author: BRILLHART, J.,

text:
    Swisher v. Caterpillar Incorporated

      C.P. of York County,
    no. 2000-SU-02453-01.

      Leah B. Graff, for plaintiff.

      Gino J. Benedetti and Kevin E. Raphael, for defendant.
    December 23, 2003
   BRILLHART, J.,

ORDER

Pending before the court is the following motion for summary judgment, filed by the defendant, Caterpillar Incorporated, which provides, in pertinent part:

(1) The plaintiff, James K. Swisher, was employed by Guardsmark Inc. as a security guard pursuant to a July 27, 1998 employment contract.

(2) Swisher entered into the employment contract knowingly and voluntarily with no fraud, accident or mutual mistake.

(3) The employment contract contains the following unambiguous and express release:

“Employee understand^] that he (she) will be assigned to the premises or facilities of one or more clients of Guardsmark and in consideration of such assignment(s) hereby waives any and all causes of action which employee may have against such client(s) arising out of or in connection with such assignment(s).”

(4) Pursuant to his employment contract, Swisher was assigned to work on the premises of Caterpillar, a Guardsmark client.

(5) On September 17,1998, while working as a security guard at Caterpillar’s York facility, Swisher sustained injuries that he alleges were caused by Caterpillar’s negligence. Swisher has received workers’ compensation from Guardsmark for his injuries.

(6) Despite the plain meaning of the release, on May 19, 2000, Swisher filed suit against Caterpillar.

(7) The release clearly contemplated that Swisher waived his rights to any and all causes of action which he, as a Guardsmark employee, might have against any Guardsmark client, such as Caterpillar.

(8) As no genuine issue of material fact exists that Swisher released Caterpillar from any and all causes of action, summary judgment is appropriate.

The Pennsylvania Rules of Civil Procedure govern motions for summary judgment.

“After the relevant pleadings are closed, but within such time as not to unreasonably delay trial, any party may move for summary judgment in whole or in part as a matter of law

“(1) whenever there is no genuine issue of any material fact as to a necessary element of the cause of action or defense which could be established by additional discovery or expert report, or

“(2) if, after the completion of discovery relevant to the motion, including the production of expert reports, an adverse party who will bear the burden of proof at trial has failed to produce evidence of facts essential to the cause of action or defense which in a jury trial would require the issues to be submitted to a jury.” Pennsylvania Rules of Civil Procedure, Rule 1035.2 motion.

Summary judgment is proper only where the pleadings, depositions, answers to interrogatories, admissions of record and affidavits demonstrate that there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Penn Center House Inc. v. Hoffman, 520 Pa. 171, 553 A.2d 900 (1989); Baker v. Cambridge Chase Inc., 725 A.2d 757 (Pa. Super. 1999), appeal denied, 560 Pa. 716, 745 A.2d 1216 (1999). In determining whether to grant a motion for summary judgment, the court must view the record in the light most favorable to the nonmoving party. Merriweather v. Philadelphia Newspapers Inc., 453 Pa. Super. 464, 684 A.2d 137 (1996), allocatur denied, 548 Pa. 628, 693 A.2d 967 (1997). Summary judgment may only be granted in cases where it is clear and free from doubt the moving party is entitled to judgment as a matter of law. Myers v. McHenry, 398 Pa. Super. 100, 580 A.2d 860 (1990). The court must accept as true all well-pleaded facts in the opposing party’s pleadings as well as any admissions of record. Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038 (1996), cert. denied, 519 U.S. 1008, 117 S.Ct. 512, 136 L.Ed.2d 401 (1996). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Marks v. Tasman, 527 Pa. 132, 589 A.2d 205 (1991).

Moreover, in summary judgment proceedings, it is not the court’s function to determine the facts, but only to determine if an issue of material fact exists. Godlewski v. Pars Manufacturing Co., 408 Pa. Super. 425, 597 A.2d 106 (1991). Summary judgment should only be granted in those cases which are free and clear from doubt. Johnson v. Harris, 419 Pa. Super. 541, 615 A.2d 771 (1992); Spain v. Vicente, 315 Pa. Super. 135, 461 A.2d 833 (1983). Summary judgment serves to eliminate the waste of time and resources of both litigants and the court in cases where a trial would be a useless formality. Liles v. Balmer, 389 Pa. Super. 451, 567 A.2d 691 (1989); Electronic Laboratory Supply Co. v. Cullen, 712 A.2d 304 (Pa. Super. 1998); Harman on Behalf of Harman v. Borah, 720 A.2d 1058 (Pa. Super. 1998), allocatur granted, 1999 Pa. Lexis 2228, reversed in part, 562 Pa. 455, 756 A.2d 1116 (2000); Henninger v. State Farm Insurance Co., 719 A.2d 1074 (Pa. Super. 1998).

A summary of the uncontested facts is set forth as follows. On My 27, 1998, Swisher knowingly and voluntarily entered into an employment contract with Guardsmark. See exhibit 1 (containing My 27, 1998 employment contract). Swisher testified that he carefully read and understood the contract before signing it:

“Q. But when you got the application, you read it. Right?

“A. Yes.

“Q. And you read through it thoroughly and careMly ?

“A. Yes.

“Q. To make sure that you understood everything that was in here. Correct?

“A. Yes....

“Q. When you signed the application, you knew that you were signing for everything that preceded your signatures. Correct?

“A. Yes.

“Q. And that’s why you read it carefully?

“A. Yes.” [Deposition testimony, pp. 88 and 89.]

Similarly, Swisher testified that it was his practice to carefully read employment applications and understand them before filling them out:

“Q. Do you make it a practice of always reading applications carefully before you fill them out?

“A. Yes.

“Q. To make sure that it’s truthful and accurate?

“A. Yes.

“Q. Do you make sure you understand everything that’s in the application?

“A. Yes.

“Q. And that is what you did in this case?

“A. Yes. As far as I can remember, I mean, that’s what I always did.” [Deposition testimony, p. 89.]

Swisher also testified that he voluntarily decided to work for Guardsmark and, significantly, that all of the conditions of his employment were set forth in his employment contract:

“Q. At some point you were offered a job. Correct?

“A. Yes.

“Q. And you understood that you were accepting a job based on all the conditions and terms in your employment agreement. Correct?

“A. Yes.

“Q. And that you voluntarily decided to work for Guardsmark. Right?

“A. Yes.” [Deposition testimony, pp. 90 and 91.]

Swisher’s testimony reveals that he fully expected that both he and Guardsmark would proceed pursuant to the terms of his employment agreement:

“Q. And when you were offered the job, you were pleased that you were being given the offer to work?

“A. Yes.

“Q. And you were willing to comply with all their terms of the job?

“A. Yes.

“Q. And of the employment application?

“A. Yes.

“Q. And you expected Guardsmark would similarly comply with all the terms and requirements of the employment?

“A. Yes.

“Q. And to your knowledge, they did so?

“A. I guess, yes.” [Deposition testimony, pp. 91 and 92.]

The employment contract fully anticipated that Swisher would be assigned to work on the premises of a Guardsmark client. Accordingly, the contract required Swisher to waive any rights that might accrue against any Guardsmark client as a result of his work assignment:

“Employee understands that he (she) will be assigned to the premises or facilities of one or more clients of Guardsmark, and in consideration of such assignment(s) hereby waives any and all causes of action which employee may have against such client(s) arising out of or in connection with such assignment(s).”

Pursuant to the contract terms, Swisher was assigned to work at Caterpillar’s York facility. On September 17, 1998, while on the job, Swisher hurt his knee. [Deposition testimony, pp. 106 and 107.] Swisher reported his injury to a supervisor but continued to work. [Deposition testimony, p. 107.] The next day, however, he was unable to work and sought medical treatment for his injury. [Deposition testimony, p. 107.] He has not returned to work for Guardsmark since that time and has received workers’ compensation for his injuries. [Deposition testimony, p. 37.]

Caterpillar argues that it is entitled to summary judgment as there is no question that Swisher released Caterpillar from “any and all” causes of action related to his employment with Guardsmark. Swisher argues that the instant contract of employment constitutes a clear contract of adhesion and should be given no legal effect. Both parties agree that there are no Pennsylvania cases directly on point.

Caterpillar cites to the case of Horner v. Boston Edison Company, 695 N.E.2d 1093 (Mass. App. Ct. 1998), in which the plaintiff was employed to provide on-site security services for his employer’s clients. As part of his employment application, the plaintiff in Horner agreed to “Waive And Forever Release Any Rights [He] Might Have to make claims against any client or customer of [his employer] for damages based upon injuries which are covered under such workers’ compensation statutes.” Id. at 1095. When the plaintiff was injured at a job site, he sued his employer’s client for negligence, arguing that the release was contrary to public policy and, therefore, not enforceable. Id. at 1094. The court rejected this argument and granted summary judgment. The court held that the release did not violate public policy as the employee was eligible to recover compensation for his injuries through workers’ compensation. Id. The court elaborated that: “[v]iewed as a whole, the release is not extracted by the employer as a shield against its own liability but rather as protection for its customers for those risks assumed by its employees who, in turn, are covered by workers’ compensation insurance.” Id. at 1096.

The court further concluded that the release was neither unconscionable nor ambiguous.

Caterpillar further cites to the case of Edgin v. Energy Operations Incorporated, 961 S.W.2d 724, 727 (Ark. 1998). In granting summary judgment, the court also concluded that the release did not violate public policy and explained that in requiring such a release “[t]he employer is not attempting to escape liability entirely, but is, instead, attempting to shield its clients from separate tort liability for those injuries that are covered by workers’ compensation...Id. at 727.

Swisher argues that it is evident from the language of the employment agreement itself that the parties were placed in an unequal bargaining position and that Swisher was faced with a take it or leave it proposition. Swisher points to the introductory paragraph to the employment agreement, which provides the following:

“Your application for employment will be processed with due diligence. Upon completion of your preliminary background investigation and receipt of temporary clearance, you will be notified to report for issuance of uniforms, insignias, identification badges and other Guardsmark equipment. Upon acceptance, you will be required to sign the following employment agreement. The agreement shall not become binding upon Guards-mark until reviewed and approved by the compliance control officer in Guardsmark’s executive offices in Memphis, Tennessee. At Guardsmark’s option, you may be permitted to commence work prior to receipt of such final approval.”

Swisher argues that the words, “you will be required to sign,” render this employment agreement a contract of adhesion and further asserts that the contract was not valid because it violated public policy. Swisher cites to the case of Princeton Sportswear Corporation v. H & M Associates, 510 Pa. 189, 507 A.2d 339 (1986), in support of the proposition that public policy is generally antagonistic toward carte blanche exculpation from liability. Some courts have held that contracts against liability for negligence must be strictly construed since they are not favorites of the law, and such contracts must spell out the intention of the parties with the greatest of particularity and show the intent to release from liability beyond doubt by expressed stipulation and no inference from words of general import can establish it.

In the case of Stebok v. American General Life and Accident Insurance Company, 715 F. Supp. 711 (2003), the plaintiff brought an action against his employer for wages and benefits; however, arguing that the contract was one of adhesion and should not be enforced. The defendant moved for summary judgment, contending that the plaintiff was not entitled to the claimed wages or benefits under the terms of the employment contract. The court granted the defendant’s motion for summary judgment, stating that an employment agreement is not a contract of adhesion, even when an employee is told to “sign or be terminated.”

“Merely alleging that one entered into an agreement which he would not have entered if his financial circumstances were more secure does not render a contract unenforceable. Harrison v. Fred S. James P.A. Incorporated, 558 F. Supp. 438, 443 (E.D. Pa. 1983). Nor is an allegation of unequal bargaining power sufficient, by itself, to render a contract invalid. Stanley A. Klopp Incorporated v. John Deere Company, 510 F. Supp. 807, 811 (E.D. Pa. 1981), affirmed, 676 F.2d 688 (3d Cir. 1982); Witmer v. Exxon Corporation, 495 Pa. 540, 434 A.2d 1222, 1228 (1981).” Id. at 714. See Harrison v. James, 558 F. Supp. 438 (E.D. Pa. 1983).

In alleging that the employment agreement is a contract of adhesion and thereby unenforceable, Swisher’s sole rationale is that Guardsmark occupied a better bargaining position. As set forth in the Stebok case, this is not enough to render his employment contract invalid. To invalidate the contract, Swisher must allege “both a lack of meaningful choice about whether to accept the provision in question and that the disputed provisions were so one-sided as to be oppressive.” Id. at 714. In the instant matter, Swisher conceded that he voluntarily decided to work for Guardsmark, that he was pleased to be offered the job, that he was happy with Guardsmark and was treated fairly by the company. These facts do not support Swisher’s contention that he had no meaningful choice or that Guardsmark’s contract was oppressive. Therefore, we Grant the defendant’s motion for summary judgment.

The prothonotary is directed to provide notice of the entry of this order as required by law.

      . The employment agreement is contained with the employment application at pages 19 through 22.


source: Caselaw Access Project

author: LASH, J.,

license: Public Domain

text:
    Lamar Advertising of Penn LLC v. Zoning Hearing Board of the Township of Richmond

      C.P. of Berks County,
    no. 02-7910.

      George C. Balchunas, for appellant.

      Rodney M. Fisher, for appellee.

      Robert R Grim, for intervenor.
    December 17, 2003
   LASH, J.,

This matter comes before the court pursuant to a land use appeal filed by appellant, Lamar Advertising of Penn LLC d/b/a Lamar Advertising of Reading and The Lamar Companies (applicant), from the decision of the Zoning Hearing Board of Richmond Township. The board denied applicant relief in the form of a request for a variance and/or challenge to the validity of the zoning ordinance of the Township of Richmond. For reasons set forth, we affirm in part and reverse in part the board’s decision and remand for further proceedings.

Applicant is a limited liability company in the business of providing advertising throughout Berks County, Pennsylvania, through the use of advertising structures commonly known as billboards. Applicant’s usual method is to lease a portion of a tract of land, construct and maintain billboards, and sell advertising space on the billboards to third parties.

On or about December 27, 2001, applicant filed six separate applications to the board relating to the construction and maintenance of proposed billboards at six locations in Richmond Township, Berks County, Pennsylvania: 14036 Kutztown Road, which is 1,500 feet south of the intersection of Route 222 and Richmond Road, 14036 Kutztown Road, which is 140 feet south of the intersection of Route 222 and Richmond Road, 14015 Kutztown Road, which is 1,200 feet south of the intersection of Route 222 and Richmond Road, 14035 Kutztown Road, which is 570 feet south of the intersection of Route 222 and Richmond Road, and 14232 Kutztown Road, which is 225 feet south of the intersection of Route 222 and Route 662, and Park Road. These parcels are owned by third parties from which applicant would lease the tract of land necessary for the billboards. All properties are located in the C-2 commercial zoning district of Richmond Township.

Public hearings were held on February 26, April 2, May 7, June 11, and June 19, 2002.

On June 24, 2002, the board published its findings of fact, discussion and decision, denying applicant’s request for relief. First, the board denied a variance, finding that applicant failed to establish a hardship which would justify the grant of a variance. The board also found that applicant withdrew its request to establish a use variance, relying instead on its argument that the zoning ordinance was invalid.

Further, the board found that the ordinance was not exclusionary and was therefore valid in that signs, including billboards, as contemplated by applicant, are permitted as accessory uses in a C-2 commercial zoning district by special exception, but that applicant failed to meet its burden to establish a right to a special exception because it failed to provide evidence regarding the contents of the billboards as required by section 506.2(a)(6) and section 506.2(d)(2) of the zoning ordinance.

Finally, the board found that, even assuming applicant had presented sufficient evidence to establish a use by special exception, it nevertheless failed to comply with the dimensional requirements of the zoning ordinance. On these bases, the board denied relief.

In response to the decision of the board, applicant initially filed a complaint in equity on July 12,2002, alleging that the board violated section 704 of the Sunshine Act, requesting that the decision entered be determined to be void and of no effect.

Shortly thereafter on July 23,2002, the applicant filed the within appeal. The two matters were consolidated by order of February 5, 2003. The order also set forth that Richmond Township was permitted to intervene.

Argument on the issues raised in the land use appeal was held on December 1, 2003.

In its appeal, applicant raises the following issues:

(A) Does the zoning ordinance provide for a constitutionally invalid complete prohibition of outdoor advertising signs in the township?

(B) Are the size and content limitations imposed upon signs under zoning ordinance section 506.2(a)(6) exclusionary in their effect and therefore unconstitutionally invalid?

(C) Did the [board] impose dimensional restrictions on [applicant’s] proposed signs, as requested by the township, without any factual or legal basis, thereby misapplying the burden of proof?

(D) Do the content restrictions as set forth in zoning ordinance section 506.2(a)(6) violate [applicant’s] right to free speech under the United States Constitution?

The standard of this court’s review was set forth succinctly by the Commonwealth Court in Zoning Hearing Board of Sadsbury Township v. Board of Supervisors of Sadsbury Township, 804 A.2d 1274, 1278 (Pa. Commw. 2002), where the court stated as follows:

“As we have stated, our standard of review in a zoning case, where the court of common pleas has taken no additional evidence, is limited to determining whether the zoning hearing board abused its discretion or committed an error of law. Center City Residents Association v. Zoning Board of Adjustment, 48 Pa. Commw. 416, 410 A.2d 374 (1980). An abuse of discretion will be found only if the zoning board’s findings are not supported by substantial evidence, that is, such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Valley View Civic Association v. Zoning Board of Adjustment, 501 Pa. Commw. 550, 462 A.2d 637 (1983); Teazers Inc. v. Zoning Hearing Board of Adjustment, 682 A.2d 856 (Pa. Commw. 1996). Upon reviewing a decision of a zoning hearing board, a court may not substitute its judgment for that of the board; and, assuming the record demonstrates substantial evidence, the court is bound by the board’s findings which result from resolutions of credibility and the weighing of evidence rather than a capricious disregard for the evidence. Vanguard Cellular System Inc. v. Zoning Hearing Board, 130 Pa. Commw. 371, 568 A.2d 703 (1989), petition for allowance of appeal denied, 527 Pa. 620, 590 A.2d 760 (1990).”

We first address whether the zoning ordinance is exclusionary and therefore unconstitutionally invalid. Before a court may declare a zoning ordinance unconstitutional, the challenging party must clearly establish that the provisions of the ordinance are arbitrary and unreasonable. A legislative enactment can be declared void only where it violates the fundamental law clearly, palpably, plainly and in such a manner as to leave no doubt or hesitation in the mind of the court. Adams Outdoor Advertising Ltd. v. Hanover Township Zoning Hearing Board and Hanover Township Board of Supervisors, 159 Pa. Commw. 372, 376, 633 A.2d 240, 242 (1993).

Applicant argues that the contemplated billboards are “advertising signs” as that term is defined under section 201.4 of the zoning ordinance. Under the terms of the ordinance, “advertising signs” are not expressly permitted anywhere in the township. In fact, while signs generally are permitted, they are permitted only as an accessory use in a C-2 commercial district under 407.3 (c) of the zoning ordinance. An advertising sign cannot qualify as an accessory use by definition.

We agree. Under section 201.4 of the zoning ordinance, “advertising sign” is defined as:

“A ‘sign’ which directs attention to a service, business, profession or industry conducted, sold, manufactured or assembled or offered for sale elsewhere than upon the premises where the sign is displayed.”

Under the terms of the ordinance, signs of any type are only expressly permitted as an accessory use. Section 201.4 sets forth the definition of “accessory use” stating:

“A use customarily incidental and subordinate to and located on the same lot occupied by the principal use to which it relates.”

Reading the two definitions together, it is apparent that a use that qualifies under one definition must be excluded from qualifying under the other. The accessory use must be located on the same premises as the principal use. Conversely, an advertising sign cannot be on the same premises as the service or business to which it refers.

The board urges this court to accept its reasoning that the ordinance is not exclusionary because billboards also fall under the definition of “sign” under section 201.4, and that applicant’s billboards could be permitted under section 407.3 of the zoning ordinance which permits “accessory uses not located on the same lot with the permitted principal use” through a special exception. However, the board’s argument illuminates a patent inconsistency in the zoning ordinance. By definition, an accessory use must be located on the same lot with a permitted principal use. There can never, therefore, be an occasion when section 407.3(c) would apply. Section 407.3(c) is not a viable provision and must be disregarded.

We conclude that the only type of sign structure that is permitted under the zoning ordinance is one which is located on the same lot as the principal use to which it relates and meets the requirements of section 506 of the zoning ordinance. This type of sign would qualify under section 407.2(b) of the zoning ordinance.

The type of billboard contemplated by applicant in this case and in its business generally is one that you would seldom, if ever, find located on the same lot as a principal use to which it relates. In fact, billboard locations are specifically chosen to expand the scope of the advertising business’s visibility, usually accomplished by placing the billboards near highways with a large volume of traffic. Placing an advertising billboard on the same lot as the principal use to which it relates would accomplish little and be cost prohibitive. Accordingly, the drafters of the zoning ordinance properly included a separate definition for “advertising sign,” which specifically refers to the unique characteristic of this type of sign as being a sign that is “off premises.” The nature of billboards is such that inclusion of a separate definition for “advertising sign” is material. The total exclusion of any reference to advertising signs as a permitted use in any portion of the township renders the zoning ordinance invalid.

Our holding is consistent with the case of Adams Outdoor Advertising Ltd. v. Hanover Township Tuning Hearing Board, supra, a case involving similar facts and similar zoning ordinance regulations. In Adams, the Commonwealth Court states:

“In interpreting a zoning ordinance, a particular section of a zoning code or subdivision code must be read as an integral part of the whole, and not as a separate portion with independent meaning. Tobin v. Radnor Township Board of Commissioners, 142 Pa. Commw. 567, 597 A.2d 1258 (1991). After extensive research, we have found no cases in which an ‘off-site’ sign has been found to be an accessory use. An accessory use has been defined by courts as a use conducted on the same lot as a principal use. to which it is related and located either within the same structures or in an accessory structure or as an accessory use of the land. Therefore, we hold ... that an accessory use must be a use conducted on the same lot as a principal use to which it is related and located and clearly incidental to and customarily found in connection with the particular principal use in order to give [the ordinance] its proper meaning. Further, no zoning district, described in the ordinance, allows off-site advertising signs except as accessory uses. Because we hold that an advertising sign cannot be an accessory use, the ordinance is de jure exclusionary.” 159 Pa. Commw. 381-82, 633 A.2d at 244. (emphasis in original)

We note also, that, for the reasons already set forth, the board cannot rely on applicant’s failure to meet the requirements of section 506.2(a)(6) and section 506.2 (d)(2) as a basis for denying the application. Section 506.2 provides for additional regulations regarding signs which are permitted in a zoning district. Section 506.2 (a)(6) states:

“The maximum permitted size of sign and type of sign shall be in accordance with the following regulations:

“(a) All zoning districts

“(6) Signs not located on the same lot as the use to which they relate indicating the existence of, and direction to tourist attractions of a natural, scenic, and/or outdoor recreational nature, provided that no such sign shall exceed 20 square feet.”

As already noted, for all zoning districts, signs are only permitted as accessory uses. Therefore, they must be located on the same lot as a principal use to which they relate. Section 506.2(a)(6) is patently inconsistent with the definition of “accessory use.”

Section 506.2(d)(2) states:

“The maximum permitted size of sign and type of sign shall be in accordance with the following regulations:

“(d) commercial and industrial districts

“(2) Business or industrial signs on the same lot as the use to which it relates, provided that the total of such signs shall be limited to two square feet per each lineal floor of horizontal building facade length, but not to exceed an aggregate area of 160 square feet.”

Section 506.2(d)(2) does not relate to advertising signs, as defined. Even if advertising signs were permitted under some provision of the zoning ordinance, section 506.2(d)(2) would not apply because advertising signs would not be located on the same lot as the use to which it relates. Accordingly, we rule that the board’s reliance on section 506.2 of the zoning ordinance was improper.

Counsel for the township urged, in oral argument, that even if the court should find that the zoning ordinance is exclusionary, the decision of the board should nevertheless be upheld because the presence of the signs would be injurious to the health, safety, and welfare of motorists, as well as the citizens of Richmond Township. Evidence was presented by the township engineer that the highway adjacent to the proposed locations of the billboards, Route 222, handles large volumes of traffic on a daily basis. The volume of traffic has increased, rendering the design of the highway antedated. The presence of billboards could distract motorists traveling on Route 222, creating a safety hazard. Another witness testified regarding one of the proposed signs, which would be erected on the “Sacks property,” stating that that sign would partially obstruct the view of motorists merging onto Route 222 from the nearby intersection. Applicant also presented testimony from a civil engineer, who opined that the proposed signs would not present any traffic safety problems nor violate any safety regulations.

This issue of the proposed use’s effect on public safety was not raised in the findings of fact and discussion published by the board, nor was it raised in its decision. The evidence presented by the township engineer was contested by applicant. Applicant’s expert provided an opinion contrary to that of the township engineer. No determination was made on which expert testimony was more credible.

As this issue was never addressed by the board in its findings or decision, neither it, nor the township, can utilize these concerns as a basis for denying applicant’s relief. As stated in Adams, 159 Pa. Commw. at 382, 633 A.2d at 244-45, once applicant proved a total exclusion of a legitimate use, the burden then shifts to the township to establish that the prohibition promoted health and safety, morals and general welfare. “Moreover, the constitutionality of [the] zoning ordinance which totally excludes a legitimate use must be highly scrutinized and, thus, such ordinance must bear a more substantial relationship to a stated public purpose than a regulation which merely contains a use to a certain zoning district.” 159 Pa. Commw. at 382, 633 A.2d at 245. (emphasis in original)

The township cannot argue that it sustained its burden on this issue when it has not challenged the decision of the board and the board made no ruling on the safety issue. Accordingly, applicant’s application cannot be denied on this basis.

Having determined that applicant is entitled to zoning relief, we must consider the nature of an appropriate remedy. Relying primarily on Adams Outdoor Advertising Ltd. v. Borough of Coopersburg Zoning Hearing Board, 155 Pa. Commw. 591, 625 A.2d 768 (1993), applicant urges this court to permit the billboards to be erected as proposed by applicant. As stated in Adams, 155 Pa. Commw. at 595, 625 A.2d at 770-71: “Where the cause of an ordinance’s invalidity is a de jure exclusion of a legitimate use, the sole remedy is to allow the use somewhere in the municipality and equity dictates that this opportunity fall to the successful litigant.” (emphasis in original)

The board counters with its argument that applicant’s proposed use must still comply with the dimensional requirements of the zoning ordinance. It notes that applicant’s current proposal would not meet the dimensional limitations. Further, applicant did not present sufficient evidence to establish entitlement to a dimensional variance under section 803.2.

The proposed application would violate section 407.5 of the ordinance which requires a 40-feet front yard setback dimension. The proposed locations for the billboards would be 21 feet, 23 feet, 28.5 feet, and two billboards each at 29.5 feet, respectively, from the front property lines.

The proposal also would violate section 407.7 of the ordinance which requires a 35 feet maximum building height. Three of the billboards would exceed this height, with two being 40 feet 9 inches in height and one being 49 feet in height.

We note with interest the case of J.B. Steven Inc. v. Wilkins Township, 654 A.2d 135 (Pa. Commw. 1995). Both the J.B. Steven case and Adams v. Borough of Coopersburg Zoning Hearing Board, supra, stand for the proposition that where a zoning ordinance acts as a de jure exclusion of a legitimate use, a party seeking to employ such use must be permitted to do so as proposed, provided that the submitted plans are reasonable and not injurious to the public health, safety, welfare, and morals. The Commonwealth Court in J.B. Steven Inc., specifically expresses this condition, in cautioning that a finding that an ordinance is exclusionary as to offsite billboards does not automatically permit an applicant to erect whatever kind of structure it wishes without investigation into the reasonableness of the proposed plans. The fact that applicant has established the ordinance to be invalid does not give applicant a blank check to erect and locate a billboard in any way it deems fit.

Focusing on the issue of reasonableness, the Commonwealth Court in J.B. Steven Inc., found that a 35- feet height restraint contained in the applicable ordinance applied to any structure, including billboards, and that, having received competent evidence that the restriction is reasonable, the court held that this dimensional restriction should be honored. Further, the court found that reasonable restrictions on the sign surface area were warranted and found that the board applied sensible restraints on the proportions of the proposed billboards, which restricted the acceptable size of the billboard to 350 square feet, a significant reduction from the 1,200 square feet size proposed by the applicant.

We find that the 40-feet front yard setback dimension required by the board pursuant to section 407.5 of the ordinance is appropriate. As stated, the township presented evidence that the affected area of Route 222 handles large volumes of traffic and is often congested. The road itself is not sufficient to address the traffic volume. A 40-feet front yard setback is reasonable and does serve to protect motorists, as well as any pedestrians. Further, the setback requirements are for all structures, not merely signs, and therefore the dimensional requirements are not compromised by the fact that the ordinance improperly excludes the use of advertising signs. The board’s decision denying a dimensional variance from section 407.5 of the ordinance is affirmed.

On the other hand, this court cannot sustain the decision of the board regarding the imposition of the maximum height of 35 feet. The applicable provision, section 407.7, relates to “building height.” The definition of “building” in section 201.4 is:

“Any combination of materials forming any structure which is erected on the ground and permanently affixed thereto, designed, intended, or arranged for the housing, shelter, enclosure, or structural support of persons, animals, or property of any kind. Structures divided by unpierced masonry division walls extending from the ground to underside of the roof shall not be deemed to be a separate building for the purpose of this ordinance.”

While the board found, and this court agrees, that an advertising sign is a “structure,” the billboard is nevertheless not the type of structure which is referenced in the definition of building. An advertising sign does not constitute housing, shelter, or an enclosure. It does not structurally support any persons, animals, or property. Accordingly, the board should not have applied section 407.7 and its dimensional restrictions to the application in this case.

Further, there is no evidence that the height of the billboard affects the public health, safety, morals, or general welfare. Although there may be cosmetic ramifications from a larger billboard, this alone is not sufficient. Accordingly, we Reverse the decision of the board denying the application on the basis that the application did not conform to section 407.7 of the ordinance.

Accordingly, we enter the following order:

ORDER

And now, December 17, 2003, upon consideration of the land use appeal filed by appellant, Lamar Advertising of Penn LLC d/b/a Lamar Advertising of Reading and The Lamar Companies, responses of the Zoning Hearing Board of the Township of Richmond and of Richmond Township, review of the findings of fact, discussion, and decision of the zoning hearing board, dated June 24, 2002, review of the transcripts of the hearings before the board, briefs filed by the parties, and after argument held, this court rules as follows:

(1) The decision of the zoning hearing board denying the request of applicant to determine that the zoning ordinance of Richmond Township is invalid is reversed. Applicant’s proposed use of the erection and maintenance of advertising signs shall be permitted.

(2) The board’s determination that dimensional variances from section 407.7, section 506.2(a)(6) and (7), and section 506.2(d)(2) of the ordinance are required is reversed.

(3) The board’s determination that a dimensional variance from section 407.5 of the ordinance requiring a 40 feet front yard setback dimension is affirmed. Applicant may file amended applications conforming to section 407.5.

(4) This court having determined that the zoning ordinance of the Township of Richmond is invalid, the township shall take necessary steps to cure the invalidity, within a reasonable time.

      . 53 Pa.C.S. §704 as amended.

      . Action no. 02-7910.

      . At this juncture, the parties did not request any relief regarding the equity action. Accordingly, this court shall address the issues raised in the land use appeal only.

      . Sign is defined as: “Any structure, building wall, or other outdoor surface, or any device or part thereof, which displays or includes any letter, work, model, banner, flag, pennant, insignia, device, or other representations used for announcement, direction identification, or advertisement. The word ‘sign’ includes the word ‘billboard,’ but does not include the flag, pennant, or insignia of any nation, state, city or other political unit, nor public traffic or directional signs.”

      . The board also mentioned other dimensional requirements, including the five feet side lot setback for freestanding signs, set forth in section 506.3(e) of the ordinance, which the board found to be met by the proposal. Further, for reasons already stated, the dimensional requirements stated in section 506.2(a)(6) and (7), and section 506.2(d)(2) of the ordinance, relating to the maximum square footage for one side of the billboard, do not apply.

      . The facts of this case are distinguished from J.B. Steven Inc., supra, by the content of the zoning ordinance.


author: MOTTO, J.,

text:
    Mora v. Nationwide Mutual Fire Insurance Co.

      C.P. of Lawrence County,
    no. 10211 of 1999, C.A.

      William G. Cohen, for plaintiff.

      John L. Argento, for defendant.
    December 2, 2003
   MOTTO, J.,

This civil action arises out of defendant, Nationwide Mutual Fire Insurance Co.’s handling of the claim of its insured plaintiff, John S. Mora, for property damage caused by an explosion that occurred at the premises of Zambelli Fireworks Manufacturing Co. Inc. on September 18, 1997.

Mora promptly reported his damage to Nationwide. Although Nationwide promptly made an initial estimate of damages, no payments were forthcoming until August 1998 when Nationwide issued a check to Mora for $6,200. That amount not being sufficient to cover the loss, Mora filed a complaint against Nationwide on February 25, 1999.

The complaint contains the following four counts:

Count I — Breach of contract.

Count II — Breach of covenant of good faith and fair dealing.

Count III — Bad faith pursuant to 42 Pa.C.S. §8371.

Count IV — Violation of Unfair Trade Practices and Consumer Protection Law.

May 6, 1999 brought an additional payment for $38,500. Finally a third payment of $5,000 issued, satisfying at least the claim of Count I of the complaint for breach of contract.

Before the court for disposition are Nationwide’s motion to list case for non-jury trial, a motion to strike expert’s report and motions in limine. By these motions, Nationwide seeks to accomplish the following:

(1) Have Count II for breach of covenant or good faith and fair dealing dismissed.

(2) Similarly have Count IV for violation of the Unfair Trade Practices and Consumer Protection Law dismissed.

(3) Have the case listed for a non-jury trial as to Count III.

(4) Have the report stricken and the testimony barred of Mora’s witness expert as to the internal machinations of insurance companies.

(5) Have certain communications barred as protected by the attorney-client privileges.

(6) Have their internal policy manuals designated as the Bates Nos. 044-104 documents excluded from being introduced into evidence.

Just as no one contends that Count III for bad faith is not still viable, no one disputes Count I for breach of contract is settled. In dispute is the viability of Counts II and IV, Count II being for breach of the covenant of good faith and fair dealing and Count IV being for violation of the Unfair Trade Practices and Consumer Protection Law.

In making their arguments in support of their motion to list case for non-jury trial, defendant Nationwide “requests that Count II be dismissed because it is a contract action which has been resolved by settlement,” and Count IV because no violation of the Unfair Trade Practices and Consumer Protection Law has been alleged or otherwise shown. Strictly speaking, the arguments to list the case for non-jury trial turn on whether plaintiff can proceed to jury trial on Counts II and IV. If not, then the only cause of action left and unresolved is Count III, a non-jury issue. A motion for summary judgment is appropriate if a party contends judgment should be entered in its favor without a trial. Rule No. 1035.2, 42 Pa.C.S. sub judice, such a motion would not only not delay trial, but expedite trial. Summary judgment is proper if, with respect to Counts II and IV, the court concludes that there is no genuine issue of material fact and that the plaintiff cannot recover on such counts as a matter of law, and defendant therefore is entitled to a judgment it its favor. Kleinberg v. SEPTA, 765 A.2d 405 (Pa. Commw. 2000). In the absence of a procedural objection and in the interest of judicial economy, we will treat Nationwide’s argument here as a motion for summary judgment, which it is in substance if not in form, and rule accordingly.

Plaintiff Mora argues that this count was not specifically included when Nationwide and he settled Count I. Literally, he may be correct; however, if Count II is redundant, it too must be considered settled. Count II is for the breach of covenant of good faith and fair dealing. Count I and Count II are both causes of action for breach of contract, each relying upon separate provisions of the identical contract, but allowing for one remedy. A plaintiff cannot recover in breach of contract and receive additional damages for breach of a separate provision of the same contract where recovery would otherwise be limited to the compensatory damage already received. To hold otherwise would result in an unjustified windfall for the plaintiff and calamitous travesty for the defendant.

Turning to Count IV, we find it not to provide a basis for recovery under the uncontested facts of this case. Mere refusal to pay benefits is nonfeasance rather than misfeasance. Gordon v. Pennsylvania Blue Shield, 378 Pa. Super. 256, 548 A.2d 600 (1988). See also, Horowitz v. Federal Kemper Life Assurance Co., 57 F.3d 300 (3d Cir. 1995), and Caplan v. Fellimer, Eichen, Braverman & Kaskey, 5 F. Supp.2d 299 (E.D. Pa. 1998). Failure to pay benefits in a timely fashion is mere nonfeasance, whereas misfeasance is what is necessary to support an action under Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (46 P.S. §1171.1 et seq.). Leo v. State Farm Mutual Auto Insurance Co., 908 F. Supp. 254 (E.D. Pa. 1995), aff., 116 F.3d 468; Smith v. Nationwide Mutual Fire Insurance Co., 935 F. Supp. 616 (W.D. Pa. 1996); Schroeder v. Accelerating Life Insurance Co. of Pennsylvania, 972 F.2d 41 (3d Cir. 1999); Lombardo v. State Farm Mutual Auto Insurance Co., 800 F. Supp. 208 (E.D. Pa. 1992).

An insurer can be held liable under Pennsylvania unfair Trade Practices and Consumer Protection Law, (supra) only if fraudulent misrepresentations were employed to foster the sale of the policy. Fisher v. Aetna Life Insurance and Annuity Co., 39 F. Supp.2d 508, aff., 176 F.3d 472, cert. den., 528 U.S. 816, 120 S.Ct. 54, 145 L.Ed.2d 48. The Pennsylvania Unfair Insurance Practices and Consumer Protection Act (40 P.S. §1171.1) and not the Pennsylvania Unfair Trade Practices and Consumer Protection Law (73 P.S. §201-1 et seq.) is an insurer’s remedy for the alleged bad faith actions of his insurance company. McLaughlin v. Nationwide Mutual Insurance Co., 33 D.&C.3d 504, 510-11 (Huntingdon Cty. 1984).

In light of the foregoing, Count IV must also be dismissed. This means that only Count III remains for trial. Now we must determine whether Count III proceeds to a jury trial or a non-jury trial. In briefing this issue, both sides made extended references to Mishoe v. Erie Insurance Co., 762 A.2d 369 (Pa. Super. 2000). An appeal to the Pennsylvania Supreme Court in Mishoe was granted at 566 Pa. 666, 782 A.2d 547 (2001), decided on May 30, 2003. Mishoe v. Erie Insurance Co., 573 Pa. 267, 824 A.2d 1153, 1154 (2003). The first two sentences of that opinion read as follows:

“The question presented in this case is whether there is a right to a jury trial in a bad faith action pursuant to 42 Pa.C.S. §8371. We hold that there is not.”

Because 42 Pa.C.S. §8371 puts the power in “the court,” the Supreme Court, using definitions in the Judicial Code, reasoned that this meant a judge operating without the benefit of a jury (id.) and that “absent specific conferral, the right to a jury trial does not exist.” (Id. at 278, 824 A.2d at 1159.)

Plaintiff has also argued that the defendant has, nonetheless, by operation of waiver, become entitled to a jury trial. That is not possible. By initially requesting a jury trial, the plaintiff preserved whatever right they had to jury trial, but, as per Mishoe, the plaintiff never had a right to a jury trial. Whatever right the defendant had to a jury trial they preserved by their initial request, but this was their right which they were free to waive (Downs v. Scott, 201 Pa. Super. 278, 191 A.2d 908 (1963)) and waive it they did. One cannot waive their way into a jury trial. Jury trials occur because a party has such a right which they do not waive. Beach v. Burns International Security Services, 406 Pa. Super. 160, 593 A.2d 1285 (1991). It is the right to a jury trial that is waived, not a right to a non-jury trial. Either a party has a right to a jury trial or they do not, and either the party waives that right or they do not. Jury trials happen because of rights not waived. In the absence of said rights and/or as the result of waiver, the default result is a non-jury trial.

Next we turn to whether expert testimony is admissible to aid the court in deciding whether Nationwide acted in bad faith. Opinion evidence from experts is admissible if the finder of fact cannot be expected to draw inferences from the other evidence. Woods v. Pleasant Hills Motor Co., 454 Pa. 224, 309 A.2d 698 (1973). Mattox v. City of Philadelphia, 308 Pa. Super. 111, 454 A.2d 46 (1982). Opinion evidence from experts is not admissible where the fact-finder not only has all the facts but also is in as good a position as the expert to draw inferences from the facts. Roadway Express Inc. v. W.C.A.B. (Suveg), 54 Pa. Commw. 169, 420 A.2d 774 (1980). If the facts can be described to the fact-finder and can be properly estimated by the fact-finder, opinion evidence ought not to be allowed. Corl v. Corl, 222 Pa. Super. 152, 292 A.2d 54 (1972). However, where the matter is one beyond the understanding of the ordinary layperson and involving special skills and training, expert testimony is needed. Reardon v. Meehan, 424 Pa. 460, 227 A.2d 667 (1967).

In 1998, all of the case law on this subject matter became embodied in Rule 702, Pa.R.E., 42 Pa.C.S. Rule 702 provides:

“If scientific, technical or other specialized knowledge beyond that possessed by a layperson will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify thereto in the form of an opinion or otherwise.”

In a context more specific to the matter at hand, Nationwide, in its motion to strike expert’s report, cites the court to Bergman v. United Services Automobile Association, 742 A.2d 1101 (Pa. Super. 1999). In Bergman, the trial court had excluded expert testimony whether there was a reasonable basis for an insurer’s denial of benefits and the Superior Court upheld the exclusion. Id. However, the holding of the Superior Court was not that such evidence was inadmissible. Rather the Superior Court held the matter “rests within the sound discretion of the trial court” and “will not be disturbed on appeal absent an abuse of the court’s discretion.” Id., 742 A.2d at 1105. More to the point, the holding did bar such evidence only “that expert testimony is not required as a per se rale under Pennsylvania law in bad faith actions.” Id. at 1107. (emphasis in original)

These limitations to the holding in Bergman were brought into further focus in Bonenberger v. Nationwide Mutual Insurance Co., 791 A.2d 378 (Pa. Super. 2002). In Bonenberger, the trial court had allowed the admission of expert testimony as to this question of whether the insurer had engaged in bad faith. Id. Therein the Superior Court explicitly rejected defendant’s notion that Bergman held such expert testimony to be “not necessary and therefore not admissible.” Id., 791 A.2d at 382. In a holding completely consistent with our interpretation of Bergman, the Bonenberger court held that the admission or exclusion of expert testimony in actions on insurance policies based on claims “of bad faith remain[s] a matter within the sound discretion of the trial court.” Id., 791 A.2d at 382.

As per the language of Rule 702 (Pa.R.E., Rule 702, 42 Pa.C.S.) the court feels that this expert testimony could assist the trier of fact to understand the evidence or to determine a fact in issue. We so hold cognizant that a judge as a trier of fact can more easily disregard evidence ultimately proving to be inflammatory, misleading or prejudicial, or resting upon a suspect foundation than a jury. Commonwealth v. Wright, 234 Pa. Super. 83, 339 A.2d 103 (1975); Commonwealth v. Mangan, 220 Pa. Super. 54, 281 A.2d 666 (1971); Commonwealth v. Carter, 377 Pa. Super. 93, 546 A.2d 1173 (1988).

Finally there are the motions in limine seeking to exclude communications between Nationwide and its counsel as well as the Bates No. 044-104 documents. Of course, confidential communications between attorney and client are privileged and, as such, inadmissible. Na tional Railroad Passenger Corporation v. Fowler, 788 A.2d 1053 (Pa. Commw. 2001).

Any discussion whether or not given communications would be so privileged has been made academic by counsel for the plaintiff’s response that counsel “has no intention of presenting any such testimony.” Brief of plaintiff in opposition to defendant’s motion in limine and to limit the case for non-jury trial, p. 9. In effect this means counsel for the plaintiff has no objection to said motion, so said motion will accordingly be granted, and made applicable to both parties as requested at argument.

The matter regarding the Bates documents is not dispensed with so easily. These documents are internal Nationwide documents regarding Nationwide’s settlement procedures. Nationwide objects on the basis of relevance citing Garvey v. National Grange Mutual Insurance Co., 167 F.R.D. 391 (E.D. Pa. 1996) wherein the federal district court applying Pennsylvania law held the insurer’s claims adjustment manuals were not discoverable as to whether or not the insurer had acted in bad faith. However, before the court did so, it examined the insurance manuals in camera and “found no evidence of bad faith in the documents.” Id., F.R.D. at 394. Once that finding had been made, then and only then could the court go on to find the manuals immaterial because “the fact that the defendant may have strayed from its internal procedures does not establish bad faith... in handling the plaintiff’s loss.” Id., F.R.D. at 396. So, in essence, what the court said was that when the manual does not manifest a corporate philosophy of bad faith, mere noncompliance with that manual does not indicate that that behavior is bad faith, i.e., noncompliance with acceptable procedure is not in of itself evidence of bad faith. This court has yet to determine that the insurance manuals do not indicate a corporate philosophy encouraging bad faith responses, which brings us again to the recent case of Bonenberger v. Nationwide (supra).

In Bonenberger, the Pennsylvania Superior Court approved the admission of the manual that was defendant’s primary guide in “evaluating, valuing and negotiating claims.” Bonenberger, 791 A.2d at 381. As an insurance company has a duty “to treat their insureds fairly and provide just compensation,” “a company manual, which dictates a certain philosophy in claims handling, may be relevant and useful in evaluating a bad faith claim.” Id. at 382. By viewing the manual, both the trial and the Superior Court became privy to the corporate philosophy which did “not encourage reasonable case-by-case evaluation.” Id. Only by viewing the manuals can the court discern whether a corporate philosophy or policy was therein manifested encouraging or mandating bad faith responses.

Operating without the benefit of such information could mean excluding something important. Dangers on the other side are less poignant because judges as triers of fact, as stated previously, can be assumed to be better equipped than juries to ignore inflammatory, misleading or prejudicial materials. Commonwealth v. Wright (supra); Commonwealth v. Mangan (supra); and Commonwealth v. Carter (supra). As this evidence could disclose defendant’s corporate philosophy while there is no danger the court would overvalue such evidence or be confused by it, the court thinks it best to exercise its discretion to allow the manuals to be introduced into evidence.

ORDER

And now, December 2, 2003, for the reasons set forth in the accompanying opinion of even date herewith, it is ordered, adjudged and decreed as follows:

(1) The defendant’s motion to list case for non-jury trial is granted and this case shall proceed as a non-jury proceeding relative to Count III of the complaint. Relative to Counts I, II and IV of the complaint, the court finds that as a matter of law the plaintiff cannot obtain any recovery on said counts because of settlement, payment or failure to set forth facts constituting a cause of action; therefore, summary judgment relative to such counts is hereby entered in favor of defendant and against plaintiff and Count I, II and IV are hereby dismissed.

(2) Defendant’s motion to strike expert’s report is denied.

(3) Defendant’s motion in limine seeking to exclude confidential communication between defendant and its counsel is granted and each party is prohibited from introducing evidence of communications between a party and counsel that are protected by the attorney-client privilege.

(4) Defendant’s motion to exclude the defendant’s internal policy manuals, Bates No. 044-104 is denied.

(5) A further conciliation/pretrial conference is scheduled for the 27th day of January, 2004 at 10:00 o’clock a.m. in courtroom 1.


author: WALLACE MILLER, J„

text:
    Wolf v. Wolf

      C.P. of Monroe County,
    no. 4877 Civil 2002.

      Susan Wolf, pro se.

      Salvatore P.J. Vito, for Jane Wolf.

      James V. Fareri, for East Stroudsburg Savings Assn.

      Jonathan Wolf, pro se.
    November 13, 2003
   WALLACE MILLER, J„

Pennsylvania’s strong public policy favoring the strict enforcement of child support orders collides in this case with a well-established rule of civil procedure governing priority of distribution as between competing plaintiffs. For the reasons that follow, this court gives a support lien priority over all other competing liens.

Jonathan Wolf is the holder of two bank accounts at the East Stroudsburg Savings Association in Stroudsburg, Pennsylvania. Mr. Wolf, who is unable to be located, owes debts to two different individuals, both of whom have liens on the bank accounts at issue. Mr. Wolf’s mother, Jane Wolf, recorded a $43,000judgment against Mr. Wolf in Monroe County on July 12, 2002. Mr. Wolf’s former wife, Susan Wolf, transferred a New Jersey child support judgment to Monroe County on May 23, 2003. As of October 2, 2003, Mr. Wolf is indebted to Susan Wolf in the amount of $21,976.40. This case stems from a request by Jane Wolf to the sheriff to levy upon Mr. Wolf’s accounts at East Stroudsburg Savings Association to satisfy her lien and Susan Wolf’s motion to set aside that levy.

The crux of this case is whose lien should have priority over Mr. Wolf’s bank accounts — Jane Wolf’s lien, because it was recorded first, or Susan Wolf’s lien, because her judgment against Mr. Wolf is for child support arrearages.

Jane Wolf relies on Pa.R.C.P. 3137, which states that distribution “shall be determined from the date of service of the writ upon the garnishee in the case of an attachment.” Susan Wolf relies on federal law, most notably 42 U.S.C. §666, a recently amended provision of the Social Security Act that requires states to give support collection priority over all other liens. Jane Wolf argues in response that section 666 does not require states to give support liens priority, and that Pennsylvania has enacted no statute or rule of civil procedure that states likewise.

An analysis of the Social Security Act’s child support enforcement provisions is necessary because under the U.S. Constitution, a féderal scheme prevails over a state law application. U.S. Const. Article VI, Section 2. This court is required to follow federal law when it conflicts with a Pennsylvania statute or rule.

Child support, as well the entire field of family law, was traditionally the province of the several states. “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states and not to the laws of the United States.” In re Burrus, 136 U.S. 586, 593-94, 10 S.Ct. 850, 853, 34 L.Ed. 500 (1890), quoted in Martin v. Martin, 385 Pa. Super. 554, 560, 561 A.2d 1231, 1234 (1989), appeal granted, 525 Pa. 627, 578 A.2d 414 (1990), appeal dismissed as improvidently granted, 528 Pa. 348, 598 A.2d 28 (1991). However, during the last third of the twentieth century, Congress began to legislate in matters that were traditionally left to the states. Family law was no exception.

The first foray by Congress into child support enforcement came in 1974 when Title IV-D of the Social Security Act was passed. Pub. L. no. 93-647, 88 Stat. 237 (1974) (codified as amended at 42 U.S.C. §§651-70 (2003)). Title IV-D established, inter alia, the Office of Child Support Enforcement and the Federal Parent Locator Service. In 1984, amendments to Title IV-D required states to establish commissions on child support as well as several new methods of child support enforcement, such as wage withholding, income tax intercepts, and hens. Pub. L. no. 98-378, 98 Stat. 1305.

Incremental changes in the federal child support enforcement regime in the early 1990s climaxed in the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (PRWORA). Pub. L. no. 104-193, 110 Stat. 2105 (codified at scattered sections of 42 U.S.C.). PRWORA required states to strengthen their child support enforcement provisions in a myriad of ways, ranging from establishing paternity through genetic testing to enforcing support orders through license revocations and criminal penalties. Of interest to our case are PRWORA’s provisions that require states to adopt laws that place hens on an obligor’s real and personal property and allow states to seize funds from bank accounts. See 42 U.S.C. §666(a).

Specifically, states are required to have procedures under which “hens arise by operation of law against real and personal property for amounts of overdue support owed by a noncustodial parent who resides or owns property in the state.” Section 666(a)(4)(A). While section 666(a) details the new procedures required to be implemented by the states, section 666(b) provides in more detail how a state should implement the “withholding from income of amounts payable as support” provision of section 666(a)(1). Notably, section 666 (b)(7) states “support collection under this subsection must be given priority over any other legal process under state law against the same income.”

The question is whether section 666(b)(7) applies in this case. It is undisputed that Susan Wolf is owed child support arrearages. Should her lien on Mr. Wolf’s bank accounts be given priority over Jane Wolf’s lien, even though Jane Wolf’s lien is first-in-time? It seems clear that section 666(b) is meant to apply to a standard wage attachment, a common provision of child support enforcement. If Mr. Wolf was working and having his wages attached in order to pay his child support, there is no doubt that whatever debt he owed to Jane Wolf would be a second priority after his child support order. But in cases like the instant one, where the noncustodial parent ostensibly has disappeared, standard wage attachment does not work. Would the intent of Congress be that for these child support scofflaws, support collection would be seen as just another debt that the individual needed to pay, and that the custodial parent who is owed support should simply get in line with all other creditors?

We find such an idea to be not only revolting, but also contrary to the intent of Congress. It was the intent of Congress for states to make it easier, not harder, to enforce child support orders. The regime of placing liens on an obligor’s real and personal property, of suspending driver’s licenses and providing criminal penalties for those not paying child support is evidence of this intent. In addition, section 666(a)(1)(B) provides that when obligors who are not subject to withholding create arrearages, such obligors will become subject to the provisions of section 666(b). This is further evidence that it was the intent of Congress that when child support arrearages develop, these arrearages should have first priority over all other debts that an obligor may owe.

Pennsylvania’s strong policy favoring payment of child support has resulted in an elaborate child support enforcement regime, some portions of which have been adopted in response to PRWORA. See Yerkes v. Yerkes, 573 Pa. 294, 305 n.8, 824 A.2d 1169, 1175 n.8 (2003). Unpaid support obligations automatically constitute a judgment against the obligor by operation of law. 23 Pa.C.S. §4352(d). Overdue support can also become a lien on real property within the county in which the overdue support is on record at the county domestic relations office. Section 4352(d.l); Pa.R.C.P. 1910.22. Overdue support does not currently create a lien on an obligor’s personal property. Pa.R.C.P. 1910.22, cmt.; Commonwealth v. $1,074.00, no. 1397 Civil 2001, slip op. (C.P. Monroe September 25,2001). However, child support arrearages may be reduced to a judgment of record and satisfied through levy of execution on both real and personal property. Pa.R.C.P. 1910.24; 23 Pa.C.S. §4366.

Even though Pennsylvania has an extensive child support enforcement regime, there is no case law, statute, or rule that this court can locate that explicitly states that child support liens take precedence over other liens on an obligor’s property. However, 42 U.S.C. §666(b) (7) requires this court to give first priority over Mr. Wolf’s bank accounts to Susan Wolf. Her claim for child, support arrearages must precede Jane Wolf’s claim against Mr. Wolf. This is consistent with the text of section 666(b)(7), the entire federal child support enforcement regime, as well as Pennsylvania’s statutory provisions regarding child support.

It is worth noting that in some of our sister states, child support liens have priority over other liens, even liens that were recorded first. See Commonwealth Edison v. Denson, 494 N.E.2d 1186 (Ill. App. 1986). In New. York, CPLR 5242 states that support has priority over any other “assignment, levy, or process.”

CPLR 5242 was recently interpreted by the New York Supreme Court, in a case in which “the real issue pits the interests of child support against everyone else.” Daniels v. Monroe County Child Support Collection Unit, 196 Misc.2d 595, 763 N.Y.S.2d 461, 462 (Sup. Ct. 2003). In Daniels, the petitioner had settled a lawsuit for $7,500, and the court’s task was to determine which of four liens had priority over the $7,500. The court decided that the petitioner’s attorney’s charging lien had first priority, reasoning that without the attorney’s work, there would be no funds from which to pay child support. Next, the' court found that a workers’ compensation lien had the next highest priority, since the child support unit already had an opportunity to seize these funds. The child support lien had the third priority, followed by a debt petitioner owed to a former landlord.

Daniels is not binding on this court, but it is noteworthy that child support received a higher priority than a debt for back rent. The Daniels court did not discuss the recent amendments to the Social Security Act, but that is understandable in light of the CPLR’s explicit provision that grants support liens priority over all other liens.

The comprehensive changes to the Social Security Act in 1996 clearly show that Congress wanted to give highest priority to the enforcement of child support. One scholar has noted that the only way PRWORA could have been made stronger would be “turning the entire enforcement process over to the federal government.” Linda D. Elrod, Child Support Reassessed: Federalization of Enforcement Nears Completion, 1997 U. Ill. L. Rev. 695, 703. It is in keeping with the legislative intent behind PRWORA and the explicit text of section 666(b)(7) that this court gives first priority over Mr. Wolf’s bank accounts to Susan Wolf.

ORDER

And now, November 13, 2003, the motion of Susan Wolf to set aside the sheriff’s levy is granted. East Stroudsburg Savings Association is directed to release the funds held in account number **-**_********** in the name of Jonathan Wolf with Tax ID no. ***_**_**** and any other accounts found in the name of Jonathan Wolf to the Hunterdon County Probation Division, 65 Park Avenue, Flemington, New Jersey 08822 to be applied to arrearages in the case of Susan Wolfv. Jonathan Wolf docket no. FM-10-275-00; case no. CS71904976A; judgment no. J-076989-02.


author: NANOVIC, J.,

text:
    Dillow v. Myers

      C.P. of Carbon County,
    no. 00-2100.

      Ronald W. Shipman, for plaintiff.

      Mark S. Sigmon, for defendants.
    October 23, 2003
   NANOVIC, J.,

Before us is defendants’ motion in limine asking that plaintiff be precluded from introducing evidence of his medical expenses and lost wages to the extent the same have been paid by his employer’s workers’ compensation carrier. In addition, defendants ask that plaintiff be precluded from introducing evidence of any wage loss claim to the extent plaintiff’s first-party wage loss coverage under his personal automobile insurance policy provided coverage for such loss.

FACTS

The facts are not in dispute. (See defendants’ motion in limine and plaintiff’s answer, ¶¶1-13 inclusive.) On November 5, 1998, John Dillow, plaintiff, sustained injuries in a motor vehicle accident while in the course and scope of his employment with the Pennsylvania Turnpike Commission as a maintenance worker. At the time, plaintiff was seated in a dump truck owned by the commission and parked on the shoulder of the road, when his truck was struck from behind by a truck driven by the defendant, Edward John Myers, an employee of the defendant, Funk Water Quality Company.

As a result of the accident, plaintiff claims to have sustained injuries to his neck, head, ear, lower back, and coccyx. The commission, as a self-insured employer, acquired a statutory subrogation lien of $57,220.39 for workers’ compensation benefits paid to, and on behalf of, the plaintiff for medical expenses and lost wages. Of this amount, $48,434.22 was for lost wages paid directly to the plaintiff; the remaining $8,786.17 was for medical expenses.

On April 18, 2003, the commission agreed with defendants’ liability insurance carrier to settle its subrogation claim of $57,220.39 for the payment of $40,000. This amount has been paid by defendants’ insurance carrier. No release of the commission’s subrogation lien has been executed nor has the commission formally assigned its lien to defendants’ carrier.

DISCUSSION

I. Subrogation of Workers’ Compensation Benefits

Defendants first argue that this court preclude the plaintiff from introducing evidence of medical bills and lost wages covered by workers’ compensation. Defendants argue that because the subrogation lien in this case has been “extinguished” by the settlement between the commission and their insurance carrier, sections 1720 (relating to subrogation) and 1722 (relating to preclusion of benefits) of the Motor Vehicle Financial Responsibility Law, 75 Pa.C.S. §§1720 and 1722, prohibit the plaintiff from introducing evidence of the workers’ compensation amounts paid.

Section 1720 of the MVFRL, provides:

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

Section 1722 provides:

“In any action for damages against a tort-feasor, or in any uninsured or underinsured motorist proceeding, arising out of the maintenance or use of a motor vehicle, a person who is eligible to receive benefits under the coverages set forth in this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719 (relating to coordination of benefits) shall be precluded from recovering the amount of benefits paid or payable under this subchapter, or workers’ compensation, or any program, group contract or other arrangement for payment of benefits as defined in section 1719.”

Effective August 31, 1993, revisions to the Workers’ Compensation Act repealed sections 1722 and 1720 insofar as they relate to workers’ compensation benefits. See section 25(b) of the Act of July 2,1993, P.L. 190, no. 44.

In Carlson v. Bubash, 432 Pa. Super. 514, 520, 639 A.2d 458, 461 (1994), appeal denied, 540 Pa. 592, 655 A.2d 982 (1995), the Superior Court interpreted section 1722 not only to preclude recovery, but to preclude the introduction of medical bills and expenses into evidence where a plaintiff was eligible to receive such benefits as first-party benefits under his own automobile insurance policy. Defendants argue that because their insurance carrier reached a settlement with the commission and plaintiff will no longer be liable to his employer for benefits paid, the rationale underlying Act 44 — the recovery of workers’ compensation benefits through subrogation against monies recovered from a third-party tort-feasor for injuries sustained in a work-related automobile accident — is nullified. Absent subrogation, according to defendant, plaintiff is precluded from introducing any evidence relating to plaintiff’s medical bills and lost wages to the extent they were paid by his employer. We find this argument unpersuasive.

Ordinarily, when a workers’ compensation carrier pays benefits to, or on behalf of, an individual, the carrier acquires a subrogation lien against any potential tort recovery from a third party. The cause of action for the underlying claim of subrogation accrues on the date of injury. DePaul Concrete v. W.C.A.B. (White), 734 A.2d 481, 486 (Pa. Commw. 1999), appeal denied, 562 Pa. 664, 753 A.2d 821 (2000). However, the lien is not recoverable until the plaintiff settles his claim or is awarded a judgment.

The plaintiff utilizes the reasoning of Pennsylvania Manufacturers’ Association v. Wolfe, 534 Pa. 68, 626 A.2d 522 (1993), to argue that he should be permitted to introduce evidence of the amounts covered by workers’ compensation. In accordance with this decision, the rights of a subrogee employer can be no greater than those of the employee and are taken subject to the same limitations. Further, “[t]he worker’s compensation carrier is not entitled to any subrogation until the injured employee has the ‘right’ to and receives such compensation.” Id. at 74, 626 A.2d at 525.

We agree with the plaintiff that the principles of sub-rogation espoused in Pennsylvania Mfrs. v. Wolfe are applicable in this case. Act 44 and its repeal of sections 1720 and 1722 of the MVFRL to the extent they relate to workers’ compensation benefits express a clear legislative policy deferential to the priority and repayment of workers’ compensation benefits vis-a-vis subrogation. Pursuant to this policy, an employee in an action against a third-party tort-feasor is entitled to plead, prove and recover benefits paid or payable by workers’ compensation.

The commission’s settlement of its then-liquidated claim did not extinguish or reduce its inchoate lien on a fund which had yet to be created. Whether payment of this lien, contingent upon creation of a fund, is to be made to the commission or defendants’ carrier, and how allocated, is a matter between them and is not now before us. The lien not having been released dr extinguished still exists; therefore, the settlement between the commission and defendants’ carrier has no effect on the introduction into evidence of medical bills and lost wages by plaintiff.

Even were we to find, however, that the statutory sub-rogation lien was extinguished, plaintiff’s proof of his damages would not be compromised. “Historically, workers’ compensation benefits have been considered a collateral source of recovery in a plaintiff’s action against the third-party tort-feasor.” Palmosina v. Laidlaw Transit Company Inc., 445 Pa. Super. 121, 123, 664 A.2d 1038, 1039 (1995). Under the collateral source rule, a defendant may not introduce evidence that a plaintiff has received compensation on account of his injury from a source other than the defendant. Application of the collateral source rule is not dependent on the existence of subrogation. Defendant’s request that the court bar the introduction of relevant evidence on damages because subrogation with respect to such damages does not exist implicitly violates the rationale of the collateral source rule.

To the extent plaintiff argues any recovery he obtains against defendants should be reduced by the amount defendants’ carrier paid to the commission — $40,000—and not the full amount of workers’ compensation benefits paid — $57,220.39—plaintiff seeks to reap a windfall to which he is neither equitably nor fairly entitled. Whatever may be the agreement between the commission and defendants’ carrier as to any division of the lien proceeds, if recovery by the plaintiff is realized, it is clear that plaintiff was neither an express party nor a third-party beneficiary to the agreement. Nothing in the agreement between the commission and defendants’ carrier suggests that plaintiff is to receive the benefits of a double recovery: both workers’ compensation benefits and overlapping recovery from a third-party tort-feasor.

In settling with the commission, defendants’ carrier has in all probability reduced, not simply deferred, its risk as a liability carrier in a third-party proceeding for the payment of workers’ compensation benefits. To find otherwise would be contrary to the judicial policy of encouraging parties to compromise and settle their disputes, and that of the MVFRL of minimizing premiums. Danko v. Erie Insurance Exchange, 428 Pa. Super. 223, 229, 630 A.2d 1219, 1222 (1993), aff’d, 538 Pa. 572, 649 A.2d 935 (1994). Therefore, any amount plaintiff recovers will be subject to a statutory subrogation lien in the full amount of $57,220.39.

II. Preclusion of Claims for which First-Party Benefits Exist

Defendants next argue that plaintiff is precluded from introducing evidence to prove the amount of wage loss that was recoverable under his personal automobile insurance policy. At the time of the accident, plaintiff was the owner and named insured for two vehicles: a 1989 GMC truck and 1991 Chevrolet Blazer. Plaintiff’s policy contained a $10,000 wage loss benefit. This amount was apparently neither requested nor received by plaintiff from his carrier. See 75 Pa.C.S. §1713(a) (setting forth order of priority for recovery of first-party benefits; first in priority is policy under which person is a named insured).

On this point, the law is clear. Section 1722 provides that anyone eligible to receive first-party benefits may not recover against a third party the amount of such benefits paid or payable. 75 Pa.C.S. §1722. “[A] person is ‘eligible’ to receive income loss benefits Under the MVFRL when he has actually purchased such benefits.” Carroll v. Kephart, 717 A.2d 554, 557 (Pa. Super. 1998). Further, evidence of the loss for which benefits exist, when nonrecoverable against a third party, is irrelevant and cannot be introduced at trial on the third- party claim. Carlson v. Bubash, 432 Pa. Super. 514, 520, 639 A.2d 458, 461 (1994).

Plaintiff argues that because he was working at the time of the accident, he is limited to recovering workers’ compensation benefits and was not eligible to receive benefits within the meaning of section 1722. In essence, plaintiff claims that workers’ compensation benefits are primary and supplant eligibility for benefits from his own insurance carrier. This same argument was made, and rejected, in Danko v. Erie Insurance Exchange, supra.

In Danko, the plaintiff/employee was injured in a motor vehicle accident while in the course of her employment. At the time of the accident, her average weekly wage was $152.60. Her employer’s workers’ compensation insurance carrier paid her workers’ compensation benefits in the amount of $ 139.67 per week, an amount based upon the applicable minimum compensation rate rather than two-thirds of her average weekly wage. See 77 P.S. §511. The difference between her average pre-injury weekly gross income and the workers’ compensation benefits she received was $12.93. Plaintiff requested that 80 percent of this amount (i.e., $10.34 per week) be paid by the defendant, her motor vehicle insurer, as first-party income loss benefits.

In holding in favor of the plaintiff, the court was required to interpret section 1712 of the MVFRL, 75 Pa.C.S. §1712(2)(i). This section provides that the income loss benefit to be provided by an insurer includes an amount equal to “80 percent of actual loss of gross income.” The court held that the proper interpretation of this provision, consistent with the protection afforded claimants under the MVFRL, was to require that the weekly workers’ compensation benefits received first be subtracted from the gross weekly income the employee earned at the time of the accident, and that the difference represents the “actual loss of gross income” referred to in the statute. The defendant had argued that no income loss benefits were due because the proper method to calculate income loss benefits was to multiply the plaintiff’s pre-injury average weekly gross income by 80 percent and then subtract from that amount any weekly workers’ compensation benefits actually paid, a figure which exceeded 80 percent of plaintiff’s weekly gross income at the time of the accident.

In reaching this decision, the court made the following comment which is equally relevant to the present case:

“It is important to recognize that the plaintiff is not seeking benefits in this case that would result in a windfall or a double recovery. She merely claims a percentage of her actual gross income loss which has not been fully covered by workmen’s compensation benefits. Even with the income loss benefits we find she is entitled to receive, under the provisions of both her insurance policy and the MVFRL, she will not reach the level of gross income she enjoyed prior to her injury. In that regard, we note that the MVFRL, in 75 Pa.C.S. §1719, contains a coordination of benefits provision, which makes workmen’s compensation benefits primary for income loss and other benefits which might be due a claimant who suffers disability in a work-related accident involving the use or maintenance of a motor vehicle. The plaintiff’s proposed interpretation is entirely consistent with that aspect of the statute. The workmen’s compensation benefits will still be considered primary, in their entirety, in offsetting the plaintiff’s lost income. The defendant insurer will not be paying any income loss benefits in duplication of workmen’s compensation proceeds received by the plaintiff. Rather, its payments will be based only upon the section 1712 ‘actual loss of gross income’ suffered by the plaintiff, comprised of the difference between the weekly workmen’s compensation amount she receives and her gross pre-injury weekly wage.” Id. at 231-32, 630 A.2d at 1223-24. (footnote omitted)

Significantly, section 1719 excludes workers’ compensation from those benefits over which automobile insurance is primary, but does not state that workers’ compensation is exclusive when both are involved.

In this case also, plaintiff’s recovery of first-party wage loss benefits would not result in a windfall or double recovery to the plaintiff. Instead, such payments would supplement, not duplicate, wage loss benefits for which plaintiff received workers’ compensation. Of plaintiff’s total wage loss claim, $24,217.11 represents lost wages for which plaintiff has not received any workers’ compensation payments. The income loss benefits which plaintiff was eligible to receive under his personal automobile insurance policy and which defendants seek to offset against this figure are less than 80 percent of plaintiff’s actual loss of gross income. Therefore, plaintiff may neither recover, nor attempt to prove, the $ 10,000 in income loss benefits to which he was entitled under the MVFRL.

ORDER

And now, October 23, 2003, it is hereby ordered and decreed that the motion in limine of defendants Edward John Myers and Funk Water Quality Company is granted, in part, and denied, in part. Defendants’ motion is denied to the extent that we find, as a matter of law, that the paintiff may plead, prove and recover those amounts paid to him by the Pennsylvania Turnpike Commission subject to a subrogation lien in the amount of $57,220.39 in accordance with our memorandum opinion of this same date.

Defendants’ motion is granted to the extent that we find that plaintiff shall be precluded from proving or recovering a total actual wage loss claim in excess of $62,651.33.

      . This amount equals two-thirds of plaintiff’s actual wage loss totaling $72,651.33. (In the typical case, the Workers’ Compensation Act requires the payment of 66 2/3 percent of the wages of the injured employee. 77 P.S. §511.) The difference, $24,217.11, represents lost wages for which plaintiff has not received workers’ compensation benefits and against which defendants seek to credit first-party wage loss benefits to which plaintiff was entitled under his personal automobile insurance policy.

      . Section 1719 of the MVFRL provides for coordination of benefits:
      “(a) General rule. — Except for workers’ compensation, a policy of insurance issued or delivered pursuant to this subchapter shall be primary. Any program, group contract or other arrangement for payment of benefits such as described in section 1711 (relating to required benefits) 1712(1) and (2) (relating to availability of benefits) or 1715 (relating to availability of adequate limits) shall be construed to contain a provision that all benefits provided therein shall be in excess of and not in duplication of any valid and collectible first-party benefits provided in sections 1711, 1712 or 1715 or workers’ compensation.
      “(b) Definition. — As used in this section the term ‘program, group contract or other arrangement’ includes, but is not limited to, benefits payable by a hospital plan corporation or a professional health service corporation subject to 40 Pa.C.S. ch. 61 (relating to hospital plan corporations) or 63 (relating to professional health services plan corporations).” 75 Pa.C.S. §1719.

      . The Pennsylvania Workers’ Compensation Act, section 319, provides for an employer’s, hence the employer’s insurer’s, claim to sub-rogation to the extent of compensation payable. Section 319 provides in pertinent part:
      “Where the compensable injury is caused in whole or in part by the act or omission of a third party, the employer shall be subrogated to the right of the employe, his personal representative, his estate or his dependents, against such third party to the extent of the compensation payable under this article by the employer.” 77 P.S. §671.

      . Subrogation serves the following purposes:
      “[T]he rationale for the right of subrogation is threefold: to prevent double recovery for the same injury by the claimant, to insure that the employer is not compelled to make compensation payments made necessary by the negligence of a third party, and to prevent a third party from escaping liability for his negligence .... ‘[Subrogation] is just, because the party who caused the injury bears the full burden; the employee is made “whole,” but does not recover more than what he requires to be made whole; and the employer, innocent of negligence, in the end pays nothing.’ Thus where a third party’s negligent conduct causes injury to an employee actually engaged in the business of his employer, there is a clear, justifiable right to subrogation under section 319 of the Act.” City of Meadville v. W.C.A.B. (Kightlinger), 810 A.2d 703, 704-705 (Pa. Commw. 2002) (citations omitted), reargument denied (December 10, 2002).

      . “Generally, ‘[t]he collateral source rule provides that payments from a collateral source shall not diminish the damages otherwise recoverable from the wrongdoer.’ Johnson v. Beane, 541 Pa. 449, 664 A.2d 96, 100 (1995). This rule ‘was intended to avoid precluding a claimant from obtaining redress for his or her injury merely because coverage for the injury was provided by some collateral source, e.g. insurance.’ Beechwoods Flying Service Inc. v. Al Hamilton Contracting Corp., 504 Pa. 618, 476 A.2d 350, 352 (1984); see also, id. at 353 (the rule is ‘intended to prevent a wrongdoer from taking advantage of the fortuitous existence of a collateral remedy’); Denardo v. Carneval, 297 Pa. Super. 484, 444 A.2d 135, 140 (1982) (‘Pennsylvania law is clear; the victim of a tort is entitled to the damages caused by the tort-feasor’s negligence regardless of compensation the victim receives from other sources’), citing, inter alia, Boudwin v. Yellow Cab Co., 410 Pa. 31, 188 A.2d 259 (1963).” Griesser v. National R.R. Passenger Corp., 761 A.2d 606, 609 (Pa. Super. 2000). See also, Palmosina v. Laidlaw Transit Company Inc., 445 Pa. Super. 121, 664 A.2d 1038 (1995) (absent express legislation to the contrary, the legislature’s elimination of the workers’ compensation carrier’s traditional right of sub-rogation did not by itself preclude an employee’s recovery of amounts paid by workers’ compensation in third-party litigation).

      . The policy provided for income loss benefits in a maximum amount of no more than $10,000 to be paid at a rate not to exceed $1,000 per month.

      . Cf. Hertel v. Parke, 48 D.&C.3d 456 (Lycoming Cty. 1987). In Hertel, the amount of medical expenses and loss in wages claimed by plaintiff were paid by workers’ compensation. Defendant argued such amounts were also recoverable by plaintiff as first-party benefits and, therefore, section 1722 precluded their recovery against defendant in a third-party claim. In granting defendant’s demurrer, the court held that plaintiff was entitled to the benefits covered by section 1711 of the MVFRL even though the benefits were also covered by workers’ compensation. Id. at 459. Therefore, plaintiff was barred from also recovering the loss from defendant. To hold otherwise would have required the court to find that the legislature “intended a person injured in an automobile accident while in the course of his employment could sue a tort-feasor for medical expenses and lost wages while all others injured in similar accidents could not.” Id. at 459. This the court was not prepared to do.


author: DOBSON, J.,

text:
    Meszaros v. VanZanten

      C.P. of Mercer County,
    no. 2003-661.

      John F. Becker, for plaintiff.

      M.J. Tindall, for defendant Sharon Regional Health System.

      Lisa Dauer, for defendant VanZanten.

      James A. Wood, for additional defendant Shaffer.
    Ocotober 7, 2003
   DOBSON, J.,

This opinion is written in explanation of this court’s order of October 6,2003, overruling additional defendant Lawrence M. Shaffer’s preliminary objection in the form of a motion to strike the complaint to join additional defendant on the grounds it was not timely filed. This court believes that the nature of the issue involved requires a formal opinion.

The relevant facts of this matter may be summarized as follows.

Plaintiffs filed their complaint on March 10,2003. The complaint involves an action for medical malpractice.

The complaint was served on defendant Sharon Regional Health System on March 25, 2003.

Plaintiffs served their certificate of merit on Sharon Regional Health System on April 25, 2003.

Sharon Regional Health System filed a praecipe for a writ to join Shaffer as an additional defendant on June 13,2003. The complaint to join additional defendant was filed on July 30, 2003.

Shaffer filed preliminary objections to the complaint to join seeking to strike it, inter alia, on the grounds it was not timely filed pursuant to Pa.R.C.P. 2253. Rule 2253 requires praecipes to join additional defendants be filed within 60 days of service of the complaint absent court approval.

Sharon Regional Health System argues that Pa.R.C.P. 1042.4 implicitly modifies Rule 2253.

It is the health system’s position that the 60-day period begins to run upon the later of the service of the complaint or the certificate of merit.

This court finds the health system’s argument persuasive. Rule 1042.4 provides:

“A defendant against whom a professional liability claim is asserted shall file a responsive pleading within the time required by Rule 1026 or within 20 days after service of the certificate of merit on that defendant, whichever is later.” Pa.R.C.R 1042.4.

If Rule 2253 is strictly construed, then defendants in professional responsibility actions would be required to file complaints to join additional defendants before having to file an answer to the complaint. Such a result would create an absurd situation. The absurdity is increased when one considers the action will be non pros if no certificate is filed. Pa.R.C.P. 1042.6.

The Rules of Civil Procedure are to be liberally construed so as “to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable.” Pa.R.C.P. 126. In ascertaining the intent of the Supreme Court of Pennsylvania, it is presumed that the court “does not intend a result that is absurd.” Pa.R.C.P. 128(a).

Given these considerations, this court holds that complaints to join additional defendants in professional liability actions must be filed within 60 days of service of the complaint or service of the certificate of merit, whichever is later.