Mut. Ins. Co., 370 Pa. Super. 51, 535 A.2d 1145 (1988), it is not responsible to plaintiff for underinsured motorist coverage as well. However, since Wolgemuth, supra, was decided under the MVFRL and the General Accident policy was issued prior to the effective date of the MVFRL, resolution of this issue must be made according to the language contained in the policy.

Accordingly, the issue here is whether Lisa Mancus, the passenger injured in a single-vehicle accident and who has been paid the full liability limits under the policy covering the host vehicle, is further entitled by the terms of the same policy to receive underinsured motorist benefits.

There is no question that, under certain language contained in Part C (Uninsured/Underinsured Motorist Coverage) of the General Accident policy,, the vehicle insured under the policy cannot be an underinsured motor vehicle invoking liability, as well as underinsured motorist coverage. The definitions portion of that section states in pertinent part:

“In addition, neither ‘uninsured motor vehicle’ nor ‘underinsured motor vehicle’ includes any vehicle or equipment:
“(1) Owned by or furnished or available for the regular use of you or any family member.”

However, counsel for Maryland Casualty argues that an “inherent contradiction” exists within the policy because Part C further contains language that would permit recovery of both liability and underinsured motorist benefits by a covered person. Said language is contained in the Limit of Liability section and provides:

“Any amounts otherwise payable for damages which the covered person is legally entitled to recover from the owner or operator of an uninsured motor vehicle or underinsured motor vehicle because of bodily injury caused by an accident, shall be reduced by all sums paid because of the bodily injury by or on behalf of persons or organizations who may be legally responsible. This includes all sums paid under Part A [Liability Coverage].
“Any payment under this coverage will reduce any amount that person is entitled to recover for the same damages under Pari: A [Liability Coverage].” (emphasis supplied)

Thus, on the one hand, the plain, unambiguous. definition of underinsured motor vehicle excludes an insured vehicle and, on the other hand, the Limit of Liability section at least contemplates recovery of liability benefits, as well as underinsured motorist benefits, by a covered person under the same policy.

Initially, in determining whether a policy is ambiguous, we must read the policy in its entirety to ascertain its meaning. Blocker v. Aetna Casualty and Surety Co., 232 Pa. Super. 111, 332 A.2d 476 (1975). “If it is determined that the language of a policy prepared by an insurer is either ambiguous, obscure, uncertain or susceptible to more than one construction, we must construe that language most strongly against the insurer and accept the construction most favorable to the insured.” Id. at 114, 332 A.2d at 478. '

In the present case, Lisa Mancus is not the insured under the General Accident policy, but, rather, a covered person. As such, she has paid no premiums under the policy. By the terms of the policy, she is a class two beneficiary. As counsel for defendant General Accident Insurance Company stated at oral argument, application of the underinsured motorist benefits here, where the limits of the liability coverage have been paid, would, in effect, mirror excess liability coverage.

It is important to bear in mind that the insured here decided to purchase underinsurance coverage as a separate option and paid additional premiums for this coverage. It is not likely that the named insured, Peter Metro, purchased such coverage to provide extra protection for victims of his negligence or the negligence of those who are insured under the policy. Instead, it is more likely that such coverage was contemplated to protect the named insured and additional insureds who are involved in an accident with another vehicle which is inadequately insured.

Notwithstanding, it is our opinion that the policy, when read in its entirety, provides underinsured motorist coverage to a covered person as long as the underins.ured vehicle is not, as here, the insured vehicle under the policy.

In construing the language of the policy, we are obligated to apply the definitions contained therein. Monti v. Rockwood Insurance Co., 303 Pa. Super. 473, 450 A.2d 24 (1982). In the underinsured motorist section of, the policy, covered persons includes any person “occupying your covered auto.” Your covered auto means “any vehicle shown in the declarations.” Finally, the policy provides, “Neither uninsured motor vehicle, nor underinsured motor vehicle includes any vehicle or equipment: (1) Owned by or furnished for the regular use of you or any family member.”

Therefore, interposing the above definitions, the insuring agreement provides:

“We will pay damages which a covered person [Lisa Mancus] is legally entitled to recover from the owner or operator of either an uninsured motor vehicle or underinsured motor vehicle, [not the motor vehicle owned by Peter Metro and insured under this policy], but not both because of bodily injury:
“(1) Sustained by a covered person; and
“(2) Caused by an accident.”

Thus, under the terms of the General Accident policy, the insurer will pay damages which a covered person, or as here, a passenger in the insured vehicle, is legally entitled to recover from the owner or operator of an underinsured motor vehicle, which, by definition, cannot be a vehicle insured under the policy.

As mentioned previously, the Limit of Liability section then goes on to state that any payments made under the above section shall be reduced by all sums paid under Part A, or pursuant to the Liability Section of the policy. However, we do not read this section to create the right of plaintiff here to receive both liability, as well as underinsured motorists benefits. To do so would be to disregard the plain and unambiguous definition of underinsured motor vehicle which must control in determining the applicability of the limitation of liability provision. See Adelman v. State Farm Mutual Auto Insurance Co., 255 Pa. Super. 116, 386 A.2d 535 (1978).

ORDER

And now, January 13,1989, for the reasons stated in the foregoing opinion, it is hereby ordered that defendant’s motion for summary judgment is granted. The policy to which Lisa Mancus is named insured, the Maryland Casualty Company policy, is the first priority for underinsured motorist coverage for her.

      . See Utica Mutual Insurance Co. v. Contrisciane, 504 Pa. 328, 338, 473 A.2d 1005, 1010 (1984).


author: TOOLE, J.,

text:
    Commonwealth v. Four Video Poker Machines

      Donald K. Gardner, assistant district attorney, for the commonwealth.

      Joseph R. Ferdinand and George R. Hludzik, for Young Men’s Polish Association.
    May 11, 1990
   TOOLE, J.,

We have before us for consideration and resolution a motion of the Young Mens’ Polish Association seeking return of four seized video poker machines and a petition filed by the Commonwealth of Pennsylvania, Pennsylvania State Police, Bureau of Liquor Control Enforcement, seeking forfeiture or condemnation of the same four machines. A hearing was held, briefs received, argument heard, and the matter is now ripe for resolution.

On or about August 9,, 1989, the police, acting on an alleged gambling complaint by an anonymous male informant, entered the YMPA premises at Rear 700 Seybert Avenue, Hazleton, Luzerne County, Pa. The officers identified themselves to the bartender and a club officer and informed them of the reason and purpose of their inspection. The officers noticed four video poker machines. One officer (Ondek) placed a $1 bill in each of the machines and ascertained that they were operational. He then conducted a brief inspection of the machine and found what he described as a “power-interrupt switch” or “knock-off device.” At that point the officers seized and removed the four machines to their evidence office. Later that same evening and without the benefit of a search warrant or other judicial authority, the officers forcibly opened each of the machines with a crowbar to remove the funds and to conduct a further examination. No notice of this action was given to the association nor was it afforded the opportunity to voluntarily secure the opening of the machines or to be present when the machines were forcibly opened and the proceeds were removed and counted. In any event, an examination of the machines revealed that there was no operable counter device but an officer testified that by using an additional electronic device (a one-amp diode) one is able to activate a memory board which is a permanent part of the manufactured machine which is capable of retaining the memory of the games played. While the officer was able to activate the so-called memory or mother board on the machine, there is absolutely no evidence that either the YMPA or the owner of the machine had a similar device or ever employed one.

The association contends that these machines are not gambling devices per se and that there is no evidence that they constitute derivative contraband. Indeed there is. no question or contention that any illegal activity was observed or reported concerning these machines (i.e. payoffs). The association contends that since the machines were not per se gambling devices, they were illegally seized by the officers. In support of their position the association had one of the owners of the machine testify that the machines were altered when received to remove any counter devices and specific knock-off switches. He testified that the power-interrupt switch was there because it is required by law. In additional support of their position the association points out that the officers did not search for, find or seize any payoff sheets or records; they did riot observe any payoffs being made; they did not observe nor did they look for or seize any other device which could knock off or record credits; they never asked anyone to open the machines before removing them and that in fact the machines were removed simply because of the presence of the power-interrupt switch.

In its petition seeking forfeiture the commonwealth alleged:

“(5) The above-listed video poker machines were possessed or used in violation of section 471 of the Liquor Code, 47 P.S. §4-471, and section 5513 of the Crimes Code, 18 Pa.C.S. §5513.
“(6) The above-listed video poker machines are subject to forfeiture under sections 211(a)(3), 211(b), 601, 602, 603 of the Liquor Code, 47 P.S. §§2-211(a)(3), 2-211(b), 6-601, 6-602, 6-603.”

We find no authority for any search, seizure or forfeiture in the sections of the Liquor Code cited and relied upon by the bureau. A review of the sections clearly discloses that they deal with bootlegging operations and equipment and in no way refer to or apply to the possession or operation of video poker machines. While section 2-211(b) does provide that “any equipment . . . actually used in the commission of the unlawful acts may be confiscated,” that section obviously refers to the unlawful acts set out in subsection (a) which, as we have already noted, deals with what might be aptly described as bootlegging operations.

The commonwealth also cites section 5513(b) of the Crime Code as authority for its seizure and requested forfeiture. That section pertinently provides that a person is guilty of a misdemeanor of the first degree if he intentionally or knowingly sets up or maintains a slot machine or any device to be used for gambling purposes. It also provides that, any gambling device possessed or used in violation of the section “shall be seized and forfeited to the commonwealth.”

In construing the cited criminal provision, our appellate court has noted that the “law is very restrictive as to what type of machine may be forfeited to the commonwealth under section 5513(b) of the Crime Code.” Commonwealth v. One Electronic Poker Game Machine, 302 Pa. Super. 350, 448 A.2d 1077 (1982). That court pertinently declared that unless the machines are actually used for gambling then:

“[T]he machines cannot be forfeited unless they are so intrinsically connected with gambling as to constitute gaming devices per se. Friedberg Appeal, 208 Pa. Super. 312, 222 A.2d 509 (1966). A machine is a gaming device per se if it can be used for no purpose other than gambling. The. mere fact that a machine involves a substantial element of chance is insufficient to condemn it as a gaming device.” (citations omitted)

That court citing other appellate decisions y/ent on to declare that the electronic poker machines — similar to the ones involved in this case — were not per se gaming devices. That cáse noted there was some skill required in the playing of these machines. We understand that knowledge and skill may not be required in order to play these machines, but such knowledge and skill certainly changes the nature of the use and we are not convinced, as the officer testified, that playing is all a mátter of chance. We also recognize that a machine is a gaming device per se only if it can be used for no purpose other than gambling. Nu-Ken Novelty Inc. v. Heller, 220 Pa. Super. 431, 288 A.2d 919 (1972). We believe these machines can and are used for many purposes other than gambling. In addition to amusement, this court has, on a number of occasions, distributed such machines to adult day care centers, nursing homes, and hospitals to be employed as therapeutic and amusement devices. Of course if the machines are actually employed for gambling purposes, then they are subject to confiscation and forfeiture under section 5513(b) of the Crime Code.

Our appellate courts have also noted and declared that video poker machines are not gambling devices per se unless they contain a knock-down device and meter or counter of some kind to record the number of games. See Commonwealth v. Two Electronic Poker Game Machines, 502 Pa. 186, 465 A.2d 973 (1983). The machines in this case were removed without a search warrant and before an actual determination was made by anyone as to the existence or non-existence of a counter device. As noted, the officer testified that he considered them gambling devices per se simply because of the presence of the power-interrupt switch. In order to determine whether the essential element — a counter — was present, the officers forcibly opened the machines at a later time and location. We have not been cited nor have we found any Pennsylvania law authorizing the bureau to remove these machines without a warrant since there was no personal observation of illegal gambling use and insufficient evidence to establish that the machines contained a countér device before their removal. To hold otherwise is to say that the end justifies the means. The facts known to the officers may or may not have been enough to request and secure a search warrant but on the facts known to the officers at the time of the seizure there was no factual or legal basis on which to conclude that any of these machines met the contraband test as promulgated by our appellate courts.

Even assuming the right to seize the machines we are not satisfied that the evidence presented establishes with the clarity required that these machines were illegal gambling devices under Pennsylvania state law. The seized machines contained no.operable meter or counter to record the number of games allegedly being knocked off. Even if we accept the officers’ testimony that the machines had computer capabilities that could be utilized through the use of an electronic device does not make the machine a gambling device. The ability to convert a machine by the addition or parts does not make it a gambling device per se. It is the condition of the machine at the time ' that it is confiscated which controls in determining whether it is a gambling device if there is no evidence of gambling activity. Commonwealth v. Twelve Dodge City Video Poker Machines, 517 Pa. 363, 537 A.2d 812 (1988). That these machines could be altered is not relevant. There is in the instant case absolutely no evidence that anyone possessed or controlled any device which was being or . could be employed to activate any computer counter capabilities of these machines.

In summary then the bureau has offered absolutely no factual or legal authority supporting their warrantless seizure and subsequent search of these machines. In the absence of such authority, we decline to conclude that these machines constitute illegal contraband and we therefore deny the requested forfeiture and will direct thát the machines be returned to the association.

In view of our resolution of the issues, we also direct that the bureau account for any and all moneys which were removed from these machines and promptly return said funds which, according to the evidence, is $189.45, to the association.

Accordingly, we enter the following

ORDER

It is ordered, adjudged and decreed:

(1) The Commonwealth of Pennsylvania, Pennsylvania State Police, Bureau of Liquor Control Enforcement’s petition for forfeiture is denied.

(2) The petition of the Young Mens’ Polish Association for return of the seized machines is granted and the commonwealth is further ordered and directed to return the machines and any and all funds seized therefrom.

      . The court made both rules which issued returnable on the same date. We also note that the district attorney of Luzerne County responded to YMPA’s motion stating that he had no objection to the requested relief since he had no prior knowledge about the search or seizures and was never consulted in any way by the police in this matter.

      . An officer testified that he had no basis for believing the tipster was reliable and the only personal information apparently furnished was that there were four machines on the premises.

      . This is in effect a switch employed by the owner or possessor to turn off the machine, such as when closing. The power-interrupt switch is an alternative to pulling the plug of the machine from an electrical socket. In any event when the power-interrupt switch is employed or the unit is unplugged, any games or credits then appearing on the machine are removed or knocked off.

      . The officer testified that the only reason he felt the machine was a per se gambling device was because of the presence of the power-interrupt switch.

      . We are also troubled by the fact that these machines were forcibly opened without prior notice to the owner and club or opportunity to be present when the same were forcibly opened. Even assuming the authority to seize we believe that the machines should not have been forcibly opened without authorization of court and notice and opportunity to the alleged owners or possessors to contest the proposed action or to be present when the machines were opened to determine the amount of proceeds in the machine. If there is no authority to forcibly open the machine, who has the responsibility of paying for the damage if the machines must be returned?


author: DOWLING, J.,

text:
    Commonwealth v. Gray

      Anthony Sancione and Neis J. Taler, assistant attorneys general, for the commonwealth.

      William J. Fulton,- for defendant Gray.
    ■ Smith B. Gephart, for defendant Stoner.
    February 28, 1989
   DOWLING, J.,

Junkets paid for by corporations doing business with the government have become somewhat routine for a number of elected officials, particularly those in the legislative branch. Our junketeers were two employees of the Pennsylvania Department of Welfare who accepted paid trips; James Gray to the Summer Olympics in Los Angeles, compliments of Bell of Pennsylvania, and Stephen Stoner to Lake Tahoe, Nevada, compliments of Sperry Corporation.

What is not usual is that these relatively minor bureaucrats were prosecuted for their activities under the State Ethics Act, 65 P.S. 403(a) which provides:

“No public official or public employee shall use his office dr any confidential information received through his holding public office to obtain financial gain other than compensation provided by law for himself, a member of his immediate family, hr a business with which he is associated.”

Eventually, counsel for the defendants and the attorney general’s office agreed that the charges against these men could be disposed of via the Accelerated Rehabilitation Disposition (ARD) program. On November 10, 1988, they appeared before this court and upon motion of the attorney for the commonwealth were admitted into the ARD .program. The administrative fee and cost of prosecution being paid at that time, no supervisory term of probation was ordered. The court, however, reserved the question of restitution.

As a result of the filing of the criminal complaints against defendants, they were suspended without pay from their civil service positions. Upon reinstatement following the disposition of the charges through ARD, though reinstated, they agreed to forego back pay, benefits and seniority for the period involved — September, 15 through November 18, 1988.

The commonwealth filed petitions for restitution, avering that Mr. Gray benefitted from the trip to the Olympics in the sum of $1,141 and Mr. Stoner from his trip to Lake Tahpe in the amount of $770. The petition requested that the court order defendants to pay into the state treasury a sum of money equal to three times the financial gain resulting from the violations of the State Ethics Act, or in the case of Mr. Gray, $3,423 and in that of Mr. Stoner, $2,310. The requests were based upon section 403(a) of the State Ethics Act, 65 P.S. 409(c), which provides:

“Any person who obtains financial gain from violating any provisions of this act, in addition to any other penalty provided by law, shall pay into the state treasury a sum of money equal to three times the financial gain resulting from such a violation.”

Defendants have opposed the petition, alleging that the commonwealth’s motion for restitution is in effect a request for a fine and that under the conditions of the ARD program a court may not impose a fine. Briefs on the issue were submitted; the matter is before us for a decision.

The nature of the ARD program is set forth by the Superior Court in Commonwealth v. Feagley, 371 Pa. Super. 593, 538 A.2d 895 (1988):

“First, ARD is a pretrial diversionary program in which the district attorney agrees to suspend prosecution of a defendant contingent upon that subject’s successful participation in a program of rehabilitation. If ARD is not completed successfully, the defendant may be prosecuted upon revocation of his participation in the program. Commonwealth v. Lutz, 508 Pa. 297, 495 A.2d 928 (1985). The purpose of this diversionary program is to attempt to rehabilitate the defendant without resort to a trial and ensuing conviction. During this time, the criminal proceedings are held in abeyance pending successful completion of the program or revocation for violation of the conditions. Commonwealth v. Krall, 290 Pa. Super. 1, 434 A.2d 99 (1981). Moreover, since acceptance of ARD does not constitute a conviction except for the limited purpose set forth in section 3731(e)(2), supra; Commonwealth v. Becker, supra; Commonwealth v. Potts, supra, it provides no basis for impeachment of a witness. Commonwealth v. Scheinert, 3[5]9 Pa. Super. 423, 519 A.2d 422 (1987) (Kelly, concurring and joining). Acceptance of ARD is not the equivalent of a conviction, nor does successful completion of the program result in an acquittal.” Feagley at 598, 538 A.2d at 897.

Judge Wieand, in an earlier decision, Commonwealth v. Scheinert, 359 Pa. Super. 423, 519 A.2d 422 (1986), called attention to the Supreme Court’s rationale for the ARD rules as set forth in Pa.R.Crim.P, 185:

“The purpose of this program is to eliminate the need for lengthy motions, trials and other court proceedings, in cases which are relatively minor or which involve social or behavioral problems which can best be solved by programs and treatments rather than by punishment. In many cases, legal defenses may be available which would result in acquittal or delay in disposition of the charges. When immediate treatment is needed, however, defendant and counsel may be willing to have defendant undergo such treatment without an adjudication of guilt. Pa.R.Crim.P. 185 comment.” Scheinert at 426, 519 A.2d at 424.

Pa.R.Crim.P. 182(a) unequivocally states that:

“The conditions of the program may be such as may be imposed with respect to probation after conviction of a crime including restitution, except that a fine may not be imposed.” (emphasis in original)

In Cassidy v. Montgomery County, 306 Pa. Super. 222, 452 A.2d 524 (1982), the court held that the question of whether a payment constitutes a fine is one of law.

The Random House Dictionary of the English language, Second Edition Unabridged, defines a fine as, “A sum of money imposed as a penalty for an offense or dereliction,” whereas restitution is defined as “reparation made by giving an equivalent or compensation for loss, damage or injury caused.” Clearly, a fine is included within the definition of penalty; the terms are such that any further definitional analysis becomes elliptical. It should also be noted that the statute under which the commonwealth seeks recovery, section 409 of the Ethics Act, is headed “penalties.” Any lingering doubts are resolved in defendant’s favor by Commonwealth v. Cherpes, 360 Pa. Super. 246, 520 A.2d 439 (1987), where the court defines any payment pursuant to section 409(c) of the State Ethics Act as a fine.

Payment of the penalty sum was never agreed to by the parties as a condition of ARD disposition. There Was lacking any evidence that the commonwealth suffered a loss as a result of these junkets, although it may reasonably be inferred that Mr. Gray remembered Bell Telephone in his prayers as did Mr. Stoner, Sperry Rand. Obviously, the whole system of junkets is bottomed on remembering the donor with advantage. As to defendants, the only fruits of their wrongdoing are memories, and when the whole scenario is viewed, they certainly are not pleasant ones. The only parties out of pocket in these matters are the firms.which paid the expenses and provided the gratuities. Whether any consideration was given to charging the corporations under subsection (b) of section 403 of the Ethics Act which prohibits the giving to a public employee anything of value is not known.

' Accordingly, since it is clear that imposition of the sanctions under section 409(c) is a fine prohibited by the ARD program, we enter the following

ORDER

And now, February 28, 1989, the commonwealth’s petitions for restitution are denied.


author: WOOD, J.,

text:
    Beechwood v. Shieldmakers Enterprises

      Robert W. Lentz and Jane M. Shields, for plaintiffs.

      Anthony Marc Hopkins, for defendant.
    May 30, 1990
   WOOD, J.,

I

This action was brought by plaintiffs, G. Eugene Beechwood, Philip W. Beechwood and Joan O’Donnell (hereinafter the Beechwoods), to recover liquidated damages from defendant Shieldmakers Enterprises pursuant to 42 Pa.C.S. §8104. The Beech-woods claim they are entitled to liquidated damages because Shieldmakers failed to mark a judgment satisfied as required by section 8104.

This action must be viewed in the context of the following procedural setting: In July 1978, the Beechwoods executed a $100,000 note payable to Brandywine Mortgage Company. This note was secured by a mortgage that Brandywine obtained on a piece of real property in Chester County owned by the Beechwoods.

In April 1982, Brandywine filed a mortgage foreclosure action against the Beechwoods with respect to the July 1978 mortgage. The parties stipulated that the amount of principal, interest, costs and attorney’s fees due on the note and mortgage was $120,582.43. On March 14, 1983, a judgment was entered in that amount.

On March 15, 1985, the Chester County Sheriffs Office conducted a sale of the Beechwood property pursuant to a writ of execution issued at the request of Hamilton Bank, which also held a mortgage on the Beechwoods’ property junior to that of Brandy-wine. In February 1985, the Brandywine note, mortgage, and judgment were assigned by Brandy-wine to VisionQuest National, Ltd. VisionQuest later transferred its rights in the assignment to Shieldmakers. Shieldmakers also purchased the Beechwood property for $455,000 at the sheriffs salé. Shieldmakers had earlier brought a specific performance action against the Beechwoods in February 1984 because of their failure to fulfill a sales contract for the same property.

On August 27, 1985, I issued an order which confirmed the sheriffs proposed schedule of distribution of the funds from the sheriffs sale of the Beechwood property. I set forth the order in which these funds should be distributed; the Brandywine mortgage judgment was fourth in priority. On September 7, 1985, the sheriff paid Shieldmakers $138,248.23 which represented the amount due on that judgment.

On September 12, 1985, I issued an order which reconsidered certain aspects of my August 27 order, but otherwise approved the schedule of distribution in that order. I also stated:

“(4) To the extent that there are funds remaining after payment of all the liens contained in the sheriffs schedule of distribution, they shall be retained by the sheriff pending resolution of the specific performance action brought by Shieldmakers Enterprises against the Beechwood family. We are aware that a sum has been paid to Shieldmakers Enterprises on the basis of its mortgage and judgment lien. We consider that under the law the sale should have been subject to such mortgage and judgment lien. Nevertheless, we will make no further order with respect to the payment of that sum until the other legal issues in this matter have been concluded.” (emphasis supplied)

At that time, Shieldmakers’ specific performance action against the Beechwoods was under consideration by the Superior Court. This appeal had been taken from my order of April 25, 1988, granting Shieldmakers specific performance, and confirming my decree nisi of September 12,1986. In an opinion issued on May 25, 1989, the Superior Court affirmed my final order in all respects, except for a provision regarding fees which is not relevant here.

Before the Superior Court’s decision was rendered, the Beechwoods requested that Shieldmakers mark the Brandywine mortgage judgment satisfied according to 42 Pa.C.S. §8104. Shieldmakers refused to do so. Shieldmakers asserts that it should not be required to satisfy the Brandywine mortgage judgment because the full judgment amount is not final. Shieldmakers also asserts that the Beech-woods have failed to comply with 42 Pa.C.S. §8104 and adds that, even if the judgment must be marked satisfied, the Beechwoods are not entitled to the liquidated damages provided for in'section 8104.

II

There is no question as to the finality of the judgment in this case. The Superior Court has affirmed my specific performance decree and the court’s decision has not been appealed. At this point, Shieldmakers need have no concern that it will have to disgorge the sums received in satisfaction of the judgment. My rulings fully dispose of the issues regarding payment of the judgment and therefore are final. See T.C.R. Realty Inc. v. Cox, 472 Pa. 331, 337-8, 372 A.2d 721, 724 (1977).

Title 42 Pa.C.S. §8104(a) sets forth the duties of a judgment-creditor to satisfy a judgment:

“§8104. Duty of judgment creditor to enter satisfaction
“(a) General rule —A judgment creditor who has received satisfaction of any judgment in any tribunal of this commonwealth shall, at the written request of the judgment debtor, or of anyone interested therein, and tender of the fee for entry of satisfaction, enter satisfaction in the office of the clerk of the court where such judgment is outstanding, which satisfaction shall forever discharge the judgment.”

The plain language of section 8104(a) makes clear that two requirements must be met by the judgment-debtor before a judgment-creditor is obligated to mark a judgment' satisfied: First, the underlying judgment must be paid in full: Gretz v. Esslinger’s Inc., 428 Pa. 90, 92-3, 236 A.2d 508, 509 (1967); Time Sales Finance Corp. v. F.W. Lang Co., 428 Pa. 468, 469, 239 A.2d 337, 338 (1968). Second, a fee must be tendered for entry of satisfaction. In order to collect liquidated damages under 42 Pa.C.S. §8104(b), the requirements of section 8104(a) must be met by the debtor. If the debtor has fulfilled these requirements and the creditor fails to mark the judgment satisfied for more than 30 days the liquidated damages provision of section 8104(b) is activated.

Although the Brandywine mortgage judgment was paid in full, the Beechwoods are not entitled to have the judgment marked satisfied or to collect liquidated damages. First, the Beechwoods did not tender the fee for entry of satisfaction as required by 42 Pa.C.S. §8104(a). The Beechwoods argue that Shieldmakers waived this requirement from the outset because it refused to mark the judgment satisfied even though the Beechwoods offered to pay the fee and see to the filings. In my estimation, however, since section 8104 is a punitive statute it should be strictly construed: Statutory Construction Act of 1972, 1 Pa.C.S. §1928(b)(l). It calls for the tender of a fee, so I will require the tender of a fee. Since the fee was not tendered, the Beechwoods are not entitled to have the judgment marked satisfied and I cannot assess liquidated damages.

Second, the Beechwoods have asserted that since Shieldmakers did not bring a petition to fix the fair market value of the property purchased at the sheriffs sale according to 42 Pa.C.S. §8103(a), they (Beechwoods) are entitled to have me direct that the judgment be marked satisfied. However, section 8103(d) requires that the debtor request that a judgment be marked satisfied by filing a “petition ... as a supplementary proceeding. . ..” Since the Beechwoods have not filed such a petition, I cannot respond as they request. Indeed, since the judgment here was satisfied by cash payment, it is doubtful that section 8103 even applies.

III

In summary, the Beechwoods may have the Brandywine judgment marked satisfied either upon the tender of the fee pursuant to section 8104 or (possibly) the filing of a petition under section 8103(d). Liquidated damages may be awarded only if Shieldmakers refuses to mark the judgment satisfied for 30 days after the section 8104 fee is tendered.

In accordance with this opinion I enter the following

ORDER

And now, May 30, 1990, upon consideration of the record, briefs and oral arguments of counsel, plaintiffs’ complaint to have the Brandywine judgment marked satisfied is hereby denied. Plaintiffs must comply with either section 8103(d) or section 8104(a) in order to have the judgment marked satisfied.


author: HESS, J.,

text:
    Pennsylvania Central Realty Investment Inc. v. Middlesex Township Zoning Hearing Board

      Michael E. Brunnabend, for appellants.

      Charles D. Vance Jr., for the Township of Middlesex.
    March 29, 1990
   HESS, J.,

This is an appeal, by the owner and the lessee of a tract of land located at 2 South Middlesex Road, Middlesex Township, Cumberland County, Pennsylvania, from a decision of the Zoning Hearing Board of the Township of Middlesex. That zoning hearing board decision was rendered November 9, 1989, and was against the owner and lessee, and favorable to several residents of the township who had argued in favor of a cease and desist order issued by the township’s zoning officer, Frank Mellott, in October 1988. This order, in essence, directed the occupants of the premises at 2 South Middlesex Road to immediately cease violation of the township zoning ordinance, which violations consisted of the use of the premises for the sale' of sexually oriented material, live sexual exhibitions, the installation of signs without sign permits and the use of the premises without a certificate of occupancy.

On December 8, 1989, the appellants herein filed a notice of appeal docketed to 4270 Civil 1989. No notice was sent concerning the filing of that appeal to either the Township of Middlesex or the various citizens who had appeared in support of the zoning officer’s cease and desist order. The intervenors, having seen a report of the appeal in a local newspaper, filed notices of intervention. They were filed on behalf of the Township of Middlesex on December 18, 1989, and on behalf of some 30 citizens of Middlesex Township on January 4, 1990. Both notices of intervention were timely, having met the 30-day requirement for filing as set forth in 53 P.S. §11003-A. Since then, Middlesex Township and the 30 residents each have filed motions to dismiss the instant zoning appeal for failure to conform to Pennsylvania Rules of Civil Procedure 401 and/or 440. In essence, as parties to the proceeding before the zoning hearing board, they contend that they are entitled to notice of the landowners’ and lessees’ appeal and that their failure to receive notice is grounds for dismissal. We disagree.

The intervenors, in seeking dismissal of this zoning appeal, equate the filing of the appeal with that of filing pleadings in other civil cases. Pennsylvania Rule of Civil Procedure 401 provides that original process “shall be served within the commonwealth within 30 days after the issuance of the writ or the filing of the complaint.” It is clear that this rule involves service on a party defendant. Pennsylvania Rule of Civil Procedure 440 provides as follows:

“(a) Copies of all legal papers other than original process filed in an action or served upon any party to an action shall be served upon every other party to the action. Service shall be made by handing or mailing a copy to or leaving a copy for each party at the address of the party’s attorney of record endorsed on an appearance or prior pleading of the party, but if there is no attorney of record,' then
“(1) by handing a copy to the party or by mailing a copy to or leaving a copy for the party at the address endorsed on an appearance or prior pleading or the residence or place of business of the party but, if such service cannot be made, then
“(2) by leaving a copy at or mailing a copy to the last known address of the party to be served.” (emphasis supplied)

The application of these Rules of Civil Procedure to the instant proceedings is erroneous for a rather fundamental reason. It presupposes that all persons who were parties before the zoning hearing board have automatic standing as parties on an appeal before the court of common pleas. The law of Pennsylvania is otherwise.

Section 1003-A of the Pennsylvania Municipalities’ Planning Code, 53 P.S. §11003-A, provides that land use appeals are entered as of course by the prothonotary. The appeal notice “shall be accompanied by a true copy thereof.” 53 P.S. §11003-A(a). Upon filing of the land use appeal, the prothonotary must forthwith send to the governing body, whose decision or action was appealed, a copy of the land use appeal notice. This, in turn, is notice to the governing body of the requirement that they certify, to the court, their entire record in the matter. The only provision for giving notice of the appeal to others is in paragraph (c) of section 1003-A where the code provides:

“(c) If the appellant is a person other than the landowner of the land directly involved in the decision or action appealed from, the appellant, within seven days after the land use appeal is filed, shall serve a true copy of the land use appeal notice by mailing said notice to the landowner or his attorney at his last known address.”

There is no requirement in the statute that notice of the appeal be served on anyone other than the owner of the land and the governing body whose action is appealed.

Other than the appellant and the governmental entity whose action is appealed, all others become parties by the exclusive vehicle of intervention. This procedure was discussed in Gilchrist v. Zoning Hearing Board of Old Forge Borough, 83 Pa. Commw. 27, 475 A.2d 1366 (1984). In that case various citizens of Lackawanna County, appellants in the Commonwealth Court, participated as protestants in a hearing before the Zoning Hearing Board of Old Forge Borough regarding a request by William Gilchrist Sr. for a non-conforming use certificate. The board denied the request of Mr. Gilchris-t, the landowner, who thereafter timely filed an appeal with the court of common pleas. Counsel for the citizens learned of the appeal approximately three weeks after it was filed though they were never served with a copy of it. Several months later the court of common pleas, after taking additional evidence and conducting a de novo review, reversed the board’s denial of non-conforming use status. More than a month later, the protestants filed a petition with the court seeking to have additional evidence heard. This they did, notwithstanding the fact that they had failed to intervene on the appeal. One of the bases for their requested relief was their contention that they were entitled to automatic party status in the court of common pleas appeal by virtue of their participation as parties before the board. They went on to contend that the failure to recognize them as parties in the court of common pleas appeal rendered any action taken without their participation void.

In its opinion in Gilchrist, supra, the Commonwealth Court analyzed its holding in Gilbert v. Montgomery Township Zoning Hearing Board, 58 Pa. Commw. 296, 427 A.2d 776 (1981):

“The Gilbert case dealt specifically with the issue of whether a municipality could appeal to this court from a common pleas court decision when it had not intervened as an appellee before the court of common pleas. We concluded that despite the fact that the municipálity is statutorily deemed to be a party before the zoning board, the municipality does not have automatic party status as an appellee before the court of common pleas when another party has instituted an appeal to that court. In order to obtain party status, the municipality must formally intervene under section 1009.*
“We recognized, in dicta, that this intervention requirement even applied to the owner whose property is directly involved in the zoning appeal. If the landowner wishes to participate as an appellee at the common pleas court level, he must intervene under section 1009. Thus, it seems clear that automatic party status is granted to neither the municipality nor the landowner, despite the fact that both may have participated as parties before the zoning board.
“The case for intervention is even stronger with regard to protestants who have participated as parties before the zoning board, as did appellants in the instant case. . . . Moreover, we recognized several years earlier in the case of Borough of Malvern v. Agnew, 11 Pa. Commw. 285, 314 A.2d 52 (1973) that protestants who have participated as parties before a zoning board must either appeal or intervene in the proceedings before the court of common pleas in order to retain their party status.” Gilchrist, supra, at 31-2, 475 A.2d at 1368. (footnote omitted)

It is clear, therefore, that because neither Middlesex Township nor the intervening citizens’ group is a party, they are not entitled to service of legal papers pursuant to Pennsylvania Rules of Civil Procedure 401 or 440.

In order to gain party status, one must intervene within 30 days in an appeal as to which one, admittedly, may have had no notice. We understand the catch-22 that this conclusion represents. On the other hand, interested citizens who understand that they are not entitled to be personally notified, nonetheless have means at their disposal to monitor legal proceedings. These include, at the least, periodic inspection of the prothonotary’s public records.

ORDER

And now, March 29, 1990, the petitions to dismiss the appellants’ zoning appeal for failure to conform to Pa.R.C.P. 401 and/or 440 are denied.


author: ACKER, P.J.,

text:
    McDaniel v. State Farm Mutual Automobile Insurance Co.

      William J. Madden, for plaintiffs.

      George H. Rowley, for defendant.
    February 23, 1990
   ACKER, P.J.,

We have for consideration two civil actions requesting that defendant insurance carrier assume payment of medical bills pursuant to the Motor Vehicle Financial Responsibility Act. 75 Pa.C.S. §1701 et seq. The cases come before the court upon petitions filed by defendant, State Farm Mutual Automobile Insurance Co., to require plaintiffs to provide defendant with a current authorization to obtain medical records and to submit to an independent medical examination by James Cosgrove, M.D. at the Pas-savant Hospital in Pittsburgh. To these petitions, plaintiffs have filed replies. Although the parties were offered the opportunity to present evidence, they elected not to do so. Oral arguments and briefs were presented. It would appear defendant approached this case as any request for a physical examination where a physical or mental condition is in controversy. It relies upon Pa.R.C.P. 4010(a). The right to require a physical examination is, however, much more limited.

The requirements to obtain a physical examination under the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §1701 et seq., are set forth in section 1796 as follows:

“Whenever the mental or physical condition of a person is material to any claim for medical, income loss. . .benefits, a court of competent jurisdiction . . . may order the person to submit to a mental or physical examination by a physician. The order may only be made upon motion for good cause shown . . . if a person fails to comply with an order to be examined, the court or the administrator may order that person be denied benefits until compliance.”

The term “good cause” has been in the law of discovery for many years. In Schlagenhauf v. Holder, 397 U.S. 104, 885 S.Ct. 234 (1964), the court was called upon to interpret Federal Discovery Rule 35(a). There it was held that the “good cause” and “in controversy” required by federal rule 35(a) are not met by mere conclusory allegations of pleadings, nor by mere relevance to the case. There must be an affirmative showing that the examination sought is in a matter which is really and genuinely in controversy, and that good cause exists to order the exam. The court further held, “Good cause requirement is not a mere formality, but a plainly expressed limitation of the rule.” Schlagenhauf, supra. What may be good cause for one examination may not be for another. Therefore, the court holds that federal rule 35 requires discriminating application by the trial judge as to whether the movant has adequately demonstrated the existence of the prerequisites for application of the rule.

Pennsylvania Rule of Civil Procedure 1410 was amended in 1978 to bring it more closely in conformity to Federal Rule of Civil Procedure 35. Contained therein is the wording, “good cause shown.” This requirement was added specifically although by implication, in prior Pennsylvania discovery rules, good cause was required. Its purpose is to protect against an undue invasion of the right of privacy.

The federal cases have split on the type of actions, examinations can be required. Pennsylvania, however, has taken the liberal view. Myers v. Travelers Insurance Co., 353 Pa. 523, 46 A.2d 224 (1046). There, the Wigmire view is adopted that the duty to bear witness to the truth includes the duty to exhibit one’s physical body as far as the ascertainment of the truth requires it.

The resolution of the instant cases must turn upon the application of the facts to the law through State Farm Mutual Automobile Insurance Co. v. Allen, 375 Pa. Super. 319, 544 A.2d 491 (1988) and State Farm Mutual Automobile Insurance Co. v. Zachary, 370 Pa. Super. 386, 536 A.2d 800 (1987), allocatur denied, 533 A.2d 969. The teachings of Zachary, supra, are applied in State Farm Mutual Automobile Insurance Co. v. Allen, supra. In Allen, the holding of Zachary is followed that “in order to demonstrate ‘good cause,’ it is mandatory that the averments contained within the petition . . . must rise to a level of specificity so as to insure that the claimant will not be forced to submit to unnecessary examinations sought in bad faith . . F Allen at 323, 544 A.2d at 492.

The Zachary and Allen courts adopted the analysis of two lower court decisions, both arising from Allegheny County and both authored by Wettick, J. The holding of both Nationwide Insurance Co. v. Fandary, 12 D.&C. 3d 65 (1979), and Erie Insurance Exchange v. Dzadony, 39 D.&C. 3d 33 (1986), was accepted. “Good cause” as taken from Fandary, supra, at 70 is that at a minimum the petition must allege: (1) facts showing that proof supplied in support of the claim are inadequate; (2) that the proposed physical examination will substantially assist in evaluating the claim; (3) the amount of the claim justifies the order. In Dzadony, supra, Judge Wettick added to the rule that the plaintiff must show that the information supplied by the insured in support of his or her claim does not eliminate reasonable doubt as to the validity of the claim.

We follow the holdings of the majority in Zachary and the panel opinion in Allen.

FACTS

McDaniel v. State Farm Mutual Automobile Insurance Co.

This civil action was commenced by a complaint on March 3, 1989, claiming that payments were overdue to Dr. Joseph Conti for his services to plaintiff. The medical bills incurred to that date were in the amount of $3,185, of which $1,325 were paid leaving a balance owing of $1,860, plus claimed interest at the rate of 12 percent and attorney’s fees. Attached to the complaint as exhibit A is a statement showing the date services were rendered in the nature of the services, as well as the charge and the current-balance.

On April 19,1989, defendant, State Farm, filed its answer. It acknowledged the charges made as alleged, but denied that the charges were reasonable and that the services were necessary.

A motion to complete discovery within 60 days was filed by plaintiffs counsel on April 19, 1989. On July 24, 1989, a praecipe to the trial list was filed by counsel for plaintiffs. On August 31, 1989, the matter came for pretrial. On that same day, defendant filed a petition for medical examination of the plaintiff. By paragraph 6, it is alleged that defendant has requested plaintiff to furnish it with a medical authorization pursuant to Pa.R.C.P. 4009 in order to inspect the medical records and to submit to an independent medical examiner- pursuant to Pa.R.C.P. 4010, and further, that plaintiff has refused to furnish the medical authorization. It is also alleged in paragraph 8 that plaintiffs attorney has advised defendant’s counsel that his client is suffering from carpal tunnel syndrome as a result of the accident, but the defendant has no information concerning such injury. It is claimed under paragraph 9 that the need for a medical examination is apparent from the reports of Dr. Conti dated April 8, 1988 and July 18, 1988, and the report from a Dr. Marc A. Maiatico, a consultant engaged by defendant, dated October 13, 1988. Copies of this material were attached as exhibits to the petition.

On August 30, 1989, we ordered a rule to show cause be entered why plaintiff, McDaniel, should not sign an authorization to obtain medical records and to submit to an independent examination by Dr. Cosgrove. We required plaintiff, McDaniel, to file an answer within 20 days, denying, admitting, or qualifying her response to each numbered paragraph contained in the petition. Further, it was provided that if either party was dissatisfied by the admissions, if any, contained in the answer, that party could praecipe the prothonotary to place the matter on the next available argument list for the receipt of testimony and argument upon the merits. Neither party did so.

On September 21, 1989, McDaniel filed her reply to the petition. Contained therein was exhibit A, being the only evidence of reason assigned by petitioner for denying defendant’s claim through a letter to Dr. Conti of January 26, 1989. It merely states:

“Per our most recent' review of the above file concerning payment of your outstanding balance, please be. advised that we have been advised per our review that your entire outstanding balance is denied. Should you have any additional information concerning the above patient that would cause us to alter our position, please forward it to this office for review.” I

Defendant in paragraph 7 denied the allegation of petitioner that plaintiff had refused to furnish medical authorizations. In fact, it is alleged that plaintiff signed all the medical authorizations submitted down to the denial of the claim of January 26,1989. But thereafter, she has refused to execute authorizations until payment for medical expenses has been made to date, all of which was explained to defendant through a letter of March 17, 1989, by Attorney Madden to Attorney Rowley. Plaintiff denied defendant counsel’s claim that she is suffering carpal tunnel syndrome as a result of the accident. Rather, to the contraiy, it is alleged, paragraph 8 of the reply, that there is no reference to carpal tunnel syndrome in Dr. Conti’s bills, and that the only reference to such a disorder comes through a letter of April 28, 1989, and addressed to plaintiffs counsel by State Farm. Plaintiff further alleges in its reply that all of Dr. Conti’s treatments for which plaintiff seeks reimbursement from defendant are for the neck and back injuries referred to in Dr. Conti’s report of July 18, 1988, and November 4, 1988, both of which are attached to the reply.

Applying the standards for determination of “good cause” in such cases as announced in State Farm Mutual Automobile Insurance Co. v. Zachary, supra, and State Farm Mutual Automobile Insurance Co. v. Allen, supra, petitioner has clearly failed to establish “good cause.” There is no credible showing that the proof supplied in support of the claim was inadequate, nor that the proposed physical exam would substantially assist in evaluating the claim. Clearly the amount of the claim justifies the order.

We conclude that the petition illustrates a desire but not a need for an independent medical examination.

Commisso v. State Farm Mutual Automobile Insurance Co.

A civil action was commenced by a complaint on January 12, 1989. This plaintiff was injured on or about April 13, 1988, in an automobile accident. A first party claim was asserted. Again, Dr. Joseph John Conti was the attending physician. A statement of account was submitted but refused.'Defendant company has paid $760, but according to plaintiff owes $600 plus interest at the rate of 12 percent plus reasonable attorney’s fees.

An answer was filed to the complaint on March'6, 1989, denying that the treatment given by Dr. Conti was reasonable and necessary. Further, it is alleged by paragraph 10 of the answer that defendant is required to pay only customary charges for reasonable and necessary medical treatment.

As in the McDaniel case, the matter came for pretrial on August 30, 1989, and a rule to show cause was issued giving the parties the opportunity for an evidentiary hearing if they desired after the filing of a responsive answer to . the petition to request a physical examination filed by plaintiff on that day. It is claimed that plaintiff has refused to submit to a medical examination and failed to furnish the requisite authorization. It is asserted in paragraph 8 of the reply that the examination is necessaiy as evidenced by the attached reports of Dr. Conti of November 4, 1988, and February 27, 1989, and a letter from the attorney for plaintiff of June 9, 1989.

By letter of William Madden to George Rowley of March 7, 1989, the view is expressed by Mr. Madden that plaintiff had already executed an authorization to State Farm to receive the information from her treating physician and to advise if that was not accurate. There is no evidence of a response by Mr. Rowley. On March 10, 1989, the claim superintendent of State Farm wrote to Mr. Rowley, her counsel, stating that no authorization was ever secured for release of medical information. In that petitioner has the burden of proof and elected not to have an evidentiary hearing, we deem the answer of plaintiff to be correct that authorization had been submitted. The letter of November 4, 1988, set forth the injuries as a result of the accident consisting of a sprained cervical spine, sprained dorsal spine, aggravation of a pre-existing osteoarthritic cervical spine and paresthesia. A copy of the cervical spine X-ray of April 15, 1988, was forwarded, along with a copy of an EMG done on August 3, 1988. The EMG studies were performed because of a persistent radicular pain in her arm which fortunately has subdued. As of the last visit in the doctor’s office of October 24, 1988, she continued to have cervical and dorsal pain with associated headaches and restriction of cervical motion, as well as pain in the cervical and dorsal spine. The doctor acknowledged that he knew of records of plaintiff back to September 1975, and in particular an automobile accident in which she was involved January 7, 1976. Nevertheless he concluded that there was some permanent partial disability as a result of this motor vehicle accident.

A more detailed letter was sent to Attorney Madden on April 13, 1988, concluding that there was positive nerve root involvement at C6 and probably, at C5 and C7. In addition, plaintiff was having a numbness in her fingers, impairment of her ability to hold objects, and a tingling sensation through her upper extremities. The doctor indicated that he may have to refer the case for surgical treatment.

On June 9, 1989, Attorney Madden forwarded to Attorney Rowley an MRI study of May 31, 1989, noting that Dr. Conti was referring the case to a neurosürgeon for an evaluation and potential surgical intervention.

The sole reason for denying the claim was set forth in a letter by a claims representative of defendant to plaintiff of December 7,1988. He stated that the company’s analysis of the treatment plan indicated a level or amount of care necessary to diagnose and treat the reported injury which was excessive. It is claimed this conclusion was based on consultation with two independent medical consultants. The company, therefore, was terminating any further payments.

Again, plaintiff denied that she refused to execute all authorizations prior to the unilateral termination of her benefits.

Again examining the criteria of State Farm Mutual Insurance Co. v. Allen, supra, and State Farm Mutual Insurance Co. v. Zachary, supra, we conclude that the proof supplied in support of the claims was more than adequate; that the proposed physical exam would not substantially assist in evaluating the claim, and that the amount of the claim-justifies the order.

Finally, there was no credible evidence to demonstrate in what manner the alleged deficiencies caused State Farm to harbor reasonable doubt as to the validity of the claim.

Wherefore, we enter the following

ORDER

And now, February 23, 1990, it is hereby ordered and decreed that the petitions in both of the above-captioned actions to require a current dated authorization to obtain medical records and to require plaintiffs to submit to an examination by Dr. James Cosgrove, M.D. at Passavant Hospital in Pittsburgh are both denied.

       In a dissent in State Farm Mutual Automobile Insurance Co. v. Allen, supra, Judge Wieand, of a panel of three judges of the Superior Court deciding the Allen case, dissented from this portion of the test, contending there was no way of determining the precise amount which would compel the claimant to submit to a physical exam. Judge Wieand states, “This is based upon the misguided belief that an answer should accept and not resist a false claim as long as it does not involve a substantial amount.”
      Judge Wieand, in dissent in Allen, also holds that he would reject the majority suggestion that the claimant should not be required to submit to an examination if his proof of injury is adequate. Judge Wieand argues that the issue should not be the strength of the claimant’s proofs. He states the rule as whether there is a bona fide controversy about the nature and/or extent of the claimant’s injury, is whether a physical examination would substantially assist the insurer in evaluat-. ing the claim. If so, an examination should be allowed. Judge Wieand would formulate a rule that there are but two components: (1) a bona fide controversy regarding the nature of the claimant’s injuries; and (2) a showing that the required mental or physical examination will substantially aid the petitioner insurer in its evaluation of the claim.


author: STRASSBURGER, J.,

text:
    Laborers Combined Funds of Western Pennsylvania v. Mattei

      Gary P. Hunt, for plaintiffs.

      P. Andrew Diamond, for defendants.
    February 6, 1990
   STRASSBURGER, J.,

Plaintiffs are the trustees of a health, welfare and pension fund established for the benefit of construction laborers. Defendants are officers and directors of Mattei Brothers Inc., a corporation which was contractually obligated to make contributions to the fund on behalf of its employees.

On March 1, 1984, the trustees commenced an action against defendants, claiming that Mattei Brothers Inc. had failed to make the required contributions to the fund for the period of May 1, 1983 through November 15, 1983. The trustees’ claim against defendants was based upon the Pennsylvania Wage Payment and Collection Law, 43 Pa.C.S. §260.1 et seq. Under the WPCL, the officers and directors of a corporation are personally liable for the failure of the corporation to pay wages to its employees. The WPCL has defined “wages” to include fringe.benefit contributions which are required to be made by the corporation.

In October 1985, a non-jury trial was held before Judge Bernard J. McGowan. On October 16, 1985, Judge McGowan entered a non-jury verdict in favor of the trustees and against defendants in the amount of $44,241.65.

Defendants filed exceptions to the non-jury verdict which were dismissed after argument. On January 13, 1986 judgment was entered on the non-jury verdict.

Defendants filed an appeal to the Superior Court. While this appeal was pending, the U.S. Court of Appeals for the Third Circuit handed down the decision of McMahon v. McDowell, 794 F.2d 100 (3d Cir. 1986). In that decision the Third Circuit held that the WPCL was pre-empted by the Employee Retirement Income Security Act (Pub. L. 93406, 88 Stat. 832, codified as amended in scattered sections of 26 and 29 U.S.C.), to the extent the WPCL dealt with the same matters as ERISA.

This issue had not been raised or argued by defendants during the trial court proceedings, nor had it been raised by way of the post-trial exceptions or in defendants’ brief to the Superior Court. However, in the trustees’ Superior Court brief, which was filed on July 16, 1986, counsel for trustees directed the court’s attention to the McMahon decision in a footnote, stating:

“The Matteis-did not raise below, and-have not raised on this appeal, the issue of whether the WPCL has been pre-empted by. the Employment Retirement Income Security Act . . . (‘ERISA’). Since they failed to raise this issue in the lower court, it cannot be considered for the first time on appeal. Amalgamated Cotton Garment and Allied Industries Fund v. Dion, 341 Pa. Super. 12, 491 A.2d 123 (1985) (appellant attempted to raise the issue of the WPCL’s pre-emption of ERISA for the first time on appeal). Thus, the Third Circuit’s recent decision in McMahon v. McDowell ... is irrelevant to this court’s consideration of the pending appeal.”

The Superior Court affirmed the judgment in December 1986.

In September 1989, the trustees issued execution on the judgment, and a sheriffs sale of a commercial piece of property was scheduled. A few days before the date of the sheriffs sale, defendants filed a petition to open/strike the judgment. By order dated November 28, 1989, this court denied the requested relief. This appeal followed.

Defendants contend that as a result of the McMahon case, plaintiffs’ judgment is void and thus unenforceable. This court disagrees.

Essentially, what defendants seek is a retroactive application of McMahon. Although research has disclosed no case dealing specifically with the retroactivity of McMahon, in an analogous preemption situation, the courts of the United States, including the United States Supreme Court, have uniformly held that McCarty v. McCarty, 453 U.S. 210 (1981) is not to be applied retroactively.

In McCarty, the Supreme Court held that California’s community property law permitting the distribution upon divorce of military pensions was pre-empted by federal military pay provisions. Following this decision, numerous attempts were made to overturn property distribution decisions rendered pr^-McCarty, on the basis that the courts rendering those decisions had lacked subject matter jurisdiction over the military pension. The courts uniformly rejected such challenges, holding that McCarty should not be applied retroactively so as to overturn settled judgments.

Probably the leading case involving the nonretroactivity of McCarty was Sheldon v. Sheldon, 124 Cal. App. 3d 371, 177 Cal. Rptr. 380 (1981), appeal dismissed for want of a substantial federal question, 464 U.S. 941 (1982). In White v. White, 731 F.2d 1440, 1443 (9th Cir. 1984), the court held that the Supreme Court’s dismissal for want of a substantial federal question was a decision on the merits of the issues presented in the statement of jurisdiction. One of the questions presented in Sheldon was:

“Does federal pre-emption of state community property laws regarding division of military retirement pay render state judgments void for lack of subject matter jurisdiction where such judgments were entered after Congress had pre-empted area of law?”

Other cases holding McCarty non-retroactive include Armstrong v. Armstrong, 696 F.2d 1237 (9th Cir.), cert. denied 464 U.S. 933 (1983); Erspan v. Badgett, 659 F.2d 26 (5th Cir. 1981); Segrest v. Segrest, 649 S.W. 2d 610 (Tex.), cert. denied 464 U.S. 894, 104 S.Ct. 242 (1983); Camp v. Camp, 142 Cal. App. 3d 217, 191 Cal. Rptr. 45 (1983); Fallers v. Fallers, 125 Cal. App. 3d 254, 178 Cal. Rptr. 35 (1981); Marriage of Vinson, 57 Or. App. 355, 644 P.2d 635 (1981); Rodrigues v. Rodrigues, 133 Ariz. 88, 649 P.2d 291 (1982); Whenry v. Whenry, 98 N.M. 737, 652 P.2d 1188 (1982); and Duke v. Duke, 98 Nev. 148, 643 P.2d 1205 (1982).

Most of the cases analyzed the retroactivity issue in terms of the criteria laid down by the Supreme Court in numerous cases including Northern Pipeline Construction Company v. Marathon Pipeline Company, 458 U.S. 50, 102 S.Ct. 2858 (1982). The court there discussed a tripartite standard for determining whether a judicial decision should be accorded retroactive effect:

“(1) Was it clearly foreshadowed, or did it overrule precedent?
“(2) Would retroactive application further or retard the effect of the decision?
“(3) Would retroactivity bring about substantial inequitable results, including harm to the judicial system?”

The cases refusing to apply McCarty retroactively found that it had not been foreshadowed, despite the fact that in Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979), the court had previously held that railroad retirement pensions were pre-empted from state court consideration. The instant case is even a much stronger case against retroactivity, for only three years prior to McMahon, the Third Circuit had specifically held that ERISA did not pre-empt the WPCL. Carpenter’s Health and Welfare Fund v. Kenneth R. Ambrose Inc., 727 F.2d 279 (3d Cir. 1983).

The .second factor of Northern Pipeline also points toward non-retroactivity of McMahon. As set forth in McMahon, the purpose of this pre-emption provision in ERISA is to provide a uniform procedure for assuring the funding of employee benefit plans. While the instant type of suit could conceivably frustrate that procedure in the future, the overturning of judgments years later when no other procedure could then be followed not only would not further the plan of ERISA, but would hinder it further.

Finally, many of the above-cited cases point to the third factor of Northern Pipeline; “Would retroactivity bring about inequitable results?” In Sheldon v. Sheldon, supra, after noting the emotional and financial turmoil caused by a divorce proceeding, the court stated:

“To permit and in fact encourage the relitigation of property interests long after the issues were supposedly settled would merely serve to reopen old wounds and create new ones.” 177 Cal. Rptr. at 384, 124 Cal. App. 3d at 380.

Certainly a similar situation exists in the labor arena. Where an often fragile peace exists between labor ánd management, it would be foolhardy to vacate judgments long thought inviolate and thus risk strife where calm previously existed. Particularly is this so where plaintiffs and others similarly situated relied upon the statutory scheme outlined in the WPCL in efforts to collect the fringe benefit contributions then due. At this late date, statutes of limitation or other procedural bars such as intervening bankruptcies or dissolutions could impair workers’ ability to collect sums rightfully due them.

Moreover, according retroactive effect to McMahon could also cause an “immense burden on the administration of justice in our civil courts were such relitigation permitted,” Sheldon, supra. Not only would each judgment debtor seek to reopen the judgment, but executions upon such judgments would be in jeopardy as well. And the employee creditors would of course be bringing other actions to try to enforce their rights through differ^ ent remedies to replace the remedy newly abrogated.

For the above reasons, it would be improper to apply McMahon retroactively in any case. The particular facts of the instant case make it even more inappropriate to grant the relief requested by defendants. McMahon was decided by the Third Circuit between the time of trial and the argument on appeal in the Superior Court. Thus defendants could have cited McMahon and argued for a limited retroactivity, applying it to cases then on appeal. Compare Sheldon v. Sheldon, supra, where the court in rejecting full retroactivity for McCarty, did allow limited retroactivity so as to apply it to a case not yet final on appeal where the issue was preserved in the trial court. Yet the instant defendants did not so argue in 1986, although in light of plaintiffs citation to McMahon in their brief, defendants had to be aware of the case. Defendants waited three years, until November 30, 1989, to file their petition to open or strike the judgment.

In Myers v. Mooney Aircraft Inc., 429 Pa. 177, 240 A.2d 505 (1967), plaintiff Wilhere purported to serve defendant Mooney Aircraft Inc. in compliance with Pa.R.C.P. 2180(a)(2). Mooney filed neither an appearance nor an answer and after a default judgment was taken over one and one-half years after the complaint was filed, Mooney wanted an additional 16 months to file a petition to strike (treated by the court as a petition to open) the judgment. The court held that “whatever rights Mooney might have had to attack this judgment have been lost by its own carelessness and the passage of time.” 429 Pa. at 191, 240 A.2d at 513. Similarly, the instant defendants by their deliberate bypass of Superior Court in 1986, ánd inordinate delay of three years thereafter, waived any right they may have had to vacate the judgment.

It would thus have been particularly inappropriate to apply McMahon to this case, where defendants did not avail themselves of the opportunity they could have had in 1986, and then waited until 1989 to pursue relief.

In sum, defendants’ case was finally decided in 1986. There is no basis for applying a change in the law of this nature to this case, especially at such a late date.

      . The case is not similar to Kalb v. Feuerstein, 308 U.S. 433 (1940), relied upon by defendants. That case held that the automatic stay provision of the Bankruptcy Act was self-executing, and thus state court judgments entered in violation thereof were a nullity.

      . One case, Ex Parte Buchanan, 626 S.W.2d 65 (Tex. App. 1981) had held that McCarty was to be applied retroactively. However, it was specifically disapproved by the court en banc in Ex Parte Hovernale, 636 S.W.2d 828 (Tex. App. 1982).